UK: Rape in marriage
01 May 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 judicial discretion could be introduced to enable a judge to release a particul