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Please read the judgment from the case of R v R [1991] 4 All ER 481 and then prepare written answers to the questions below.
1: Explain, in your own words, the legal issue(s) in the case.

2: Both the Court of Appeal (as included in the HL decision) and Lord Keith of Kinkel in the House of Lords cite a number of earlier cases in R v R [1991], For example, R v Clarke [1949]; R v Miller [1954]; R v O’Brien [1974]; R v Steele [1976].

o Why they do this?
o What do such citations add to the judgement?
3: What is the ratio decidendi of the House of Lords?

4:• What is the significance of the term ‘unlawful’ in s.1(1) of the Sexual Offences (Amendment) Act 1976?

• Lord Lane CJ in the Court of Appeal identified 3 'solutions' to the interpretation of the word ‘unlawful’.
• Which approach did the House of Lords follow, and why?

Sample Answer

The case is titled as R v R and the same is very significant in the area of sexual offenses and crimes after marriage. The issue involved in the case can be checked by looking up to the facts of the case. In the subjective case, the appellant got married to his wife on the 11th of August 1984. His wife gave birth to a baby in the year 1985. In November 1987, both the parties to the case i.e. the appellant and his wife has separated for a period of two weeks. Later on, due to further marital difficulties, the wife of appellant left his home on 21st October 1989 with her son and moved to her parent house. While leaving the house, she left a letter for the appellant in which she has presented her intention of divorce. By this time, she was also in consultation with her solicitor. On 23rd October, appellant called his wife and stated that he also intended to seek a divorce.

After 22 days of the incident when wife moved to her parental house, appellant went to see her in the evening of 12 November 1989. Later on, in the meeting, he has tried to develop sexual intercourse with her wife against her will. In order to develop such a sexual relation, he also assaulted her wife. When police arrested the appellant, he admitted his responsibility.

Now, the issue was to check whether it was a matter of rape because the appellant was married to the victim. The judges needed to check that whether the marital status of the victim was an implied consent to the sexual intercourse, where she was not intended to do the same at the time of the incident. Another issue was to check the presence of a principle under common law that whether it is to suppose that wife has given her consent in advance cause of the existence of marriage and if such principle even exists, whether the same exist in a qualified or an unqualified form.

While hearing and considering this case, the judges have cited many of the cases. The only reason before citing the past cases in the present one is to grant justice in a proper manner. Such citations and references of past cases are known as legal precedents. Judges often use these precedents to ensure that in similar kind of cases, similar justice should be provided so that the issue of injustice can be eliminated. Review of the decisions of the past cases also become necessary in those cases where a proper law is missing and providing justice is a lead focus of the judges.

In the case of R v R (hereinafter referred as a subjective case), the court if an appeal, as well as Lord Keith of Kinkel in the House of Lords, referred a number of cases such as R v. Clarke, R. v. Steele,  R. v. O'Brien and many others. The references of these cases have been made as all these cases have developed some rules and provisions in the area of concern i.e. sexual offenses in the matters of marriages. In the decision of the case of R v. Clarke, the court has provided that a man will be treated as liable for the rape of his wife if there is a separation order granted by the court. This case has been used as a legal precedent in the subjective case and before the appeal made, law commission has made the observation that in the cases of marital sex, it will be treated as rape only when a decree of judicial separation is available with the parties of the marriage. The judges have also reviewed the case of R. v. Steele as it was given in the decision of this case that a wife’s implied consent to sex with her husband does not exist in those cases where wife and husband live apart. In addition to this, an undertaking exists which prevent the husband to build any physical relation to his wife.

Similarly, in the decision of the case of R. v. O'Brien, it was held that decree nisi terminates a marriage and therefore in the presence of the same the implied consent of the wife to enter into sexual intercourse with her husband effectively gets revoked. All these cases have been cited in the ruling of the subjective case as they were relate to the concern topic. After taking a review of all these cases, Lord Keith thinks of the situation where a decree of divorce has not been granted to the parties. What about justice in those cases as all the legal precedents cannot apply cause of missing of decree nisi. The decision of the case bring an amendment of Sexual Offences Act  and by the virtue of this amendment in the act, the marital rape exemption has been abolished. In the judgment lord, Keith stated that Hale’s proposition cannot be applied in the current scenario where the status of women in marriages is being more equal. The decision of the case been a legal precedent itself as it has made amendment in the 250 years old law. This is to state that by citing the past cases, lords of the subjective case came across to the actual problem and made further amendments in the area.

Ratio decidendi of a case is the legal basis of a decision. It means those laws based on which a decision is granted under a case is known as ration decidendi. In the subjective case, no legal precedent has been applied as it is, in fact, the judges of the case reviewed the matter and found it is unjustifiable to not to provide justice in those cases where parties of a marriage have not been separated yet. The Ratio decidendi behind the subjective case was the implementation of the common law. Lord Keith has stated that the common law has been reviewed by the court with respect to the current scenario. No law was there to protect the interest of a woman in the cases of marital sex where she was not ready to do sex. While giving the decision of the subjective case, lords of the case again reviewed the common law provisions and realized that the same cannot work in the present era where there is a continuous development in every sector such as economic, cultural and social. In the absence of any legislation and a proper legal precedent, judges often provide a decision based on common law, however, the judges of the subjective case had not this option. The reason behind the same that common law did not recognize any provisions where a married woman could get justice in the cases of forced marital sex. Therefore, the only option that was available with the lords of the case was to develop some amendments in the common law in order to provide proper justice to the victim party. Lords of this case rejected the appeal of the husband of the victim and provided that common law needs to be reviewed in the case as it is not justifiable to consider marital rape exemption.

In the final decision of the case, the court has rejected the appeal made by the husband of the victim and made him liable. It can be stated that the Ratio decidendi of this case was changes common law based on which court has provided the justice in favor of the wife and not the husband as any legislation, set of rules or legal precedent was not there,  by applying which justice could be granted to the victim.  

In the case of rape, the terms related thereon needs to be clear, as there is a very fine line between the acts leads the issue of rape and others that do not do so. Sexual Offences (Amendment) Act, is the lead legislation of UK that provides rules, provisions, and other terms related to sexual offenses in the nation. Section 1 of the act is a very significant section to study as it describes the meaning of rape. A subsection of this section states that a man is considered liable for the charge of rape where he does unlawful physical intercourse with a woman who was not ready to the same. It means whenever a person does any kind of sexual intercourse without the will of a woman, his act is treated as rape. This section is far significant in the area of marital sex as it provides a remedy to a wife in against of the act of physical intercourse by her husband. The term unlaw is very much important to be there in the sexual offense act as it makes the reporting of issue easy for the victims. The term has it is the wider scope. It includes all the cases of sexual intercourse and provides all of them unlawful whenever ten consent of the woman is missing.

While providing the judgment of the subjective case, Lord Lane CJ has set out 3 interpretation for the word ‘unlawful’. First interpretation was a literal solution in which the Lord has stated that the criteria of offense were limited to the cases of sexual intercourse outside of marriage and therefore a husband does have full immunity in against of rape charge initiated by his wife. The second interpretation was a compromised solution. In this interpretation, Lord Lane CJ has developed the focus of the term unlawful and stated that the same to be understood as to preserve the exception of the immunity of husband developed under common law and to provide further exceptions as the occasion arose. In his third interpretation named as “radical solution”, he has taken the word unlawful as surplusage and treated the concept of marital immunity abolished. In this mode, the Lord Lane CJ has provided three different interpretations of the term unlawful.

The house of lords followed the third approach and interpretation as it was held in the decision that the appellant will be held liable irrespective of the facts of the existence of a marital relationship with his wife. The court has not considered the marital immunity of the husband. Not just the decision of this case, but also for other cases, it has become a legal precedent that the marital immunity of a man will not be considered whenever the same developed some sexual intercourse with his wife against of her will.

To conclude the topic, this can be stated that neither house of lord nor the appellate court has considered the marital immunity of appellant and has not considered him entitled to use such immunity against the rape charges of the victim. The court has followed the radical solution approach in the provided decision and granted the decision setting aside the marital immunity of appellant.

Neil Duxbury, The Nature and Authority of Precedent (Cambridge University Press 2008)

Sexual Offences (Amendment) Act 1976

Sexual Offences Act 1956

R v R [1992] 1AC 599

R v. Clarke [1949] 2 All E.R. 448

v. O'Brien (Edward) [1974] 3 All E.R. 663
v. Steele [1976] 65 Criminal Appeal Reports 22
Bailii.org, ‘Regina Respondent and r. Appellant’ (2018) < https://www.bailii.org/uk/cases/UKHL/1991/12.html> accessed 20 October 2018

Brightknowledge.org, ‘Famous cases: Regina v R (2018) < https://www.brightknowledge.org/law/famous-cases-regina-v-r> accessed 20 October 2018

E-Law Resources, ‘R v R [1991] 3 WLR 767 House of Lords’ (2018) < https://e-lawresources.co.uk/R-v-R-%5B1991%5D.php> accessed 20 October 2018

Legislationgov.uk, (2018) ‘Sexual Offences (Amendment) Act 1976’ < https://www.legislation.gov.uk/ukpga/1976/82> accessed 20 October 2018


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