A Guide to Marital Rape Law

Marital rape, also known as spousal rape, is a sexual assault under UK law (as outlined in the Sexual Offences Act 2003).

The offence occurs when a person commits a sexual act without the consent of their spouse (or ex-spouse) or does so against their will. This sexual assault can also be considered a form of domestic violence.

A brief history: The Marital Rape Exemption

Before 1992, forced sexual activity within marriage wasn't illegal in the UK. The earliest written legal source on marital rape appeared in a 1736 treatise called 'History of the Pleas of the Crown by Sir Matthew Hale', a former Chief Justice of the Court of King's Bench in England. Hale stated:

"The husband of a woman cannot himself be guilty of an actual rape upon his wife, on account of the matrimonial consent which she has given, and which she cannot retract."

In 1822 John Frederick Archbold echoed Hale when he published 'Pleading and Evidence in Criminal Cases', reiterating the position that a husband "cannot be guilty of a rape upon his wife." Put simply, it remained common law a husband could enforce conjugal rights on his wife without committing an offence. The wife was considered to have provided ongoing consent to sexual intercourse through the contract of marriage.

The case of R vs R (1991)

The case of R vs R in 1991 changed the landscape completely, with marital rape finally made a legal reality. In the case, a man (identified only as "R") was convicted of attempting to rape his wife, having challenged the decision citing the marital rape exemption. After numerous appeals, the case was reviewed by the House of Lords, with members unanimously agreeing to overturn the common-law rule and uphold the husband's conviction for rape. The Lord Justice-General, Lord Emslie said:

"Nowadays, it cannot seriously be maintained that by marriage, a wife submits herself irrevocably to sexual intercourse in all circumstances."

Proving marital rape

For a person to be found guilty of marital rape, prosecutors must prove:

Penetration of the anus, mouth or vagina occurred.
The act of penetration was intentional.
The plaintiff did not consent to the act of penetration.
The defendant did not believe (within reason) that the complainant had consented to the relevant act.

The act of marital rape does not only apply to people who are married, but it can also be committed by those who cohabit as spouses but are not legally married. Women cannot be charged with committing rape because the offence requires penile penetration. That said, if a woman commits a sexual act without the consent of her spouse, or ex-spouse, she is committing a sexual offence and can be charged with:

Sexual coercion
Causing a person to engage in sexual activity without consent
Sexual assault

Sentencing

Sentences can range from 4 to 19 years, depending on the specifics of the case, as well as mitigating and aggravating factors, such as having no previous convictions, previous good character and remorse. Life imprisonment can be handed out if the situation demands.

The aggravating factors for marital rape include:

Any previous convictions (more recent and relevant convictions will increase the aggravating effect).
Specific targeting of a particularly vulnerable victim.
Ejaculation.
Blackmail or other threats made against the victim
The location of the offence.
Timing of offence.
Use of a weapon or another item to frighten or injure the victim.
If the victim was compelled to leave their home (including victims of domestic violence).
Failure to comply with current court orders.
An offence committed while on licence.
Exploiting contact arrangements with a child to commit an offence.
The presence of others, particularly children.
Steps taken to prevent the victim from reporting the incident, obtaining assistance and/or from assisting or supporting the prosecution.
Attempts to dispose of or conceal evidence.
Committing the offence while under the influence of alcohol or drugs.

In addition to a custodial sentence, a defendant also faces inclusion on the Sexual Offenders' Register and enforced adherence to notification requirements.

Today's generational divide

According to a YouGov survey commissioned by the End Violence Against Women Coalition (EVAWC) in December 2018, many British adults "remain confused about what constitutes rape" with "more than a third of over-65s" not considering forced marital sex to be rape, compared to just 16 per cent of 16-24-year-olds. It's a sign that attitudes are changing; however, many believe more support should be in place to support women who are raped. Speaking of the results from the EVAWC survey, Rachel Krys, Co-Director said:

"There has been a huge increase in the number of women reporting rape and sexual violence to the police and seeking support from specialist rape support organisations. #MeToo has shone a light on the scale of sexual violence, and more women are seeking justice. Yet as a society we are failing to respond to this call for help, and this year the number of cases being taken forward by police and the courts fell."

Defending marital rape charges

If you are accused of committing marital rape, we recommend you seek expert legal advice as soon as possible. Noble Solicitors is one of the leading sexual offence solicitors in the UK, with decades of experience in this highly complex area of law. Our Barristers and Advocates have represented many high-profile sex crime cases, while we have a 24-hour helpline and free police station representation throughout the UK.

To speak to our team about the allegations you face, please call us on 07000 81 82 83.