The Report of the Appeal Case - Essay Example

Case Study 1992 – year of judgment A.C. – Number of the Law Report of the appeal case 599 - page number at which judgment appears. 2. The defendant was convicted on two charges (a) rape, because he had forced his wife into sexual intercourse without her consent (2) assault occasioning bodily harm, because he had squeezed his wife’s neck. 3. Disputed areas of fact. (1) Was the husband guilty of rape upon his lawful wife (2) Applicability of the rule of common law spelt out by Hale1 that a wife could be deemed to have consented irrevocably to sexual intercourse with her husband (3) Whether Defendant’s actions in having sexual intercourse with his wife without her consent could constitute “unlawful sexual intercourse”, as defined under Section 1(1) of the Sexual Offences Act of 1956 (4) The wife’s marital consent to intercourse had not been revoked, either by a Court order or by an agreement between the parties. As a result, the question that arose in these circumstances was whether, despite her refusal to consent, the wife could have been held to have consented by the fact of the marriage. 4. The trial judge’s directions to the Jury stated that there appeared to be ample grounds to indicate that consent to sexual intercourse had been withdrawn by an agreement between the parties. Firstly, the parties were not cohabiting. Secondly, the husband’s act in phoning his wife and telling her he intended to see about a divorce constituted implicit consent. On this basis, the prosecution could prove a charge of rape or attempted rape against the husband. 5. The first fact is not material to the disputed issue of rape. The second fact, i.e, defendant had mentioned his intent to seek a divorce, is a relevant and material fact, because it revokes by implied mutual agreement, the consent to sexual intercourse that is imposed by marriage and spelt out under Hale’s common law rule. Hence, it establishes that the husband’s act constituted rape. It also establishes that he is not eligible for immunity under Hale’s rule. The third fact is also material and relevant, because it establishes the second ground of bodily assault. 6. The marital exemption itself refers to the common law rule wherein upon marriage, an assumption is made that the wife consents to sexual intercourse with her husband. This presumption may however be rebutted by evidence that the wife did not in fact, consent. To enforce this rebuttal, some exceptions have been established, when a wife can say no, such as when her health is in danger or when the man’s actions constitute assault. These and other exceptions have been spelt out by case precedent and constitute common law exceptions to the rule of assumed consent of a wife to sexual intercourse with her husband. 7. Section 1(1) of the 1956 Act states that a man commits rape if he engages in “unlawful sexual intercourse” with an unwilling woman. Since this provides the statutory definition of rape, the use of the term “unlawful” suggests that it means illicit, or sexual intercourse outside the bonds of matrimony. This leads to the inference that sexual intercourse with a woman, when legalized by the bonds of matrimony, may not constitute unlawful conduct even if the woman is unwilling. Hence, applying this statute, the husband’s immunity against the charge of rape is preserved, even when the wife does not consent to the sexual act. The problems caused by this statutory definition are that it precludes any interpretation of common law to include exceptions to the general rule of marital immunity by extending the common law2. The Courts have been maintaining the Hale proposition but with several exceptions in situations where it does not apply, through the flexibility of the common law approach. For “not if her health is endangered”3 or if the act “an assault on the part of the man, it must constitute rape.”4 The Courts have however, recently begun to openly state that the Hale proposition is no longer acceptable5 and Simon Brown J in the case of Reg v C (Rape: Marital exclusion) declared that there is no marital exemption to the law of rape.6 8. Lord Lane commences his arguments with the proposition of Sir Matthew Hale7 that a man cannot be guilty of raping his wife because upon marriage she (a) gives up her body to him and (b) gives her irrevocable consent to sexual intercourse, consent that she cannot retract. Through a literal application of Section 1(1) of the Sexual Offences Act of 1956 and the term “unlawful”, the husband’s immunity would be preserved, since sexual intercourse without the consent of the woman may be unlawful only outside the bonds of matrimony. However Lord Lane argues that this position is an untenable one in view of all the exceptions to the rule which have developed over the years, including when the husband’s conduct is akin to an assault8, as it was in the instant case. Applying exceptions to the rule of marital immunity from rape would constitute a compromise solution9 where the definition of the term unlawful could be construed in such a way that these exceptions could be accommodated. In the instant case however, Lord Lane points out that there would be difficulties in applying an open ended interpretation of the 1976 Act, because the wife ceased cohabitation and no formal agreement of separation exists. On this basis, he argues that a radical solution is called for, because the change in social attitudes has been so great that Hale’s proposition is no longer acceptable. Lord Lane supports the decision of Simon J10, and the finding that there is no marital exception to rape. He supports this radical solution, contending that it does not necessarily contravene Parliamentary intent, because the drafstmen of the Sexual Offences (Amendment) Act of 1976 may have left it open for common law to develop. Since the current conditions in society are such that the earlier common law presumption that supported Hale’s rule are no longer even remotely applicable, the only reasonable finding can be that a rapist remains a rapist subject to criminal law, irrespective of his relationship with the victim. On this basis, the defendant’s appeal was dismissed. 9. If the case was heard in 1965 after the passage of the 1956 Act, it appears likely that the defendant Plaintiff may have been found be eligible for the protection of marital immunity against rape. In this case, there was also no formal separation that existed as in the case of Reg v Steele11, where the husband and wife were living apart but the husband gave an undertaking not to molest the wife. Hence, it is likely that the marital consent given by the wife would not be considered revoked, since no formal decree exists. The result could have been that the husband was not indicted. Read More