Review, Helen Fenwick (Marital rights or partial immunity?), (1992) NLJ pp831-832; (1992) NLJ pp870-871
The rape within marriage was not a crime and this principle had stood for centuries until 1992. In the case of R ( 2 All ER 257) the rape within marriage was constituted as a serious crime. Before it became a law it was place for debates and Professor Glanville Williams had given his proposals how the law should be changed on this topic. The current article of the author of Helen Fenwick, who is a lecturer in law at the University of Durham, explains why Prof. Williams proposals are not suitable to be a law and secondly, he considers the effect if Prof. Williams suggestions would have been approved. The article is comprehensive and every argument has decent backup, except one thing that author do not even try to identify merits of Prof. Williams proposals. The marital rights and partial immunity, according to Prof. Williams is important measure. It indicates that offence of rape is somehow different according by who is made. If it was made by to victim known person like cohabitee, husband, ex-cohabitee or ex-husband it should get lesser sentence than rape by stranger. Also it is suggested that domestic rape would be classified as assault and not as rape or indecent offence, because it is less harmful to the victim to be raped by husband than a stranger, and cohabitee or husband should get lesser sentence than stranger. Secondly, according to Prof. Williams all rapist can be put in two groups: present and former husbands and cohabitees on first instance and on second strangers and as I mentioned above Prof. Williams suggests that the former group should be treated more leniently, because its less horrific to the victim and strangers rapist is more dangerous to society. Helen Fenwick is very sceptic about these suggestions, he uses number of arguments, examples in order to prove it. Author does not support marital rights neither partial rights on the subject of domestic rape. In the first place, Fenwick denies merits of using 'categorisation of rapists' and uses very one sided examples of domestic rape, husband, and stranger rapists. Author has intention to show that domestic rape can be worse than stranger rape, because of the future consequence. Secondly, Fenwick is against 'Re-Labelling of All Domestic Crimes', he argues that it would bring anomalies and injustice and he is right because it requires major changes in domestic offences. Furthermore, author declares that provocation hardly can be working with rape offence, because a husband or cohabitee, who rapes unfaithful wife should be given some allowance. But on the other hand "Why not to extend such consideration to the distraught husband who beats up his unfaithful wife?". In the end Fenwick talks about 'Cohabitation as a mitigating factor in rape'. Author is against this assumption, because husband can be accused of rape, but sentenced on a different scale than stranger. There are some problems however, with Fenwick argument and his overall looking into Professors Glanville Williams articles. It seems that Fenwick is looking for demerits only and very sceptic about Prof. Williams proposals. Furthermore, it can be reasonably believed that when looking at Prof. Williams suggestions it possible to find merits. The court will consider all relationships between victim and offender, and it can hardly be said that it would not take into account when sentencing that when rape occurred the victim and accused was living together. Moreover, when Fenwick using examples of husband and stranger raping victim, he is using extremities. He shows the worst scenario of how husband rapes his wife, with the worst future consequences and he using example to strengthen his opinion by showing us that stranger who rapes victim can be less harmful. Later he is trying to repair this position by saying that "I do not want to suggest that "stranger" rape is really cosy" and "it...
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