Laws Regarding Rape - Common Law

Common Law

Rape was an offence under the common law of England. That offence became an offence under the law of other countries, including Australia and the United States, as a result of colonisation or conquest, or following cession (see British Empire). It is discussed at Rape in English law#History.

Under this law rape traditionally describes the act of one party forcing another to have sexual intercourse with him or her. Common law rape required the utmost physical resistance by the victim, as well as substantial force by the defendant. The common law crime of rape was collectively adopted by the American colonies in the seventeenth and eighteenth centuries. Until the late twentieth century, spousal rape was not considered a true rape case because the woman was traditionally viewed as the property of her husband. Hence, both spouses were deemed to have consented to a lifelong sexual relationship through the wedding vows. However, with changes to the marital rape exemption, as well as with the significant development of women's rights, the belief of a marital right to sexual intercourse has become less widely held.

Rape was also an offence at common law in Scotland. This offence was not derived from the English offence as Scotland retained its own system of criminal law under the terms of the Acts of Union 1707.