MEANING OF "RAPE" ETC. (Hansard, 21 May 1976)

§ Mr. Lee
I beg to move Amendment No. 3, in page 1, line 7, after 'intercourse', insert: 'using physical force or by duress'. One of the extraordinary things about the law of rape is that, whereas almost every other offence in the criminal calendar is meticulously defined, rape is not. The Bill deals with the problems of anonymity, with which we have just 1946 dealt, and with the problems of the right to cross-examine as to character, which we shall be dealing with in due course, but it is only by way of a side wind to these matters that we find ourselves dealing with the central aspect of the offence itself.
I am somewhat surprised to find that the Government, having themselves given the Bill a measure of benevolent support, have not chosen to insert a definition of their own of a comprehensive character.
According to paragraph 2871 of Archbold, which is the criminal lawyer's bible, Rape consists in having unlawful sexual intercourse with a woman without her consent by force, fear or fraud. That is a very old definition. It refers back to some rather old legal tomes.
12.30 p.m.
There are a number of amendments on the Notice Paper, some of them in the name of the hon. and learned Member for Thanet, West (Mr. Rees-Davies), whom I do not see in his place. It may be that I shall find myself moving them in his stead. But my own attempt to improve this clause is somewhat spatch-cocked in character. However, what should commend itself to the House is that, to this extent at least, it enlarges the offence, because I specifically use the term "duress" as being a means by which rape is attained. But I shall come to that in a moment. I deal first with the words of the amendment in the order in which they appear.
One of the hazards that the law, as it has developed, seems to produce, making life difficult for a man—I do not say this in any cynical, frivolous or unseemly sense—is that verbal non-consent can be sufficient to sustain a charge if it is believed to be genuine and if it is believed by the defendant to be genuine at the material time. I think that that is as succinct a paraphrase of Morgan v. DPP as anyone could manage.
I seek by this amendment to make it clear in express terms that a measure of physical force shall be present. If I emphasise my own amendment, it may be that I should have attempted to define the degree of physical force to make it clear beyond peradventure, though it is made clear in a later amendment that 1947 the measure of force must be such that if it occurs and if it is needed by the would-be rapist, no would-be rapist could be in any doubt that what he was doing was not being consented to. I think that this problem has vexed—

§ Mr. Weitzman
My hon. Friend will recognise that he himself has not said what the physical force has to be. It might be a minimum of physical force. Surely every act of intercourse is accompanied by at least a minimum of physical force. Does not my hon. Friend's amendment really go to the question of consent?

§ Mr. Lee
My hon. and learned Friend raises two points. To the second the answer is, quite simply, "Yes". The first raises a philosophical point about whether there can be any act intro vagina which does not involve an element of, perhaps, involuntary physiological muscular resistance and that, if what my hon. and learned Friend said was taken to the reductio ad absurdum, it would mean that any act of sex carried with it the rape ingredient. If I put the interpretation that my hon. and learned Friend seems to seek to put upon my amendment or, indeed, upon the law as it now is, it would be to make every act of sex outside marriage a potential rape situation, and I cannot believe that even the Mary Whitehouses of this world would seek to do that.
I am grateful that the Chair has selected this amendment, disappointed though I am that New Clause 2 was not selected. However, we shall have an opportunity to discuss the substance of that when we come to Amendments No. 10 and 11. This debate provides the opportunity for some degree of discussion of the definition of this offence.
I apologise to the House for not having worded my amendment in sufficiently comprehensive terms, but it seems to me that we must get away more and more from the idea that the words are the most significant aspect. Persons in a sexual situation may use phrases in a not very rational way, and I think that it is dangerous to rely upon words evidentially in a criminal trial alleging a rape offence.
I think that the well-known old phrase bears repetition. I hope that I shall not 1948 furrow the brows of either Front Bench by seeming again to treat this in a frivolous or lighthearted way, because I am not. We all know the old phrase that if a lady says "No", she means "Probably"; if she says "Probably", she means "Yes"; and if she says "Yes", she is not a lady.
The purpose behind this part of the amendment is that we should get more and more away from the hazardous legal situations that are sometimes involved as a result of the words that may accompany a sex situation.
I do not think that the second part of the amendment requires very much definition or elaboration. In a sense, it repeats part of what is already stated. But duress goes a little further. A person may be forced into a sex act by blackmail. That is readily recognised. What is not recognised quite so readily is that a duress situation can be produced constructively.
The hon. Member for Burton (Mr. Lawrence) was counsel in the Kray case. He will remember the celebrated ruling of Mr. Justice Melford Stevenson with regard to a defendant named Barrie, in which he enunciated the doctrine of constructive duress. It is that a person may be in fear not because of the immediate physical circumstances but may act in terrorem because of fear induced by some preceding or even prospective situation—in this case fear of a powerful gangster—and that such a person charged with a criminal offence, which in this case was murder and allied offences against the person, was able to rely on the defence that he was still in fear of the person who had caused the fear, even though he was not in the immediate physical proximity of the person.
That part of the phrase helps to introduce that concept. In a sense, it widens the scope of the offence. I want this clearly understood, because although my hon. Friend the Member for Hemel Hempstead (Mr. Corbett) is probably irritated by my tactics, he must appreciate that I do not seek irresponsibly to make light of this offence. I hope he will understand that they are a token of my earnestness.
If the amendment were to be accepted in my submission its phraseology would 1949 enlarge the scope of the offence where it is a genuine offence. We are all at one in wishing to ensure that we do not convict people who should not be convicted. As a precedent to that, we must more clearly define the offence that is alleged against them.

§ Mr. Norman Miscampbell
(Blackpool, North): I believe that the words in the clause which state that a man commits rape if he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it are admirable. The clause should be left in exactly its present form. The hon. Member for Birmingham, Handsworth (Mr. Lee) says that his amendment would enlarge the crime or enlarge the possibility of conviction. I do not understand that at all. He goes on to put a constriction on the matter by saying "by those who ought to be convicted".
The amendment refers to physical force or duress, but the words does not consent to it can easily be put to a jury. On that basis, any jury can decide whether the circumstances were such that the woman did not consent to intercourse. Anything else that tries to restrict the jury's consideration of those words will do nothing to help.

§ Mr. Lee
I do not know whether the hon. and learned Gentleman proposes to do so at this stage, but perhaps he might choose at some stage to say whether there should be a point at which consent might be assumed—for example, if relationships had reached a certain degree of intimacy.

§ Mr. Miscampbell
If I am being asked whether I shall support a clause which provides that there may be rape within marriage—no, I am not. With that exception, however, I take the view that it is entirely a matter for the common sense of a jury. It is for a jury to look at the matter in the round and to ask itself "Has consent been proved or has it not?" Alternatively, the members of a jury might ask themselves whether it is something that they have to consider. To put the matter very shortly, I think that this is something we should leave entirely to the common sense of the jury. The amendment will not help.

§ Mr. Lawrence
The amendment is unnecessary and undesirable. It is unnecessary because physical force and duress are both evidence of lack of consent. As my hon. and learned Friend the Member for Blackpool, North (Mr. Miscampbell) has said, those are matters which juries always consider in cases of the sort we are discussing.
Secondly, the amendment is undesirable because by the mere definition "force or… duress" it excludes a number of situations in which rape applies. For instance, if someone represented that he was a doctor and was about to treat the patient in a way that involved sexual intercourse, when it was clear that the patient would not give her consent if she did not believe him to be a doctor, that would be rape by a trick.
12.45 p.m.
If a defendant crept into bed while a woman was sleeping and had intercourse with her while she was insensible through sleep, drink or drugs, even though there was no physical force or duress, there would be rape. There would be rape if there was intercourse with a woman, the woman believing that the person with whom she was having intercourse in the night, in the dark, was her husband whom she expected to be in bed with her. That would not necessarily involve physical force or duress.

§ Mr. Lee
The hon. Gentleman has given a number of definitions, but if part of his wording were interpreted literally it would mean that, in a common law wife-husband situation, if the "husband" got into bed with his mistress, she being asleep, and had sex with her, that would be an act of rape. I am sure he does not mean that.

§ Mr. Lawrence
If the woman consents, there is no rape. I am postulating a situation in which a woman consents because she believes the man to be her husband. But if the man who is in bed with her is not the husband, and if he knows that she would not consent, that would be rape. It would be rape even though there was no element of physical assault or duress.
It is also established law, I believe, that if a man has intercourse with a woman of such weak intellect as to be 1951 considered incapable of giving her consent, that would be rape although neither physical injury or duress would be involved. There are a number of situations which are excluded by the use of the words in the amendment.
My third reason for saying that the amendment is unnecessary and undesirable is that, had it been thought necessary over the years to have the qualification that is introduced in the amendment, it would have occurred in the years since East and Hale, who, I think, held force in 1800 or thereabouts. Ever since then the law, without the addition of these words, has been found adequate.

§ Mr. Lee
Oh, has it?

§ Mr. Lawrence
As far as I know, no attempt has been made to introduce legislation to change the wording. I suggest that what has held good for 176 years might hold good a little longer.

§ Mr. John
It might be as well for me to indicate the Government's attitude to the amendment. In my view, the definition as inserted by my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee) would narrow and not widen. Heilbron, in paragraph 19, provides that the essential of the crime is sexual intercourse with a woman without her consent". In my view, the importation of physical force or duress narrows the matter considerably.
There are rare examples in the law reports of cases in which fraud is used to obtain sexual intercourse. My hon. Friend will know very well the case of the King v. Williams in 1923, when sexual intercourse was obtained by a music teacher on the basis that he was thereby improving his pupil's voice. That is the sort of bizarre example which evokes mirth, and justifiably, but it would make it wrong for this legislature, by means of the Bill, to narrow matters and to take out of the protection of the law someone who is induced by fraud to have sexual intercourse with another.

§ Mr. Lee
May I give my hon. Friend an example which I hope he will not think distasteful? He has already given one bizarre example. Let us consider the case of Lord Lambton and the lady with 1952 whom he had his unfortunate affair. If she was paid by cheque and the cheque had bounced, that, I suppose, would be fraud. Would it be rape?

§ Mr. John
Consent is to the act and not to the surrounding contractual circumstances.
I am quite clear that this would be an undesirable amendment. I hope that the House will reject it or that my hon. Friend, now he realises that the amendment would narrow the definition, will withdraw it.

§ Sir Michael Havers
(Wimbledon): I agree with the Minister and with my hon. Friend the Member for Burton (Mr. Lawrence). I am clear in my own mind that the amendment would limit and not widen the definition of rape. The examples given by my hon. Friend are not all that rare. There was a case this week in a South of England Crown court about a girl who was rendered unconscious by the man, who then had intercourse with her. That is a clear example of where physical force had been used, but there will be examples of where a girl is rendered unconscious in other ways, particularly by drink, and then there might be a defence.
The definition as drafted seems to be good and effective, and the House should reject any restriction of it.

§ Mr. Lee
I introduced the amendment in a genuine attempt to widen the definition, but in view of the views expressed on both sides of the House I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Mr. John
I beg to move Amendment No. 11, in page 1, line 21, leave out subsection (3).

§ Mr. Deputy Speaker (Mr. Bryant God-man Irvine)
With it we are to discuss also Amendment No. 10 in page 1, line 20, at end insert — '(3) A husband commits rape if during the continuance of a separation order or any agreement not to molest his wife he has sexual intercourse with his wife when she does not consent to it.'

§ Mr. John
I can understand the concern of some of my hon. Friends who spoke in Committee about this problem and who referred to the circumstances which can arise in domestic situations. I 1953 hope that in moving the amendment I shall not be seen as guilty of some of the last-ditch attitudes towards marriage which sometimes characterise spokesmen on both sides of the House. Nevertheless, there are a number of very good reasons why a provision of this kind in a Bill such as this is undesirable.
First, the status of marriage is an area which the law would be right to invade only after due thought and consideration. That does not mean that the law never invades the status of marriage to make a criminal offence of matters which exist between husband and wife. There is Section 30 of the Theft Act 1968. Nevertheless, due consideration should be given before such an invasion, and I do not believe that that consideration has yet been given.
Even where the law is sanctioned to intervene in the case of marriage, as with the Theft Act, special limitations are imposed to ensure that such complaints as are made are not in themselves an extension of the matrimonial friction. Many complaints can be made upon a particular occasion which are not genuine long-term complaints but are emanations of existing frustrations. The law naturally and rightly is chary of intervening in those circumstances. The Theft Act therefore provides for safeguards on complaints of theft by one spouse against another. The subsection in the Bill imports no such limitations. It would be highly undesirable, without special circumstances, to do so.
My hon. Friends who feel strongly on this matter cannot disregard practical experience. Perhaps as a representative of the other branch of the legal profession I have had a little more experience of the mechanics of matrimonial complaints than members of the Bar. On many occasions spouses come to a solicitor swearing that they have finished with their marriage and that it is their settled intention to proceed with a matrimonial complaint. They say that they never want to see their partner again, but the solicitor, having taken the necessary steps, subsequently finds that happiness is restored and that the couple have made it up and do not want to pursue the complaint.
Unless there are safeguards in the Bill, complaints of rape by a wife against her husband could lead to a great many complaints which. while not frivolous, are 1954 not maintained to the point of trial. If there are a number of cases in which complaints are not proceeded with because of the relationship between husband and wife, that will inevitably weaken the general protection of a Bill of this kind for genuine cases. Those who have to enforce the law and conduct the cases would become, by the very nature of unmaintained complaints, somewhat cynical.

§ Mr. George Cunningham
Does my hon. Friend agree that, whether a woman makes a complaint frivolously or otherwise, all she can do at the moment is to ground it on the charge of assault and not rape?

§ Mr. John
My hon. Friend is right in suggesting that there is some protection in the criminal law against force and injury. Certainly the question of an assault is relevant in this situation, but there are many cases of assault in which the police do not intervene but leave the matter to a private prosecution.
I hope that in view of its limitations the subsection will be seen as likely to do more harm than good to those who are rightly protected under the rest of the Bill against this serious crime.
There is another point which bears upon the implications of the subsection. There are other sections of the Sexual Offences Act which also involve and impute the question of "unlawful" which would have to be amended as well if the situation were not to become in the meantime hopelessly anomalous.
But this is not the only opportunity that the House will have to consider the matter. The Criminal Law Revision Committee is examining questions of sexual offences. It is right that it should consider this problem, and I undertake to draw this debate to its attention so that it may specifically examine it if it so desires. I hope that that will reassure hon. Members who felt it right to include the subsection. It would not be right in the present state of the law for the subsection to remain.

§ Mr. Alexander W. Lyon (York)
I agree with the Minister of State that the subsection should be deleted. I am sure that my hon. Friend the Member 1955 for Islington, South and Finsbury (Mr. Cunningham) will agree, too. I only hope that the message which will go to the Criminal Law Revision Committee will be clear—that we want it to approach this issue with a completely open mind, recognising that in the Standing Committee there was a strong body of opinion to the effect that this change in the law should be made. The change was supported, in particular, by the lady members of the Standing Committee.
Whatever the arguments about privacy of marriage or the difficulties of proving complaints made by wives against husbands, the fact is that my hon. Friend the Member for Islington, South and Finsbury totally demolished such arguments as I was able to advance in Committee and which have been advanced again on Report, by pointing to the absurdity arising from the fact that a wife cannot allege rape against her husband but she can allege a criminal assault in almost identical circumstances, and that the issues that arise therefrom are almost the same, except for the question of penetration. In those circumstances, there is great logical force in the case that my hon. Friend the Member for Islington, South and Finsbury advanced in Committee and will no doubt advance again today.
The Criminal Law Revision Committee should ask itself whether, nowadays, in view of the changed attitude to marriage, we still need this exemption from the criminal law for a husband acting in this way. If it approaches the question with a fresh eye and without any suggestion that either the Government or the House have a bias towards retaining the present law, I am content that the matter should go to the Committee rather than be adjudicated on here today.

§ Mr. George Cunningham
I am very grateful for that intervention by the former Minister of State, Home Office.
I am content to accept the assurance that the present Minister of State has given, to the effect that the matter will be specifically referred to the Criminal Law Revision Committee and that that committee will be asked to address its mind to the question without simply falling into the rut of doing what has normally been done in English law.
1956 As that is my attitude, I shall not go over all the arguments that were rehearsed at some length in Standing Committee. I would make only a few points. First, it is worthy of notice that, as I read the authorities—I say again that I am no lawyer, and I therefore apologise to the lawyers, because I may get things wrong—it is not absolutely clear that in a very hard case the court would hold that it is legally impossible for a husband to be found guilty of raping his wife; there is still an element of doubt about that.
If over the past 50 years there had been a suitably fortunate or unfortunate series of cases, which had led the courts from the very hardest possible case to a slightly less hard case, we could have now had case law that reflected the view set out in the subsection that the Government ask the House to delete.
Secondly, as my hon. Friend the Member for York (Mr. Lyon) said, a woman has a legal ground of complaint at present if her husband has intercourse with her without her consent and uses any degree whatsoever of violence. She can bring a charge of assault against him. That is the answer to the objection that, if we were to put this provision into the law, thousands of women would run down the street shouting "Rape!" because of a little tiff with their husbands. If they were minded to do that now, they could do it, but even though they shouted "Rape"! now they would have to get the police to bring a charge of assault. So I do not think there are grounds for the worry that there would be masses of cases in which charges of rape were brought for trivial reasons against husbands. If an accusation were made, the police would be even more reluctant to have anything to do with the matter than they are in the case of an assault charge. If the police took action, the wife would find it very difficult to bring sufficient evidence in court.
What is objectionable about the present situation is that we assume, not because of anything in the mores of the twentieth century but because of things that are in the mores of previous centuries, that a woman, having once consented to conjugal rights for her husband, consents for all time and on each occasion to his having intercourse with 1957 her, whether or not at the time she consents to any particular act of intercourse.
If we were starting from scratch now, we should not make that the law. There must come a time when the law changes to take account of the changing mores of the age.
On the basis of the assurance that the Minister of State has given, however—that the matter will be explicitely referred to the Criminal Law Revision Committee and that that committee will be asked to address its mind to this point—it would be wise for the House to remove the provision from the Bill. I say that particularly because, if, in the meantime, there is a case where a husband "rapes" his wife, there is a legal remedy; he can be charged with assault and we can correct the illogicality of the present situation after we have had the advice of the Criminal Law Revision Committee.

§ Mr. W. R. Rees-Davies (Thanet, West)
The position that now arises may prove somewhat unsatisfactory from the Government's point of view. I entirely support the move to delete subsection (3). I think that it is utterly wrong that a husband can be regarded as guilty of raping his wife at the time when the parties are in cohabitation.
However, if Amendment No. 11 is accepted and subsection (3) is deleted, I am not sure that it follows that Amendment No. 10 can be accepted. Perhaps I should therefore refer to Amendment No. 10 —
A husband commits rape if during the continuance of a separation order or any agreement not to molest his wife he has sexual intercourse with his wife when she does not consent to it. I submit that that is a perfectly proper amendment. If a man who is judicially separated from his wife, or who has a separation order of the court from his wife, or who has entered into a non-molestation clause in an agreement in which he has agreed that he will not in any way molest his wife, then has sexual intercourse with his wife when she does not consent to it, I am perfectly prepared to concede that that could amount to rape, because the conditions of marriage have all been abrogated either by the order or by the agreement of the parties.
I have taken the view that we can insert Amendment No. 10 as a replace- 1958 ment after we have taken Amendment No. 11, which of course I support. However, can Amendment No. 11 be taken before Amendment No. 10? If the words set out in Amendment No. 10 were to be inserted into the Bill, would they be taken out by Amendment No. 11? I do not know whether you, Mr. Deputy Speaker, can shed any light on this proposition, which goes to the question of the debate on Amendment No. 10.

Mr.Deputy Speaker
It might be helpful if the Minister would express his view on this amendment before we go further into that matter.

§ Mr. Rees-Davies
I do not know whether there is a practical problem. I agree with the Government that the question of a man raping his wife when they are living together should not have been included in the first place. At the same time, I should like the Government to consider the position that arises on Amendment No. 10—namely, when there is a separation order.
The Home Office, the courts, and the country generally are in some confusion. There is an appeal before the courts at present that concerns the position in the event of there being a de facto separation. In that case the husband and wife were separated. The question is whether the husband committed rape in the circumstances.

§ Mr. Lee
On a point of order, Mr. Deputy Speaker. While the Under-Secretary of State is considering the point that has been made by the hon. and learned Member for Thanet, West (Mr. Rees-Davies), may we have the assistance of the Chair on another matter? It will not be within your recollection, because you were not in the Chair at the time, but in the first debate this morning, on New Clause 1, with which I was coupled my Amendment No. 26, I asked whether there could be separate Divisions. I was invited to and did consult the Chair, as it were, behind the scenes, and was advised that there could not be separate Divisions. I loyally accept that decision. However, I think that it would be of assistance if, before the debate develops much further, the hon. and learned Member for Thanet, West could be informed of the attitude not only of the Home Office but of the Chair on the question whether these matters may be dealt 1959 with in, as it were, separate debates. We shall then know how far we can go on the matter as a whole.

§ Mr. Deputy Speaker
I think that I can help the hon. Gentleman. Amendment No. 11 has been selected for debate, and with that we are taking Amendment No. 10 for discussion. That is as far as can go at the moment.

§ Mr. Rees-Davies
I think that we can take it that Amendment No. 11 is likely to commend itself to the whole House. The question then arises as whether Amendment No. 10 can be called for a Division, because it is a replacement and the House might wish to vote on it. That is a totally separate matter, which seeks to take account of the position that arises when the parties are separated.

§ Mr. John
With the leave of the House, it might be of assistance if I respond to the hon. and learned Member for Thanet, West (Mr. Rees-Davies) regarding the Government's attitude to Amendment No. 10. I should not invite the House to substitute the definition in Amendment No. 10 if the other definition were taken out. There are three reasons. First, the amendment suggests that during the continuance of a separation order in which there is a non-cohabitation clause a husband commits rape.
Secondly, the amendment seeks to bring in
any agreement not to molest his wife". That seems much too vague. It does not go to the root of the question whether the agreement is committed to any particular form, before any particular body, or for any particular purpose.
Thirdly, the amendment does not import the mental attitude that is necessary on the part of the defendant to constitute the absence of consent. Therefore, there is a great danger that it might lead to an offence of strict liability in these circumstances.

§ Mr. Lawrence
I support the Government on their attitude to Amendment No. 11 and my hon. and learned Friend the Member for Thanet, West (Mr. Rees-Davies) on his request. The position is not quite as clear as the Minister of State 1960 asserted with great confidence regarding the separation order.
The relevant passage in "Archbold", which contains the definitive statement of the law, as we practitioners understand it, states that
It is a general proposition that a husband cannot be guilty of a rape upon his wife; but it would seem that the proposition does not necessarily extend to every possible case. A separation order made by justices containing a provision that the wife be no longer bound to cohabit with her husband has the effect of revoking the consent which the wife by process of law, namely, marriage, has given to the husband to exercise the marital right during such time as the ordinary relations created by the marriage subsist between them. Consequently, whilst such order is in force the husband is not entitled to have sexual intercourse with the wife without her consent and, if he does, he will be guilty of rape. Semble, a separation agreement, particularly if it contained a non-molestation clause, would have the same effect as a separation order; but the mere filing of a petition for divorce by the wife, or the giving of evidence by her in support of a petition which has been adjourned, does not operate as a revocation of the wife's implied consent to intercourse. The doubt is over the separation agreement. It seems that, as there is doubt surrounding the whole matter, it might be right for Amendment No. 10 to go forward so that another place may consider it at greater leisure. I am mindful of the Minister's undertaking that the Criminal Law Revision Committee will, in any event, consider it, but I should not like to think that an amendment of this nature would necessarily be dismissed because it did not go forward. That is a risk that is sometimes taken in these circumstances.

§ Mr. John
It is not the case that matters are not considered by the appropriate committee merely because they do not go forward. Obviously, the committee has access to the Journals of this House. If it believes it to be of sufficient doubt, it would clearly consider the matter.

§ Mr. Lawrence
I am obliged to the Minister.
I should like to address my final remarks to Amendment No. 11. There are some strong arguments to be made for the proposition by the hon. Member for Islington, South and Finsbury (Mr. Cunningham) about the change in attitude towards the sanctity of marriage. I do not think that a change in attitude 1961 towards the sanctity of marriage is good. Nevertheless, the law in general should not be seen to be lagging behind public opinion. There is no doubt that the attitude towards the sanctity of marriage and the status of the wife is not quite the same as it used to be.

§ Mr. George Cunningham
The sancity element is not involved here.

§ Mr. Lawrence
I am perhaps paraphrasing the general line of argument adopted by others than the hon. Gentleman. My reason for supporting Amendment No. 11 is that the practical difficulties are considerable. Those of us who have had any dealings in the courts with domestic conflicts between husband and wife have the most forbidding experiences of how far such conflicts will go. It was Congreve who said:
Heav'n has no rage, like love to hatred turn'd, Nor Hell a fury, like a woman scorn'd. When that stage of hatred is reached, the more hurtful the allegation the more likely it is to be made.
It has been said that a situation now exists in which a woman can cry assault and therefore there is no need for her to be discouraged from crying rape, but assault and rape are not the same. During the earlier debate on the clause hon. Members on both sides of the House agreed that the stigma attaching to rape was so great as to differentiate the rules that would necessarily be required to be followed from those of other offences. Rape has an emotional context—a psychological effect upon people's minds that one does not find when a wife complains that her husband has hit her.
Perhaps more substantial than that, if a wife goes to the police and claims that she has been assaulted, before the police take any action they are likely to want to see an injury. They will try to calm her down. They will try to get a woman police officer to sit with the complainant for half an hour to give the policewoman a chance to assess the situation if there is no evidence at all that the husband has assaulted or hurt the woman. The same considerations do not apply for rape. There does not have to be any evidence of injury. All that a woman has to do is to disarrange her clothes, and it would be a courageous police officer of either sex 1962 who would at that stage desire to go deeper into the evidential matters on an allegation of that kind.
For those reasons, there is a substantial difference between the attitude of a woman crying rape and that of a woman crying assault. By not supporting the Government on this matter we should be laying in store for ourselves—I do not mean just lawyers, but also those for whom the lawyers act in society—a whole barrel-load of trouble. That would be the result if we were to give way to the blandish. ments of the hon. Member for Islington. South and Finsbury (Mr. Cunningham) who has merit in his theory but none in his analysis of the practice.

§ Mr. George Cunningham
Does the hon. Gentleman agree that if the development of the law had been such that a woman could not bring a charge of assault against her husband and I had been here moving a change of the law to say that in future she could be allowed to bring such a charge, all these arguments would be brought out about the sanctity of marriage, how difficult it would be to prove it, that a policewoman would sit with her arm around the complainant, and so on? The law allows a wife to make such a charge, and, in principle, that is right and it does not present insuperable difficulties. Some day we shall take the extra step and people will find that the pillars of the temple will not collapse, and they will wonder why it took so long to make this logical move.

§ Mr. Edward Lyon
I agree with the Government's view that Clause I should be deleted. I appreciate, too, that this is a matter that should be considered by the Criminal Law Revision Committee, but there are one or two points that I should like to make.
First, it seems to me—I said this in Committee upstairs—that since the essence of the existing law is that one cannot prosecute a husband for rape because there is cohabitation, where there is no cohabitation rape ought to lie. Rape should, therefore, lie not only in cases where there is a separation order with a non-cohabitation clause but also where the parties are living apart but where no separation order exists. That seems to be obvious.
1963 Nowadays, many people do not bother to take out separation orders. If a wife is driven from her husband or leaves him and is earning money on her own behalf, she may see no advantage in going to the magistrates' court to achieve a separation order. That being so, she has made a decision to live apart from her husband. They are living separately but there is no order, yet the law gives her no protection if the husband coerces her while she is living away from the previous matrimonial home. That situation ought to be rectified.
Often when a wife wishes to obtain an order it might be months before the hearing at the magistrates' court is fixed. It may be difficult to find the husband to serve the papers on him. Throughout that period the husband may go to the separated wife and rape her, and no charge of rape would lie. Those are matters which I hope the Criminal Law Revision Committee will consider.
I do not take the view of my hon. Friend the Member for York (Mr. Lyon) that in Committee upstairs when he was Minister of State his arguments were thoroughly demolished by my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham), even though, as always, he was highly persuasive. The fact is that a private complaint by a wife on summons to a magistrates' court that she has been assaulted by her husband usually produces at the most a fine. It has to be a serious offence to get more than that, and the occasion attracts no publicity. But a case of rape goes to the Crown court. The magistrates' court has no jurisdiction whatsover in that case. Accordingly, one is in a different league entirely in terms of both publicity and penalty. Indeed, one is in a different league also in terms of legal costs to the defendant or, if it is legal aid, to the State.
Rape is different from assault in its immediate and practical consequences. I agree that mores have changed and that it is right that a wife is entitled to say to her husband that whatever she did yesterday she is not prepared to do today. But one has to look at the practicalities, and what worries me is that if the law says that there can be 1964 rape during cohabitation under the same roof many cases may go to the Crown court, where the husband would be open to the most serious penalty. I say that because I have never yet seen a rape case in which a conviction has not resulted in a sentence of imprisonment.

§ Mr. Ashley
I should like my hon. and learned Friend to explain to the House why he wants to change the terminology. If a woman is raped by a man, irrespective of whether they are married, cohabiting or not married, it is still rape. Is it not the case that all that my hon. and learned Friend and those who agree with him are seeking is a change in the name, when in fact it is, still rape and should be treated as such?

§ Mr. Lyons
I agree that if a woman in marriage says "No" and her husband insists, that is rape; but one cannot divorce from that consideration the fact that rape is treated as an enormously serious offence. One therefore has to look at the ease with which a charge can be made.
In marriage, the charge can be made with ease when the couple are living under the same roof. Normally, in a charge of rape of a woman in the street, medical evidence of various kinds is adduced by the prosecution. When there is no evidence and there is absence of injury, the prosecution would not normally countenance or instigate a prosecution, because it would not consider it prudent to do so. There is always the danger that it might. It seems to me that the Criminal Law Revision Committee should consider this carefully before introducing rape as an offence while the parties are cohabiting.

§ Mr. Lee
Let us be quite clear about what has been said. I agree with my hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley) that rape is an extremely serious offence. My hon. and learned Friend the Member for Bradford, West (Mr. Lyons) said that he has never known of a conviction which did not result in imprisonment. What he was saying, if I understood him correctly, was that, first, there can be rape. in the philosophic sense at any rate, within marriage, and secondly, it should carry no penalty when the parties were cohabiting.

§ Mr. Lyons
I am saying that there can be rape in that sense, but one must also have regard to the ease with which the allegation can be made in marriage and the greater ease of a false allegation being made. All I am saying is that the Criminal Law Revision Committee should bear that in mind. I hope that it will be able to find a formula, resulting from its greater investigation, which will accommodate the views of my hon. Friend the Member for Islington, South and Finsbury so that a woman's dignity can be protected in marriage. What worries me at the moment are the practicalities of finding a formula.

§ Mrs. Ann Taylor (Bolton, West)
Is my hon. Friend really saying that because it is easy for a woman to bring a charge of rape against her husband she is likely to do so frivolously? Surely the woman would charge her husband with rape only after a very difficult situation had already arisen. It is not something she would do lightly. We know already, from the evidence in the letters referred to by my hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley), that women are reluctant to bring a charge of rape at any time. Surely a wife would be even more reluctant to bring a charge in these circumstances.

§ Mr. Lyons
I do not accept for one moment that women, when they bring a charge of rape, always bring a trivial charge. I do not accept either that a woman would bring a charge of rape against her husband only when it had been committed. In the past, practitioners have found that in many matrimonial cases there is hatred and emotional involvement to such an extent between the parties as not to recommend itself to the light of reason.
It would be quite possible for a wife, after a stormy argument with her husband, to go to the nearest police station, even though she had not been to bed with him for a week, and say that her husband had raped her the previous day. Because sexual intercourse had taken place and the man's seminal traces were on her clothes, a very difficult situation would be created. I am saying that before the law permits a husband to be put in jeopardy by that sort of allegation it should be considered carefully to see 1966 whether a safeguarding formula can be achieved.

§ Mrs. Ann Taylor
Surely the point is that it would be very difficult for the wife to bring sufficient evidence against her husband, and, therefore, she would not embark on this kind of situation lightly simply because she had a grudge against him. Before she did that or brought any other charge against her husband, she would have to be driven to do it. Is my hon. and learned Friend saying that a woman who has every reason to bring a rape charge against her husband should not be allowed to do so? He has to explain why we should accept that situation.

§ Mr. Lyons
With respect to my hon. Friend, I have not said that a wife should not be allowed to do so. I have said that I see great difficulty and that the matter should be considered by the Criminal Law Revision Committee. I do not accept that when a woman makes a complaint of rape against her husband she will necessarily get a conviction or is even looking for it. The danger is that in the heat of the argument she will report the matter to the police and the husband will be charged with rape. The fact that he is acquitted, at considerable expense to himself and the State, is some consolation, but the damage would already have been done. A woman who is raped in the street has no animus against the man except that he raped her, but there are many reasons why a woman could be vengeful towards her husband irrespective of sex. Therefore, one has to be very careful.

§ Mr. Rees-Davies
I should like to follow what the hon. and learned Member for Bradford, West (Mr. Lyons) has just said with one or two further points for the consideration of the House. My first point is that the details of marriage—

§ Mr. Deputy Speaker (Sir Myer Galpern)
Order. I have just taken over the Chair, but I understand that the hon. and learned Member has already taken part in the debate on this amendment.

§ Mr. Rees-Davies
That is right, Mr. Deputy Speaker, in relation to Amendment No. 10, when I was seeking the guidance of the House as to whether we could have a separate Division in respect of that amendment. So far, I have not 1967 got an answer whether we can have a Division on Amendment No. 10.

§ Mr. Deputy Speaker
Order. I take it that the hon. and learned Gentleman confined his remarks merely to asking that question and that he has not really spoken. As far as the question of a Division is concerned. I should point out that that amendment was selected purely for discussion and not for a Division. I shall give the hon. and learned Member the benefit of the doubt.

§ Mr. Rees-Davies
If I am wrong, Mr. Deputy Speaker, perhaps I may have the leave of the House to speak. I shall confine myself to Amendment No. 11, because it has been said that the mover of the original amendment has agreed to withdraw the amendment, which became part of the Bill at is now stands, so that the matter can be considered by the Criminal Law Revision Committee.
I would make three or four points. It seems to me that the whole tenor of marriage is that it should be out of the public gaze, that what goes on in the matrimonial bed and questions of allegations made by husbands against their wives or wives against their husbands should not be reported, and that there should be the maximum privacy.
The second point is that rape, next to murder, is one of the most serious crimes in the calendar. It is a very easy charge to make but a difficult one to rebut. However, if a person is convicted of rape it will ruin his career for the rest of his working life. He will not be able to work in any of the professions or maintain a job of any kind. Therefore, to lay a charge of rape when there may be an alternative charge is an extremely serious matter which would ruin that man for the rest of his life. It is, of course, true that wives can always lay a charge of assault and that the man can be convicted.
My third point is that I know from my experience in the divorce courts, and from advising on these matters over a period of years, that many hundreds of baseless allegations are made by husbands against wives, or by wives against husbands, particularly where money is involved. If a woman could substantiate a charge of rape against her husband, she would be able to substantiate a petition 1968 on the grounds of cruelty. If she did that, she would then succeed in her petition and be able to obtain the maintenance that she sought. If she could secure that on a baseless allegation, or one without substance, she would be in a position of very great strength, and the mere threat of the publicity might be sufficient to cow the respondent to a petition to drop proceedings and agree to divorce.

§ Mrs. Ann Taylor
The hon. and learned Gentleman has been explaining how serious is the charge of rape. No one is disputing that. A man who rapes his wife should recognise the seriousness of the offence and pay the penalty. We should not change the penalty because he happens to be married and enable him to take advantage of this legislation.

§ Mr. Rees-Davies
What about the wife who is in a bad psychiatric condition, finds it easy to work herself up into an intense emotional belief and alleges that she has been sexually assaulted by her husband? The fact that the two live together makes independent corroboration difficult. For all these reasons it would be unfair and dangerous to allow rape to come into the question.
There is also a contractual element of marriage, quite part from its religious aspect. It would be going far beyond the bounds of anything hitherto imagined to allow this serious crime to come into the matrimonial bed. I believe that the Criminal Law Revision Committee should consider this matter. Let us not forget that the marriage contract between the parties connotes that they are in bed together by agreement. If the parties are no longer in the matrimonial bed by agreement, it is going too far to suggest that the law should be changed to enable this crime to be pursued.

§ Mr. Ashley
I feel deeply about this problem, although I recognise that the majority in the House is against preserving the subsection. I believe that we should keep subsection (3) and that a man who rapes his wife should be charged with precisely that offence.
I am not impressed by suggestions that the matter should go to the Criminal Law Revision Committee. I have nothing against that body, and I am sure that the distinguished lawyers who serve on it would be able to bring expert opinion 1969 to bear, but it is the House which legislates. It is our job to analyse the problems and legislate accordingly, and we have discussed this issue at considerable length, thanks to my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham).
It is totally wrong for the wedding ring to be a licence for unlimited sexual intercourse. Basic to a happy marriage is consent, and consent is basic to all sexual intercourse. A woman who does not consent to sexual intercourse is, in my book, being raped. That means that the man must pay the penalty. It is as simple as that.
The preposterous wedding contract that the woman must love, honour and obey her husband is anachronistic. By all means let the woman love and honour her husband, provided that he is prepared to do the same, but the idea of a woman obeying a man in this modern age is absurd.
Hon. Members who want to remove the subsection say that they do not want the law in the bedroom. That is an admirable principle, but neither do we want rape in the bedroom. We have the clear choice. Are we to interfere when a man rapes a woman in the bedroom or are we to allow rape in the bedroom? I suggest that we should allow rape nowhere, in or out of the bedroom. Rape is rape and should be treated as such.
I know that I am a loser on this occasion, but I give notice that I shall raise the matter again as soon as possible because I am convinced that every man should ask every woman for her consent on every occasion.

§ Mr. Edward Gardner
It might be helpful for me to give the views of many Opposition Members on the deletion of subsection (3) and the addition proposed by my hon. and learned Friend the Member for Thanet, West (Mr. Rees-Davies). I think I am right in saying that most of us on the Opposition side of the House—and I hope many on the other side—take the view that there are good reasons for deleting subsection (3), and that those reasons are relevant to our consideration whether to insert the words proposed in my hon. and learned Friend's amendment.
1970 Traditionally one hopes that in fact if not in law love and marriage go together, as someone romantically said, like a horse and carriage. But rape and marriage do not go together either in the public mind or in fact. That is not to say that technically, in exceptionally rare cases, there could not be rape within the marriage state.
We have to keep our feet well on the ground and bring to bear a little earthy common sense. There are some women who are so unscrupulous that if they were given the encouragement of a statutory provision such as subsection (3) they might well be prepared to commit perjury and bring their husbands into a criminal court for the sole purpose of breaking up the marriage. That result is not likely to be regarded as desirable by the House or by anyone else who wishes to improve the law.

§ Mr. George Cunningham
That can be done now, on the spot.

§ Mr. Gardner
I hope that I shall not be accused of being unrealistic in suggesting that we should look at the matter in as earthy a manner as possible. Whatever technical offence may be committed within the marriage state, such cases would be rare indeed. Therefore, to legislate merely to accommodate the exceptional and rare case would be to go down the road towards bad law.

§ Mr. George Cunningham
The crime of murder is also rare.

§ Mr. Gardner
Obviously, that is a quite different offence. Rape is an offence committed by a man on a woman, usually in the intimacy of a private place. We are now looking beyond that to the sanctity, if I may use that word, of the married state. If there is a need for this provision, I have not discovered its existence in any of the arguments that have been put forward so far. Therefore, on behalf of the Opposition, I warmly welcome the Government's decision to delete this offending provision from the Bill so that the matter may be examined by the Criminal Law Revision Committee. I must say to my hon. and learned Friend the Member for Thanet, West, who has given deep and anxious thought to this problem, that it would be wise to leave consideration of the 1971 matters he has advanced also to examination by that committee.

§ Mr. Lee
The hon. and learned Member for South Fylde (Mr. Gardner) began to get himself in some difficulty when he suggested that rape was a delicate situation, committed in the confines of privacy —a subject difficult to deal with within the provisions of a Bill. I think that, inadvertently, he drew attention to the profound cynicism implied in the law as it stands—a matter to which my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham), to whom we are all grateful for this opportunity to discuss this matter, drew attention. Indeed, the fact that the Standing Committee carried an amendment on this topic has forced a discussion on this aspect of the law.
Stripped of its verbiage, the law at present says that rape is a profoundly serious offence—so serious that it can carry a maximum sentence of life imprisonment—and can be committed by any male person on any woman except his wife. The important aspect of the criminal law that distinguishes a married state from a non-married state as between two parties is the right to commit rape on one's partner. For those who have regard to the sanctity of marriage, such a concept is a blasphemous reflection on the nature of marriage, and they believe that these proposals may land us in a difficult situation. It is true that there are instances of what in any other circumstances save for the contract of marriage, would be the most appalling rapes, leading to long prison sentences. The only reason that such instances do not lead to that situation is that those concerned possess a marriage certificate, obtained from a church or register office. That cannot be a satisfactory situation.
However, the problem does not end there. If it is said that one cannot deal with this matter by amending the law in this way, it puts every marriage into a potential rape situation every night of its existence. It is thought that no action must be taken, because it may give an opportunity to an unscrupulous person. Since the amendments dealing with the possibility of a woman committing a rape upon a man have not been selected, we cannot go into that situation.
1972 Although it may be true that many minor assaults by a husband on a wife are not pursued, the fact is that there has been recent comment on the matter. A number of chief constables have said, in terms, that this is not the kind of policy they wish to see pursued and that policemen should be more willing, more courageous, and more prepared to come forward to assist a prosecution of even minor assaults not amounting to grievous bodily harm, where the wife is the victim of the husband. However, I believe that that will not do. The feeling about the law is changing.
The position does not end there. As the law stands at the moment, a husband can commit murder on his wife; in certain circumstances he can commit an assault or a theft; but in no circumstances can he commit rape. That seems to be an idiotic situation.
The Government's objection to the proposals put forward by my hon. Friend the Member for Islington, South and Finsbury is that in dealing with rape within marriage one faces two almost intractable problems—one evidential, and the other dealing with the logic of relationships of people cohabiting but unmarried.
2.0 p.m.
Let us deal with the first. This concerns the problems that many of us have been worried about in earlier debates today. It is one of the great troubles and dangers about this law, and it is inescapable and in the very nature of the offence, as the hon. and learned Member for Thanet, West made clear, that rape is an accusation that is very easy to make, requires comparatively little evidence and is very difficult to refute once it is made and set on the path towards trial. Therefore, if one concedes that there can be rape within marriage, that problem raises itself in even more extreme circumstances, because there can be minor tiffs or major tiffs leading to accusations that are even more difficult to refute outside the marriage bed.
Basically, rape falls into two categories, one of which probably ought not to be subject to the law at all. There is the snatch-and-grab situation—the kind of situation that existed in the appalling cases in Cambridge—and the situation in which two persons are in an intimate emotional relationship vis-à-vis each 1973 other, which looks like leading to consensual sexual intercourse, but in which, at the very last moment, the woman concerned withdraws consent and the man, by that time, is in such a state of sexual excitement that he cannot stop. He has been led into a rape situation of a totally different kind.
In some respects, the task of rebutting the accusation in the latter case is more difficult, because in circumstances of privacy it is more likely that there will be no independent witness available to give evidence as to the genuineness or otherwise of the situation. In the case of snatch and grab, there will be evidence of assault and of damage to clothing, and possibly someone will have seen evidence of distress afterwards, which is useful from the point of view of negativing other evidence.
That leads to one difficulty, and whichever way the House comes down on this matter, we must face it.

§ Mr. Alexander W. Lyon
As I understand the drift of my hon. Friend's argument, he is arguing, as the Minister did, that we ought to remove this subsection. We have spent three hours on the Bill today already, and we have not reached the end of Clause 1. If my hon. Friend is seeking to talk out this Bill, he had better say so. This measure would make a considerable improvement in the law, much requested by women's organisations all over the country. It is a measure to which the whole House is apparently giving its general consent. If my hon. Friend, personally, is seeking to talk out a Bill of this importance, perhaps he will have the courage to say so; then we can all decide whether or not to go home.

§ Mr. Lee
That is a tendentious observation. My hon. Friend knows perfectly well that this law is a difficult matter. He has said so himself. If his view is that the Bill is perfect and should go through, one may ask why he sought to intervene in the debate at all.
These matters must be carefully considered. It is a difficult situation, involving a grave offence. The Bill cannot be passed merely because a series of women's organisations, probably misunderstanding the case of the Director of Public Prosecutions v. Morgan, has 1974 decided that it should be railroaded through.

§ Mr. Edward Lyons
Will my hon. Friend answer the question put by my hon. Friend the Member for York (Mr. Lyon)? Is it his intention to talk out the Bill? Yes or no?

§ Mr. Lee
I am talking on the Bill, not talking out the Bill.

§ Mr. George Cunningham
Oh! Really!

§ Mr. Lee
The position is that New Clause 2 was not selected for debate.

§ Mr. George Cunningham
My hon. Friend is filibustering.

§ Mr. Lee
My hon. Friend should subside. I was not a member of the Standing Committee. I did not speak in the Second Reading debate. I could not be present on that day. There is no licence to the effect that only those hon. Members who took part in the Second Reading debate should take part in debates on Report. My hon. Friend the Member for Islington, South and Finsbury is experienced enough to know that that is true.

§ Mr. George Cunningham
This Bill is not like some that come up for debate on a Friday, having had inadequate consideration by the House or by a Committee, in terms of time. This Bill has had a proper Second Reading debate and has had four Sittings in Standing Committee, I think—certainly three Sittings —so no one can say that inadequate attention has been given to it. By the normal standards of parliamentary democracy, therefore, to which I am sure my hon. Friend would subscribe, it ought to pass if there is a majority in favour of it and it ought not to fail because one hon. Member is prepared to talk it out. That would not be a democratic way of behaving. Surely my hon. Friend is not saying that he is prepared to use—some would say "abuse"—the privilege of one Member being able to put forward his view in order to prolong the debate. The Bill should pass and the House should have time to give consideration to the amendments, including those that he has tabled.

§ Mr. Lee
I shall deal with those points in reverse order. If the Bill merits the attention that my hon. Friend suggested, 1975 and if it commands the support that he claims it has, no doubt the Government will do what the then Government did in the case of the Capital Punishment Bill in 1965—provide extra time so that it can be considered. As I want to consider these matters, I shall not foreclose on my speeches merely because my hon. Friend tells me—on what authority I know not—that there is an overwhelming majority in support of the Bill. He has spoken on the Bill in an intervention, rightly and relevantly. Perhaps he will allow me the courtesy of talking about those matters that concern me and about which I believe there are difficulties.
The fact that we have had this extraordinary confusion about whether or not rape should apply within marriage, and that my hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley), who is one of the sponsors of the Bill, is quite clearly in a minority in the House as a whole in propounding that it should, is an indication of the difficulties that we are in.
Perhaps I may continue with the body of matters involved. If there are evidential pitfalls standing in the way of admitting rape within marriage, there are surely difficulties, which the House ought to recognise, with regard to non-marital cohabitation situations. I see that my hon. Friend the Member for Islington, South and Finsbury is now about to leave the Chamber. He will know perfectly well that there are hundreds of thousands of people who live together in circumstances unsanctioned by marriage. In many cases those relationships are as stable, as loving and as enduring as many marriages sanctioned by law. They, too, are no doubt subject to the same kind of emotional tension situations referred to by the hon. and learned Members for South Fylde and Thanet, West. They, too, may give rise to a combustible situation, in which one or other partner may march out in a fit of rage or pique, causing the woman to seek revenge by bringing a rape accusation.
The law at present does not protect the man in that situation. The law puts him in the same situation as those involved in a casual encounter—a leap-in-the-dark, highway-robbery rape. This seems the major objection to the accept- 1976 ance of the law as it stands at present. If we include as exceptions to the law of rape subsisting marriages, not impeded by non-cohabitation or non-molestation provisions, we should also include cohabitation situations. It is no good the Minister's saying that we cannot define cohabitation. The Department of Health and Social Security defines it for the purpose of social security benefits.

§ Miss Jo Richardson (Barking)
Inadequately.

§ Mr. Lee
Yes. I recognise that my hon. Friend has done yeoman work in this respect.
Eventually we shall get the matter right. Nobody has said "It is too difficult. We will not attempt to define it. Therefore, we will ignore the situation." The term "common law husband and wife" is used by practising lawyers time and again in courts. Although one or two judges may take exception to it—I know of one who sits in a court not far from London who gets excited about it—hardly anyone else, other than the ecclesiastical lawyers, does so because we know what it means. Therefore, both should be included in or excluded from the law of rape.
I wish to know from the Minister whether, if he seeks to delete the Standing Committee amendment which would permit rape, he recognises the anomaly which would obtain—in fact, it obtains now as the law stands—regarding cohabitation. If he seeks to preserve the protection of the husband rapist—because that is what he would be doing by deleting the amendment of my hon. Friend the Member for Islington, South and Finsbury—will he extend the scope of that rape licence to cohabitation where two people live together? We might have to stipulate a statutory minimum period, but where there is a stable quasi matrimonial relationship that would be the only fair thing to do. If the Minister does not do that, he is subscribing to the view, which I should have thought every hon. Member would regard as indefensible, that marriage is distinguishable from non-marriage for one reason only, and that is the right to commit rape.
There are no other distinctions. The distinction in the law of property has 1977 largely gone. The cynicism that obtained before the 1884 Act, when it was said that husband and wife were one and the cynic said "The husband is the one", has gone. We have gone a long way towards protecting wives regarding the matrimonial home under the Matrimonial Homes Act. We have preserved since 1884 the concept of separate property, and no one would wish to alter it.
We are reaching the stage—some of my hon. Friends who do not like my intervention might reflect on this —where the matrimonial law with regard to property divisions in a common law relationship between man and woman is being more and more approximated to the situation which obtains within marriage, because the day has long since gone when the Court of Appeal consisted of disapproving old gentlemen who thought that two people who were not married but were living together were destined for hell. There was a time when some judged subscribed to that view. They have largely gone and the law which they sustained has been eroded. We should take the same line in this respect. I therefore want a clear answer from my hon. Friend the Under-Secretary of State on it.
2.15 p.m.
It has been said many times in this debate, and it is time that it was corrected, that there are no circumstances in which there can be rape within marriage. The hon. and learned Member for South Fylde touched on the fact that there is an exception but he did not develop it. It is odd that he should not have done so. The celebrated criminal case of Morgan v. Director of Public Prosecutions—the hon. and learned Member for Blackpool, North (Mr. Miscampbell) will remember it—raised the question of constructive rape. It laid down a definition of rape with regard to the unreasonableness of belief, or, at least, it was thought that it did. That had always been the law, but it was only then that outside organisations woke up and proceeded to misunderstand it. The principal defendant in the case was convicted of constructively raping his wife because he assisted others in an act of rape against her. There is, therefore, an exception in that respect. It has been completely forgotten by those who are 1978 resisting and those who are supporting the amendment.
I do not wish to detain the House much longer because hon. Members will want to discuss other aspects. Even if we cannot do it in the Bill, as I have tried to do, perhaps not very successfully, by the amendments which I tabled but which were not selected, I hope that we shall be able to enunciate the doctrine of rape on a man by a woman. That would be pursuant to Section 2 of the Sex Discrimination Act 1975. [Interruption.] My hon. Friend is falling into the same error as Queen Victoria made. When the Criminal Law Amendment Act 1885 was passed, with subsequent persecution of homosexuals—it was known as the Labouchere Act which we repealed only in 1965, and thank goodness we did—it was said that it should be applied to lesbianism, and Queen Victoria, with her eminently practical but misunderstanding mind, said that it was impossible. Nobody thought of explaining to her that it was possible.
If in the Morgan sense there can be constructive rape within marriage, I believe that a woman can commit rape on another woman by helping someone else. If that is so, is it so incomprehensible that there can be rape by a woman on a man? It is not just a question of physiological difference. Under the present law, indecent assault can be committed by a woman on a man or a boy; it frequently occurs. If a woman gets hold of a young, perhaps juvenile, male who is vastly younger and less experienced—

§ Mr. Edward Lyons
On a point of order, Mr. Deputy Speaker. I hesitate to interrupt my hon. Friend when he gives out such gems as the fact that the only advice he can give about the difference between marriage and two people living together outside marriage is the right to rape, which is marvellous advice for the young perhaps, but not advice with which many of us would agree—

§ Mr. Deputy Speaker
Order. What is the point of order?

§ Mr. Lyons
The point of order is this. What have the points made by my hon. Friend in his latter remarks to do with Amendments Nos. 10 and 11? He is discussing whether rape by women is 1979 feasible, and in my submission it has nothing to do with the amendments.

§ Mr. Deputy Speaker
There is no doubt that certain questions were put by the hon. Member for York (Mr. Lyon) to the hon. Member for Birmingham, Handsworth (Mr. Lee) which were not answered, but, unfortunately, there is nothing as far as I can see that does not conform to the Standing Order.

§ Mr. Lee
I am obliged, Mr. Deputy Speaker. I shall deal with the point briefly. It is simply that, if the Bill is intended comprehensively to reform, revise and amplify the law of rape, it should in all fairness address itself also to that question. I have already said that the equality of the sexes demands it and that the logic of law reform demands it. We suffer too much from piecemeal reform of the law.
I was saying that we know perfectly well that there are situations of a woman, as it were, seducing a much younger male person in circumstances which, if it were the other way round, would be sufficient to constitute a rape offence.

§ Mr. George Cunningham
On a point of order, Mr. Deputy Speaker. The two amendments that we are supposed now to be considering relate to the circumstances, if any, in which, within marriage, a man can be convicted of raping a woman. There are later amendments, which may or may not have been called, bearing upon the point that my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee) is raising of whether it should be the law that a woman can rape a man. But surely it is not right for him to be allowed to introduce that subject matter into the discussion of these two amendments? The fact that he does so seems to support the proposition that what he is doing is filibustering to talk the Bill out.

§ Mr. Deputy Speaker
I am obliged to the hon. Gentleman for raising that point. The hon. Member for Birmingham, Handsworth (Mr. Lee) is making it abundantly clear that his latter remarks are entirely out of order, and I rule accordingly. They have nothing to do with the subject matter of Amendments Nos. 11 and 10.

§ Mr. Lee
The one institution in this House with which I never argue, Mr. Deputy Speaker, is the Chair, and I accept what you say. I say a few words briefly, therefore, on Amendment No. 10.

§ Mr. George Cunningham
Do the fair thing, John.

§ Mr. Lee
I commend the amendment to the House. At least it recognises and puts on record a situation which is not, as it were, fraught with the same difficulty, logically and morally, as has subsisted in non-impeded marriage—that is, a marriage where there is no impediment to the partners, and they are living together. Despite what the hon. and learned Member for South Fylde has said, there should be no particular reason why we should not consider accepting that amendment. If we do, the matter can be taken further in another place, which has some uses sometimes, I suppose, and we might make a convenience of it in this case.