WOMEN MATTER
Events narrated below occurred in the early years of my career; the decision was considered significant, ground – breaking and the mark of a developing respectful society where women’s rights mattered very much.
For the sake of decency and equality in Scotland recent events and litigation must lead to the renewal of that respect agenda – where we agree as a civilised society that traumatised women deserve compassion, care and understanding. Otherwise, our rights are too fragile especially in the face of oppressive and discourteous language and behaviour. #WomenDidnaeWheesht.
Judges rule on rape within marriage
16th March 1989
A HISTORIC ruling that a husband can be charged with raping his wife even if the couple were still living together, was upheld yesterday by three Judges in the Court of Crimimal Appeal.
Lord Emslie, the Lord Justice General, said he did not believe it had ever been the law of Scotland that a woman in marriage surrendered herself to the prospect of of violation by force against her will.
The court was hearing an appeal by a husband due to stand trial at the High Court in Stirling next month on a charge of raping his wife. He lodged the appeal after Lord Mayfield decided that the charge was competent under Scots law.
It is the first time a charge of its kind has been brought, although in two other Scottish cases in the 1980s, husbands have been charged with raping their wives when the couple were living apart.
Mr Peter Vandore, QC, defence counsel, tried to persuade the Appeal Court yesterday that the law as stated by Baron Hume in 1796, that a husband could not rape his wife, was still valid, despite changing social conditions.
Mr Vandore told the court: ”I am not suggesting that there is any right in every married Scotsman to have sexual relations with his wife when he wants and whatever his wife’s feelings might be. It is accepted that a husband has no such right.
”Apart from anything else, if he overcomes his wife’s reluctance by
force he could be charged with assault. If his sexual demands are excessive, he may find himself divorced for unreasonable behaviour.
”Equally, a wife has no absolute right to say no whenever she wants.
A total lack of sexual interest or a minimal interest may again be the subject of a divorce action.”
Mr Vandore said this was not a situation where the rights of the husband or the wife were paramount. There might be other much more important interests such as the family unit, children and society as a whole.
In a case where a question of rape arose between a cohabiting husband and wife, the relationship was one which the law had an interest to protect.
The real question was whether or not the courts should intrude into the intimate personal relations of marriage. The difficulties in bringing a rape charge against a husband were too appalling to contemplate.
”If a charge of this nature is held to be relevant, it is more likely to break marriages than to help them in any way,” argued Mr Vandore.
If it was felt the law should be changed, that was a matter for Parliament.
Mr Alan Rodger, QC, Solicitor-General for Scotland, said the rule that a man could not be charged with raping his wife had to be read against the background of the status of women and the law of marriage when it was made — at the end of the eighteenth century.
In the modern understanding of marriage, a wife had a right to say no to intercourse. ”If that is correct then it does indicate that there is
no such thing as an irrevocable submission to intercourse in all circumstances by the mere fact of marriage.”
Mr Rodger agreed that in a case where the couple were living together it might be hard for the Crown to establish that consent had been withdrawn. But where the Crown proved as a matter of fact that the wife did not consent, all the elements of rape were present — intercourse, force and lack of consent.
”What stands between the law holding that to be rape is simply this fiction — and it is nothing more than a fiction — that a wife has consented irrevocably to intercourse. No such proposition would stand examination today.”
The key was not whether the couple had separated, but simply whether consent had been withdrawn. ”It is that simple. If the wife was not consenting as a matter of fact, and a husband has intercourse with her by force, then that is rape.”
One-legged woman speaks 