A HISTORIC ruling that a husband can be charged with raping his wife

even if the couple were still living together, was upheld yesterday by

three Judges in the Court of Crimimal Appeal.

Lord Emslie, the Lord Justice General, said he did not believe it had

ever been the law of Scotland that a woman in marriage surrendered

herself to the prospect of of violation by force against her will.

The court was hearing an appeal by a husband due to stand trial at the

High Court in Stirling next month on a charge of raping his wife. He

lodged the appeal after Lord Mayfield decided that the charge was

competent under Scots law.

It is the first time a charge of its kind has been brought, although

in two other Scottish cases in the 1980s, husbands have been charged

with raping their wives when the couple were living apart.

Mr Peter Vandore, QC, defence counsel, tried to persuade the Appeal

Court yesterday that the law as stated by Baron Hume in 1796, that a

husband could not rape his wife, was still valid, despite changing

social conditions.

Mr Vandore told the court: ''I am not suggesting that there is any

right in every married Scotsman to have sexual relations with his wife

when he wants and whatever his wife's feelings might be. It is accepted

that a husband has no such right.

''Apart from anything else, if he overcomes his wife's reluctance by

force he could be charged with assault. If his sexual demands are

excessive, he may find himself divorced for unreasonable behaviour.

''Equally, a wife has no absolute right to say no whenever she wants.

A total lack of sexual interest or a minimal interest may again be the

subject of a divorce action.''

Mr Vandore said this was not a situation where the rights of the

husband or the wife were paramount. There might be other much more

important interests such as the family unit, children and society as a

whole.

In a case where a question of rape arose between a cohabiting husband

and wife, the relationship was one which the law had an interest to

protect.

The real question was whether or not the courts should intrude into

the intimate personal relations of marriage. The difficulties in

bringing a rape charge against a husband were too appalling to

contemplate.

''If a charge of this nature is held to be relevant, it is more likely

to break marriages than to help them in any way,'' argued Mr Vandore.

If it was felt the law should be changed, that was a matter for

Parliament.

Mr Alan Rodger, QC, Solicitor-General for Scotland, said the rule that

a man could not be charged with raping his wife had to be read against

the background of the status of women and the law of marriage when it

was made -- at the end of the eighteenth century.

In the modern understanding of marriage, a wife had a right to say no

to intercourse. ''If that is correct then it does indicate that there is

no such thing as an irrevocable submission to intercourse in all

circumstances by the mere fact of marriage.''

Mr Rodger agreed that in a case where the couple were living together

it might be hard for the Crown to establish that consent had been

withdrawn. But where the Crown proved as a matter of fact that the wife

did not consent, all the elements of rape were present -- intercourse,

force and lack of consent.

''What stands between the law holding that to be rape is simply this

fiction -- and it is nothing more than a fiction -- that a wife has

consented irrevocably to intercourse. No such proposition would stand

examination today.''

The key was not whether the couple had separated, but simply whether

consent had been withdrawn. ''It is that simple. If the wife was not

consenting as a matter of fact, and a husband has intercourse with her

by force, then that is rape.''