R v R
The courts abolished the marital rape exemption, showing how judges can develop the common law to reflect changing social conditions.
Facts
Mr R and his wife separated, and she went to live with her parents. He forced his way into her parents' house and forced her to have sexual intercourse with him against her will. He was charged with rape. He argued that, under a common law rule dating back to Sir Matthew Hale's statement in 1736, a husband could not be guilty of raping his wife, because by marrying she had given irrevocable consent to sexual intercourse. The Sexual Offences (Amendment) Act 1976 defined rape as unlawful sexual intercourse, which he said preserved the exemption.
Legal principle
The House of Lords upheld his conviction, holding that the marital rape exemption no longer formed part of the law of England. Lord Keith said that the common law is capable of evolving in the light of changing social, economic and cultural developments, and that Hale's proposition reflected the status of women in marriage in his time, which had changed out of all recognition. The word unlawful in the 1976 Act was surplusage and did not preserve the exemption. The European Court of Human Rights held in SW and CR v United Kingdom (1995) that the decision did not breach the rule against retrospective criminal law in article 7. The case is often discussed as an example of judicial law making.
Related cases on judicial precedent
- Attorney General for Jersey v Holley [2005] UKPC 23, [2005] 2 AC 580
- Austin v Southwark London Borough Council [2010] UKSC 28, [2011] 1 AC 355
- British Railways Board v Herrington [1972] AC 877
- Broome v Cassell & Co Ltd [1972] AC 1027
- Conway v Rimmer [1968] AC 910
- Davis v Johnson [1979] AC 264
- Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349
- Knauer v Ministry of Justice [2016] UKSC 9, [2016] AC 908
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