R v R [1992] 1 AC 599

This document discusses the legal issues, analysis, and implications of the R v R [1992] 1 AC 599 case. It explores the interpretation of the term 'unlawful' in the Sexual Offences (Amendment) Act 1976 and the significance of marital rape exemption. The document includes an analysis by the Court of Appeals and Lord Keith of Kinkel in the House of Lords, along with relevant cases and a bibliography.

R V R [1992] 1 AC 599

TABLE OF CONTENTS
Legal issues identified in the case..............................................................................................3
Analysis by both the Court of Appeals and Lord keith of kinkel in the house of lord..............3
Ratio decidendi of the House of Lords......................................................................................5
Significance of the term ‘unlawful’ in s.1(1) of the Sexual Offences (Amendment) Act 1976.5
Bibliography...............................................................................................................................8

LEGAL ISSUES IDENTIFIED IN THE CASE
The case of R v R is related with the norms of law, in which interpretation of wordings of law
may lead to unjust decision in the changing scenario. In this case, husband (accused party)
was convicted for sexual assault with his wife, by which she suffered from severe injuries1.
Due of this incident, the wife started living with her parent and left to her husband by taking
advise from legal practitioner. However there was no legal separation takes place between the
wife and husband. Moreover the institution related with the crime charged contented that the
husband is also responsible for the damage of the residential house of wife’s parents along
with marital rape charges.
The accused argued that there is no such crime committed by him by giving justification of
exemption of martial rape according to the common law2. Further the husband R, argued that
it was not probable for a husband to rape of wife as after the marriage it was the right of the
husband to enter into the sexual relationship with his wife and it cannot be withdraw by the
wife subsequently3. Moreover traditionally marriages is regarded as an foundation, by which
the husband is entitled to get the control over his wife and with this regards control by
entering into the sexual relationship is only a part of a more control. In layman language, he
firmly believed that after the marriage the wife gave the irrevocable consent to her husband
for sexual intercourse.
As per the principle of the English law, it has been stated that, it cannot be expected that the
husband could rape his wife4. With this regards, R v R is the first case in which the appeal
made to the House of Lords related with the issues of martial rape exemption.
ANALYSIS BY BOTH THE COURT OF APPEALS AND LORD
KEITH OF KINKEL IN THE HOUSE OF LORD
For addressing the issues stated in the R v R case, the court has taken into account the various
previous judgements given by the other court of appeal as well as house of lord. The cases are
similar with the issues contained in the R v R case; therefore it is essential to consider the
1R v R [1991] UKHL 12
2 Jonathan Herring. Criminal law: text, cases, and materials. (Oxford University Press, USA, 2014).
3UKHL 12
4 Mia L. Cahill, The social construction of sexual harassment law: the role of the national, organizational and
individual context. (Routledge, 2018).

results of the previous cases.
In the opinion of the Sir Matthew Hale, marriages require permanent consent and after this
several judges, have retained the legal opinion; that with the sexual relationship is implied.
However it is not supported by any legal rule, but trusted by the judges as a reasonable result
of the law of marriages.
The opinion of the Hale is not challenged for several years, but in the case of R v Clarke in
1949, the husband was convicted for the charge of marital rape. In this case, the court held
that the marital rape exemption given under the English law cannot apply here because in this
case, because wife had already taken the non-cohabitation permission from the court5. In
other words, the wife has already withdrawn her consent for living together with husband.
The conclusion was given by Lord Keith of Kinkel, who held that the expression being
executed in the subordinate court with respect to avoid the martial rights exemption as per the
common law rule, was not regarded as the reliable and true rule of the English law. The court
also stated that in the present law of rape the fiction of implied consent has no significant
meaning. In the English law, marital rape exemption did not be real therefore the husband
found guilty of the rape of his wife.
On the other hand, in the case of R v Miller (1954), the court held that the appellant could not
be found guilty of rape as after the marriage there is implied consent given by the wife for
sexual intercourse and it can be rescinded only by the order of the court or by the compulsory
separation agreement6.
In the case of R v Steele (1976), the court held that if the husband and wife are not living
together and husband obtained the permission from the court for not accused of his wife then
it revoked the implied consent of the wife for sexual intercourse7.
By considering all the above judgement, in the case of R v R, the court held that, in the recent
time the concept of the implied consent by the wife is not acceptable. The relationship
between the people does not matter for considering the impact of rape8. Further the court
contended that the rape is rape, whether it is done by husband or any other person. Therefore
5R v Clarke [1949] 2 ALL E.R.448
6R v Miller [1982] UKHL 6
7R. v. Steele ([1976] 65 Criminal Appeal Reports 22)
8 Kersti Yllö and M. Torres, Gabriela eds. Marital rape: Consent, marriage, and social change in global context. (Oxford University Press, 2016).

in the given case, the husband was convicted for the rape of his wife.
RATIO DECIDENDI OF THE HOUSE OF LORDS
The ratio decidend is refers as the legal, moral, social, and political standard on which the
judgement of lord court is based. In the present case of R v R (1992), the Lord Keith of
Kinkel had given the opinion that the fiction of implied consent is no longer acceptable in the
current scenario. The R v R case is the result of where the wordings of the law is clear and
unambiguous, however if the wordings apply then the result was not good. In the opinion of
the Hale, marriages are considered as the implied consent given by the wife for the sexual
relationship and cannot be revoked subsequently. However this opinion leads that the right of
the woman was underpowered by her husband. The wife has no legal right for standing her
own as well as she was regarded as the property of her husband.
In the opinion of the Ronald Dworkin, at the time of interpretation of the law and rule, the
court must consider the circumstances in which the issue arose. The best interpretation
includes the right answer of the issue, and the judge must discover the right answer as a
matter related with law9.
In the case of R v R, there was difficulty for judges in concluding the case in terms of the
fairness of the powers within the marriages inclusive of facts related to the rights of wife over
her body and martial rights of the husband. The house of Lord stated that marital rape
exemption is founded on no reality and therefore after sometime it was eliminated, which
restore the parity to the marriage life of the husband and wife.
IMPLICATION OF THE TERM ‘UNLAWFUL’ IN S.1 (1) OF
THE SEXUAL OFFENCES (AMENDMENT) ACT 1976
With accordance to section 1 (1) of Sexual Offense Act 1956 which is concerned with rape, a
man perpetrates rape if:
a) He attempts unlawful sexual association with female who did not provided her
consent during the intercourse.
9 Melanie Randall and Venkatesh Vasanthi. "The Right to No: The Crime of Marital Rape, Women's Human Rights, and International Law." (Brook. J. Int'l L. 41 ,2015) Pp153.

b) In case he attempts for reckless behaviour even if no acceptance has been received
regarding acceptance or she agrees for same.
Thus, unlawful can be interpreted as an act which has been conducted without consent of
another person.
Three Solutions Proposed by Lord Jane CJ
The three solutions recognized by Lord Lane CJ of Appeal regarding interpretation of term
unlawful are:
Literal Solution: The sexual offense act 1976 through stating rape as it did and entails the
term unlawful through it apparent that husband’s resistance is preserves. Further no additional
sense for the specific word excluding remote the bounds of marriage.
Compromise Solution: In this solution it has been specified that the term unlawful is to be
created in a manner to leave intact exemptions to husband’s immunity in the manner which
has been provided in Hale’s proposal from the judgment in Rex v. Clarke [1949] 2 All E.R.
448 onwards. Further it also provides to follow further exemptions as the occasion might take
place.
Radical Solution: Hale’s proposition is dependent on fiction which is not sustainable with
present time husband and wife10. Further, for the reasons articulated through Lord Emslie S.v.
H.M Advocate, 1989 S.L.T. 469, it is repulsive and unreasonable in that it allows a spouse
(male) to be chastise for behaving with his spouse in brutality manner at the time of
intercourse but not for rape itself . Thus, the act is believed as exasperated and cruel form of
violence. Thus, the decision is based on similar approach in the case of Lord Halsbury L.C.
Approach selected by House Lords
In 1991 the R v R house decision was conveyed. It was embraced by law lords in House of
Lords that according to criminal law, the husband is allowed to commit rape of his spouse.
The same was appeal till it arrive the Lords of House. Furthermore, Court of Appeal as well
as House of Lords endorsed the conviction. Under October 1991, the decision was delivered
in which it was stated that fiction of implicit consent has no valuable reason to exercise in
10 Sreetharan Vallithan,. "RVR [1991]: A Contextual Appreciation of the Law on Marital Rape from Jurisprudential Perspectives." (2017).

present times under law of rape. Hence, court embraced marital rape exception does not
subsists in English, therefore the he was found guilty for the rape of his spouse11.
Along with this, the basis on which decision is passed by the court is radical solution
approach. Under this approach it is stated it does not lead to formation of a new crime, it is
exclusion of common law fiction and same has developed obsolete and disagreeable12.
Moreover, it is believed that it is the responsibility of court to reach on a conclusion so that
action can be taken upon it13. Lord Keith consents with statement passed by Court of Appeal
that marital rape exception was based on a fiction which cannot be accepted in present time.
In other words it can be stated that hypothetical marital exemption in rape is no more part of
statute of England. In addition to this, House of Lords also have taken into consideration the
term unlawful in definition of unlawful rape in accordance with specified section of Offences
Act 1976 comprising wedded rape. Thus, courts concluded that, unlawful were surplus age
and with accordance to act each rape is illegitimate
11 Terry Thomas,. Sex crime: Sex offending and society. (Routledge, 2015).
12 Anne Davies and Pegg Samantha. Sexual offences: law and context. (Routledge, 2016).
13Patricia Searles,. Rape and society: Readings on the problem of sexual assault. (Routledge, 2018).

BIBLIOGRAPHY
Cahill, M. L. The social construction of sexual harassment law: the role of the national,
organizational and individual context. (Routledge, 2018).
Davies, A., and Samantha P., Sexual offences: law and context. (Routledge, 2016).
Herring, J., Criminal law: text, cases, and materials. (Oxford University Press, USA, 2014).
R v Clarke [1949] 2 ALL E.R.448
R v Miller [1982] UKHL 6
R v R [1991] UKHL 12
R. v. Steele ([1976] 65 Criminal Appeal Reports 22)
Randall, M., and Vasanthi V., "The Right to No: The Crime of Marital Rape, Women's Human
Rights, and International Law." (Brook. J. Int'l L. 41, 2015)Pp 153.
Searles, P.,. Rape and society: Readings on the problem of sexual assault. (Routledge, 2018).
Thomas, T., Sex crime: Sex offending and society. (Routledge, 2015).
Vallithan, S., "RVR [1991]: A Contextual Appreciation of the Law on Marital Rape from
Jurisprudential Perspectives." (2017).
Yllö, K., and M. Gabriela T., eds. Marital rape: Consent, marriage, and social change in
global context. Oxford University Press, 2016.