QUESTION
Part A: Write a reflective piece on your trip to the magistrates court and/ or the mock trial, outlining how it developed your understanding of the criminal justice system
Considerations:
- What were your expectations prior to the event
- What did you learn from the event
- you were to prepare for the event again what would you do differently
Part B: Using the case of RvR [1991] UKHL 12; [1992] 1 AC 599 discuss whether or not the function of judges in the criminal justice system should be to make law.
You should include:
- An outline of RvR [1991] UKHL 12; [1992] 1 AC 599
- The arguments for and against judicial creativity
- Other case law, piece of legislation and journals that add to your arguments.
ANSWER
INTRODUCTION TO LAW
Table of Contents
Part A: Reflective Piece
Part B: Essay
Reference List
Part A: Reflective Piece
Last week, I had the opportunity of attending a mock trial going on in the City of Westminster’s Magistrates’ Court, originally called as the Horseferry Road Magistrates’ Court. Mock trials are generally the imitation acts to test theories and experiments, generally done by Attorneys. Since, I have never been to a court earlier; I was very excited and was really looking forward to the court proceedings. The mock trial was discussing a case of criminal fraud regarding forgery of passport. I saw that the plaintiff has accused the defendant of forging his passport. Though I was aware of the Proceeds of Crime Act under which the fraudulent cases are treated, I faced a problem in the basic law terminologies used in the proceedings. I am really thankful to my friend for making the arrangements so that I can attend the mock trial.
The case was very interesting as I witnessed that the defendant’s lawyer had given many proofs that supported his claim. However, the trial court overruled the defendant’s claims of pleading not guilty as he was found guilty of committing the crime. As I was not aware of some of the basic terminologies of law proceeding, it took me some time to grasp the actual case. If given a chance to attend any court proceeding in future, I will make sure to study about all the tit-bits of the same in detail before attending the same.
Part B: Essay
Introduction
The given case of R v R [1991] UKHL 12; [1992] 1 AC 599 is a case regarding marital rape was heard in the year 1991 in the House of Lords. The case dealt with a situation which ruled that that it is possible for a man to rape his wife and the person can be exempted from the rape charges as he is married to the victim. It is a very important milestone case as it further lead to the formation of Marital rape law in the country. A widely discussed case, the following essay gives a brief introduction of the given case, its related arguments for and against judicial activity. The essay also gives a brief overview of other related cases of the same nature. Legislations that are related to marital rape in UK have been highlighted showing its use in the case.
Outline of the case
The case of R v R first started when the plaintiff started the case against the accused in July 1990 by referring to an incident of the year 1989 when the not legally separated couple had a tiff regarding sexual assault of the wife by the husband. The defendant broke into the house of the plaintiff and forced himself upon her. The plaintiff then lodged a case against the defendant in Leicester Crown Court in the month of July, 1990. The case came under Mr. Justice Owen. The defendant was had been charged with attempted rape of plaintiff (Kuriakose, 2019). Though during the time of the offence the couple was in separation, there was absence of any sort of legal separation. The defendant was charged under the section 1(1) of the Sexual Offences (Amendment) Act 1976. The Act states that it is sexual intercourse with women who does not gives consent for the same during the time of the intercourse is unlawful (legislations.go.uk, 2019). In the next year, defendant appealed against his conviction again for raping his wife. He stated that sexual intercourse with his wife was under provisions of law and therefore exemption of rape in marital cases does not come under the picture. He also stated that the term ‘rape’ is not applicable in this case (Ross, 2015). The case after multiple appeals reached to the House of Lords and the judgment upheld the conviction of the man identified as ‘R’. The panel consisted of Lord Keith of Kinkel, Lord Brandon of Oakbrook, Lord Griffiths, Lord Lowry and Lord Ackner. According to the views of it stated in its judgement unanimously that in modern times it cannot be assured that by marriage a husband has irrevocable consent of his wife; it also stated that in modern times this concept is not true.
Arguments for and against judicial activity
The case of RvR[1991] UKHL 12; [1992] 1 AC 599 was epitome of the fact that rape exception in case of marriage is unlawful. According to the historical judgment of House of the Lords in 1992 under Lord Keith, the marital rape is a heinous crime and a man can be convicted under the same, unlike the laws which states that rape in marriage does not exist. As per views of Bhamjee, Essack & Strode (2016), the case also brought to question the fact that there is a dire necessity of a law under which conviction of marital rapists can be undertaken. The case also cited many a examples to come to the given judgment. The case of Regina v J (rape: marital exemption) Crwn ([1991] 1 All ER 759) is also a case of similar nature in which the husband was charged for raping his wife from whom he was living apart at that time. Under this case also, the defendant was accused under section 1(1) of the Sexual Offences (Amendment) Act 1976 (Legislation.gov.uk, 2019).
Another case referring to Rex v Clarke ([1949] 2 All ER 448, 33 Cr App Rep 216), in which the defendant was accused of the raping his wife and sexually assaulting her. Osborn et al. (2018) mentioned that due to absence of any particular law related to marital rape, the court at that time passed the judgment of withdrawal of marriage. Though, in the aforementioned case, absence of Sexual Offences (Amendment) Act resulted in the acquittal of the defendant. However, the defendant would have been accused had there been any particular law regarding the same (Brown, Mackie & Shell, 2016). The court in its judgment also said that the law is unaware of a term known as marital rape. Even if the 1992 RvR case upheld the conviction of the defendant, the absence of marital rape law created a lot of problems in many related cases. The judgment of the House of Lords determined the fact for the first time that it is possible for a man to get convicted of rape for trying to sexually enforce himself on the spouse even if they are married. The judgment for the first time laid the foundation of today’s Sexual Offences Act, 2003 under which marital rape itself is considered as a crime (legislation.gov.uk, 2019).
Conclusion
From the above write-up it can be concluded that marital rape is a serious issue which was first brought under light by the landmark judgment of the House Of Lords in the year 1992. The judgement laid the foundation of the current marital rape law under Sexual Offences Act, 2019. The case is a perfect example of the ways in which marriage can be sexually assaulting, and in absence of proper law can lead to a situation where the accused can be acquitted without serving a proper punishment as mentioned in the case of Rex v Clarke ([1949] 2 All ER 448, 33 Cr App Rep 216). The Sexual Offence Act, 2003 including marital rape as a crime is breath of fresh air for people who are mutedly tolerating sexual assaults.
Reference List
Bhamjee, S., Essack, Z., & Strode, A. E. (2016). Amendments to the Sexual Offences Act dealing with consensual underage sex: Implications for doctors and researchers. South African Medical Journal, 106(3), 256-259 Retrieved on : 14 March , 2019 Retrieved from: https://www.ajol.info/index.php/samj/article/view/131967
Brown, J., Mackie, J., & Shell, Y. (2016). Defending Helen Archer–marital rape and the role of expert testimony in cases involving domestic abuse. British Politics and Policy at LSE. Retrieved on : 20 March, 2019 Retrieved from: http://eprints.lse.ac.uk/67838/1/Defending_Helen_Archer.pdf
Kuriakose, M. (2019). Attitudes towards Marital Rape: A Cross-Cultural Study between Young Adults in the United Kingdom and India. Retrieved on : 14 March ,2019 Retrieved from: https://www.researchgate.net/profile/Melba_Kuriakose2/publication/331345975_Attitudes_towards_Marital_Rape_A_Cross-Cultural_Study_between_Young_Adults_in_the_United_Kingdom_and_India/links/5c750e8192851c6950417da0/Attitudes-towards-Marital-Rape-A-Cross-Cultural-Study-between-Young-Adults-in-the-United-Kingdom-and-India.pdf
legislation.co.uk(2019) Sexual Offences (Amendment) Act 1976 Retrieved on: 16 March, 2019 Retrieved from: https://www.legislation.gov.uk/ukpga/1976/82
Legislation.gov.uk (2019) Sexual Offences Act 2003 Retrieved on : 15 March ,2019 Retrieved from: https://www.legislation.gov.uk/ukpga/1976/82
Osborn, K., Davis, J. P., Button, S., & Foster, J. (2018). Juror decision making in acquaintance and marital rape: The influence of clothing, alcohol, and preexisting stereotypical attitudes. Journal of interpersonal violence, 0886260518768566. Retrieved on : 10 March, 2019 Retrieved from : https://core.ac.uk/download/pdf/153317089.pdf
Regina v J (rape: marital exemption) Crwn ([1991] 1 All ER 759)
Rex v Clarke ([1949] 2 All ER 448, 33
Rex v Clarke ([1949] 2 All ER 448, 33 Cr App Rep 216).
Ross, J. M. (2015). Making marital rape visible: A history of American legal and social movements criminalizing rape in marriage. Retrieved on : 15 March, 2019 Retrieved from : https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1085&context=historydiss
RvR[1991] UKHL 12; [1992] 1 AC 599
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