Open Justice Court of Protection Project

23 OCTOBER 1991. SHE WAS HIS WIFE. SHE WAS NOT HIS PROPERTY. The day the House of Lords ended the marital rape exemption in English common law. For centuries, English law had tolerated an extraordinary proposition: that a woman, simply by marrying, had given her husband consent to sexual intercourse that she could never withdraw. The idea was famously expressed by the 17th-century jurist Sir Matthew Hale and published in his History of the Pleas of the Crown in 1736. It became known as the marital rape exemption. It rested upon a legal fiction: that marriage itself supplied permanent consent. A woman's refusal could therefore be treated very differently depending upon whether the man assaulting her was her husband. On 23rd October 1991, the House of Lords decisively rejected that doctrine. The case was R v R. A husband had been convicted of attempted rape and assault occasioning actual bodily harm after attacking his estranged wife. He appealed, arguing that a husband could not, in law, be guilty of raping his wife. The legal question before the House of Lords was stark: Could a husband be criminally liable for raping his wife? The Law Lords unanimously answered yes. Lord Keith of Kinkel examined the history of the supposed exemption, including the increasingly narrow exceptions that courts had developed over the preceding decades. The problem was not simply that the law was old. It was that the principle upon which it depended was indefensible. Marriage did not make consent irrevocable. The judges rejected the proposition that a husband possessed a special immunity from the ordinary criminal law of rape. Importantly, Parliament did not pass a new law legalising prosecution on that day. The House of Lords removed a supposed common-law immunity, recognising that it no longer formed part of English law. The ruling was a landmark for England and Wales. Scotland had already rejected the supposed marital exemption in 1989. And it raises an uncomfortable historical question. How many generations of women had lived under a legal system in which marriage was treated as diminishing their right to refuse? A wedding ceremony does not extinguish bodily autonomy. Marriage is not perpetual consent. Thirty-five years ago today, the highest court in the land confirmed a principle that should never have been in doubt. Historical source: R v R [1991] UKHL 12, 23 October 1991.