A British judge has been fiercely criticised for saying that men have a “fundamental human right” to have sex with their wives.

Mr Justice Hayden reportedly made the controversial statement at a preliminary hearing in London on 1 April. The hearing marked the start of an investigation into whether a man should be allowed to continue having sex with his wife of more than 20 years, who has learning difficulties.

The Independent reports that council officials are concerned that the woman’s current mental health condition means she can no longer consent to sex in an informed manner. To prevent the woman from being raped, lawyers representing the unnamed council have suggested that a judge should issue an order banning the man from having sex with his wife.

At the preliminary hearing into the case, the judge said he wanted to examine the evidence in more detail before reaching a decision. But he also indicated that he had concerns about how such an order would be policed – before making the shocking statement about men’s right to sex.

“I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife,” he said. “I think he is entitled to have it properly argued.”

It’s important to note here that the man himself, who cannot be named for legal reasons, has allegedly offered to promise not to have sex with his wife. At this stage, very few details of the case can be legally reported, meaning that it would be irresponsible to speculate about the husband’s specific history or agenda.

But the judge’s comments are truly chilling, not least for the casualness with which they brush over the fact that actually, men do not have the ‘right’ to sex with their wives. In fact, if we want to talk about fundamental human rights, one of the most basic has been enshrined in law in the UK for more than 20 years, under article three of the Human Rights Act 1998: the right to “freedom from torture, inhuman or degrading treatment”.

You don’t need an expert to tell you that rape of any kind is inhuman and degrading – but if you did, those experts are out there. In 2016, a panel of lawyers, activists and human rights specialists presented a report on gender-based violence to the United Nations, in which they stated explicitly that “it is well established that rape and other forms of sexual violence can amount to torture and ill treatment”.

Several prominent politicians and women’s rights advocates have spoken out against Justice Hayden’s remarks. Sophie Walker, the former head of the Women’s Equality Party, described his comments on Twitter as “absolutely terrifying. What hope of equality for women when male adjudicators don’t understand consent [?]” 

Justice Hayden’s remarks are also deeply troubling given the UK’s dark history with regard to marital rape laws. Before the early Nineties, there was no legal grounding at all in England and Wales for the argument that marital rape should be treated as a sexual crime like any other. Instead, the criminal justice system relied on two significant – and extremely old – legal texts on the subject.

In the first treatise, published in 1736, the chief justice of England Sir Matthew Hale argued that “the husband of a woman cannot himself be guilty of an actual rape upon his wife, on account of the matrimonial consent which she has given, and which she cannot retract”. In 1822, barrister John Frederick Archbold published the legal tome Pleading and Evidence in Criminal Cases, in which he doubled down on the position that a husband “cannot be guilty of a rape upon his wife”. An updated version of that text remains hugely influential for criminal lawyers in England and Wales. 

It was only in the Nineties that the opinions laid out by Hale and Archbold were formally overturned by the British legal system. In 1990, a man who had been convicted of attempting to rape his wife challenged the court’s judgement, pointing to the fact that Hale and Archbold had said rape could not exist within marriage. After a series of appeals, the House of Lords stated the following year: “Nowadays, it cannot seriously be maintained that by marriage a wife submits herself irrevocably to sexual intercourse in all the circumstances.” Shockingly, rape within marriage was only explicitly made a criminal offence in England and Wales under the Sexual Offences Act 2003.

Throughout the Sixties, Seventies and Eighties, feminists in the UK campaigned for a change in the law around marital rape, arguing – rightly – that women were denied bodily autonomy and personal agency if their husbands were legally allowed to have sex with them whenever they felt like it. Today, women’s rights activists around the world continue to push for marital rape to be outlawed in the 10 countries where it is still legal, including China, India, Ghana, Jordan, Nigeria and Oman.

By stating that he “cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife,” Justice Hayden sends a shiver up the spines of women across England and Wales. No man is entitled to sex with a woman, regardless of whether she once signed a marriage contract with him.

That is what the law says – and this judge would be wise to remember it.

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