When a woman says, “I do” this in past times has meant that she gives up her ability to say, “I don’t want to”. This was the rule in common law for many centuries, taking the approach that by entering into a marriage, a woman contractually has forfeited her ability to deny her husband of sexual intercourse. The rule was reflected in the opinion of Hale CJ1: “by their matrimonial consent and contract the wife hath given up herself in this kind and to her husband which she cannot retract”.
Case law had also adopted this approach, for example in R v Clarence2 when a man was found innocent of brutally raping his wife, on the ground of implied consent by way of marriage. R v Clark 3 took this direction when Bryne J compared sex in marriage as ‘contractual’.
These attitudes are without a doubt out-dated and oppressive towards women, ignoring fundamental human rights and the issue of consent.
In October 1990 the Law Commission4 published a working paper in which it reviewed the rule of the common law and the issue of martial immunity, which was causing great tension at the time. The outcome was that the balance of precedence was tipped in favour of justice.
Most importantly perhaps is the long awaited case of R v R5, in which the House of Lords overturned the common law rule and upheld the husband’s conviction for rape. In brief the case focuses on marital rape however the couple had separated at the time and there was no formal legal separation agreement and neither party had petitioned for divorce proceedings. This was echoed in a speech by Lord Lane CJ when he declared that: “the time has now arrived that the law should declare that a rapist remains a rapist subject to the criminal law irregardless of their relationship to the victim”.
In modern times marriage is seen as an equal partnership and this is reflected in terms of matrimonial remedies available as Lord Keith6 stated a wife is not a “subservient chattel of the husband”.
This case is of great importance as it pinpoints a social and cultural development in terms of how the law treats women in the context of marriage. Prior to the House of Lords decision in R v R the account of Hale was relied upon in defence to such an act.