Case study case of R v R [1991] 4 All ER 481

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http://www.parliament.uk/mps-lords-and-offices/lords/composition-of-the-lords/

http://webcache.googleusercontent.com/search?q=cache:n1GRT_z59KIJ:cw.routledge.com/textbooks/9780415639989/downloads/rape-marriage.pdf+&cd=10&hl=en&ct=clnk

http://webcache.googleusercontent.com/search?q=cache:4q9Vgid7AE4J:www.legislation.gov.uk/ukpga/1976/82/pdfs/ukpga_19760082_en.pdf+&cd=2&hl=en&ct=clnk

Explain, in your own words, the legal issue(s) in the case.

I discussed the legal issues in the case throughout the response below, but I will outline here what the legal issue is. The primary legal issue is the fact that the 1976 Act, which was a reform of the Hale proposition, technically made it "unlawful" for marital rape to occur or any form of rape to occur. What the 1976 Act and reform did not do, was abolish the Hale doctrine and instead outlined that for a husband to be criminally charged for "rape" against his wife, he would either need to petition the court with a statement that he was not going to abuse his wife who was separated or he and has wife would need to agree that consent for sexual intercourse was revoked under the marriage contract. Because the defendant who was convicted did not seek either of these options, he argued that the original conviction was invalid because he did not rape his wife under the legal doctrine as he had not sought a petition to the court and had not agreed to revoke his consent for sexual intercourse with his separated wife. Therefore, the Appeal Court clarified that although his actions were not "unlawful" under the legal doctrine established by the Hale Proposition, which the 1976 Act did not abolish, because the crime of rape was illegal under the Act and there was no consent by his wife, any form of sexual intercourse without consent was considered rape even if the husband had not rescinded the implied consent from the marriage contract or petitioned the court.

Both the Court of Appeal (as included in the HL decision) and Lord Keith of Kinkle in the House of Lords cite a number of earlier cases in R v R [1991], For example, R v Clarke [1949]; R v Miller [1954]; R v O'Brien [1974]; R v Steele [1976]. ◦Why they do this?
What do such citations add to the judgement?

First and foremost, (you) must understand the reason that these cases were provided within the judgment was to elucidate and highlight how evolution in regard to societal norms occurs, which necessitates evolution of the law to ensure that the law can ascribe with the current societal beliefs and views. An interpretation of the law in 1800 will be very different to the interpretation of this same law in 1990 or almost 200 years later as society and its norms would have dramatically changed during this time. This is essentially what occurred with Britain's legal code in reference to marital rape. Marital rape used to be accepted by society in general because it was considered impossible for a married man to rape his wife as this was not something the wife could refuse to her husband, the desire for sexual intercourse. This societal concept shaped society's view on rape, and the courts ensured that this societal view was the ...