“ Certainly in modern times sexual intercourse outside marriage would not ordinarily be described as unlawful. If the subsection proceeds on the basis that a woman on marriage gives a general consent to sexual intercourse, there can never be any question of intercourse with her by her husband being without her consent. There would thus be no point in enacting that only intercourse without consent outside marriage is to constitute rape. ”

“ A husband and wife are now for all practical purposes equal partners in marriage and both husband and wife are tutors and curators of their children. A wife is not obliged to obey her husband in all things nor to suffer excessive sexual demands on the part of her husband. She may rely on such demands as evidence of unreasonable behaviour for the purposes of divorce. A live system of law will always have regard to changing circumstances to test the justification for any exception to the application of a general rule. ”

“ If “unlawful” means “outside marriage” then all exceptions recognised hitherto are swept away, as are also the Reg. v. Steele line of cases. It would be extraordinary if a husband could be convicted of every type of violent assault save the most serious, namely, rape.
There is nothing in the words of the early textbook writers, Glanvill, Bracton or Dalton, nor in the most respected authority, Coke's Institutes, which supports Hale. If Hale was merely recognising a well known principle of law it is surprising that no authority is cited in support of it. ”

“ Whatever Hume meant to encompass in the concept of a wife's ‘surrender of her person’ to her husband ‘in that sort’ the concept is to be understood against the background of the status of women and the position of a married woman at the time when he wrote. Then, no doubt, a married woman could be said to have subjected herself to her husband's dominion in all things. ”

“ The appellant appealed to the Court of Appeal (Criminal Division) on the ground that Owen J.:
“made a wrong decision in law in ruling that a man may rape his wife when the consent to intercourse which his wife gives in entering the contract of marriage has been revoked neither by order of a court nor by agreement between the parties.” ”

“ The third or radical solution is said to disregard the statutory provisions of the Act of 1976 and, even if it does not do that, it is said that it goes beyond the legitimate bounds of judge-made law and trespasses on the province of Parliament. In other words the abolition of a rule of such long standing, despite its emasculation by later decisions, is a task for the legislature and not the courts. ”

“ It is not every wife who can, as the wife here could, go to live with her parents or indeed has anywhere else other than the matrimonial home in which to live. It may be thought that a total abolition of the immunity would be a preferable solution, as has been the experience in some other common law jurisdictions, Canada, Victoria, New South Wales, Western Australia, Queensland, Tasmania and notably in New Zealand, where the compromise solution was found to be unworkable. ”

“ It seems to us that where the common law rule no longer even remotely represents what is the true position of a wife in present day society, the duty of the court is to take steps to alter the rule if it can legitimately do so in the light of any relevant Parliamentary enactment. ”

“ There can be no question that by a decree nisi a wife's implied consent to marital intercourse is revoked. Accordingly, a husband commits the offence of rape if he has sexual intercourse with her thereafter without her consent. ”

“ The husband who is the subject of an injunction or undertaking to the court or in respect of whose marriage a decree nisi has been pronounced or is a party to a formal separation agreement would be nevertheless immune from prosecution for raping his wife. ”

“ There comes a time when the changes are so great that it is no longer enough to create further exceptions restricting the effect of the proposition, a time when the proposition itself requires examination to see whether its terms are in accord with what is generally regarded today as acceptable behaviour. ”

“ There are social considerations to be taken into account, the privacy of marriage to be preserved and questions of potential reconciliation to be weighed which make it an inappropriate area for judicial intervention. ”

“ The compromise solution. The word “unlawful” is to be construed in such a way as to leave intact the exceptions to the husband's immunity which have been engrafted on to Hale's proposition from the decision in Rex v. Clarke [1949] 2 All E.R. 448 onwards and is also to be construed so as to allow further exceptions as the occasion may arise.
(3) The radical solution. Hale's proposition is based on a fiction and moreover a fiction which is inconsistent with the proper relationship between husband and wife today. For the reasons expressed by Lord Emslie in S. v. ”

“ It was argued for the defendant that “unlawful” in that section connoted either intercourse contrary to some positive enactment or intercourse in a brothel or something of that kind. Donovan J., giving the judgment of the Court of Criminal Appeal, rejected both interpretations and continued, at p. ”