R v R (RAPE: MARTIAL EXEMPTION)

Updated: Aug 5

[1992] 1 AC 599, [1991] 4 All ER 481, [1991] 3 WLR 767, 94 Cr App Rep 216, 155 JP 989, [1992] Crim LR 207, [1992] 1 FLR 217, [1992] Fam Law 108


In R v R the court overturned the rule that a husband cannot be criminally liable for raping his wife if he has sexual intercourse with her without her consent.


The court said it was unacceptable that by marriage the wife submits herself irrevocably to sexual intercourse in all circumstances. In section 1(1) of the Sexual Offences (Amendment) Act 1976, which defines rape as engaging in "unlawful" sexual activity with a woman without first obtaining her consent, the word "unlawful" is to be treated as mere surplusage and not as meaning "outside marriage."


This article will look at what the judge met by saying 1(1) of the Sexual Offences (Amendment) Act 1976, which defines rape as engaging in "unlawful" sexual activity with a woman without first obtaining her consent, the word "unlawful" and the word "unlawful" was mere surplusage? It will look at if judges are allowed to change the law in this way.


The Criminal Law Act 1967 provides that the courts may not "create or recognise" any offence not created by Parliament. This has been interpreted as meaning that the courts cannot, by their own decision, make something an offence which is not an offence under statute. In R v R, the House of Lords considered whether the word "unlawful" meant within marriage. They said "unlawful" was mere surplusage?


WHAT DOES SURPLUSAGE MEAN?


It means an unnecessary or superfluous word, phrase, or sentence. So in this case, the judge said that the word "unlawful" was not needed and it was an offence to have sexual intercourse with your wife without her consent because she has submitted herself to sexual intercourse by marriage.


This is a very controversial decision because it means judges have shown a willingness to change the meaning of statute as entrenched by Parliament. This is something which the courts have been very reluctant to do in the past. The Criminal Law Act 1967 provides that the courts may not "create or recognise" any offence not created by Parliament. This has been interpreted as meaning that the courts cannot, by their own decision, make something an offence which is not an offence under statute.


CAN JUDGES MAKE LAW?


The short answer to this question is no, judges cannot make law. In the English legal system, Parliament makes the law and judges interpret it. However, there are some circumstances in which judges can change the law. For example, if a statute is ambiguous, then the courts may interpret it in a way that changes its meaning. This is what happened in R v R. The court interpreted the word "unlawful" to mean within marriage, which changed the meaning of the statute.


Another example of when judges can change the law is when there is a common law principle that has been established by previous cases. These principles are known as precedent. If a new case comes before the courts that is similar to a previous case, then the court may use the principle from the previous case to decide the new case. This means that the law can be changed indirectly by judges through precedent.


However, it is important to note that judges cannot make law directly. They can only interpret and apply it. This means that they cannot make a new law or change an existing law to suit their own preferences. Judges are bound by the rule of law, which requires them to apply the law impartially and without bias.


While judges cannot make law directly, they can play an important role in changing it indirectly. This is because their decisions can create precedent, which can be used to decide future cases. Additionally, if a statute is ambiguous, then the courts may interpret it in a way that changes its meaning. This was what happened in R v R. The court interpreted the word "unlawful" to mean within marriage, which changed the meaning of the statute.


In conclusion, while judges cannot make law directly, they can play an important role in changing it indirectly. This is because their decisions can create precedent, which can be used to decide future cases. Additionally, if a statute is ambiguous, then the courts may interpret it in a way that changes its meaning.


What do you think about this decision? Do you think that judges should be allowed to change the law?


WHERE JUDGES HAVE MADE LAW


This is not the only example where judges have made law. In the past, there have been many other examples where judges have changed the law indirectly through precedent or by interpreting ambiguous statutes.


One example is the case of R v Dudley and Stephens (1884). In this case, the court held that it was not an offence to kill and eat a cabin boy in order to avoid starving to death. This decision was made on the basis of precedent. The previous cases had established that there was a common law principle known as the "necessity defence". This principle allowed people to break the law if they were acting to avoid an imminent threat of death or serious harm.


Another example, is in the case of R v Brown [1993] the House of Lords interpreted the word "violence" in the Sexual Offences Act 1956 to mean non-consensual penetration with an object. This changed the meaning of the statute and made it an offence to engage in non-consensual penetration with an object.


In the case of R v Dica, the court held that a man could be guilty of rape if he had sexual intercourse with a woman who was suffering from a mental disorder and was unable to consent. This changed the law on rape as it previously only applied to women who were physically unable to consent.


WHY IS THIS A BAD SYSTEM?


There are many people who think that this system is a bad thing. They argue that it is undemocratic and gives too much power to judges. This is because judges are not elected and are not accountable to the public in the same way that politicians are.


They also argue that this system can lead to inconsistency and uncertainty. This is because there is no guarantee that a future court will follow the precedent set by a previous court. This can lead to different courts reaching different decisions on the same issue. Another criticism of this system is that it can allow judges to make law that is contrary to public opinion.


What do you think? Do you think that judges should be allowed to change the law? Thank you for reading. See the Criminal Law book.

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