in R v L, the High Court of Australia ruled the same, ruling that if the common law exemption had ever been part of the Australian law, it no longer was (by that time most Australian states and territories had already abolished their exemptions by statutory law). Ending the exemption The marital rape exemption was first referred to in 1736 in Matthew Hale's History of the Pleas of the Crown (see above). It was abolished in England and Wales in 1991 by the Appellate Committee of the House of Lords, in the case of R v R, which was the first occasion where the marital rights exemption had been appealed as far as the House of Lords, and it followed the trio of cases since 1988 where the marital rights exemption was held to exist. The leading judgment, unanimously approved, was given by Lord Keith of Kinkel. He stated that the contortions being performed in the lower courts in order to avoid applying the marital rights exemption were indicative of the absurdity of the rule, and held, agreeing with earlier judgments in Scotland and in the Court of Appeal in R v R, that "the fiction of implied consent has no useful purpose to serve today in the law of rape" and that the marital rights exemption was a "common law fiction" which had never been a true rule of English law. R's appeal was accordingly dismissed, and he was convicted of the rape of his wife. The first attempted prosecution of a husband for the rape of his wife was R v Clarke (1949). Rather than try to argue directly against Hale's logic, the court held that consent in this instance had been revoked by an order of the court for non-cohabitation. It was the first of a number of cases in which the courts found reasons not to apply the exemption, notably R v O'Brien (1974) (the obtaining of decree nisi), R v Steele (1976) (an undertaking by the husband to the court not to molest the wife) and R v Roberts (1986) (the existence of a formal separation agreement). There are at least four recorded instances of a husband successfully relying on the exemption in England and Wales. The first was R v Miller (1954), where it was held that the wife had not legally revoked her consent despite having presented a divorce petition. R v Kowalski