Martial Rape and Retrospectivity - The Human Rights Dimensions at Strasbourg CR v UK and SW v UK
![handle is hein.journals/chilflq9 and id is 19 raw text is: Marital rape and retrospectivity -
the human rights dimensions at
Strasbourg
CR v UK and SWv UK
P. R. Ghandhi and J A. James, Senior Lecturers in Law, University of
Reading'
INTRODUCTION
Traditionally, criminal law stopped at the door of the matrimonial home. It was not until the
late 1960s that so-called domestic violence began to attract the attention of law reformers.
Until the Police and Criminal Evidence Act 1984 a spouse was not, in many cases, competent
to testify against her or his spouse and was not a compellable witness for the prosecution.'
Perhaps the cases of CR v UK and SW v UK2 (the marital rape cases) should be welcomed as
the demolition of another exemption for violent husbands. However, even if the outcome of
these cases is to be welcomed considerable disquiet should be raised by its method of
achievement. The House of Lords felt able to overturn some two and a half centuries of law on
grounds which have attracted well-merited criticism. Their Lordships' willingness to overturn
what had long been regarded as the law is in marked contrast to their refusal to abolish the
presumption that a child between the ages of 10 and 14 lacks criminal intent unless such
intention is specifically proven by the prosecution.4 In this article we hope to expose the
European intervention in these cases to a searching review and seek to determine if the
European Court of Human Rights at Strasbourg (ECHR) was more successful than the UK
courts in finding acceptable reasons for its ruling.
English family and criminal law have suffered a series of adverse findings at the hands of
the Convention for the Protection of Human Rights and Fundamental Freedoms (the European
Convention). Indeed, all these setbacks for the UK before the ECHR have been alleviated only
by the relief felt by some at the ECHR's refusal to find a breach of Article 7, which prohibits a
finding of guilt in respect of an act which was not a criminal offence at the time of
commission, in the marital rape exemption cases of SW v UK and CR v UK. However, before
English family and criminal lawyers, or commentators, savour the success of English law in
The authors would like to thank Professor Tony Smith of Gonville and Caius College, Cambridge and their
colleague at Reading, Phil Bates, for their extremely valuable comments and suggestions.
Section 80 makes the spouse competent and in a range of cases compellable.
2 Judgments dated 22 November 1995. Series A, no 335-B and 335-C respectively. [1996] 1 FLR 434.
For a critique of the reasoning in the domestic courts see Giles, 'Judicial law-making in the Criminal Courts:
the case of marital rape' [1992] Crim LR 407. See also the notes by Sir John Smith at [1991] Crim LR 477 and
[1992] Crim LR 208 in which he dismissed Lord Keith's analysis of the relevant statute. See generally, Brooks,
'Marital consent in rape' [1989] Crim LR 877, Mitra, ' ... For she has no right or power to refuse her consent'
[1979] Crim LR 558, and Freeman, 'But if you can't rape your wife, who can you rape?' (1981) XV Fam LQ 1.
4 See also Editorial, 'Rape within marriage' [1991] Crim LR 77.
C v Director of Public Prosecutions [1995] 2 All ER 43; the arguments against changing the law in this case
would appear to be equally applicable to the husbands in CR v UK and SW v UK. For a fuller discussion of this
case see below.
Child and Family Law Quarterly, Vol 9, No 1, 1997
17](ViewImageLocal?handle=hein.journals/chilflq9&div=6&collection=&method=preview&ext=.png&size=3)
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Martial Rape and Retrospectivity - The Human Rights Dimensions at Strasbourg CR v UK and SW v UK
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