R V R - This is an important aspect of criminal law which I have taken during lecture. PDF

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This is an important aspect of criminal law which I have taken during lecture. Do read it before you enter into the exam hall! ...

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“The common law is capable of evolving… marriage is in modern times regarded as a partnership of equals and no longer one in which the wife must be the subservient chattel of the husband.” -Lord Keith in R v R [1991] Prior to the emerged of feminist jurisprudence, women in the earliest age were raised with the understanding they should not have self-will nor govern by self control but full submission and yielding to men’s control is their ideal character ( John Stuart Mill). Feminist jurisprudence is a philosophy of law based on the political, economic and social equality of sexes. When feminist jurisprudence emerged, it is always about changing the law for the better of women and what the law ought to be. The idea of law must be evolved as there are assumptions surfaced that law reflects social relationships, especially inequality between women and men, and for feminist, has become an aspiration for them to change this inequality. It could be encapsulated in R v R where the defendant was found guilty and charged with marital rape. Hitherto, those in England under a civil law ceremony are obligated to provide their consents to marriage. Consent was instituted during the period of public notice, and eventually with the ceremony. Failure to give ‘valid consent’ could lead to duress, mistake, and unsoundness of mind and could nullify the marriage. Feminists persistently criticised marriage for involving less than proper contract. Elisabeth Cady Stanton observed even if marriage is deemed ‘a contract’, only one party (the husband) has actual power and women would have to be brought into civil life on exactly the same footing as their husband. So long as social customs and law fails to allow possibilities for women to have autonomy within marriage, one party is stronger than the other. Even in situations where men did not exercise their dominance over their wives’ freedom, which was merely related to the former’s willingness, was therefore contingent. Mari Mikkola in ‘Kant on Moral Agency and Women’s Nature’ asserted marriage could be defined as a contract of sexual use between two persons who possess the reason and capacity to act according to universal moral laws. In England, when a woman was raped within marriage, termination of marriage contract was impossible until recently. Before 1700, there was no divorce but in 1857, it was granted by a private Act of Parliament. Early feminists requested for women’s rights to maintain full control over their bodies and fertility and they raised issue of consent in marital sexual relations regarding contraception and abortion. The dominant masculine view consent was not required emerged from the lack of regulation on marital rape. In relation to Matrimonial Causes Act of 1878 (MCA 1878), husband’s authority over his wife’s body gave him the right to reprimand her physically. American feminists, Emma Goldman and Victoria Woodhull protested there should be no distinction between rape outside of, and within marriage, in connection to a critique of marital rape to promote women’s freedom and sexual pleasure. The doctrine there are husbands’ rights and wives’ duties regarding sexual intercourse has become less commonly accepted as the concept of human rights developed in the international field. Feminists worked constantly to criminalise rape in marriage and

long relationships because it has been recognised as the most common form of rape. Indeed, women are still raped predominantly by men. It was encapsulated in R v R where the marital rights exception had been requested as far as the House of Lords was concerned where the marital rights exemption was upheld. The principal judgment to reject marital rape was provided by Lord Keith and unanimously approved. Defendant’s appeal was dismissed and he was convicted of raping his wife. Despite marital rape has not been criminalised for a long time in the UK, it is clearly a serious form of violence against women and worthy of public attention. Research to date indicates that women who are raped by their husbands are expected to experience multiple assaults and often suffer severe longterm physical and emotional consequences. Radical feminists believe violence against women emerged from men’s domination and control from aspect of physical and sexual assault. One of the radical feminist was Susan Brownmiller. She protested that women are being controlled by men socially and politically by the fear of being rape and should not allowed pornography and prostitution to be legalised as it promotes phenomenon of rape because it degrades female body, which is very dangerous for women. In the eye of majority of the radical feminists, all these actions of violence against women are reflecting the desire of domination and controlling of men towards women. Brownmiller wrote a statement in a book of hers that “men rape simply because they can, because they have the structural capacity to rape and women have the structural vulnerability”. At those times, there are no law that exist to safeguard women from sexual assault or oppression by men. Women lived in fear and many safe houses were built for women to escape from being victimised by men and in those periods, there are also abortion policies which forced women to go through dangerous procedure of abortion illegally, without any governing law. These were considered as an act of violence against women by radical feminists. According to Catharine MacKinnon in ‘Towards a Feminist Theory of the State’, there are no significant inherent between men and women. She opined in reality, the only difference is men dominate lives of women. She further purported the State and the law’s objective point of view is normally sexist as what she calls ‘male point of view’. Based on MacKinnon’s view with regards to R v R, the law looks at intercourse as rape whereas rape victims looks at rape in intercourse. In other words, rape victim considers a rape is a rape even without involving intercourse. By wrapping this up, after the ruling in R v R, women now have rights over their own body and equality with men. Baroness Hale quoting McLachlin CJ stated judiciary consisting of women would promote equality, fairness, public confidence as well as having different perspective to judgements. Regardless all Their Lordships in R v R are men, feminists opined they had laid down a tremendous ratio whereby women could now have their rights protected and control over their own lives without being subservient to men....