Development of Common Law on Rape

2627 words (11 pages) Essay in Common Law

02/02/18 Common Law Reference this

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An Investigation Into Whether The Development Of The Common Law On Rape Within Marriage Reflects A Satisfactory Approach By The Law On Path Dependency


The aim of this assignment is to examine whether the law on marital rape is satisfactory in relation to changing social attitudes and whether a path has been set for the law in this area to develop. One could say that the law today has originated from a designated path where the judges created the common law through case decisions that set precedents which have to be applied to cases of a similar nature. It is however seen as difficult to derogate from previous decisions that seem appropriate in the circumstances.

Deductive reasoning could take the form where the characteristics and results of one case could be assumed to mirror those in another case. This may originate from a dilution of the law such as statute and case law which is used to create assumptions based on similar facts of another case. The law itself may be extremely doubted by uncertainties and what judges rely on in cases may be challenged as to their validity. One may have an assumption of facts that are applicable to situations which may be accurate but the prediction could be flawed with uncertainty.

One could reason by analogy using the facts in one case to predict the outcome of another. The doctrine of precedent could apply because these are established judicial rules that judges feel bound by but the creating of assumptions in cases can be wrongly accepted. Facts may differ in each case but the principles remain of the same significance. Criminal liability can be restricted to persons of disability and young age even in precedent set caselaw.

Analogical Reasoning

To begin with analogical reasoning is where one takes the facts of one case set a precedent and apply such rules to subsequent cases with similar facts. In Sherwins article he suggests that the position of the judge is to seek past decisions of previous cases analyses them on their differences and similarities and encaptures both in a feasible principle. This becomes a guide in law that other such cases should be dealt with but could open the floodgates so to speak. The article refers to a dispute that the judge has to remedy, an evaluation of authority, and the relevant features of the case.

These cases rely on past authority evidence available on the grounding of legal rules. This process allows cases to be compared against each other in the circumstances, and the judiciary can forward their own opinions on a case where the doctrine of precedent could apply but is dismissed which allows the law to develop. Same facts in cases must exist but dissimilarities which happen can create a critique if the judge was very strict. In the article by Sunstein he considers a ban on free speech in the Bradenburg v Ohio case, where the court held were some communities ready to ban free speech with a reasonable purpose. One could compare the Nazis march with the KKK speeches on racism. The main symbolic factor is the Nazis were associated with the war and holocaust. It is unfair for America to ban disallowances on political speeches except those who forged a link with the holocaust.

If one were to evaluate analogical reasoning one could say that it does not require judges to create opinions of a case to be compared with another so the law can grow here. The judge should take societal changes into account when deciding a case. The stare decisis principle is judges feeling bound to follow such previous decisions and as a result the law can become more converqent being constant. The judge should try and let go of decisions that are outdated now.

Judges are seeking to follow precedent as closely as possible but critisms of such reasoning include the law remains stagnant and fail to account for societies actions. The actual analogy reasoning employed here is based upon the validity of it being used. A judge coming to a judgement may see the ratio of the case through deduction but this can cause uncertainty as the judge is there to determine what the law is.

In the article by Postema he suggests that judges must abide by set rules but the common law rules follow dictations and the scholar Bentham used judge law as ridiculing English law. Where judges conceive the law they do not live in the real world but in their own and their judgements reflect a 17th century approach.

Path Dependency

Path dependant theory suggests that the law as it is today must have come from a source and that the path has been followed down for centuries and critical junctures have arise along the way to change this path but have been dismissed or accepted. There is the saying history matters because authority from the past seems very influential on our modern culture.

A good example is the QWERTY keyboard that has been used for over a century and designed to slow typists down and people have become so used to this that change would cost billions in resupplying new keyboards all over the world. Events that took place way back in time still heavily influence today’s values eg. The Olympics from Greece or foxhunting from the middle ages and so on.

According to Pierson’s article increasing returns are important in economics as to stay on a path and befit is better than to choose a new more expensive path. One could say according to Levi when a country has adopted a policy to change a rules it can very time consuming and expensive. One could sya that the UK tax system has been going since WW2 but to end it would be a detriment to society as a whole. There are chances to change the path and replace it with a more evolutionary pathway.

But through change benefits may be lost associated with continuity such as fixed costs, d effects, learning trends etc. But in law to depart from the path set is derogatory. The road not travelled but for societies benefit. In the article by Mahoney suggests that events like this are in sequence by self reinforcing mechanisms. He argues this should be conceptualised where obviously past events will influence future outcomes. The judgements of the past are influential but not always to date sources. Sometimes a proposal is put forward the reaction by people is not always of change though.

The path dependency seems more about stability so change could challenge this assumption about certain facts in a case. The path can be deviated from sometimes but will have to kept in line with however. It is better to keep an old system running cheaply rather than drag up large costs behind one. The cost/award analysis can be become of use here where costs of change could be lower than maintenance.

The outcome of the case is influence by the path of similar cases that have gone before. The result will be lock in so change becoming a resistant factor to consider So in law it is cheaper to go down a particular route that to change. The first decision locked in as used for so long even if another theory proves superior. A Darwin notion exists, gradual and progressive evolution where system compromised by balanced interests. The precedent in the common law suggests that path depedence here is based on increasing returns. Litigants are selecting cases so they could win their own case through established principles.

Small changes in the law can have badness affect progress in society. So cases of the past become cautious authority. Economists would see competition a s a viable option and something people would be accustomed to. There are arguments that there is an inbuilt tendency towards changes and the punctuated equilibrium of rapid change. So if of authority in the lower courts is being appealed by higher courts the judges got it wrong.

This has similarities to critical junctures theory in path dependency. In relation to the law on rape one could say that in the past the general path was that no man in law could be guilty of raping his wife as sexual intercourse is part of the contract of marriage.

As Hale LJ said a man is not guilty as the woman gave herself up to be enjoyed as part of martial contract. The process as will be seen in various cases was extremely stagnant.

Rape Within Marriage Caselaw

In R v Clarence, allegations of assault s20 of OAPA 1861 WHERE Will LJ said that if sex was an assault for a man it is rape bur in marriage is non-existent and there is no authority to prove otherwise. The man innocent of rape as women gives implied consent through marriage. One could say the pathway originated from this very point to be allowed to develop.

In R v Clarkew, a man was charged with raping his wife where a separation was ordered but still married. This was because the husband was cruel to his wife. The clause stated that she could live away. When raped she was living elsewhere. The defence counsel in court stated that no conviction no offence. Bryn J confirmed a man cannot rape his wife as sex in marriage contract. This being revoked by the order so husband had little defence. The pathway was more developed but the past case was relied upon like Hales proposition.

In case of R v Miller the court held that wife left husband after petition for divorce. The hearing adjourned husband failed to attend. After this the husband attacked wife. The court held that the consent to sex was still validated but no aggression allowed or guilty of an offence.

In case R v Obrien, court held wife obtained an court order to get divorce. She was attacked where consent being absent. The dicta was this removes implied consent

In case of R v Steele the court held that man guilty of rape and assault. Appealed against conviction. The wife petitioned for divorce and applied to court to ban husband. The man gave court promise not to attack her talk to her. He did however, and attacked consent absent, Lane LJ stated that a man cannot be guilty back to Hale. The court had to assess whether agreement between parties to restrict consent was clear. The court stated that a non cohabitation clause inserted suggests that a decree of divorce or preventing husband from ing the wife consent of wife is restricted. But petition not enough on own. Order inconsitant with wife own consent. Injunction did not exist.

In case of R V R 1991 1 all er 747 court held that rape unlawful in marriage but this will be examined in the following assessment. Mr justice Owen conceded had a wife in marriage consents to sex activities. He said an agreement between parties is enough to defeat matrimonial consent. The wife pull out of the consent of sex agreement unilaterally by leaving proposition tolerant. Husband beating wife up to get sex is immoral in this view though. Sex and unilateral withdrawal this could lose the husband his defence. In R v C 1991 2 wlr 1065 court held there to assess the circumstances where husband was living way from wife and no separation agreement. He said no martial exemption he is convicted.

In R v R 1991 3 wlr 767 the court held that whether the principle was in legal history as part oi common law and if principle respresented in law an accurate form of matters in court.

The court considered hales proposition and noted that based proposition on that the wife have given body to husband she gave consent. . He refers to historical background. The literal solution would suggest the compromise ideas where the rape defence drop on proposition.

On appeal in the case of Steele that an injunction is designed to stop husbands from attacking their wives. The radical solution hales propostion is based on an fiction in the sense and incoinsittant with wife and husband in a modern soceity. It is repugnant abed unfair to allow to ale husband too attack wife fir sex but not fir roe as being aggravated/. The court if appeal stated that the common law rules are irrelevant in what mirrors society as it is in ties current format. And coot must alter any act of paeilimant if soiciurt require 1976 act outdated now. They court did not create a new if fence but removed an embarrassing band offensive piece if common law. In r v r 1991lord Keith stated that a living system kick law will always have to adapt to changing circumstances to test justification foe any exception of application of the general rile. It cannot bra maintained that marriage that a 3wife submits herswselg indenfinstlety to marriage to sex in every since. Ire cannot be said ion today society whoever was the pastry view in things that that an incident wife should consents to sex in all instances, including roe induced by force. There is no doubt the wife dies not consent but should not autcomitcaklkt be assumed to have consented to such treatment.

In case if SW v UK 1996 the appellant found guilty of rape and another who committed an attempted ragper. The echo stated as a matter common law a husband in the past was ounce defined against rape on his own wife and referred to hale proposition. It easy included because of belief to sexes intercourse wad a felt it be compulsory part if marriage. The echo stated importance I=of webflish common law immunity and seen this decrease in judge cortbdecisioins. This was making immunity subjects to exceptions and made it disappear alkytogeyrer. M


The aim of this assignment was to examine whether the law on marital rape is satisfactory in relation to changing social attitudes and whether a path has been set for the law in this area to develop. One could clearly point out that over the years it seems the judges have always had prejudices against women and it has shown where the case law demonstrates that the courts have always used an excuse to in rape cases to protect the husband’s immunity and safeguarding Hales proposition.

This shows that even where facts appear different in each case the similarities still exist and where opportunities arise for the path to be changed slightly these are ignored and the same path is travelled until a set of a facts come before the courts that put their ignorance to shame. Once could say that the courts have taken a long time to reach the point they did in R v R as they recognised the path they followed was flawed with past irregularities and set a new precedent to be followed.

The analogical reasoning method suggests that although efficient as it is to assume facts in other cases it is not applicable in every instance. It does remain to be seen whether judges in the future will always follow outdated precedents and whether the law will be set on a new path to develop that seeks fairness and justice in our society while maintaining the legal principles.

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