R v R  1 AC 599
Attempted Rape – No Consent – Husband and Wife - s1(1) Sexual Offences (Amendment) Act 1976 – Marital Rape Exemption – Common Law Fiction
The defendant married his wife (complainant) in August 1984. After the marriage did not work, she moved out in October 1989 and took her son to live with her parents. At the time of the incident in November 1989, they were separated but not legally divorced. The defendant broke in to her parents’ home and attempted to have sexual intercourse with the complainant who did not consent. The defendant was charged with attempted rape under s1(1) of the Sexual Offences (Amendment) Act 1976 and with assault occasioning actual bodily harm under s47 Offences Against the Person Act 1861.
The defendant appealed his conviction on the issues of attempted rape and consent against s1(1) of the Sexual Offences (Amendment) Act 1976. He argued on the grounds of the martial rape exemption that existed under the common law of England and the principle that a husband could not rape his wife, as the contract of marriage gave irrevocable consent.
The court upheld his conviction for attempted rape. There was no martial rape exception under English law and this was a ‘common law fiction’ that existed. The concept of irrevocable consent of a wife to her husband was classed as unacceptable concept in modern times; each is seen as equal partners in a marriage. The relationship between the parties to rape does not matter; rape is rape. The word ‘unlawful’ that is included in the definition of rape under the Sexual Offences (Amendment) Act 1976 was said to include martial rape.