Feminist and critical legal theory focuses more on academic argument than case law, but certain judgments have become focal points for critique and analysis. The cases below are not 'applications' of feminist theory—courts rarely cite MacKinnon or Kennedy—but they illustrate the structures and ideologies that critical scholars challenge.
DPP v Morgan [1976] AC 182
The House of Lords held that a defendant charged with rape is entitled to an acquittal if he honestly believed the complainant consented, even if that belief was unreasonable. The decision provoked immediate feminist outcry. Critics argued that it licensed male sexual aggression and ignored women's lived reality: the law prioritised the defendant's subjective state over the complainant's autonomy and experience of violation. Morgan exemplifies what MacKinnon calls 'law from the male point of view': the reasonable rapist's perspective is legally authoritative.
The case prompted the Sexual Offences (Amendment) Act 1976, which provided that a jury must have regard to the presence or absence of reasonable grounds for belief in consent, though the honest belief standard remained. Only with the Sexual Offences Act 2003 did English law move toward a more objective test, requiring 'reasonable' belief in consent.
R v R [1992] 1 AC 599
The House of Lords abolished the common law rule that a husband could not be guilty of raping his wife. Lord Keith held that the marital rape exemption, traditionally justified by irrevocable consent upon marriage, was anachronistic and inconsistent with the modern understanding of marriage as a partnership of equals.
Feminist scholars welcomed R v R but noted its belatedness: the exemption had persisted for centuries despite feminist advocacy. The case illustrates the power of the public/private distinction and the doctrine of coverture, which treated married women as legally subsumed within their husbands. It also demonstrates judicial capacity for incremental reform without legislative intervention—though some critical scholars argue that such evolution is too slow and contingent.
R v Brown [1994] 1 AC 212
The House of Lords held that consent is no defence to charges of assault occasioning actual bodily harm arising from sadomasochistic activity between adult men in private. The majority reasoned that public policy and the need to protect individuals from harm justified criminalisation despite consent.
Critical and queer theorists have extensively critiqued Brown. The decision reflects moralistic paternalism and discomfort with non-normative sexualities. Feminists are divided: some argue Brown rightly recognises that apparent consent may be vitiated by power imbalance; others contend it denies sexual autonomy and echoes the discredited harm principle debates. The case highlights the instability of 'consent' as a foundational concept and the law's tendency to police marginalised sexualities while permitting structurally coercive hetero-patriarchal norms.
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
The House of Lords held that doctors may provide contraceptive advice and treatment to girls under 16 without parental consent if the child has sufficient maturity and understanding. Lord Fraser and Lord Scarman articulated the principle of 'Gillick competence', locating decisional capacity in the child rather than presumptively in parents.
Feminists have offered competing readings. Liberal feminists celebrate Gillick as recognising young women's autonomy and reproductive rights. Others note that the decision medicalises female sexuality and cedes authority to doctors rather than to girls themselves. Difference feminists criticise the Court's reliance on individualist, rights-based reasoning and argue that it ignores relational contexts of care and responsibility.
Radmacher v Granatino [2010] UKSC 42
The Supreme Court held that pre-nuptial agreements should be accorded decisive weight in ancillary relief proceedings, provided the agreement was freely entered into with full appreciation of its implications. This marked a shift from the traditional reluctance to enforce such agreements.
Feminist critics argue that Radmacher imports contractarian logic into family law and risks entrenching economic inequality, especially given women's disproportionate childcare responsibilities and weaker bargaining positions. The decision privileges formal autonomy ('freedom of contract') over substantive fairness, echoing the liberal feminist/dominance feminist divide: does equal treatment require ignoring or addressing structural inequality?
Bull v Hall [2013] UKSC 73
The Supreme Court held that a hotel's refusal to provide a double room to a same-sex couple constituted unlawful discrimination on grounds of sexual orientation. The hotel owners' religious beliefs did not justify the discriminatory treatment.
Queer legal theorists and critical scholars analyse Bull as an instance where anti-discrimination law directly confronts religious claims. The case illustrates the limits of pluralism and the question of which identities and practices merit legal protection. Some critical scholars worry that equality law risks assimilating queer relationships into hetero-normative institutions (marriage, the marital bedroom); others see it as essential protection against exclusion.
These cases reveal recurring themes: the contested meaning of consent, the instability of public/private boundaries, the tension between formal equality and substantive justice, and the law's role in constituting—not merely regulating—gender, sexuality, and family.