Rape in marriage
01 January 1991
Rape in marriage
artdoc June=1992
On 23rd October 1991, the House of Lords made it clear `that in
modern times the supposed marital immunity in rape forms no part
of the law of England'(R v R [1991] 3 WLR 767). Up until then
women were, within the confines of the marital bedroom, still
treated as chattels in the eyes of the law. The reference in the
Sexual Offences Acts of 1956 and 1976 to unlawful sexual
intercourse with a women were interpreted as meaning sex outside
marriage. Married women were therefore denied protection of the
criminal courts, if the man who raped then was their husband, and
had to seek assistance through matrimonial law. This slow process
often required proof of physical violence and tended to
individualise the problem.
In response to widespread criticism of this anomaly, the Law
Commission published a working paper in October 1990 and was in
the midst of consultation when the House of Lords delivered its
decision. As the House of Lords decision accorded with the views
of the majority of those consulted by the Commission, the report
on `Rape Within Marriage' finally presented to parliament on 13th
January 1992, should carry a great deal of weight.
The report presents the views of some 80 different groups and
individuals - womens groups, legal practitioners, academics, the
Criminal and Family Bar Association, the Law Society, the Bar
Council, the Crown Prosecution Service and the three major police
organisations. 68 respondents supported the abolition of a
husband's immunity and only 10 opposed it.
Abolition of immunity
The Report comes out strongly in favour of abolition and takes
the opportunity to counter the three main arguments in favour of
its retention. It points out that far from rape within marriage
being a lesser form of the crime, it may in reality be more
serious, breaking a relationship of trust and effecting other
family numbers and in particular children.
It also scotches the misconception that if a woman continues
to co-habit with her husband after the rape, its effect must have
been relatively minor. It points out that a woman's economic and
social dependence often make it extremely difficult to leave the
matrimonial home immediately. Concern about the effect on the
children, fear of reprisals, lack of money, immigration status
as a dependent, the prospect of homelessness or family
disapproval, all impact on her apparent freedom of movement and
choice.
Finally, it locates rape within the criminal legal system as
behaviour not condoned by society, instead of relegating it to
the context of events effecting her own particular marriage.
The effect of abolition
The House of Lords decision established the principle, but the
Report recognises that statutory changes will be necessary both
to entrench this gain and to give it the maximum potential
effect. They suggest that reference to `unlawful' sexual
intercourse be deleted in the Sexual Offences Acts and that the
abolition of the immunity be extended to Section 2 of the 1956
Act (procuring of a woman to have unlawful sexual intercourse by
threats or intimidation) and Section 3 of that Act (procuring a
woman by false pretences or false representations).
They also suggest that it will be necessary to amend Section
80 of the Police and Criminal Evidence Act 1984, so that a wife
will be compellable as a witness where the offence charged is a
sexual offence against the wife of the accused. They believe this
to be necessary protection for the wife against a husband who may
resort to duress to stop her giving evidence. This does, however,
tend to render the woman powerless to make her own informed
decision about pursuing criminal proceedings and did cause
concern amongst many groups working on a day-to-day basis with
rape victims.
In response, the Commission has tentatively suggested that in
the context of a future and wider review of the rules of
compellability a