Extract
“The applicant maintained that the general common law principle that a husband could not be
found guilty of rape upon his wife, albeit subject to certain limitations, was still effective on 18
September 1990, when he committed the acts which gave rise to the rape charge. A succession
of court decisions before and also after that date for instance on 20 November 1990 in R. v. J
had affirmed the general principle of immunity. It was clearly beyond doubt that as at 18
September 1990 no change in the law had been effected, although one was being mooted....
On 17 September 1990 the Law Commission provisionally recommended that the immunity
rule be abolished. However, the debate was pre-empted by the Court of Appeal's and the
House of Lords' rulings in the case of R. v. R. In the applicant's submission, these rulings
altered the law retrospectively, which would not have been the case had the Law Commission's
proposal been implemented by Parliament.
The Government and the Commission were of the view that by September 1990 there was
significant doubt as to the validity of the alleged marital immunity for rape. This was an area
where the law had been subject to progressive development and there were strong indications
that still wider interpretation by the courts of the inroads on the immunity was probable. In
particular, given the recognition of women's equality of status with men in marriage and
outside it and of their autonomy over their own bodies, the adaptation of the ingredients of the
offence of rape was reasonably foreseeable, with appropriate legal advice, to the applicant. He
was not convicted of conduct which did not constitute a criminal offence at the time when it
was committed.
In addition, the Government pointed out, on the basis of the agreed facts Owen J. had found
that there was an implied agreement between the applicant [CR] and his wife to separation and
to withdrawal of the consent to intercourse. The circumstances in his case were thus covered by
the exceptions to the immunity already stated by the English courts.
The Court notes that the applicant's conviction for rape was based on the statutory offence of
rape in section 1 of the 1956 Act, as further defined in section 1(1) of the 1976 Act. The
applicant does not dispute that the conduct for which he was convicted would have constituted
rape within the meaning of the statutory definition of rape as applicable at the time, had the
victim not been his wife. His complaint under Article 7 of the Convention relates solely to the
fact that in deciding on 18 April 1991 that the applicant had a case to answer on the rape
charge, Rose J. followed the Court of Appeal's ruling of 14 March 1991 in the case of R. v. R
which declared that the immunity no longer existed.
It is to be observed that a crucial issue in the judgment of the Court of Appeal in R. v. R
related to the definition of rape in section 1(1)(a) of the 1976 Act: 'unlawful sexual intercourse
with a woman who at the time of the intercourse does not consent to it'. The question was
whether 'removal' of the marital immunity would conflict with the statutory definition of rape,
in particular whether it would be prevented by the word 'unlawful'. The Court of Appeal
carefully examined various strands of interpretation of the provision in the case law, including
the argument that the term 'unlawful' excluded intercourse within marriage from the definition
of rape. In this connection, the Court recalls that it is in the first place for the national
authorities, notably the courts, to interpret and apply national law. It sees no reason to disagree
with the Court of Appeal's conclusion, which was subsequently upheld by the House of Lords,
that the word "unlawful" in the definition of rape was merely surplusage and did not inhibit
them from 'removing a common law fiction which had become anachronistic and offensive' and
from declaring that 'a rapist remains a rapist subject to the criminal law, irrespective of his
relationship with his victim'.
The decisions of the Court of Appeal and then the House of Lords did no more than continue a
perceptible line of case law development dismantling the immunity of a husband from
prosecution for rape upon his wife. There was no doubt under the law as it stood on 18
September 1990 that a husband who forcibly had sexual intercourse with his wife could, in
various circumstances, be found guilty of rape. Moreover, there was an evident evolution,
which was consistent with the very essence of the offence, of the criminal law through judicial
interpretation towards treating such conduct generally as within the scope of the offence of
rape. This evolution had reached a stage where judicial recognition of the absence of immunity
had become a reasonably foreseeable development of the law.
The essentially debasing character of rape is so manifest that the result of the decisions of the
Court of Appeal and the House of Lords – that the applicant could be convicted of attempted
rape, irrespective of his relationship with the victim – cannot be said to be at variance with the
object and purpose of Article 7 of the Convention, namely to ensure that no-one should be
subjected to arbitrary prosecution, conviction or punishment. What is more, the abandonment
of the unacceptable idea of a husband being immune against prosecution for rape of his wife was
in conformity not only with a civilised concept of marriage but also, and above all, with the
fundamental objectives of the Convention, the very essence of which is respect for human
dignity and human freedom.
Having reached this conclusion, the Court does not find it necessary to enquire into whether
the facts in the applicant's case were covered by the exceptions to the immunity rule already
made by the English courts before 18 September 1990. In short, the Court, like the
Government and the Commission, finds that the Crown Court's decision that the applicant
could not invoke immunity to escape conviction and sentence for rape upon his wife did not
give rise to a violation of his rights under Article 7(1) of the Convention.”
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