CASE OF S.W. v. THE UNITED KINGDOM
No violation of Art. 7-1
C. Russo;John Freeland;Simon Brown
8. The applicant is a British citizen. His relationship with his wife, whom he married in 1987, was turbulent and came under great strain in 1990 when he became unemployed. In the early evening of 18 September 1990, she told him that for some weeks she had been thinking of leaving him and that she regarded the marriage as over. Prior to that date they had been sleeping separately - according to the applicant, for one night, or according to his wife, for five nights. The applicant did not accept that his wife meant what she said and they had a row following which he ejected her from the house, bruising her arm. She went to her next door neighbours and called the police, who subsequently visited and spoke to both the applicant and his wife separately. Later the same evening she re-entered the house and the applicant had sexual intercourse with her. Shortly afterwards she left the house, having first tried to take their child with her. She went to the neighbours crying and distressed, complaining to them and to the police, whom she telephoned, that she had been raped at knife-point. 9. On 19 September 1990 the applicant was charged with rape, under section 1 (1) of the Sexual Offences Act 1956; threatening to kill, contrary to section 16 of the Offences against the Person Act 1861; and assault occasioning actual bodily harm, in breach of section 47 of the latter Act. 10. On 30 July 1990 the defendant in another case, R. v. R., had been sentenced to three years’ imprisonment by the Crown Court for attempted rape and assault occasioning actual bodily harm against his wife. The trial judge, Mr Justice Owen, had rejected the defendant’s submission that he could not be convicted in light of a common law principle stated by Sir Matthew Hale CJ in his History of the Pleas of the Crown published in 1736: "But the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract." In his judgment ([1991] 1 All England Law Reports, 747) Mr Justice Owen noted that it was a statement made in general terms at a time when marriage was indissoluble. Hale CJ had been expounding the common law as it seemed to him at that particular time and was doing it in a book and not with reference to a particular set of circumstances presented to him in a prosecution. The bald statement had been reproduced in the first edition of Archbold on Criminal Pleadings, Evidence and Practice (1822, p. 259) in the following terms: "A husband also cannot be guilty of rape upon his wife." Mr Justice Owen further examined a series of court decisions (R. v. Clarence [1888] 22 Queen’s Bench Division 23, [1886-90] All England Law Reports 113; R. v. Clarke [1949] 2 All England Law Reports 448; R. v. Miller [1954] 2 All England Law Reports 529; R. v. Reid [1972] 2 All England Law Reports 1350; R. v. O’Brien [1974] 3 All England Law Reports 663; R. v. Steele [1976] 65 Criminal Appeal Reports 22; R. v. Roberts [1986] Criminal Law Reports 188; see paragraphs 22-25 below), recognising that a wife’s consent to marital intercourse was impliedly given by her at the time of marriage and that the consent could be revoked on certain conditions. He added: "I am asked to accept that there is a presumption or an implied consent by the wife to sexual intercourse with her husband; with that, I do not find it difficult to agree. However, I find it hard to ... believe that it ever was the common law that a husband was in effect entitled to beat his wife into submission to sexual intercourse ... If it was, it is a very sad commentary on the law and a very sad commentary upon the judges in whose breasts the law is said to reside. However, I will nevertheless accept that there is such an implicit consent as to sexual intercourse which requires my consideration as to whether this accused may be convicted for rape." On the question of what circumstances would suffice in law to revoke the consent, Mr Justice Owen noted that it may be brought to an end, firstly, by a court order or equivalent. Secondly, he observed, it was apparent from the Court of Appeal’s judgment in the case of R. v. Steele ([1976] 65 Criminal Appeal Reports 22) that the implied consent could be withdrawn by agreement between the parties. Such an agreement could clearly be implicit; there was nothing in the case-law to suggest the contrary. Thirdly, he was of the view that the common law recognised that a withdrawal of either party from cohabitation, accompanied by a clear indication that consent to sexual intercourse has been terminated, would amount to a revocation of the implicit consent. He concluded that both the second and third exceptions to the matrimonial immunity against prosecution for rape applied in the case. 11. An appeal to the Court of Appeal, Criminal Division, was dismissed on 14 March 1991 ([1991] 2 All England Law Reports 257). Lord Lane noted that the general proposition of Sir Matthew Hale in his History of the Pleas of the Crown (1736) (see paragraph 10 above) that a man could not commit rape upon his wife was generally accepted as a correct statement of the common law at that epoch. Further, Lord Lane made an analysis of previous court decisions, from which it appears that in R. v. Clarence (1888), the first reported case of this nature, some judges of the Court for Crown Cases Reserved had objected to the principle. In the next reported case, R. v. Clarke (1949), the trial court had departed from the principle by holding that the husband’s immunity was lost in the event of a court order directing that the wife was no longer bound to cohabit with him. Almost every court decision thereafter had made increasingly important exceptions to the marital immunity (see paragraph 24 below). The Court of Appeal had accepted in R. v. Steele (1976) that the implied consent to intercourse could be terminated by agreement. This was confirmed by the Court of Appeal in R. v. Roberts (1986), where it held that the lack of a non-molestation clause in a deed of separation, concluded on expiry of a non-molestation order, did not revive the consent to intercourse. Lord Lane added the following observations: "Ever since the decision of Byrne J in R. v. Clarke in 1949, courts have been paying lip-service to Hale CJ’s 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. ... 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 1976 Act." Lord Lane then critically examined the different strands of interpretation of section 1 (1) (a) of the 1976 Act (see paragraph 20 below) in the case-law, including the argument that the term "unlawful" excluded intercourse within marriage from the definition of rape. He concluded: "... [W]e do not consider that we are inhibited by the 1976 Act from declaring that the husband’s immunity as expounded by Hale CJ 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 CJ’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." 12. On 23 October 1991, on a further appeal by the appellant in the above case, the House of Lords upheld the Court of Appeal’s judgment, declaring, inter alia, that the general principle that a husband cannot rape his wife no longer formed part of the law of England and Wales. It stressed that the common law was capable of evolving in the light of changing social, economic and cultural developments. Whilst Sir Matthew Hale’s proposition had reflected the state of affairs at the time it was enunciated, the status of women, and particularly of married women, had changed out of all recognition in various ways. Apart from property matters and the availability of matrimonial remedies, one of the most important changes had been that marriage was in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband (R. v. R. [1991] 4 All England Law Reports 481). 13. On 31 March 1992 the above appellant R. brought an application (no. 20190/92) to the Commission. The Commission referred his application (C.R. v. the United Kingdom) to the Court on the same date as the present case (see paragraphs 1 and 3 above). 14. At the commencement of his trial on 16 April 1991, the applicant submitted that there was no case to answer on the rape charge. In the first place, he argued that the trial judge, Mr Justice Rose, should follow the Court of Appeal’s approach in the case of R. v. Steele ([1976] 65 Criminal Appeal Reports 22) and should not consider himself bound by the 14 March 1991 judgment of that court in R. v. R. in so far as it purported to change the principle that a husband could not be found guilty of rape upon his wife. Secondly, he maintained that the retrospective effect of the change in the law effected by R. v. R. should be pronounced incompatible with Article 7 (art. 7) of the Convention. He referred, inter alia, to the judgment by the Court of Justice of the European Communities in R. v. Kent Kirk (European Court Reports [1984] 2689), dealing with a penal provision in relation to fishing, which was allegedly imposed retroactively. 15. With regard to the applicant’s first submission, Mr Justice Rose held on 18 April 1991 that he considered himself bound by the Court of Appeal’s judgment in R. v. R. He was not persuaded that there was a conflict between the ratios of that decision and the judgment in R. v. Steele. Moreover, the decision in R. v. R. was not reached in ignorance of R. v. Steele but had regard to the latter. With regard to the applicant’s second submission, Mr Justice Rose observed: "... I shall assume for the purpose of the present argument that the effect of Kirk is via the Treaty of Rome and the decision of the [Court of Justice of the European Communities] to render Article 7 para. 1 (art. 7-1) part of English law. However, it seems to me that the effect of Article 7 para. 2 (art. 7-2) is to prevent reliance by the defendant on Article 7 para. 1 (art. 7-1). Furthermore, ... a succession of cases ... in which the [Court of Justice] ... has developed the principle of protection of fundamental rights in cases concerning economic and financial matters ... it seems to me in so far as they touch upon the matter at all, and it is accepted that they do not deal with criminal offences of the kind with which I am concerned, no doubt preserve the fundamental right of a woman not to have non-consensual sexual intercourse forced upon her. Furthermore, the nature of the common law, developing as it does from judicial decision to judicial decision, but being deemed to be always that which it is currently declared to be, is such that if Article 7 (art. 7) is part of English law, Article 7 para. 2 (art. 7-2) is not incompatible with that common law approach. Non-consensual sexual intercourse is in English law, as no doubt it is in the legal systems of many civilised nations, ... a criminal offence. In so far as there was by the end of the 19th Century in English law ... a matrimonial exception, that matrimonial exception has, particularly over the last 30 or 40 years, been whittled away by judicial decision to the extent that ... it no longer exists. It seems to me that to say that in these circumstances this defendant is in the terms of Article 7 para. 1 (art. 7-1) at risk of conviction in relation to conduct ‘which did not constitute a criminal offence under national or international law at the time when it was committed’ is or would be an abuse of language. Accordingly, [counsel for the applicant’s] second submission fails ... Having regard to the conclusions which I have reached ... there is, in my judgment, a case to answer." 16. On 19 April 1991 the applicant was found guilty by the jury of all three offences (see paragraph 9 above). He was sentenced to a total of five years’ imprisonment: five years for rape, two years for making a threat to kill and three months for the offence of assault occasioning actual bodily harm - the sentences of two years and three months were expressed to run consecutively to each other but concurrently with the five-year sentence. 17. The applicant lodged an appeal against conviction and sentence in which he repeated the submissions set out in paragraph 14 above. 18. In view of the House of Lords’ ruling of 23 October 1991 in R. v. R. (see paragraph 12 above) the applicant was advised by his lawyers on 3 January 1992 that his appeal against conviction offered no prospect of success. He therefore withdrew his appeal against conviction on 15 January 1992. His appeal against sentence was dismissed by the Court of Appeal on 30 July 1992. 19. The offence of rape, at common law, was traditionally defined as unlawful sexual intercourse with a woman without her consent by force, fear or fraud. By section 1 of the Sexual Offences Act 1956, "it is a felony for a man to rape a woman". 20. Section 1 (1) of the Sexual Offences (Amendment) Act 1976 provides, in so far as it is material, as follows: "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 ..." 21. On 3 November 1994 the Criminal Justice and Public Order Act 1994 replaced the above provisions by inserting new subsections to section 1 of the Sexual Offences Act 1956, one of the effects of which was to remove the word "unlawful": "1. (1) It is an offence for a man to rape a woman or another man. (2) A man commits rape if - (a) he has sexual intercourse with a person ... who at the time of the intercourse does not consent to it ..." 22. Until the case of R. v. R. the English courts, on the few occasions when they were confronted with the issue whether directly or indirectly, had always recognised at least some form of immunity attaching to a husband from any charge of rape or attempted rape by reason of a notional or fictional consent to intercourse deemed to have been given by the wife on marriage. The proposition of Sir Matthew Hale quoted above (see paragraph 10) has been reaffirmed until recently, for example in the case of R. v. Kowalski ([1987] 86 Criminal Appeal Reports 339), which concerned the question whether or not a wife had impliedly consented to acts which if performed against her consent would amount to an indecent assault. Mr Justice Ian Kennedy, giving the judgment of the court, stated, obiter: "It is clear, well-settled and ancient law that a man cannot, as actor, be guilty of rape upon his wife." And he went on to say that that principle was "dependent upon the implied consent to sexual intercourse which arises from the married state and which continues until that consent is put aside by decree nisi, by a separation order or, in certain circumstances, by a separation agreement". In another example, Lord Justice O’Connor in the R. v. Roberts case ([1986] Criminal Law Reports 188) held: "The status of marriage involves that the woman has given her consent to her husband having intercourse with her during the subsistence of the marriage ... she cannot unilaterally withdraw it." 23. However, on 5 November 1990, Mr Justice Simon Brown held in R. v. C. ([1991] 1 All England Law Reports 755) that the whole concept of marital exemption in rape was misconceived: "Were it not for the deeply unsatisfactory consequence of reaching any other conclusion on 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." On the other hand, on 20 November 1990, in R. v. J. ([1991] 1 All England Law Reports 759) Mr Justice Rougier upheld the general common law rule, considering that the effect of section 1 (1) (a) of the 1976 Act was that the marital exemption embodied in Hale’s proposition was preserved, subject to those exceptions established by cases decided before the Act was passed. He further stated: "... there is an important general principle to be considered here, and that is that the law, especially the criminal law, should be clear so that a man may know where he stands in relation to it. I am not being so fanciful as to suppose that this defendant carefully considered the authorities and took Counsel’s advice before behaving as alleged, but the basic principle extends a long way beyond the bounds of this case and should operate to prevent a man being convicted by means of decisions of the law ex post facto." On 15 January 1991, Mr Justice Swinton Thomas in R. v. S. followed Rougier J, though he considered that it was open to judges to define further exceptions. Both Rougier and Swinton Thomas JJ stated that they regretted that section 1 (1) (a) of the 1976 Act precluded them from taking the same line as Simon Brown J in R. v. C. 24. In its Working Paper 116 "Rape within Marriage" completed on 17 September 1990, the Law Commission stated: "2.8 It is generally accepted that, subject to exceptions (considered ... below), a husband cannot be convicted of raping his wife ... Indeed there seems to be no recorded prosecution before 1949 of a husband for raping his wife ... ... 2.11 The immunity has given rise to a substantial body of law about the particular cases in which the exemption does not apply. The limits of this law are difficult to state with certainty. Much of it rests on first instance decisions which have never been comprehensively reviewed at appellate level ..." The Law Commission identified the following exceptions to a husband’s immunity: - where a court order has been made, in particular: (a) where an order of the court has been made which provides that a wife should no longer be bound to cohabit with her husband (R. v. Clarke [1949] 33 Criminal Appeal Reports 216); (b) where there has been a decree of judicial separation or a decree nisi of divorce on the ground that "between the pronouncement of decree nisi and the obtaining of a decree absolute a marriage subsists as a mere technicality" (R. v. O’Brien [1974] 3 All England Law Reports 663); (c) where a court has issued an injunction restraining the husband from molesting the wife or the husband has given an undertaking to the court that he will not molest her (R. v. Steele [1976] 65 Criminal Appeal Reports 22); (d) in the case of R. v. Roberts ([1986] Criminal Law Reports 188), the Court of Appeal found that where a non-molestation order of two months had been made in favour of the wife her deemed consent to intercourse did not revive on expiry of the order; - where no court order has been made: (e) Mr Justice Lynskey observed, obiter, in R. v. Miller ([1954] 2 Queen’s Bench Division 282) that a wife’s consent would be revoked by an agreement to separate, particularly if it contained a non-molestation clause; (f) Lord Justice Geoffrey Lane stated, obiter, in R. v. Steele that a separation agreement with a non-cohabitation clause would have that effect. 25. The Law Commission noted that it was stated in R. v. Miller and endorsed by the Court of Appeal in R. v. Steele that lodging a petition for divorce would not be sufficient. It referred also to the ruling by Mr Justice Owen in the case of R. v. R. where an implied agreement to separate was considered sufficient to revoke the immunity and that, even in the absence of agreement, the withdrawal from cohabitation by either party, accompanied by a clear indication that consent to sexual intercourse had been terminated, would operate to exclude the immunity. It found this view difficult to reconcile with the approach in Steele that filing a divorce petition was "clearly" not sufficient. The ruling in R. v. R. appeared substantially to extend what had previously been thought to be the law, although it emphasised that factual separation, and not mere revocation of consent to intercourse, was necessary to remove the immunity. 26. The Law Commission pointed out that its inquiry was unusual in one important respect. It was usual practice, when considering the reform of common law rules, to consider the grounds expressed in the cases or other authorities for the current state of the law, in order to analyse whether those grounds were well-founded. However, that step was of little assistance here, not only because there was little case-law on the subject but also, and in particular, because there was little dispute that the reason set out in the authorities for the state of the law could not be supported (paragraph 4.1 of the Working Paper). The basis of the law was that intercourse against the wife’s actual will was excluded from the law of rape by the fictional deemed consent to intercourse perceived by Sir Mathew Hale in his dictum. This notion was not only quite artificial but, certainly in the modern context, was also quite anomalous. Indeed, it was difficult to find any current authority or commentator who thought that it was even remotely supportable. The artificial and anomalous nature of the marital immunity could be seen if it was reviewed against the current law on the legal effects of marriage (paragraph 4.2). The concept of deemed consent was artificial because the legal consequences of marriage were not the result of the parties’ mutual agreement. Although the parties should have legal capacity to enter into the marriage contract and should observe the necessary formalities, they were not free to decide the terms of the contract; marriage was rather a status from which flow certain rights or obligations, the contents of which were determined by the law from time to time. This point had been emphasised by Mr Justice Hawkins in R. v. Clarence (1888) when he said: "The intercourse which takes place between husband and wife after marriage is not by virtue of any special consent on her part, but is mere submission to an obligation imposed on her by law " (paragraph 4.3). In this connection, the Law Commission stressed that "[t]he rights and duties arising from marriage have, however, changed over the years as the law has adapted to changing social conditions and values. The more modern view of marriage is that it is a partnership of equals" (paragraph 4.4). It then gave examples of such changes in the law and added: "4.11 This gradual recognition of mutual rights and obligations within marriage, described in paragraphs 4.3-4.10 above, in our view demonstrates clearly that, whatever other arguments there may be in favour of the immunity, it cannot be claimed to be in any way justified by the nature of, or by the law governing, modern marriage." 27. The Law Commission made, inter alia, the provisional proposal that "the present marital immunity be abolished in all cases" (paragraph 5.2 of the Working Paper).