Posted by ccld201
7 August 2025Case-note on S.W. v the United Kingdom, App no. 20166/92, Judgement of 22nd November 1995, Grand Chamber
While not the first judgement in which the ECourtHR referred to human dignity (this seems to be the case of Tyrer v UK, 1978), the so-called marital rape ruling contains the ECourtHR’s first and explicit commitment to protect human dignity and human freedom. Can a husband be immune from raping his wife? The Court’s answer is no: it is a question of human dignity, freedom and ‘civilised marriage’.
A husband raped his wife
On the 18th of September 1990, an incident took place between the applicant and his wife whom he had married in 1987. She had informed him that she had contemplated leaving him for some time, and in her view, considered their marriage to be over. The applicant, not believing his wife intended to do as she said, ejected her from the house, leaving a bruise on her arm. Later that evening, upon her return to the house, after having spoken to the police, the applicant had sexual intercourse with his wife. She returned to her neighbours’ house and called the police, where she told them she had been raped at knife point. On 19 September 1990, the applicant was charged with rape, under section 1 (1) of the Sexual Offences Act 1956; threatening to kill, contrary to section 16 of the Offences against the Person Act 1861; and assault occasioning actual bodily harm, in breach of section 47 of the latter Act.
Tension between legal certainty (Article 7 ECHR) and human dignity
Historically, the UK common law included a marital rape immunity based on a 1736 statement by Sir Matthew Hale CJ: ‘…for by their matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.‘ On this basis, the applicant contended that his conduct was not criminal at the time it occurred. Appealing the House of Lords’ judgement before the ECourtHR, he argued that lifting the immunity retrospectively would amount to a violation of Article 7 of the ECHR, which prohibits punishment for acts that were not offences at the time when they were committed. The applicant emphasised the fact that the abolition of marital rape immunity occurred through judicial decision rather than parliamentary enactment. The case thus required balancing the applicant’s claim to legal certainty with the evolving recognition of the dignity and autonomy of married women.
Wives’ human dignity: a ‘civilised conception of marriage’ and the end of marital rape immunity
The ECourtHR takes a strict stance on the common law marital immunity, criticising Sir Matthew Hale’s assertion in 1736 as a ‘common law fiction which had become anachronistic and offensive.’ Over time, society has seen marriage transform from a relationship where a wife is viewed as a ‘subservient chattel’ to a ‘partnership of equals.’ It was highlighted that ‘there will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the United Kingdom, as in the other Convention States, the progressive development of the criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition.’ This fundamental shift in understanding the status of married women undoubtedly is a driving force in the ECourtHR’s reasoning: ‘What is more, the abandonment of the unacceptable idea of a husband being immune against prosecution for rape of his wife was in conformity not only with a civilised concept of marriage but also, and above all, with the fundamental objectives of the Convention, the very essence of which is respect for human dignity and human freedom.’
No violation of Article 7 ECHR
The ECourtHR confirmed the House of Lords’ judgement and held that there was no violation of Article 7 in convicting the rapist husband. The ECourtHR acknowledged the importance of Article 7, emphasising that it enshrines the principle of legal certainty, which is essential for individual autonomy. However, the overwhelmingly outdated nature of marital rape immunity did not reflect the modern understanding of a marital relationship nor the role of a wife in today’s society. The ECourtHR underlined that ‘the essentially debasing character of rape is so manifest that the result of the decisions of the Court of Appeal and the House of Lords – that the applicant could be convicted of attempted rape, irrespective of his relationship with the victim.’
Reflection
By affirming that marital rape immunity contravened the core values of the ECHR, particularly respect for one’s ‘human dignity and human freedom’, the ECourtHR laid a foundation that has guided its subsequent jurisprudence until today. The human dignity commitment was repeated in the case of Pretty v UK (2002) with the same formula: ‘The very essence of the Convention is respect for human dignity and human freedom’, very often traced back to it, despite being first mentioned in SW v UK. Moreover, by emphasising the principle of consent to sex, even and especially within marriage, the ECourtHR upended centuries of legal tradition and practice, and constructed wives as human beings who matter as much as their husbands and who are entitled to refuse sex with them. However, despite being so central to the reasoning, the commitment to human dignity and human freedom is not located under a specific ECHR right. This has created some uncertainty about its legal basis that has continued until today. Two years later, in Aydin v Turkey the ECourtHR found, albeit with no reference to human dignity, that the rape of a 17 year-old woman while in police custody amounted to torture and breached Article 3 ECHR. In January 2025, the argument of human dignity and human freedom was again used by the ECourtHR in HW v France, a case about marital relations, where the Court ruled that the wife’s refusal to have sex with her husband could not be a ground for a fault-based divorce and that her husband’s claim that it was breached Article 8, the right to privacy.
Follow-up reading: S Palmer, ‘Rape in marriage and the European convention on human rights C.R. v. U.K. and S.W. v. U.K’ (1997) 5 Feminist Legal Studies 91–97. https://doi.org/10.1007/BF02684858
Charlotte West is an LLB Student at the University of Exeter.