The principle established by Chief Justice Hale in 1736 has finally been laid to rest. The rule can be traced back beyond Hale to St Augustine and possible before him. Sir Matthew Hale in his History of the Pleas of the Crown wrote: "But the husband cannot be guilty of Rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract."
For many years after the publication of Hale's work there appears to have been no substantive challenge until R v Clarke  2 ALL E.R.448.
In R v Clarke  2 ALL E.R.448, the wife had obtained a separation order containing a non-cohabitation order from a magistrates' court. In those circumstances it was decided he could be charged with Rape. Intercourse was revoked by a process of Law, viz the court order.
In R v Miller  2 Q B 282 the wife had petitioned for divorce, after which her husband attacked and raped her, causing actual bodily harm. The court refused to accept that by petitioning for divorce she had revoked her consent. The Judge concluded that Hale's proposition was correct. The Judge distinguished Clarke. Lynskey J could find no case prior to Clarke that overruled the accepted view of Hale. The husband was convicted of Actual Bodily Harm.
In R v O'Brien  3 All E.R. 663 the wife was granted a decree nisi. After this the husband raped her. It was held that the decree nisi terminated the consent. Therefore the husband was quilty of rape.
In R v Steele  Crim L.R. 290 the wife left home to live in a nurses' home because the marriage had failed. In proceedings commenced by the wife the husband undertook not to molest her and not approach or enter the nurses' home. The court held there was no bar to the man being convicted of rape albeit the conviction was quashed on other grounds. It is significant to note that in the case Lane L.J; cited Hale's rationale and upheld the marital exemption without question.
In R v Roberts  Crim L. R. 188 The Court of Appeal held that consent had on the facts been terminated where there was a formal deed of separation, even though this lacked both a non- cohabitation clause and a non-molestation clause. The Court said when dismissing the appeal that the law was conveniently summarised in Steele, the question for the court was had the parties by agreement between themselves, or the court by order or something equivalent to an order made clear that the wife's consent to intercourse no longer existed. The case suggested that a simple agreement between husband and wife revoked the consent to sexual intercourse.
In R v Sharples  Crim L. R. 198 at Manchester Crown Court, the parties were granted a Family Protection Order in 1989. It said " The respondent shall not use or threaten to use violence against the person of the applicant". The parties continued to live together but marital relations had ceased in January 1989. In July 1989 it was alleged that the Husband had raped the wife.
The defence raised the following points, that in all reported cases the Court order or undertaking had contained a non-molestation clause; that R V Roberts was unclear, and that R v Steele had categorised the orders or agreements capable of revoking the wife's consent.
The Judge ruled that Steele was correct and the point at issue should be decided by a higher court. On the Judge's direction the jury returned a not guilty verdict. The court was saying the undertaking was not enough unless it was accompanied by an undertaking not to have sexual intercourse.
This briefly then was the situation which faced Judges of first instance when the case of R came before Mr Justice Owen at Leicester Crown Court on the 30 July 1990.
In R the husband had been charged with rape upon his wife and ABH. The wife had left to live with her parents. There was no formal separation albeit the wife had consulted solicitors. The prosecution alleged that the husband had broken into the parent's home and raped her. The husband denied rape but admitted attempted rape. The defence submitted there was no offence known to law. Mr Justice Owen was prepared to add other exemptions to the recognised list.
1 An implied as opposed to an express separation agreement, and;
2 A unilateral withdrawal from cohabitation "accompanied by a clear indication that consent to sexual intercourse has been terminated"
In R v C  Crim L R 60 5 October 1990 at Sheffield Crown Court Mr Justice Brown was prepared to go even further. He questioned the Authorities and adopted what he called the radical view of the law already existing in Scotland, there was no marital exemption to the law of rape.
On 15 March 1991,(1991) 93 Cr.App.R.1, R v R reached the Court of Appeal. A five Judge Court found that a husband could be convicted of raping his wife, but certified a point of General Public Importance, namely, "Is a husband criminally liable for raping his wife?" The Judges in a reserved judgment dismissed the husband's appeal.
The Court examined all the Authorities and s.1 Sexual Offences (Amendment) Act 1976 which uses the word "Unlawful". This perhaps had been the biggest stumbling block to progress since it implied sexual intercourse within marriage could never be unlawful.
Their Lordships were not inhibited by the 1976 Act and declared that the husbands' immunity as expounded by Hale no longer existed. They were not prepared to step aside and wait for Parliament: nor did they consider they had created a new offence, but rather they had removed a common-law fiction which has become anachronistic and offensive.
Finally in Regina v R The Times 24 October 1991 the Law Lords unanimously dismissed the husbands appeal. Like the Court of Appeal they thought the Common Law was capable of evolving in the light of changing social, economic, and cultural developments. The main question was whether s.1 of the 1976 Act presented an insuperable obstacle to that sensible course. Did "Unlawful" mean outside the bond of marriage? They concluded the word unlawful was surplusage.
A good decision or a challenge to Parliament? The Times quote Lord Denning as saying ,"The law was ripe for change, but it was not for the Law Lords to do it". Can Judges make law, indeed have they made law?
Law Commission Working Paper," 116 Rape Within Marriage", recommended that rape within marriage be a criminal offence. Its final report taking account of the Lords' ruling is expected in the new year.
In 1984 the Criminal Law Committee were split on the issue and voted against changing the law, pointing out that a husband could be prosecuted for indecent assault or violence under the existing law. The case of R v Kowalski The Times 9 October 1987 is an example of this. The wife in the past had consented to fellatio, however the husband was guilty of indecent assault in forcing her after she had shown she found it abhorrent.
The question on the minds of many is: will the Police charge? What policies will be adopted? Difficulties will obviously arise if the parties are still living together. It was reported in The Police Review 22 February 1991 that the Metropolitan Police are to review their policy on dealing with rape allegations following figures that show four in ten rape allegations reported to the Force last year were not recorded as crimes. The article said 980 rapes were recorded last year, with a further 600 allegations 'no crimed'
The legal protection for wives is bound up with the question of compulsion to testify. Albeit s 80 of the Police and Criminal Evidence Act makes a wife compellable on a charge of assault, injury or threat to injury, (accepting rape as an assault), it would be very unwise to start a prosecution when the principal witness in unwilling to testify, which as every police officer knows is not unusual.
Because of the alarming rise in the number of rape cases and the sentences actually given by Judges, the Court of Appeal laid down guidelines in R v Roberts  1 ALL E R 609 and later in R v Billam  1 ALL E R 985.
The guidelines called for a custodial sentence with a starting point of five years for an adult male pleading not guilty and with no mitigating factors.
Views were expressed that marriage to a woman might be regarded as something approaching a mitigating factor. The fact is in some cases quite severe sentences have been given, see The Times 13 March 1990, 7½ years for a man who beat and raped his ex wife.
In Attorney General's Reference (7) of 1989, The Times 16 January 1990 the Court of Appeal increased a sentence from 2 to 4½ years saying the mere fact that parties had lived together and had been having sexual intercourse regularly over a period of two years did not licence the man, once co-habitation was over, to have sexual intercourse willy-nilly. However they did say it was a factor to which some weight could be given by the sentencing Court. Will the present guidelines prove adequate?