R v C (Barry)

R v C (Barry) [2004] EWCA Crim 292

Marital Rape – Consent – Abuse of Process – Article 7(1) European Convention on Human Rights – R v R – Husband Can Be Convicted of Raping Wife Retrospectively

Facts

The defendant was convicted on a number of counts of sexual and violent offences against four different women between the years of 1967-1987. This case concerns a conviction of rape against his wife at the time (third count). The defendant married the complainant in 1967. There was a history of abuse and violence in the marriage and it ended in 1971. The rape occurred when they were married. The complainant had suffered a miscarriage and was in hospital. When she was released, the defendant wanted to have sexual intercourse, but she did not consent. She made this clear to him.

Issues

The defendant appealed against his conviction of rape, arguing the incident took place before R v R 1991 stated that a husband could be convicted of raping his wife; at the time, there was common law principle of irrevocable consent to sexual intercourse with the husband. This was an abuse of process and contravened Article 7(1) of the European Convention of Human Rights, which states no one can be found guilty if ‘any act or omission did not constitute a criminal offence under national or international law at the time when it was committed.’

Decision/Outcome

Appeal dismissed. The court stated that ‘his marriage certificate did not entitle him to force his unwanted sexual attentions on her’ [26]. This confirmed the cases of R v R and R v Graham Land that a husband can be convicted of the rape of his wife. There was also no infringement of the defendant’s Convention rights and no abuse of process.