Happy birthday, Sir Gerald!
Today marks the 90th birthday of one of Scotland’s most distinguished legal academics, Sir Gerald Gordon. Sir Gerald’s remarkable contribution to Scottish criminal law was celebrated by a conference ten years ago which resulted both in the publication of a Festschrift and an annual seminar series which continues to this day, with the most recent seminar having taken place last week. He continues almost single-handedly to edit both the Scottish Criminal Case Reports and Renton and Brown’s Criminal Procedure according to the Law of Scotland.
Cataloguing Sir Gerald’s immense contribution to the Scottish legal system would be a daunting project, but the recent publication of Ngaire Naffine’s fascinating Criminal Law and the Man Problem makes it timely to note one particular contribution which placed Sir Gerald apart from many of his contemporaries. In discussing the domination of the criminal legal world by men, Naffine considers the former rule that a man could not be guilty of committing a rape against his wife, noting the strong support this rule received from legal scholars – invariably male – of the time. “Legal men of influence”, Naffine writes, “gathered around the husband intent on so-called marital sex without consent, to preserve him from such serious criminal law” (15).
Focusing on Australia and England, she notes how the leading textbook writers of the time – Colin Howard (Australian Criminal Law (1965)) and Glanville Williams (Textbook of Criminal Law (1978)) – were resolutely in favour of the marital rape exemption, as was the English writer Tony Honoré in his 1978 book Sex Law.
These are not cherrypicked examples: they are the leading scholars of the time writing the standard texts of the period. Against that background, it is striking to note that Gordon’s The Criminal Law of Scotland, published in 1967, took a very different approach. The idea of “irrevocable consent” to sexual intercourse during marriage, Gordon wrote in his discussion of the topic (830-831):
“…has only to be stated to be seen to be archaic. The common law must take contemporary attitudes and mores into account and contemporary mores manifestly do not recognise any such privilege.”
Even if consent could be implied from the marital relationship, he wrote, there was “no good reason for treating this implied consent as an irrebuttable presumption of law”. It was “fanciful” to accept it as a defence where a husband had forced his wife into intercourse.
Gordon did not deny that there was authority supporting the marital rape exemption, but doubted whether the courts would follow the rule. At the very least, he argued, they should refuse to apply the exemption in cases where the parties had separated, which should be taken as evidence of withdrawal of any implied consent even if the separation was not a judicial one.
Such incremental changes are attractive to judges fearing that more radical legal developments might lack legitimacy if made by courts rather than legislators. The route suggested by Gordon was exactly how the Scottish courts started to whittle down the rule, holding initially that it could not apply in cases where the parties were living apart, before ruling in S v HM Advocate 1989 SLT 469 that the marital rape exemption formed no part of Scots law. The small series of cases which culminated in S evidenced no desire on the part of the courts to uphold the exemption, in contrast to the more contested process of law reform in other jurisdictions.
Gordon’s comments were cited by the courts both in S and one of the previous Scottish cases (relatively unusual in a period where the Scottish courts were reluctant to refer to contemporary textbooks). We cannot know to what extent Gordon’s discussion of the subject influenced prosecutors in deciding to press prosecutions in the face of a contrary rule clearly expressed by the older authorities, but it would be surprising if prosecutors had not drawn on his work both in taking the decision to prosecute and in deciding how to argue the validity of the charges before the court.
This is not, of course, a matter of pride for the legal system. 1989 is still a shockingly late date for the exemption to have been abolished, although Scots lawyers can rarely resist pointing out that it was several years before the House of Lords reached the same conclusion in respect of English law. But it is, perhaps, an illustration of how textbook writing can (eventually!) make a difference – and one of many reasons to celebrate Sir Gerald’s birthday and continuing career.
~ Professor James Chalmers (Regius Professor of Law)
