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Under the criminal law of England, a husband could not be criminally liable for raping his wife until 1991. This exemption was principally based on the proposition of Hale, in his legal commentary: ‘… 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 herself up in this kind unto her husband which she cannot retract’.[1] This proposition suggests that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under any circumstance. The same line of thinking was proposed by Hume[2] in the criminal law of Scotland. The propositions of Hale and Hume were appropriate considering the status of women in the 18th century. At that time married women were completely submissive to their husbands.

The first case in which marital exemption was applied is that of R v Clarence[3] in 1888. In this case the judge argued that the husband could be liable only for assault. A similar judgment was held in R v Jackson[4], where it was argued that in case a husband has intercourse with his wife against her will, he should not use violence, otherwise he is to face charges on wounding or causing bodily harm. The use of violence during the attempt is the mean of achieving the act of raping, which is the most aggravated form of violence these assaults could lead to, therefore, these decisions are obscure. The ambiguity of these decisions rests in the fact that the judges sanction the husbands for using violence to achieving their intention of having sexual intercourse, but not for the worst assault (i.e. rape). Based on these reasoning Lord Emilie observed in S v HM Advocate[5] that it is unrealistic to sort out the sexual intercourse from the other acts involved in the assault and to allow the wife to complain of the minor acts of violence but not of the...

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