Let’s have a look at the case of ‘Mr P’, as he’s referred to in the courts. He allegedly raped his wife in 1963. He said it was commonly accepted that wives were required to have sex with their partners.
Some judges disagree, saying there was no ‘immunity’ from rape in a marriage. None at all.
The High Court didn’t rule until 1991 that marriage did not mean a woman granted ‘irrevocable consent to sexual intercourse by her husband‘.
But why did it take so long to get this far? South Australia lifted the ‘statute of limitations’ which means ‘Mr P’ could be charged for the crime, even if it had happened more than four decades previously. He was charged in 2009.
But the courts still had to work out: was it a crime to rape your wife in 1963?
Yesterday the High Court found the man could be tried.
“The majority judges said that by 1963, laws relating to divorce, property and voting had all removed any basis for accepting the marital immunity for rape.
“Thus, at all times relevant to this appeal, and contrary to Hale’s proposition, at common law a husband could be guilty of a rape committed by him upon his lawful wife,” the judges said.
“Lawful marriage to a complainant provided neither a defence to, nor an immunity from, a prosecution for rape.”
The judges said this did not involve any retrospective change to the law.
However, judges Virginia Bell and Dyson Heydon disagreed, ruling that in 1963 it was universally accepted that a husband could not be convicted of raping his wife, unless a court order existed or there were other exceptional circumstances.
Justice Bell said that although the immunity was inconsistent with today’s standards, it was “abhorrent” to punish a person for an act that did not subject them to criminal punishment at the time it was committed.
“The common law was demeaning to women in its provision of the immunity,” Justice Bell said. “It is no answer to that recognition to permit the conviction of the appellant for an act for which he was not liable to criminal punishment at the date of its commission.”
The man, now 81, will face trial and his former wife will testify against him.
It’s not the first time the idea of ‘required sex’ in a marriage has been brought up before a court. In 2011 a French man lost a case against his former wife after she sued him for lack of sex during their married life.
She won, he had to pay $13,000.
What’s your take on all this?
Please note if this post or any of the comments bring up any issues for you, or if you need to speak to someone please call the NSW Rape Crisis Centre on 1800 424 017. It does not matter where about you live in Australia, they will take your call and, if need be, refer you to a service closer to home.