The long fight to criminalise rape in marriage | Crime

June 15, 2021 Mary

“The intercourse which takes place between husband and wife after marriage is not by virtue of any special consent on her part but is mere submission to an obligation imposed on her by law.” – Justice Henry Hawkins, 1888

In 1981, at the age of 19, I joined feminists across the United Kingdom to campaign for the criminalisation of rape in marriage. Our aim was about more than overturning the immunity for husbands who raped their wives: it was also about asserting the rights of women to refuse sex with any man, in any situation, for whatever reason. It was a battle that dated back centuries.

Sir Matthew Hale was chief justice of England between 1671 and 1676 and is still widely considered to have been one of the most pre-eminent jurists and judges in the history of English and Welsh law. As the leader of the Hale Commission in the 1650s, he oversaw a radical law reform commission. His recommendations included reducing the availability of the death penalty, the use of laypersons in the Court of Appeal, and establishing County Courts. But he was also a huge misogynist.

The long fight to criminalise rape in marriage | Crime

In a letter to his children, Hale wrote of their mother: “An idle or expensive wife is most times an ill bargain, though she bring a great portion.” He also oversaw the Bury St Edmunds witchcraft trials, where he sentenced two young women to death. Meanwhile, his views on marital rape and how men could treat their wives were abhorrent.

He said of rape accusations: “It must be remembered … that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.” And he ruled that a man simply cannot be guilty of raping his wife. This became known as Hale’s Rule.

400 years of wealthy white men – and rape

The issue was not further adjudicated upon until 1888 in a case called R v Clarence, but this was only a tangential discussion of the issue. In short, this case concerned whether a husband who had sex with his wife when he knew he had gonorrhoea was guilty of rape. The husband was convicted of inflicting grievous bodily harm but his conviction was quashed on appeal.

Hale was working almost 400 years ago, however, depressingly little has changed over the centuries in terms of how it is largely wealthy white men who make the decisions that affect women.

During the first wave of feminism in the suffrage era, politicians and writers such as John Stuart Mill and Bertrand Russell were among the influential men campaigning to make marital rape a crime in the UK. While in the United States, suffragists such as Elizabeth Cady Stanton and Lucy Stone were lobbying for “a woman’s right to control marital intercourse as the core component of equality”.

They would have been horrified had they known how long it would take before wives were protected by law.

The 1970s: A terrible time for women

The 1970s were a terrible time for women in England. Between 1975 and when he was caught in 1980, a serial killer dubbed the Yorkshire Ripper murdered 13 women and left seven more for dead. Police advised women to “stay indoors” in order to “keep safe”, but feminists were well aware that the home was fraught with danger.

The first mention of domestic violence in British Parliament was in 1973 when Labour MP Jack Ashley, who would become an important ally in the campaign to criminalise marital rape, tabled a motion to highlight the lack of support services for women fleeing dangerous relationships. Ashley died in 2012, but I met him during the height of the rape-in-marriage campaign and he told me that fighting for women’s rights was a natural fit. “It’s half the planet and yet we continually justify treating women as second-class citizens,” he said.

Sarah Lerner was a London-based lawyer at the time, who applied for civil injunctions for women escaping violent husbands or seeking protection from violent men post-separation.

“Sometimes there had been really serious violence before the women took the step of getting a civil injunction,” she recalls. “Often the women were abused in front of the children and sometimes the children were also abused. When I was first doing the work, it was left entirely up to the woman to protect herself and the children with little input from police or social services.”

Lerner continues: “Women would tell me about being raped and I had to sit there and think as a lawyer, ‘Yes, but were they married?’ If they were married, there could be no prosecution for rape. I had no options to help them except to help her to apply for a civil injunction against her rapist.”

It was during this decade that the case, known as Morgan v the Director of Public Prosecutions, set in stone the rights of a man to decide whether a woman was consenting to sex.

In 1973, Flight Lieutenant Morgan, a Royal Air Force officer, invited three of his colleagues home to have sex with his wife. Morgan told the men that if she shouted “no” and appeared unwilling, this was because she was playing out a rape fantasy. The men dragged Morgan’s wife from the bed where she was sleeping with her 11-year-old son and raped her.

Morgan was not charged with rape but was charged with aiding and abetting, because he was married to the victim and therefore had full legal immunity.

The three men were sentenced to four years in prison, while Morgan was sentenced to 10 years. They each appealed.

In 1975, the case was referred to the House of Lords on a point of law. The Lords ruled that a man could not be convicted of rape if he “honestly believed” a woman had given her consent, even if his belief was not reasonable.

Although these men were not believed and their convictions were upheld, it became enshrined in case law that a man’s “honest belief”, however unreasonable, was paramount in determining whether he had committed rape.

This defence was finally overturned in 2003 after decades of feminist campaigning.

‘Women who say no, do not always mean no’

There were other cases in the 1970s that showed how little regard judges had for women.

In a 1977 case in the Court of Appeal, sentences of just four and two months that had been handed down to three men – Derek Taylor, 26, David Roberts, 22, and Geoffrey Simons, 28, – who all pleaded guilty to unlawful sexual intercourse with a 14-year-old girl – were upheld. The appeal had been brought by the prosecutors because they believed the sentences to be too lenient.

On the charge sheet, they were given as what is called “sample counts”, meaning the indictment does not contain every single instance of an offence, usually because there are too many.

When hearing the appeal, Judge Frederick Lawton described the young rape victim as a “menace to young men”, “the village whore” and “very promiscuous”. He had a reputation for making unprofessional comments – including the time he said “wife beating may be socially acceptable in Sheffield, but it is a different matter in Cheltenham” and when, after retiring, he complained about the difficulty of prosecuting “the gyppos and tinkers who invade a farmer’s land”. Still, as a member of the standing committee on criminal law revision between 1959 and 1986 (and its chair for the last nine of those years), he played a key role in the debates over the law pertaining to marital rape.

During this period, convictions for rape were rare and sentencing derisory.

One particularly shocking case from 1977 was that of Thomas Holdsworth, a Northern Irish guardsman who caused grievous bodily harm to a 17-year-old girl. When she had refused to have sex with him, he had sexually assaulted her, ripping out her earrings, fracturing her ribs and causing serious internal injuries “the likes of which [the examining doctor] had only seen in cases of recent childbirth”, said the prosecutor.

Initially, Holdsworth was sentenced to three years in prison but, on appeal, this was reduced to a six-month suspended sentence by Judge David Wilde who did not want to see the rapist’s career in ruins – a lieutenant had told the court that the army was anxious to retain the guardsman who had an excellent record during his two-and-half years in the Guards.

Wilde said the victim would have been “less severely injured if in fact she had submitted to rape by the mere threat of force”. This was the same judge who would go on to say in 1982: “Women who say ‘no’ do not always mean ‘no’. It is not just a question of saying ‘no’, it is a question of how she says it, how she shows and makes it clear. If she doesn’t want it, she only has to keep her legs shut and she would not get it without force and there will be marks of force being used.”

During the appeal, Judges Wien, Roskill and Slynn stated: “We have to bear in mind the sense of outrage to the public if we interfere with this sentence. On the other hand, we have a man of previous good character whose army career would be completely destroyed if this sentence were to stand.”

This was a time when women were assumed to “cry rape”. As the prominent American feminist writer Susan Brownmiller said in 1975, male jurors tend to identify with the male defendant and fear that they themselves could be subjected to such a charge and this fear, wrote Brownmiller, “is based on the cherished male assumption that female persons tend to lie”.

Demanding the ‘right’ to rape

It was against this backdrop, in the late 1970s, that feminists from the domestic violence refuge movement began to demand a change in the law on marital rape. It began with a demand at the 1978 Women’s Liberation Conference: “Freedom for all women from intimidation by the threat or use of violence or sexual coercion regardless of marital status; and enter the laws, assumptions and institutions which perpetuate male dominance and aggression to women.”

But it was not just the existing laws on rape feminists had to fight.

At this point, 30 percent of unmarried heterosexual couples were living together. “Cohabiting men were concerned that the law was being unfair to them,” says Sandra McNeill, a feminist campaigner based in Leeds.

What some men were proposing was for men who were living with women, unmarried, to enjoy the same immunity from rape prosecution as their married counterparts. “Rather than prosecute all rapists, let all men off who happened to live with the victim,” is how McNeill describes it.

During the campaign, groups such as Women’s Aid, Rape Crisis and Women Against Violence Against Women (WAVAW) – the feminist group I was a part of – wrote submissions to the Criminal Law Revision Committee, lobbied members of parliament and staged a number of direct actions.

The women in WAVAW campaigned against the worst of men’s abuse of women and girls, and some of the members were regularly warned or arrested by police when spray-painting slogans across public buildings, including “End male violence! Castrate a rapist.” The aim was to get the message across to the general public that women would not stand for an amnesty on rapists.

‘The personal is political’

Elaine Ginsburg used her legal expertise to lobby for a change in the law. For her, the campaign was a perfect example of what the Women’s Liberation Movement could achieve by linking survivors, lawyers, campaigners and politicians. “We were so unique as a movement because the phrase ‘the personal is political’ actually came alive,” says Ginsburg. “We were not just campaigning over something abstract. It was about our own relationships and our personal and private lives.”

Ginsberg had been influenced by the Women’s Liberation Movement of the 1970s, and joined Women’s Aid after being on the management committee of a women’s refuge in the early 1980s. “That taught me how useful the law could be as a tool and as part of the fight against oppression of women generally and male violence in particular,” she says. Her work with Women’s Aid led to wider involvement in campaigning around sexual violence and rape in marriage, and she eventually worked as a Legal Aid lawyer addressing women’s oppression around poverty, violence, housing, and children.

The feminist mantra, “The personal is political”, was the foundational theory that built the anti-rape movement. The phrase was coined in 1968 by civil rights and feminist activist Carol Hanisch. It meant that there were political dimensions to women’s private life, and that power relations between husband and wife in the kitchen, the bedroom, the nursery and the workplace shaped a woman’s life. This philosophy spread across women’s movements around the world during the height of the second wave, and became extremely important in campaigning against male violence towards women.

In October 1982, knowing very little about law, I attended a big conference on sexual offences in London. I listened in awe as feminist lawyers and domestic violence refuge workers spoke about the urgent need for a campaign that focused on criminalising rape in marriage. Experts in domestic abuse and sexual assault explained how, within marriage, the two forms of violence against women were indivisible. Most sexual violence occurs in private and in relationships. Domestic abuse was, despite significant improvements within the police and courts, still underreported and largely trivialised. I heard women who had escaped violent marriages speak about how their husbands would threaten rape to terrify them into subservience. Every one of the survivors of domestic abuse had been raped by their husbands on multiple occasions but said that because it was not against the law, they had no idea how to stop it from happening.

In fact, rape is often an indicator that domestic violence could escalate to homicide. Numerous studies have identified this, including the influential paper Death by Intimacy: Risk Factors for Domestic Violence (Johnson, Lutz and Websdale, 2000) in which the authors state that in a number of cases, prior to femicide, “usually within a month or so of the killing, there was a twist in the victimisation pattern, for example, marital rape”.

Laura Richards is a former violence adviser to the UK Home Office and the Association of Chief Police Officers and an expert on fatal domestic abuse. She explains that there is almost always a pattern of abuse which often includes rape prior to femicide. “Rape within the context of an abusive relationship is often a high-risk factor to serious harm and femicide,” she says. Across England and Wales, one woman dies every three days at the hands of a current or former partner.

“Some of the men used horrific sexual violence as a way to punish women, often for leaving them,” explains feminist activist Liz Kelly who was involved in a small group of women’s aid activists who were campaigning to focus more attention on the sexual violence element within domestic violence cases that ended up in refuges.

“Some of the rapes that women talk about post-separation are really horrific and deliberately brutal.”

‘Don’t do it, Di!’

At around the time the feminist campaign to criminalise rape in marriage was gaining momentum, another event was capturing the British public’s attention: on June 29, 1981, Prince Charles and Diana got married. Feminists used the opportunity it presented to draw attention to their campaign.

The YBA Wife campaign had been launched in Britain in 1977, inspired by Germaine Greer’s The Female Eunuch (1971), in which she wrote: “If women are to effect a significant amelioration in their condition it seems obvious that they must refuse to marry.”

The campaign aimed to raise awareness about the discrimination married women faced, and consequently lobbied for individually based benefits as opposed to having benefits assessed on the basis of whether they were married and the abolition of the married man’s tax allowance.

The campaigners demanded legal and financial independence for women, which was one of the seven demands of the Women’s Liberation Movement at the 1974 Women’s Liberation Conference, focusing on legal and financial independence, including tax, benefits and pension policies that treated husband and wife as a breadwinner/dependent couple with no need for separate incomes. It also campaigned around the so-called “coalition rule” that assumes that a woman who cohabits with a man was financially dependent upon him, thus making her ineligible for social security benefits in her own right.

In 1981, in response to Charles and Diana’s wedding, feminists came up with the slogan “Don’t Do It, Di!”, which was emblazoned on T-shirts, badges and billboards.

“We would go out in the dead of the night armed with cans of spray paint,” says London-based activist Gina Holdsworth. “I remember painting things like, ‘Rape in marriage: Make it a crime!’ alongside ‘Don’t Do It, Di!’ to link the institution of marriage to women’s low status in relation to men.”

The group widely consulted lawyers and governmental policymakers, protested outside the Department of Health and Social Security and, in 1984, presented a stale loaf of bread to the secretary of state with the message: “We are fed up with being fobbed off with crumbs from under men’s tables – we want an independent income for women.”

Much of what the women campaigned for has since been achieved.

Husbands: The most dangerous men in women’s lives

Sandra McNeill was a founding member of WAVAW in Leeds and centrally involved in the campaign to criminalise rape in marriage throughout the 1980s. She recalls how, in the early years of that decade, she was training a number of male counsellors on issues relating to sexual assault. “They were nudging each other, laughing about how if you didn’t force sex, you’d never get any,” she tells me. “I was appalled that they considered it acceptable to say that in front of Rape Crisis volunteers.”

In 1988, keen to speak to women outside of the feminist movement about their views on rape in marriage, McNeill, along with another member of WAVAW, conducted a survey of more than 100 women polled outside stores, hair salons and other public areas where women were likely to be without their male partners.

McNeil asked women about their relationships with their husbands, and gently introduced the issue of domestic abuse. Depending on how the women responded, McNeill would ask if they were aware that rape in marriage was not a criminal act. McNeil recalls the women being “keen to talk” but some being surprised to learn that marriage provided men with an amnesty. “Although others were not surprised at all,” says McNeill. “Some had been told this by their husbands during the assault.”

“Some 95 percent said that it should be a crime,” says McNeill, “with the other 5 percent being religious women who mentioned the teaching of the Church, meaning that a woman was required to obey her husband, and that a man was entitled to his conjugal rights.”

McNeill’s survey results were picked up by several British newspapers. “It made a big difference,” says McNeill. “Women became aware of the campaign, and the voices of ordinary women were part of that drive to criminalise rape in marriage.”

The survey inspired Granada TV’s World in Action to make a documentary called The Right to Rape in September 1989. It was broadcast to millions of viewers. A survey, carried out as part of the research conducted by the World in Action team, of 1,000 married women aged between 18 and 54 found that husbands are likely to be the most dangerous men in women’s lives, with rape in marriage seven times more common than rape by a stranger. One in seven women said they had been raped by their husband, while one in 50 had been raped by a stranger. Almost all the women said that rape in marriage should be a criminal offence.

The 1980s: Another bad decade for women

But as awareness was being raised among the general public, judges were still following in Hale’s footsteps from all those centuries earlier.

In 1981, Judge Bertrand Richards fined a rapist 2,000 pounds (around $4,000 at 1981 exchange rates – $11,750 in today’s money) but declared his victim “guilty of a great deal of contributory negligence” because she had been hitchhiking. Retired High Court Judge Sir Milford Stevenson supported Richards by saying that any girl hitchhiking at night was “in the true sense asking for it”.

A short time later, in 1983, Judge Brian Gibbons told William Watson Sweeney, who admitted having intercourse with the seven-year-old daughter of a friend, that he had “considerable sympathy” with his case, “which strikes me as one of the kind of accidents which happen in life to almost anyone – although of a wholly different kind”.

In 1986, 19-year-old Jill Saward was repeatedly raped by two men who were part of a gang that burgled her home. The men were given longer sentences for the burglary than for the rapes, and the leader of the gang, who was not involved in the rape, received the longest sentence – 14 years’ imprisonment – for burglary and assault (of another person in the vicarage at the time).

During sentencing, Judge John Leonard stated that he believed “the trauma suffered by the victim was not so great”.

Everyone from Saward to then-Prime Minister Margaret Thatcher criticised these sentences and, in 1988, a new law was passed that allowed appeals against unduly lenient sentences.

Saward’s case also closed a loophole that had previously only granted rape victims anonymity after a suspect had been charged, with courts extending anonymity to complainants from the moment a rape was reported. This was particularly pertinent given The Sun newspaper had published a photograph of Saward with just her eyes redacted, as well as an image of her home, on its front page, thereby jeopardising her anonymity. The newspaper’s editor said he printed the images because of the loophole.

‘Rape of the abominable kind’

Finally, in October 1991, the courts of England and Wales recognised marital rape as a crime in the landmark case of R v R. In his judgement, Lord Lane confirmed: “The idea that a wife consents in advance to her husband having sexual intercourse with her whatever her state of health or however proper her objections, is no longer acceptable.”

There was an immediate backlash.

In response to the announcement that rape in marriage had been criminalised, novelist Piers Paul Read wrote: “There is a grave danger that in extending the concept of rape into the marriage bed, we will end up by increasing real rape of the abominable kind; for real rape is not the product of untimely or uncontrolled passion, or a surfeit of sexual desire; it comes from a profound hatred of women – a compulsion to punish and degrade them. And what leads to this psychosis in men? Weak, defeated and absent fathers; dominant, emasculating, neurotic mothers – driven apart by an unholy alliance of sour feminists and gullible judges. If he means to prosecute every man who forces his attentions upon a reluctant wife, a significant part of the male population may find itself behind bars.”

Read’s article caused controversy among feminists. For several weeks, campaigners wrote angry letters and articles in response and, according to Liz Kelly, it felt like the dying embers of patriarchal privilege.

“There was a lot of reluctance from senior judges and senior lawyers who were saying things like, ‘This is a step too far’,” she says. “I think sexual violence is the fault of patriarchy and that there’s always been resistance to reform rape legislation.”

Sandra McNeill continues: “There was one suggestion that men could only be charged with rape if the couple had split up. But there had recently been a terrible case where a woman had left her husband because of his violence, escaped to her parents’ home, and he broke in and raped her in front of them. He was only done for breaking and entering.”

During its review on whether the law should change, the Law Commission dismissed the suggestion that men should only be criminalised for raping their wives once they had legally separated or if the victims had suffered additional violence. As Derby Rape Crisis group said in 1990: “Recognising marital rape is a crime would be a signal to all men contemplating marital rape that society no longer tolerates the medieval idea that marriage is the wife signing away her rights over her own body.”

The long road ahead

The ruling was a victory for feminists, but 30 years on, family courts, which administer civil as opposed to criminal remedies and deal with issues such as marriage, divorce and childcare, contact and residency, are still not using the criminal definition of rape when it applies to married couples.

According to family law barrister and feminist campaigner Charlotte Proudman, lawyers are told the criminal definition of rape should not be used in the family courts but there is an absence of a clear definition of what should be used instead.

“I can imagine situations where different judges are making different decisions about what rape actually means in practice,” says Proudman. “I’ve seen all sorts of bizarre decisions made by judges using terms such as ‘partial rape’ or ‘unwelcome sexual intercourse’, but what do these descriptions mean? I think it demeans women’s experiences of rape and trivialises men’s violence towards them.”

And, despite the hard-won progress in the UK, rape in marriage remains legal in many countries, including Uruguay, Panama, Chile, Honduras, Ecuador and El Salvador. In these countries, rape in marriage is not a criminal offence unless the victim can prove that she suffered additional violence. In Bolivia, Brazil, Guatemala and Nicaragua rape in marriage is perfectly legal.

However, as a result of the efforts of feminist lawyers, campaigners and international human rights activists, rape in marriage has been criminalised in a number of countries that had previously defended the instruction that a wife should “obey” her husband; for example, Belize, Cuba, Dominica, Costa Rica, Guatemala, Argentina, Bolivia, Brazil, Chile, Ecuador, Paraguay, Peru, Uruguay and Venezuela.

But feminism is a powerful and relentless political movement. Wherever in the world women are raped or die at the hands of men, feminists are there to protest against it. I look forward to the day when women can come together to celebrate an end to this patriarchal tyranny.