Mechanics of precedent - the case of R v R

Marriage entails irrevocable consent to sexual intercourse

Sir Matthew Hale, a seventeenth century witch-hunting judge, stated-in a hook not even a judgment-that marriage entails irrevocable consent, and one judge after another has maintained the legal fiction, keeping wives in legal sexual slavery.

R v R (rape - marital exemption) [1991] HL

Lord Lane CJ, delivering the judgment of the court (Lord Lane CJ, Sir Stephen Brown P, and Watkins, Neill, and Russell LLJ), taking the same view.

The court must choose between the "literal solution": that the 1976 Act by making unlawful sexual intercourse a necessary element of rape, had confined rape to sexual intercourse "outside the bounds of matrimony";

The "compromise solution,'' that the word is to be construed in such a way as to leave intact the exceptions to the husband's immunity which have been engrafted onto Hale CJ's proposition from R v Clarke onwards and is also to be construed so as to allow further exceptions as the occasion may arise" and the "radical solution" that Hale's opinion was not law. In the view of the court the "radical solution" was preferable:

"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."

Lord Keith of Kinkel, with whom the other members of the House (Lord Brandon of Oakbrook, Lord Griffith Lord Ackner, and Lord Lowry) agreed, repeated with approval in dismissing the husband's appeal to the House of Lords.

To hold "unlawfully'' to mean "outside marriage" … would be to give it a meaning peculiar to the subsection, and "if the mind of the draftsman had been directed to the existence of the exceptions he would surely have dealt with them specifically and not in such an oblique fashion." The word "unlawfully" in the definition of rape was surplusage, for forcible sexual intercourse was invariably unlawful.