Refining, Confining and Distinguishing Old Laws in English Legal System

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For many years, the English legal system has followed the doctrine of precedent and concreted itself by the rules of stare decisis. Courts were taught to follow previous judgments, in other words “to stand by decisions and not disturb the undisturbed.” However, over centuries, principles and decisions set and made by judges were refined, confined, and distinguished. Such decisions came about because judges in later cases felt the need to make amendments, due to specific reasons under crucial circumstances.

As the world is developing, the laws adapting to bring consistency and fairness to future cases. For example, final verdicts upon cases concerning marital rape have evolved throughout the years. Once understood by the country from a legal doctrine, that a husband cannot possibly be accused or punished for nonconsensual intercourse against their wives, has now changed permanently.

In History of the Pleas of the Crown (1736), Sir Matthew Hale illustrated vividly the following pronouncement: “But the husband cannot be guilty of a 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.”

Although Sir Matthew Hale’s legal treatise, presented in 1736, lacked essential support of any judicial authority, the person who occupied the office of Chief Justice for five consecutive annum was trusted to provide logical justification. Understood and accepted, Hale wrote that marriage grants the husband conjugal rights and this includes the freedom of sexual intercourse with his spouse as she has given up her body to him.

In later cases of R v Clarence (1888), judges arrived at the decision that the spouse of the “rape” victim was not guilty of assault due to the accepted rule that a woman through marriage agreed upon implied consent to any acts of sexual intercourse.1 Even-though the conclusion sided Hale’s statement, some doubts were raised regarding the doctrine after. But it was not until many years after in R v Clarke (1949) that Sir Matthew Hale’s publication of his pronouncement that the husband’s immunity was lost. Throughout the time frame in between, there seems to have been no substantive appeal against his work.

In R v Clarke, judges concluded that because the Magistrate’s court had issued a separation order for the husband and wife to live apart from one another, the husband was guilty of rape. In this crucial case, Bryne J decided to depart from adopting Hale’s logic as he took a different approach in the sense that the consent here has been revoked and withdrawn due to the issue of non-cohabitation in an order from the court.2 In other words, he did not disagree with Hale’s exemption but merely took into an account a different factor affecting the outcome, thus resulted a contrary judgment.

In contrast, the case R v Miller (1954) returned to Hale’s dictum and followed his proposition.3 The defendant adopted the concept of marital consent exemption to rape in his defence and that nervous shock could not be accounted as a bodily injury, when he was charged with violation of s.47 OAPA 1861. Lynskey J ruled that the defendant was partially correct during the appeal as marital consent to sexual intercourse was not revoked despite the petition being presented. This was because the petition had not yet reached the stage of decree nisi; thus rape could not be charged. However, assault on the other hand, was decided upon the defendant’s actions as he was liable for Actual Bodily Harm. R v Miller (1954) was one of the four cases recorded, whereby the husband achieved success in depending on the exemption while defending against rape charges within England and Wales. The other three were known to be R v Kowalski (1988), R v Sharples [1990] and R v J which was registered in the books in 1991. As seen here, judges in several cases agreed with Hale’s concept of martial rape...
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