THREE Scottish Appeal Judges yesterday gave reasons for their historic
legal ruling that a husband should stand trial for the alleged rape of
his wife while still living with her.
Lord Emslie, the Lord Justice General, said that the decision of the
court did not deprive a wife of her right ''to forgive, or to tolerate,
or to change her mind.''
Lord Emslie, sitting with Lord Brand and Lord Allanbridge, said at the
Court of Criminal Appeal in Edinburgh that if a wife did change her mind
after complaining to the criminal authorities, there was little doubt
that a prosecution of her husband would not be pursued.
Lord Emslie said: ''We accept, of course, that proof of rape in
marriage will, in many situations, be difficult, but that is no reason
for saying that a charge of raping of his wife against a husband while
the parties are still cohabiting is not relevant for trial.''
Lord Emslie said that the appeal court was satisfied that the
Solicitor General for Scotland in this case was well founded in law in
his contention that whether the reason for the husband's immunity was a
good one in the eighteenth and nineteenth centuries, it had since
disappeared altogether.
A married woman then, no doubt, could be said to have subjected
herself to her husband's dominion. She was required to obey him in all
things. Leaving out of account the absence of rights of property, a
wife's freedoms were virtually non-existent.
Lord Emslie added: ''By the second half of the twentieth century,
however, the status of a married woman in our law changed quite
dramatically. A husband and wife are now for all practical purposes
equal partners in marriage . . . A wife is not obliged to obey her
husband in all things nor to suffer excessive sexual demands on the part
of her husband.''
Lord Emslie said: ''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. Nowadays, it cannot seriously be
maintained that by marriage a wife submits herself irrevocably to sexual
intercourse in all circumstances.''
Lord Emslie added that a wife did not consent to assault upon her
person and there was no plausible justification for saying that she was
nevertheless to be taken to consent to intercourse by assault.
Lord Emslie said for these reasons they refused the appeal on behalf
of the husband.
The 37-year-old husband is due to stand trial at the High Court in
Stirling on April 24.
The husband hd appealed to the three Judges in Edinburgh after Lord
Mayfield ruled that the charge against the accused was relevant.
Lord Mayfield said: ''I have come to the conclusion the crime of rape,
albeit between husband and wife, cannot be treated as separate from
assault.''
On March 16 the Appeal Judges ruled that the trial should go ahead.
Lord Emslie said then that reasons for the decision would be given in
writing at a later date.
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