Marital Rape (Hansard, 29 March 1983)

§ Mr. John Tilley (Lambeth, Central)

I beg to move, That leave be given to bring in a Bill to amend the Sexual Offences (Amendment) Act 1976 to make rape within marriage a criminal offence. I seek the leave of the House to introduce the Bill so as to draw the attention of hon. Members and the public to the fact that there are circumstances in our law where the act of rape is perfectly legal. I hope that realisation of that fact will create such a storm of protest both in the House and in the country that there will be an early change in the law. The circumstances in which rape is legal occur when the victim is the wife of her assailant. However unwilling the woman is, however fierce her resistance, her assailant has only to produce a marriage certificate to escape all legal blame or punishment.

The House last considered this issue in 1976, when an amendment making marital rape a criminal offence, just like all other forms of rape, was carried during the Committee stage of the Sexual Offences (Amendment) Act. The amendment was withdrawn on Report, when the then Minister assured the House that the Criminal Law Revision Committee would consider the matter very carefully. It did consider the matter, and in 1980 it reported its conclusion that a majority of its members favoured an amendment in the law along the lines of the Bill that I seek to introduce today. I shall quote a small part of its report. It said: The present law, which is part of the common law, has an archaic flavour to it. It is generally taken to be as stated by Hale in his Pleas of the Crown, which he wrote in the 1650s. `The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.' The critics of this law point out that since Hale's time wives can retract this consent. They can get divorces and separation orders. The courts have had to recognise in relation to rape modern changes in attitude towards marriage. It goes on: The most glaring anomaly of all … is that a woman who is cohabiting with a man—and maybe she has done so for very many years—can refuse him sexual intercourse and her refusal, if it can be proved, will come within the law of rape, whereas a wife's will not. Cohabitation outside marriage is becoming increasingly common and this adds to the anomaly of drawing the distinction as it is now drawn. Stated at its simplest, the criticism is that the present rule denies married women something to which all other women are entitled. It is quite clear from that quotation that the Criminal Law Revision Committee came down on the side of changing the law. That report was published three years ago, and since then the Government have not taken any action to implement it, and by supporting the Bill today the House can act where the Government have so far failed to act.

There are two major objections to a change in the law of this kind. I shall deal with them briefly but separately. The first is that a contested charge of marital rape would be very difficult to prove in court, because it would simply be the word of one person against that of another, with no corroborative evidence. That is quite true, but it is just as true of many allegations of rape, as the law now stands. The fact that a crime is difficult to prove is not a reason for saying that it is not a crime at all. The criminal law is not simply a mechanism for securing convictions. I believe 186 that its more fundamental purpose is to list the actions and activities that society finds so abhorrent that the perpetrators deserve punishment. Surely the act of rape is such a terrible act that every form of rape should be on the list of crimes which British society does not want to go unpunished.

The second objection is that the law must be very chary of entering the complex and intimate relationship between man and wife, and that problems within a marriage may be exacerbated rather than solved if they are dragged through a court of law. There is a great deal of sense in that view, but I put it to the House that the law as it stands, and as it has stood since at least 1650, has interfered in a most unfair and biased way in marriage by legalising marital rape. I suggest that those who believe that the law should put marriage partners on an equal footing should support this Bill, because it removes a massive bias against the woman in a marriage. Why, in 1983, should a man have a legal right to rape his wife?

By explicitly condoning rape within marriage, the law implicitly condones other forms of violence and assault within marriage. Is it not ironic that 100 years after this House passed the Married Women's Property Act, which gave a married woman control over her material possessions, the law still does not give a married woman the same control over her own body and her own fertility?

I do not say that the law as it stands is being preserved expressly to oppress married women. However, I suggest that a law that is based on the power relationship that existed between a husband and wife in the 1650s is grossly outdated, and reflects neither present-day reality nor the way in which society is developing its views on marriage. Society's views on rape itself are also changing. In the seven years since the issue was last considered in this House, public attitudes to rape have changed, and changed for the better. It is no longer just a subject for embarrassed silence or sniggers.

The press, in particular, has given the issue more thoughtful coverage and has expressed concern when judges do not take a serious enough view of the offence. The Prime Minister herself, from the Dispatch Box, was swift to condemn the trifling sentence imposed recently on a double rapist. In Scotland, Lord Robertson gave an important judgment just a year ago, declaring that marital rape could be an offence under Scots law. I suggest, therefore, that it is now time for this House, as a lawmaking body, to bring the law in England and Wales into line with the new and better attitudes that are emerging.

The Bill would not lead to many prosecutions. That is not its purpose. Its purpose is to demonstrate that this House believes that the act of rape—enforced sexual intercourse—is so abhorrent and so harmful to its victim that every woman in Britain should have the protection of the law against such violation. The only way to achieve that is to outlaw the act of rape, wherever and whenever it occurs.