Absolutely. It’s possible. Sex without consent is rape according to the law. But it wasn’t always so clear.
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.
37 Comments so far
Was the law before 1991 that consent was automatically granted, or was there no law saying it wasn’t automatically granted. Does that make sense? Does it make a difference in a legal sense?
Maybe it doesn’t make a difference in a legal sense but to me, putting aside the nature of the charge, it makes a difference as to whether the charge should be allowed. Well, it gives me something to think about, anyway! It is very hard to put aside the nature of the alleged crime though.
Just the idea that marriage or anything else does/should not automatically grant consent just seems so obvious – as I sure it did to plenty of men and women pre-1991.
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A law can only act retrospectively if the legislation states that it is intended to do so. Agreed that if he is found guilty that it will create all sorts of problems.
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Not all jurisdictions have a criminal code. By this I mean, it will be common law deciding so, so it would not be an issue in i.e. NSW.
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Rape is rape is rape. Despite when it was committed, what the law said at the time, who committed the crime, and who the victim was. He should be found guilty. Just because the law wasn’t clear then, doesn’t make the act excusable.
People below are talking about this possibly setting a dangerous precedent. I think for things that aren’t so black and white, I agree that you don’t want a precedent made. For example: imagine if lightly smacking your tantrum-throwing kid on the bum became an offense in the future – this would definitely ruin lives if droves of mothers were thrown in jail etc etc refer to arguments below. BUT we are talking about RAPE here people. This will ALWAYS be wrong. And in my opinion it is more dangerous that he be let off than pay the price. From another point of view, imagine if he was thrown in jail, this would hopefully encourage others to step forward and stop living in fear.
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I agree with a lot of the comments below. Although rape within marriage is wrong, whether it was technically legal or not, I think it could set a potentially dangerous precedent if he is found guilty. Things change very quickly in our society.
As technology and ideals evolve and develop, so must the law. So we could potentially be commiting future acts of crime in our everyday lives now. I wouldn’t want to be charged for something in 40 years that is perfectly legal today.
Having said that, there would have to be some distinction between a dangerous crime like rape and other less dangerous crimes.
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Feel free to disagree – but i hope he gets found not guilty.
Not for one second am I saying I condone what he did, or agree with what he did, or that I dont feel for his ex wife – I do. What an awful thing to have happened to her.
But the precedent that could be set from this could ruin lives. Imagine doing something today that is legal – then getting charged 40 years down the track when it is suddenly deemed illegal. You can’t forsee that. Im thinking this as a big picture legal issue.
And as for the woman who sued her husband for lack of sex? From memory I dont remember signing a ‘sex allowance’ contract when you get married…
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My opinion is the same as yours. Retrospectively charging people for crimes that weren’t crimes at the time causes all sorts of problems.
It doesn’t make what he did right and it was a horrible thing. At the time, it wasn’t a crime though.
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Does anyone know how this came to the court’s attention in 2009? If I was the victim of this, I’m not sure if I would have wanted to relive an experience that happened 50 years ago with a man I divorced 40 years ago.
If she brought it to the court’s attention, she obviously wants it to be there, or is this an old case they dug out, like the ones in NSW?
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I certainly agree with the law making rape within marriage illegal, of course.
But charging someone with a crime, decades after the fact, when it wasn’t a crime then? Dangerous stuff, that makes it possible to make up any law, and set anyone up to be charged.
Did you know the offence the USA ended up coercing David Hicks into pleading guilty to, after years of torture at Guantanamo Bay, was invented just so they could prosecute him (because he hadn’t actually done anything wrong)?
You have to draw the line somewhere, and I think they’ve crossed it.
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It was portrayed in an episode of Mad Men when Joan gets ‘raped’ by her fiance in her office
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But then Karma got the Fiance back
Gregs desire to further his career as a surgeon leads him to obtain a commission in the Army, and early in season 4 he is sent to basic training and then to Vietnam. While her husband is deployed, Joan and Roger have one sexual encounter, which results in her becoming pregnant. Joan initially decides to terminate the pregnancy, but changes her mind and gives birth shortly before the beginning of season 5, with her husband unaware he is not the father.
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Glad I’m up to speen on Mad Men, but WOAH! SPOILER ALERT!
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*speed
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sorry I have been downloading episodes again
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On the matter of changing laws and guilt, or lack thereof, there’s the matter of Alan Turing who almost single-handedly turned the tide of World War II back in favour of Britain because he was a math genius who cracked the German enigma code. He was also gay and was chemically castrated and found guilty of homosexual crimes. He killed himself.
In the 2000s a petition was signed to have him cleared of all his ‘crimes’ but the British authorities refused saying despite the change in values today, what he did was still a crime back then.
I find the point an interesting one.
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Alan Turing was a truly remarkable man! I understand the legal judgement in his case but I do not agree with it. Conversely, while I disagree with the act in this recent case, I do not think he should be punished for this provided that it was not a crime at the time.
The difference, I suppose, is to do with the implications of precedent. The implications of the precedent in the latter are truly concerning – that we can be convicted and imprisoned years down the track for something that is not considered illegal, applying the laws at the time of the act.
In Turing’s case, what are the implications of setting the precedent where we essentially pardon those who committed crimes, as they were defined at the time, but which which society currently considers normal and acceptable behaviour? If the threat of litigation is removed (for wrongful imprisonment and whatnot) there appears, to me, very few negative risks associated with that.
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I agree. I just found the two ends of the debate interesting. I think there was no harm pardoning someone based on current values. But certainly there’s a slippery slope involved prosecuting someone based on past deeds, however outrageous, using current laws.
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That’s horrible and tragic. I do see a difference between “clearing” someone because of society’s intellectual progression and looking back and seeing something as wrong (meaning, Turing should have been cleared) as opposed to retroactively (as in very) making a past non-crime into a crime which can be prosecuted. What this man did is horrible, but it wasn’t a crime then…
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This sets a dangerous legal precident. Who knows what will be deamed illegal in 30 or 40 years time.
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It’s rape…how is that a dangerous legal precedent?
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It’s not about the rape so much, as it is about the fact that, in this manner of thinking, we in the future can deem what people did 40 years ago as criminal and can legally press charges.
That’s the issue here. And worthy of debate I think.
Can I just add, quietly, that I don’t agree with the title of this article. It’s quite sensationalistic and throwing a rather emotional red herring to the topic.
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Liza, the precedent it sets is that you can go back and punish for things that weren’t illegal at the time. That means right now, you could be doing many things that are considered illegal in the future and thusly be punished.
It has nothing to do with an opinion of rape. No one is saying what he did was acceptable.
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Forget about rape. Don’t get emotional. Think about what the court has done. It has reversed and backdated to when it believes common law defences were extinguished. This is the offensive part of this.
Now apply this to the entire criminal code. This is a dangerous precedent.
If the law was wrong there is little we can do unless we openly approve of retrospective legislation.
Retrospective legislation undermines legal certainty and thus the rule of law.
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We need to wait for the outcome of this case. The only thing that has happened so far is that the High Court has decided there is a serious legal question to be tried.
The Court may find that the accused did NOT engage in unlawful behaviour in 1963. This case may in fact provide certainty in the law.
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I dont condone this mans actions (if guilty that is), as surely even back then, the idea of making someone do something against their will was morally questionable, even if there was no explicit law.
The idea of shifting standards is an interesting one though. I am in my 40s. I am sure most my age grew up in a time where racial jokes etc were standard fare. Given it is a crime now to vilify (as it should be), does that make most people alive in the 70s guilty of criminality? Interesting question, as with the change in time do come changing standards.
Re the lady succesfully sueing for lack of sex, I would think half of the wives in australia might want to take out some indemnity insurance, assuming the same standards apply when genders are reversed.
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I agree somewhat with your first two paragraphs.
I take issue with the third. I’d say most men would need that insurance too, in my experience and the experiences of the vast majority of my friends.
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My tongue was firmly in my cheek rudyroo, and I am sure you are right about many husbands needing it as well.
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lol, yes I’m figure your statements are often tongue in cheek.
I had to respond anyway. Perhaps because I’m touchy and surrounded by men who talk the talk, but don’t walk the walk…or should I say lay the lay.
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How you doin’?
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Lay the lay . . . I love it!
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In 2007, Howard faced this problem with David Hicks. David Hicks had committed no crime under Australian laws (they are now illegal, but the appropriate terrorism laws were not in place when he performed those actions) and Howard was unwilling to create retrospective laws to try him.
Luckily for Howard, the US were OK with creating retrospective laws and the infamous military commission, so he really didn’t have to face the problem fully.
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And for randomness, my comment is threaded to Mr WB. The site must know we share a special bond!
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Like brothers ID, a deep seated respect that usually then leads to fists, then tears, then running to mum.
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Can I be mum?
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Your it Rick, as long as I’m the favourite.
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I think he meant to say “You’re it”.
Next up: fists.
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