.ltAppeal court rules a man can be guilty of marital rape
The Times, 15 March 1991
THE centuries-old English legal principle that a man cannot be guilty of raping his wife was swept aside as offensive and anachronistic in a landmark judgment by the Court of Appeal yesterday.
A special five-judge court headed by Lord Lane, Lord Chief Justice, dismissed an appeal by a man aged 37 jailed for three years for attempted rape of his estranged wife.
Lord Lane said: "We take the view that the time has now arrived when the law should declare that a rapist remains a rapist and is subject to the criminal law, irrespective of his relationship with his victim." He said that the idea that a wife, because she had married, consented in advance to her husband having sexual intercourse whatever her state of health or proper objections was a fiction.
"This is not the creation of a new offence," Lord Lane said. "It is the removal of a common-law fiction which has become anachronistic and offensive." Where the common-law rule no longer "even remotely represents what is the true position of a wife in present day society, the duty of the court is to take steps to alter the rule if it can legitimately do so."
The man who brought the appeal was jailed for three years last July at Leicester crown court for attempted rape of his wife and assault after the couple had separated. The husband, who cannot be identified, forced his way into his wife's parents' home and committed the offences. The couple, who married in 1984 and who have a son, had separated 22 days earlier, the wife going back to live with her parents. Both of them had indicated they were seeking legal advice on divorce at the time and had now divorced, Lord Lane said yesterday.
The husband appealed on the ground that the trial judge, Mr Justice Owen, was wrong to rule that a husband could be guilty of raping his wife. The principle was laid down in 1736 by Chief Justice Hale. It was not examined until a case in 1949 and since then, Lord Lane said, "courts have been paying lip service" to the principle while at the same time increasing the number of exceptions to it.
Last night, MPs hailed the ruling. Jack Ashley, Labour MP for Stoke South, said if there was a successful appeal to the Lords he would introduce a bill to make rape in marriage a crime. "This ruling will bring about a dramatic transformation in the attitude of bullies who use the marriage certificate as a weapon." Jo Richardson, shadow minister for women, said: "This should be a signal to husbands that they must not rape their wives. But it needs the backing of the law." Ted Leadbitter, Labour MP for Hartlepool, however, said that the ruling could be "very bad news" for a man whose wife falsely accused him of rape.
Kenneth Hind, Conservative MP for Lancashire West, said: "It now seems sensible that the law reflects the reality of divorce law in this country and protects women."
