14 March. LORD LANE C.J. read the following judgment of the court. On 30 July 1990 at the Crown Court at Leicester, this appellant appeared before Owen J. upon an indictment containing two counts. The first count alleged rape and the second assault occasioning actual bodily harm.
A submission was made to the judge that the charge of rape was one which was not known to the law by reason of the fact that the appellant was the husband of the alleged victim. The judge rejected the submission. Thereupon the appellant pleaded not guilty to rape but guilty to attempted rape on count 1 and guilty to assault occasioning actual bodily harm on count 2. He was sentenced to three years' imprisonment for the attempted rape and 18 months' imprisonment to run concurrently in respect of the assault. He now appeals against conviction upon the ground that the judge's ruling was erroneous.
The facts of the case are these. The appellant married his wife on 11 August 1984. They had one son who was born in 1985. On 11 November 1987 the parties had separated for a period of about two weeks before becoming reconciled. On 21 October 1989, as a result of further matrimonial difficulties, the wife left the matrimonial home with their son, who was then aged four, and returned to live with her parents. She had by this time already consulted solicitors regarding her matrimonial affairs and indeed had left a letter for the appellant in which she informed him that she intended to petition for divorce. However, no legal proceedings had been taken by her before the incident took place which gave rise to these criminal proceedings. It seems that the appellant had on 23 October spoken to his wife by telephone indicating that it was his intention also to “see about a divorce.”
Shortly before 9 o'clock on the evening of 12 November 1989, that is to say some 22 days after the wife had returned to live with her parents, and while the parents were out, the appellant forced his way into the parents' house and attempted to have sexual intercourse with the wife against her will. In the course of that attempt he assaulted her, in particular by squeezing her neck with both hands. That assault was the subject of count 2. The appellant was interviewed by the police after his arrest and admitted his responsibility for these events as his eventual plea of guilty indicates. The only other matter which need be noted is that on 3 May 1990 a decree nisi of divorce was made absolute.
The question which the judge had to decide was whether in those circumstances, despite her refusal in fact to consent to sexual intercourse, the wife must be deemed by the fact of marriage to have consented. The argument before us has ranged over a wider field and has raised the question whether there is any basis for the principle, long supposed to be part of the common law, that a wife does by the fact of marriage give any implied consent in advance for the husband to have sexual intercourse with her; and secondly, the question whether, assuming that that principle at one time existed, it still represents the law in either a qualified or unqualified form.
Any consideration of this branch of the law must start with the pronouncement by Sir Matthew Hale which appears in his History of the Pleas of the Crown
(1736), vol. 1, ch. 58, p. 629:
“But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.”
That was published in 1736, although Hale had died 60 years earlier in 1676. He held the office of Chief Justice for five years, and there can be little doubt that what he wrote was an accurate expression of the common law as it then stood, despite the fact that it was contained in a part of the work that his revision had not yet reached.
It is of interest to note that immediately before the passage we have cited, Hale says that the wider defence based on cohabitation stated by Bracton was no longer the law. Hale explained the change in the law on the basis that though “unlawful cohabitation” might be evidence of consent, “it is not necessary that it should be so, for the woman may forsake that unlawful course of life.”
It seems clear from the passage we have cited and from a later passage in the same chapter where Hale wrote, at p. 629, “in marriage [the wife] hath given up her body to her husband,” that he founded the proposition that a husband could not be guilty of rape upon his lawful wife on the grounds (a) that on marriage a wife “gave” up her body to her husband; and (b) that on marriage she gave her irrevocable consent to sexual intercourse. These two grounds are similar, though not identical.
The theory that on marriage a wife gave her body to her husband was accepted in matrimonial cases decided in the Ecclesiastical Courts. Thus in Popkin v. Popkin (1794) 1 Hag Ecc. 765n., Lord Stowell, in a suit by a wife for divorce a mensa et thoro, stated, at p. 767: “The husband has a right to the person of his wife,” though he added the important qualification, “but not if her health is endangered.”
These concepts of the relationship between husband and wife appear to have persisted for a long time and may help to explain why Hale's statement that a husband could not be guilty of rape on his wife was accepted as an enduring principle of the common law.
The first edition of Archbold, Pleading and Evidence in Criminal Cases (1822), at p. 259, stated simply: “A husband also cannot be guilty of a rape upon his wife.”
However, in Reg. v. Clarence (1888) 22 Q.B.D. 23, there was no unanimity among the judges of a full court of Crown Cases Reserved on the effect of Hale's proposition. Wills J. said, at p. 33:
“If intercourse under the circumstances now in question constitute an assault on the part of the man, it must constitute rape, unless, indeed, as between married persons rape is impossible, a proposition to which I certainly am not prepared to assent, and for which there seems to me to be no sufficient authority.”
Field J. in the course of his judgment said, at p. 57:
“But it is argued that here there is no offence, because the wife of the prisoner consented to the act, and I entertain no doubt that, if that was so, there was neither assault nor unlawful infliction of harm. Then, did the wife of the prisoner consent? The ground for holding that she did so, put forward in argument, was the consent to marital intercourse which is imposed upon every wife by the marriage contract, and a passage from Hale's Pleas of the Crown, vol. 1, p. 629, was cited, in which it is said that a husband cannot be guilty of rape upon his wife, ‘for by their mutual matrimonial consent and contract the wife hath given up herself in this kind to her husband, which she cannot retract.’ The authority of Hale C.J. on such a matter is undoubtedly as high as any can be, but no other authority is cited by him for this proposition, and I should hesitate before I adopted it. There may, I think, be many cases in which a wife may lawfully refuse intercourse, and in which, if the husband imposed it by violence, he might be held guilty of a crime.”
Apart from those dicta in Reg. v. Clarence no one seems to have questioned Hale's proposition until Byrne J. in Rex v. Clarke  2 All E.R. 448 held that the husband's immunity was lost where the justices had made an order providing that the wife should no longer be bound to cohabit with the defendant. In the course of his ruling Byrne J. said, at p. 448:
“As a general proposition it can be stated that a husband cannot be guilty of rape on his wife. No doubt, the reason for that is that on marriage the wife consents to the husband's exercising the marital right of intercourse during such time as the ordinary relations created by the marriage contract subsist between them.”
However, in Reg. v. Miller  2 Q.B. 282, Lynskey J., having examined the authorities, ruled that Hale's proposition was correct and that the husband had no case to answer on a charge of rape although the wife had before the act of intercourse presented a petition for divorce, which had not reached the stage of a decree nisi.
In Reg. v. O'Brien (Edward)  3 All E.R. 663, 665, Park J. ruled that a decree nisi effectively terminated a marriage and upon its pronouncement the consent to marital intercourse given by a wife at the time of marriage was revoked:
“Between the pronouncement of a decree nisi and the obtaining of a decree absolute a marriage subsists as a mere technicality. There can be no question that by a decree nisi a wife's implied consent to marital intercourse is revoked. Accordingly, a husband commits the offence of rape if he has sexual intercourse with her thereafter without her consent.”
In Reg. v. Steele (1976) 65 Cr App R. 22, this court held that where a husband and wife are living apart and there is in existence an undertaking given by the husband to the court not to molest the wife, that is in effect equivalent to the granting of an injunction and eliminates the wife's implied consent to sexual intercourse. In the course of delivering the judgment of that court, having referred to the cases already mentioned here, I said, at p. 25:
“Here there has been no decree of the court, here there has been no direct order of the court compelling the husband to stay away from his wife. There has been an undertaking by the husband not to molest his wife. The question which the court has to decide is this. Have the parties made it clear, by agreement between themselves, or has the court made it clear by an order or something equivalent to an order, that the wife's consent to sexual intercourse with her husband implicit in the act of marriage, no longer exists?”
I then went on to set out, obiter, a number of matters which would not be sufficient to remove the husband's immunity, having the judgment of Lynskey J. in Reg. v. Miller  2 Q.B. 282 in mind.
Reg. v. Roberts  Crim L.R. 188 was another decision of this court. The husband had been restrained from molesting or going near to his wife for two months; an ouster order was made ordering him out of the matrimonial home. On the same day a formal deed of separation was entered into; there was no non-cohabitation or non-molestation clause. The trial judge had rejected a submission that the wife's implied consent to intercourse with her husband revived when the injunction ran out in August 1984. It was held that the lack of a non-molestation clause in the deed of separation could not possibly have operated to revive the consent of the wife which had been terminated.
It is against that brief historical background that we turn to consider the submissions of the appellant advanced by Mr. Buchanan in a carefully researched argument that the husband's immunity was not lost by what had happened between his wife and himself and that accordingly he was not liable to be tried or convicted for rape.
In the course of his ruling upon the submission, Owen J., having set out the authorities, reached a conclusion in the following terms  1 All E.R. 747, 754:
“What, in law, will suffice to revoke that consent which the wife gives to sexual intercourse upon marriage and which the law implies from the facts of marriage? … It must be sufficient for there to be an agreement of the parties. Of course, an agreement of the parties means what it says. It does not mean something which is done unilaterally … As it seems to me, from his action in telephoning her and saying that he intended to see about a divorce and thereby to accede to what she was doing, there is sufficient here to indicate that there was an implied agreement to a separation and to a withdrawal of that consent to sexual intercourse, which the law, I will assume and accept, implies. The next question is whether a third set of circumstances may be sufficient to revoke that implicit consent. Mr. Milmo argues that the withdrawal of either party from cohabitation is sufficient for that consent to be revoked … I accept that it is not for me to make the law. However, it is for me to state the common law as I believe it to be. If that requires me to indicate a set of circumstances which have not so far been considered as sufficient to negative consent as in fact so doing, then I must do so. I cannot believe that it is a part of the common law of this country that where there has been withdrawal of either party from cohabitation, accompanied by a clear indication that consent to sexual intercourse has been terminated, that that does not amount to a revocation of that implicit consent. In those circumstances, it seems to me that there is ample here, both on the second exception and the third exception, which would enable the prosecution to prove a charge of rape or attempted rape against this husband.”
Since that ruling in July 1990 there have been two other decisions at first instance to which reference must be made. The first was on 5 October 1990, when Simon Brown J. in the Crown Court at Sheffield was asked to rule upon a similar question in Reg. v. C. (Rape: Marital Exemption)  1 All E.R. 755. The judge examined in detail the pros and cons of the various suggested solutions to the problem and came to the conclusion that Hale's proposition was no longer the law. He said, at p. 758:
“Were it not for the deeply unsatisfactory consequences of reaching any other conclusion upon the point, I would shrink, if sadly, from adopting this radical view of the true position in law. But adopt it I do. Logically, I regard it as the only defensible stance, certainly now as the law has developed and arrived in the late twentieth century. In my judgment, the position in law today is, as already declared in Scotland, that there is no marital exemption to the law of rape. That is the ruling I give.”
The mention of Scottish law by Simon Brown J. is a reference to the decision of the High Court of Justiciary in S. v. H.M. Advocate, 1989 S.L.T. 469 delivered by the Lord Justice-General, Lord Emslie. The proposition which had governed courts in Scotland for very many years in the same way as Hale's proposition had operated in England, emanated from Hume on Crimes
(1797), vol. 1, ch. 7, and contained the following passage, at p. 306:
“This is true without exception even of the husband of the woman, who though he cannot himself commit a rape on his own wife, who has surrendered her person to him in that sort, may, however, be accessory to that crime … committed upon her by another.”
In the course of his opinion, Lord Emslie said, at p. 473:
“the soundness of Hume's view, and its application in the late 20th Century, depends entirely upon the reason which is said to justify it. Our first observation is that if what Hume meant was that by marriage a wife expressly or impliedly consented to sexual intercourse with her husband as a normal incident of marriage, the reason given affords no justification for his statement of the law because rape has always been essentially a crime of violence and indeed no more than an aggravated assault … If … Hume meant that by marriage a wife consented to intercourse against her will and obtained by force, we take leave to doubt whether this was ever contemplated by the common law, which was derived from the canon law, regulating the relationship of husband and wife.”
The final decision to which we must refer is a ruling of Rougier J. in Reg. v. J. (Rape: Marital Exemption)  1 All E.R. 759. The argument in that case proceeded upon different lines from those adopted in Reg. v. C. (Rape: Marital Exemption)  1 All E.R. 755. The submission addressed on behalf of the prosecution to Rougier J. was based on the wording of the Sexual Offences (Amendment) Act 1976, section 1(1) of which provides:
“For the purposes of section 1 of the Sexual Offences Act 1956 (which relates to rape) a man commits rape if — ( a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it …”
Section 1(1) of the Sexual Offences Act 1956 provided: “It is felony for a man to rape a woman.”
The contention was that the Act of 1976 for the first time provided a statutory definition of rape; that the only possible meaning which can be ascribed to the word “unlawful” is “illicit,” that is to say outside the bounds of matrimony, and that accordingly Parliament's intention must have been to preserve the husband's immunity.
This argument was reinforced by reference to the decision of this Court in Reg. v. Chapman  1 Q.B. 100, which gave that interpretation to the use of the word “unlawful” in the Act of 1956, which of course was dealing with the same type of offence. Moreover, it was pointed out that if the word in section 1 of the Act of 1976 is mere surplusage, this would, it is said, be the only place in the Act where that is so.
The judge rejected the contentions of the prosecution and ruled that the intervention of the Act of 1976 has, as he put it, “precluded any up-to-date declaration of the state of the common law on this subject. The matter has become one of statutory interpretation and remains so.” The judge also rejected the subsidiary argument addressed to him by the prosecution, namely that the wording of the Act still left it open to the court to enlarge the number of exceptions to the husband's immunity and did so in the following terms, at p. 767:
“Once Parliament has transferred the offence from the realm of common law to that of statute and, as I believe, has defined the common law position as it stood at the time of the passing of the Act, then I have very grave doubt whether it is open to judges to continue to discover exceptions to the general rule of marital immunity by purporting to extend the common law any further. The position is crystallised as at the making of the Act and only Parliament can alter it.”
Those three recent decisions, including that of Owen J. in the instant case, neatly exemplify the possible solutions, each with its concomitant drawbacks with which we are confronted. They may be summarised as follows:
(1) The literal solution. The Act of 1976 by defining rape as it did and including the word “unlawful” made it clear that the husband's immunity is preserved, there being no other meaning for the word except “outside the bounds of matrimony.” It is not legitimate to treat the word as surplusage when there is a proper meaning which can be ascribed to it.
(2) The compromise solution. The word “unlawful” is to be construed in such a way as to leave intact the exceptions to the husband's immunity which have been engrafted on to Hale's proposition from the decision in Rex v. Clarke  2 All E.R. 448 onwards and is also to be construed so as to allow further exceptions as the occasion may arise.
(3) The radical solution.
Hale's proposition is based on a fiction and moreover a fiction which is inconsistent with the proper relationship between husband and wife today. For the reasons expressed by Lord Emslie in S. v. H.M. Advocate, 1989 S.L.T. 469, it is repugnant and illogical in that it permits a husband to be punished for treating his wife with violence in the course of rape but not for the rape itself which is an aggravated and vicious form of violence. The court should take the same attitude to this situation as did Lord Halsbury L.C., albeit in different circumstances, in Reg. v. Jackson  1 Q.B. 671, 681:
“I confess to regarding with something like indignation the statement of the facts of this case, and the absence of a due sense of the delicacy and respect due to a wife whom the husband has sworn to cherish and protect.”
The drawbacks are these. The first solution requires the word “unlawful” to be given what is said to be its true effect. That would mean that the husband's immunity would remain unimpaired so long as the marriage subsisted. The effect would be to overrule the decisions in Rex v. Clarke  2 All E.R. 448; Reg. v. O'Brien (Edward)  3 All E.R. 663; and Reg. v. Steele (1976) 65 Cr App R. 22; and all the other cases which have engrafted exceptions on to Hale's proposition. It is hard to believe that Parliament intended that result. If it was intended to preserve the exceptions which existed at the time the Act of 1976 came into force, it would have been easy to say so.
The second or compromise solution adopts what is, so to speak, the open-ended interpretation of the Act of 1976 and would permit further exceptions to be engrafted on to Hale's proposition. In particular, an exception in circumstances such as those in the instant case where the wife has withdrawn from cohabitation so as to make it clear that she wishes to bring to an end matrimonial relationships. There would be formidable difficulties of definition and interpretation. How, one asks, would it be possible accurately to define “withdrawal from cohabitation?” It is not every wife who can, as the wife here could, go to live with her parents or indeed has anywhere else other than the matrimonial home in which to live. It may be thought that a total abolition of the immunity would be a preferable solution, as has been the experience in some other common law jurisdictions, Canada, Victoria, New South Wales, Western Australia, Queensland, Tasmania and notably in New Zealand, where the compromise solution was found to be unworkable.
The third or radical solution is said to disregard the statutory provisions of the Act of 1976 and, even if it does not do that, it is said that it goes beyond the legitimate bounds of judge-made law and trespasses on the province of Parliament. In other words the abolition of a rule of such long standing, despite its emasculation by later decisions, is a task for the legislature and not the courts. There are social considerations to be taken into account, the privacy of marriage to be preserved and questions of potential reconciliation to be weighed which make it an inappropriate area for judicial intervention. It can be seen that there are formidable objections, and others no doubt exist, to each of the possible solutions.
What should be the answer?
Ever since the decision of Byrne J. in Rex v. Clarke  2 All E.R. 448, courts have been paying lip service to the Hale proposition, whilst at the same time increasing the number of exceptions, the number of situations to which it does not apply. This is a legitimate use of the flexibility of the common law which can and should adapt itself to changing social attitudes.
There comes a time when the changes are so great that it is no longer enough to create further exceptions restricting the effect of the proposition, a time when the proposition itself requires examination to see whether its terms are in accord with what is generally regarded today as acceptable behaviour.
For the reasons already adumbrated, and in particular those advanced by the Lord Justice-General in S. v. H.M. Advocate, 1989 S.L.T. 469, with which we respectfully agree, the idea that a wife by marriage consents in advance to her husband having sexual intercourse with her whatever her state of health or however proper her objections (if that is what Hale meant), is no longer acceptable. It can never have been other than a fiction, and fiction is a poor basis for the criminal law. The extent to which events have overtaken Hale's proposition is well illustrated by his last four words, “which she cannot retract.”
It seems to us that where the common law rule no longer even remotely represents what is the true position of a wife in present day society, the duty of the court is to take steps to alter the rule if it can legitimately do so in the light of any relevant Parliamentary enactment. That in the end comes down to a consideration of the word “unlawful” in the Act of 1976. It is at the best, perhaps a strange word to have used if the draftsman meant by it “outside marriage.” However sexual intercourse outside marriage may be described, it is not “unlawful” if one gives to the word its ordinary meaning of “contrary to law.” We have not overlooked the decision in Reg. v. Chapman  1 Q.B. 100 to which we have already referred, but if the word is to be construed as “illicit” or “outside marriage,” then it seemingly admits of no exception. The husband who is the subject of an injunction or undertaking to the court or in respect of whose marriage a decree nisi has been pronounced or is a party to a formal separation agreement would be nevertheless immune from prosecution for raping his wife. This would apply equally to a husband who is the subject of a family protection order, a situation which was the subject of a judgment by Swinton Thomas J. in the Crown Court at Stafford in Reg. v. S. (unreported), 15 January 1991.
The alternative to that unwelcome conclusion would be to interpret the word as including the various exceptions to the husband's immunity which we have examined earlier in this judgment. If so, one asks whether the situation crystallises at the date the Act came into force. If that is the case, then all the decisions since the time when the Act of 1976 came into force which have narrowed the husband's immunity would have been wrongly decided.
It may be on the other hand that the draftsman intended to leave it open to the common law to develop as it has done since 1976.
The only realistic explanations seem to us to be that the draftsman either intended to leave the matter open for the common law to develop in that way or, perhaps more likely, that no satisfactory meaning at all can be ascribed to the word and that it is indeed surplusage. In either event, we do not consider that we are inhibited by the Act of 1976 from declaring that the husband's immunity as expounded by Hale no longer exists. We take the view that the time has now arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim.
The remaining and no less difficult question is whether, despite that view, this is an area where the court should step aside to leave the matter to the Parliamentary process. This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.
Had our decision been otherwise and had we been of the opinion that Hale's proposition was still effective, we would nevertheless have ruled that where, as in the instant case, a wife withdraws from cohabitation in such a way as to make it clear to the husband that so far as she is concerned the marriage is at an end, the husband's immunity is lost.
The appeal fails and is dismissed.