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Judicial Law-Making in the Criminal Courts: The Case of Marital Rape

NCJ Number
Criminal Law Review Dated: (June 1992) Pages: 407-417
M Giles
Date Published
11 pages
This article considers the recent case law on marital rape in the United Kingdom and argues that the courts have exceeded their legitimate law-making powers.
The Law Commission and the courts concur that there should be no marital exemption to a charge of rape but take different approaches. A comparison of these approaches illustrates the differences between changing the law through judicial decision and changing it by means of the parliamentary process. Experience suggests that the need for ongoing reform of criminal law proves a lesser evil compared to judicial law-making. The latter seems to create as many problems as its solves in efforts to reform specific rules. Statutory reform is the best course. In the area of marital rape, the question to address is whether Parliament should reform the area of marital rape only or take a fundamental look at the crime of rape and the many recommendations for major reform in all aspects of the crime as well as related areas such as domestic violence. 55 footnotes


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