Marital Rape Law in the UK: what is it?

Have you been accused of marital rape? What are the possible consequences of a conviction under UK law?

If you are found guilty of marital rape the sentence is likely to be between 4 and 19 years, depending on the specifics of the case, alongside any mitigating or aggravating factors. The maximum possible sentence in the UK is life imprisonment.

Nick Titchener, director and solicitor advocate at Lawtons Solicitors, a leading firm of criminal solicitors in London & the surrounding areas, discusses this complex area of the law and its implications.

What is marital rape in UK law?

Also known as spousal rape, marital rape is a form of sexual assault under UK law, in contravention of the Sexual Offences Act 2003.

The offence occurs when an individual commits a sexual act without the consent of their spouse or their ex-spouse, or against their will. If someone is unable to consent to a sexual act or their consent is obtained by force, threat or intimidation, the sexual act is committed without consent.

Marital rape will also be considered as a form of domestic violence and may also include allegations of assault or that the accused has acted in a controlling and coercive manner.

Implied consent is not sufficient – a spouse should always ensure that their partner has freely provided their consent before engaging in any sexual activity.  

Marital rape and the law

Prior to 1992, forced sexual activity within a marriage wasn’t illegal, as a husband could enforce conjugal rights on his wife without committing an offence based on the belief that a wife had provided their ongoing consent through the contract of marriage.

The case of R vs. R which was heard in the House of Lords in 1991 changed the law to the extent that it determined that under UK law it was possible for a man to rape his wife. The courts ruled that, even within a marriage, any non consensual sexual activity is rape.

For the act of marital rape to be prosecuted, the prosecution must prove that:

1. Penetration of the anus, mouth or vagina occurred
2. The act of penetration was intentional
3. The complainant did not consent to the act of penetration
4. The defendant did not believe – within reason – that the complaint had consented to the act

Do you have to be married to be charged with marital rape?

The act of marital rape can also be committed by those who cohabit as spouses, but are not legally married.

Can a woman be charged with marital rape?

A woman cannot be charged with committing rape, as this specific offence requires penile penetration without the consent of the individual.

However, if a woman commits a sexual act without the consent of her spouse or ex-spouse, or she commits a sexual act against the will of her spouse or ex-spouse, she is committing a sexual offence under UK law. In this instance, a woman can be charged with:

1. Sexual coercion
2. Causing a person to engage in sexual activity without consent
3. Sexual assault

What is the sentence for marital rape?

The updated General Sentencing Council guidelines, which came into force on 1st April 2014, provide the offence range and suggested sentences for the offence of marital rape.

Sentences can range from 4-14 years, depending on the specifics of the case, alongside any mitigating or aggravating factors. Life imprisonment can be handed out if the situation demands.

The guidelines specify three categories of offence, with the sentence awarded accordingly:

Category One

• Aggravating factors present – a custodial sentence ranging from 13 years – 19 years
• Mitigating factors present – a custodial sentence ranging from 10 years – 15 years

Category Two

• Aggravating factors present – a custodial sentence ranging from 9 years – 13 years
• Mitigating factors present – a custodial sentence ranging from 7 years – 9 years

Category Three

• Aggravating factors present – a custodial sentence ranging from 6 years – 9 years
• Mitigating factors present – a custodial sentence ranging from 4 years – 7 years

Aggravating factors in sentencing for marital rape

There are a number of aggravating factors when deciding a sentence, including:

1. Any previous convictions
2. A betrayal of trust
3. If the complainant was vulnerable
4. If the assault was planned
5. If the assault was sustained
6. If the defendant abducted the complainant
7. If the defendant detained the complainant
8. If the defendant blackmailed the complainant
9. If the defendant intimidated or coerced the complainant
10. If a weapon was used in the offence
11. If drugs were used to facilitate the offence
12. If alcohol was used to facilitate the offence
13. If others  – such as children – were present at the time of the alleged offence
14. If the complainant was forced to leave their home as a result of the offence
15. Contact arrangements involving children were exploited to commit the offence
16. If the defendant attempted to prevent the complainant reporting the offence
17. If the attempted to destroy or conceal evidence

If any or all of these aggravating factors are present in the offence, the sentence will be more severe.

Mitigating factors in sentencing for marital rape

A mitigating factor present in an offence of marital rape may reduce the overall sentence passed.

Factors include:

1. No previous convictions
2. Previous good character
3. Remorse shown by the defendant

Cultural beliefs cannot be used as a mitigating factor or a defence in a case or marital rape.

Consequences following a conviction for marital rape

If found guilty of marital rape, alongside a custodial sentence, a defendant also faces:

1. Inclusion on the Sexual Offenders’ Register
2. Enforced adherence to notification requirements

A Sexual Harm Prevention Order valid for a minimum of five years

How to defend yourself against marital rape charges

If you are accused of committing the offence of marital rape, you should seek expert legal advice as soon as you are able to do so.

Our highly experienced sexual offence solicitors are able to advise you on this complex area of the law – call us on 0333 577 0522 to discuss the individual circumstances of your case.

At Lawtons we have considerable experience in defending cases of indecent images all around the UK and we will work with you to ensure the best possible outcome for you, whilst aiming to minimise the impact on your personal life and your reputation.

About the author

Nick Titchener, director and solicitor advocate of Lawtons, is a dedicated criminal solicitor  with considerable experience in the most serious legal cases including sexual offences, violence and assault. Nick’s measured and methodical approach means he thrives on even the most complex case.

Nick also oversees the overall management of Lawtons solicitors.