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his was an old rule from 1736 by Hale who stated:

'But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.' [21] Therefore the marriage (contract) was said to be consent in itself.

The SOA 1956 was criticised by many, in relation to how the act did not represent the modern society. Paul boating, Home Office Minister, in 1999, stated that “The laws on sexual offences are generally archaic and riddled with anomalies and that much of the present law dates from 100 years ago when society was very different and today we need to ensure that the law in this area is effective and appropriate to the needs of a modern society.' [22]

Rape law has protected the way women’s sexuality and interest in bodily autonomy is controlled by husbands, fathers and other males. The law has been in favour of both interests at times, however, infrequent prosecution and the low level of conviction rates has undermined the effectiveness of the law.

There were many cases in the nineteenth century, which made it clear that the lack of consent instead of force was the key element of rape and so sex with a woman who was too drunk or asleep could be classed as rape. Men were not found guilty of rape if they believed that the women had consented, no matter how unreasonable the belief was, this was known as the ‘Morgan Rule’ or the ‘Morgan Defence’. [23]

In the late twentieth century there was a rise of the women’s movement. Here, the biggest changes to rape law came after over a 100 years of feminist campaigning rape with the inclusion of marital rape in 1991 [24] and male rape in 1994 [25] .

Male Rape

Prior to 1994, male rape was non-existent. In the case of R v Gaston, Lord Justice Hooper stated that “It is a felony for a man to rape a woman. Rape required vaginal penetration of a woman. Anal penetration could not constitute rape” [26] , therefore clearly stating that the actus reus of rape was in relation to vaginal intercourse only and in any circumstance, anal rape was not to be considered.

The Criminal Justice and Public Order Act 1994 (CJPOA 1994) introduced and included male rape by section 142 which replaced section 1 of the SOA 1956. It stated that: -

“(1) It is an offence for a man to rape a woman or another man

(2) A man commits rape if:-

a) He has sexual intercourse with a person (whether vaginal or anal) who at the time of intercourse does not consent to it; and

b) At the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it.”

Abolishment of the law on Marital Rape

The law on marital rape being legal was abolished in England and Wales in the early 1990s by statute and court a decision. [27] Rape was defined as “unlawful” sexual intercourse in Section 1(1) of the Sexual Offences (Amendment) Act 1976, with the word ‘unlawful’ meaning “outside the bond of marriage”, making rape in a marriage non-existent due to the marriage itself being regarded as consent. However, the defendant in the case of R v R [28] , was found guilty of raping his wife after the trial judge overruled the defence of ‘marital immunity’. The defendan