McGregor

In 1736, Hale made the following pronouncement:

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 herself in this kind to her husband which she cannot retract.

The rule that a husband could not be convicted of raping his wife was based on this pronouncement, which was supported by the fact that there was no possibility of divorce and the wife was practically her husband's chattel. She could not refuse to have sexual intercourse with him.

In time, there were exceptions to the rule. In particular, in 1990 the English court ruled that the consent of the wife to have sexual intercourse with her husband could be revoked if the parties got divorced or there was an order of the court restraining the husband from molesting his wife. The husband could also be charged with assault or other crime which he might commit while forcing his wife to have sexual intercourse with him. However, the position remained that he would not be liable for rape.

It was not until 1991 that the English court held that, where either party withdrew from cohabitation, the wife's implied consent to sexual intercourse with her husband is withdrawn. He could be liable for the rape of his wife.

The rationale for this new approach was that society had evolved since 1837. The status of women had changed and marriage in modern times is regarded as a partnership of equals. The wife was no longer required to be the subservient chattel of her husband. It was felt that the husband's right to have sexual intercourse with his wife could be restricted.

The Offences against the Person Act is currently being debated before the House, with a view to amending the legislation to state that a man can rape his wife in certain circumstances. The question as to whether the amendment will affect acts which are committed before the change in the law is likely to arise.

The answer given in the English case of R v C is very interesting:

In 2002, C was convicted for the rape of his wife. It was alleged that the offence was committed during the time they were married from 1967 until 1971. C appealed against that conviction, and it was argued that at the time the offence was committed he was protected by the old law which exempted him from conviction for the rape of his wife. He argued that the offence would not have been treated as rape at the time it was committed. In fact, the law had not changed until 1991.

The court found that the old law, as stated by Hale, was a legal fiction - it never really existed. The marriage certificate did not entitle a husband to force his unwanted sexual attentions on his wife. The court, therefore, ruled that C's conviction should stand, because he could properly be convicted of raping his wife the incident had occurred before the law was changed. It is left to be seen how the amendment to our law will be construed.