The Changing Face of Consent: Can husbands rape their wives?

It seems inconceivable in modern times that a husband would receive legal protection for raping his wife. But until 1991, an old fashioned interpretation of consent was granting go-free cards to married men who sexually assaulted their partners.

Women’s struggle for equality is well documented. Throughout history, almost every right granted to men has been withheld from women, including property ownership, access to fair wages, passport ownership, and the right to vote. The fight to be recognised as autonomous individuals has been fought in and out of the courtroom, resulting in the dismantlement of centuries old systems of sexist oppression, and laws which ultimately work to protect the rights of all.

In the late 80s, a young woman from the UK walked out on her husband. The pair had been married for several years, but a breakdown of the relationship had pushed them further apart, and in October 1989, she and her son moved into her parents home.

One month later, the woman’s former partner broke into her parent’s house and forced himself on her, ignoring her repeated objections. The woman was left traumatised, and reported the attack to police. The man is charged with attempted rape, and with assault occasioning to actual bodily harm.

Now, this sounds like a pretty cut and dry case, right? Guess again. The year is 1989, and incredibly, UK law still accepts the notion that a man cannot rape his wife. This is because of a common law rule called marital rape exemption.

The rule is born from an understanding that marriage is a contract, meaning there is irrevocable sexual consent. Simply put, for women, saying “I do” meant “I do agree to always have sex when you want it”.

The court case

The case was heard by a jury at Leicester Crown Court in July 1990, presided over by Mr. Justice Owen.

Before the case even began, the defence attempted to have the case thrown out. It argued that, under the marital rape exemption, the charge did not exist, as it was impossible for a man to rape his wife. Despite the fact the couple were separated, it argued, the marriage was still technically active, and as such the woman had no right to refuse the man sex.

However Judge Owen rejected this submission, and the case went ahead.

The man pleaded not guilty to rape, but guilty to attempted rape and to the assault charge. He was sentenced to three years in prison for the crimes, but later appealed the decision at the Court of Appeals. The case was heard in February 1991, by a group of influential lords, including  the Lord Chief Justice Lord Lane.

The appeal was dismissed in a decision which ushered in a radical new approach to consent. In his famous speech, he said:

“The idea that a wife by marriage consents in advance to her husband having sexual intercourse with her whatever her state of health or however proper her objections is no longer acceptable. It can never have been other than a fiction, and fiction is a poor basis for the criminal law. …

It seems to us that where the common law rule no longer even remotely represents what is the true position of a wife in present day society.

We take the view that the time has now arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim.”

Not the end

Incredibly, this defeat at the Court of Appeal did not deter the man. He launched a second appeal, this time to the House of Lords. The decision was unanimous. Rape is rape, regardless of any existing relationships.

Lord Keith of Kinkel delivered the leading speech, in which he declared the marital rape exception law “absurd”, adding: “Nowadays it cannot seriously be maintained that by marriage a wife submits herself irrevocably to sexual intercourse in all circumstances.”

The appeal was dismissed, and finally, the man was convicted of rape. Two years later, in 1994, the judgement was enshrined in statute law, by an amendment to the Sexual Offences Act.