Statistics for domestic violence of the Christmas period are always awful. For some spouses, this can include rape. It is incredible to think that before 1992, the law was that a man could rape his wife, effectively enforcing conjugal rights. The wife was deemed to consent to sexual intercourse on marrying the husband. In 1992 the decision in R v R^[1] the House of Lords concluded that the requirement for the prosecution to prove that sexual intercourse had taken place outside marriage was abandoned. This appears to be a decision with retrospective effect so that, whenever the offence is committed, a man can be convicted of raping his wife. On 9 January 1995, the requirement that the intercourse be outside marriage was removed by CJPOA 1994, section 168. Unlike the decision in R v R this is not retrospective but it put that decision on a statutory footing from the date section 168 came into force.On 30 April 2004 SOA 1956, section 1 was repealed by the SOA 2003 although it can still be pleaded for offences which straddle the implementation date. Currently rape within marriage is governed by section 1 of the Sexual Offences Act 2003 which came into force on the 1^st of May 2004.

When is the offence made out?

The prosecution must prove:

▪     intentional penetration;
▪     of the vagina, anus or mouth, of a male or a female;
▪     by the penis of the defendant;
▪     the complainant did not consent to the penetration;
▪     the defendant did not reasonably believe that the complainant was consenting.

Penetration by any part of the penis is sufficient. Vagina includes the vulva.[2] The penetration must be intentional. Accidental penetration would therefore not be sufficient. If the intent was to rape vaginally, but accidentally penetrated anally, that would presumably still be rape as the offence can be committed by either penetration.

As penetration is a continuing act, penetration after withdrawal of consent constitutes rape.[3] Consent which is to penetration but expressly not to ejaculation is considered in R (F) v DPP[4]. In that case a husband told his wife shortly after intercourse had begun that he would be ejaculating inside her ‘because you are my wife and I’ll do it if I want’. He ejaculated before she could say or do anything about it. The CPS declined to prosecute the husband and the wife sought a judicial review of their decision. The High Court found that the facts would constitute rape whether the husband started intercourse intending to ejaculate or whether he decided that only once penetration had begun. Whichever it was ‘he deliberately ignored the basis of her consent to penetration as a manifestation of his control over her’ and ‘she was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly her consent was negated.’[5] R(F) v DPP  follows the reason in Assange[6].

Unintended ejaculation would not render consensual intercourse non-consensual as the law recognises that such accidents happen.[7]

Ascertaining consent

Section 1(2) requires consideration of the steps the defendant has taken to ascertain whether the complainant is consenting when deciding how reasonable the defendant’s belief in consent was. This allows the prosecution to suggest a positive responsibility on the male defendant to ensure there was consent. Where, in a sexual encounter, everything is left unsaid, it will be more difficult for a defendant to succeed in suggesting there was consent. In marriage, much may depend on how sexual intercourse has proceeded in the past and there may be occasions where the judge will be asked to give leave for cross examination on previous sexual behaviour – for example, if the defence case is that the wife never spoke during intercourse or that she had given express consent to penetration when she was asleep. These are matters of evidence in an individual trial.

Sentencing

The maximum is life imprisonment.[8]

The Sentencing Council’s Definitive Guideline[9] provides the offence range, starting points and category ranges which apply to an adult offender convicted after trial. It comes into force on 1 April 2014. No distinction is made as to which orifice was penetrated.

Offence ranges: 4 – 19 years (but offences may be of such severity  – for example, a ‘campaign of rape’ – that sentences of 20 years or more may be appropriate).

Category (dictated by harm caused)	A: Higher culpability factors present	B: No  higher culpability factors
Category 1 – The extreme nature of one or more of the extreme impact caused by a combination of category 2 factors may elevate to category 1	Starting point: 15 years Category range: 13-19 years	Starting point: 12 years Category range: 10-15 years
Category 2 ▪      severe psychological or physical harm; ▪      pregnancy or STI as a consequence of offence; ▪      additional degradation/humiliation; ▪      abduction; ▪      prolonged detention/sustained incident; ▪      violence or threats of violence (beyond that which is inherent in the offence); ▪      forced/univited entry into victim’s home; ▪      victim is particularly vulnerable due to personal circumstances	Starting point: 10 years Category range: 9-13 years	Starting point: 8 years Category range: 7-9 years
Category 3 – Factors in categories 1 and 2 not present	Starting point: 7 years Category range: 6-9 years	Starting point: 5 years Category range: 4-7 years

Higher culpability factors include:

▪     significant degree of planning;
▪     abuse of trust[10];
▪     previous violence against the victim;
▪     recording of the offence[11];

The Sentencing Council provides a non-exhaustive list of aggravating and mitigating factors which may move a sentence up or down from the starting point and even into a different category range.

The aggravating features listed include:

▪     previous convictions (more recent and more relevant increases the aggravating effect);
▪     specific targeting of a particularly vulnerable victim;
▪     ejaculation (where not taken into account above);
▪     blackmail or other threats made (where not taken into account above);
▪     location of offence;
▪     timing of offence
▪     use of weapon or other item to frighten or injure;
▪     victim compelled to leave their home (including victims of domestic violence);
▪     failure to comply with current court orders;
▪     offence committed whilst on licence;
▪     exploiting contact arrangements with a child to commit an offence
▪     presence of others, especially children;
▪     any steps taken to prevent the victim reporting an incident, obtaining assistance and/or from assisting or supporting the prosecution;
▪     attempts to dispose or conceal evidence;
▪     commission of offence whilst under the influence of alcohol or drugs.

Oddly, the defendant knowing that he is suffering from an STI is no longer mentioned as an aggravating factor.

The mitigating features listed include:

▪     no previous convictions/or no relevant/recent convictions;
▪     remorse;
▪     previous good character and/or exemplary conduct;

Cultural background cannot be pleaded as mitigation for offences of rape within marriage. Rape within marriage, or any other relationship, is not to be sentenced less seriously than stranger rapes, but it does have other aggravating features, such as the betrayal of trust.[12]

A conviction for rape:

▪     automatically triggers notification (length dependant on the sentence imposed);[13]
▪     may lead to a SOPO.[14]
▪     inclusion on the adult barred list subject to the consideration of representations;^[15]
▪     inclusion on the child list subject to the consideration of representations where the victim was an adult; ^[16]

By Felicity Gerry, Catarina Sjölin and Lyndon Harris