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The rule that a husband cannot be criminally liable for raping his wife if he has sexual intercourse with her without her consent no longer forms part of the law of England since a husband and wife are now to be regarded as equal partners in marriage and it is unacceptable that by marriage the wife submits herself irrevocably to sexual intercourse in all circumstances or that it is an incident of modern marriages that the wife consents to intercourse in all circumstances, including sexual intercourse obtained only by force.
In Section 1(1) of the Sexual Offences (Amendment) Act, 1976, which defines rape as having “unlawful” sexual intercourse with a woman without her consent, the word “unlawful” is to be treated as mere surplusage and not as meaning “outside marriage”, since it is clearly unlawful to have sexual intercourse with any woman without her consent.
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