PGA V the Queen: Marital Rape in Australia: The Role of Repetition, Reputation and Fiction in the Common Law

By Lesses, Kos | Melbourne University Law Review, April 2014 | Go to article overview

PGA V the Queen: Marital Rape in Australia: The Role of Repetition, Reputation and Fiction in the Common Law


Lesses, Kos, Melbourne University Law Review


This case note considers the historical development and validity of the husband's immunity at common law from prosecution for rape in light of the recent High Court case of PGA v The Queen. The original written source of the immunity is examined along with the subsequent treatment of that source in relevant cases and well-known textbooks of criminal law. Despite widely held belief in its validity, it is argued that the immunity was never properly established as a principle of the common law. The case note also considers the fiction of the unity of husband and wife that underpinned the immunity and exposes how the immunity was purportedly maintained into the 20th century despite disbelief in this fiction.

CONTENTS

  I Introduction
 II PGA v The Queen in the High Court
    A Introduction
    B The Majority Judgment
    C The Dissenting Judgments
III The Marital Immunity: A Settled Principle of the Common Law?
IV The Reputation of Hale
V Marital Rape in the Textbooks
VI The Fictional Foundation of the Marital Immunity
VII Conclusion

I INTRODUCTION

The following passage is contained in Historia Placitorum Coronae ('Pleas of the Crown) of Sir Matthew Hale:

   But the hufband cannot be guilty of a rape committed by himfelf
   upon his lawful wife, for by their mutual matrimonial confent and
   contract, the wife hath given up herfelf in this kind unto her
   hulband, which fhe cannot retract. (1)

Sir Matthew Hale was the Chief Justice of the Court of the King's Bench between 1671 and 1676. His famous treatise, the Pleas of the Crown, was published in 1736, 60 years after his death in 1676. The above passage is the original written source for what is known in English common law as the husbands 'immunity' from prosecution of rape committed against his wife. The husband's immunity from prosecution of marital rape was widely believed to be a valid legal principle with little question for over 200 years. In 1976, South Australia was one of the first jurisdictions in the world to statutorily reform the husband's immunity. In 1991, the High Court decided the case of R v L, (2) wherein the court observed that, if the husbands immunity was ever part of the common law, it was no longer part of the common law. In 2009, the Director of Public Prosecutions of South Australia charged PGA with a number of sexual and assault offences for conduct allegedly committed against his wife dating back to the 1960s. Two of these offences were rape committed in 1963. In 2012, a majority of the High Court held in PGA v The Queen (3) that there was no presumption of consent by a wife to sexual intercourse in marriage, and consequently, PGA could be found guilty of the rape of his wife committed in 1963.

This brief outline of the history of the husband's marital immunity spans a time period of close to three hundred years. The marital immunity has been a topic of discussion since the late 19th century. It has attracted the criticism of academics and womens groups since the 1960s. It has been the subject of judicial and academic commentary on each occasion that it has come before the courts. It has caused heated and controversial public debates amongst politicians and members of the community, as was particularly evident with the South Australian reform process in 1976. In ways that may never be properly understood, it has affected the lives and experiences of married women in times gone by, leaving them for the most part without remedy by the criminal law. And now, nearly 40 years after the South Australian Parliament recognised and reformed it, the High Court has held that the immunity was not part of Australian common law as of around 1935. Whatever else may be said about it, this is a curious history in an infamous chapter of English and Australian criminal law.

PGA v The Queen is a controversial case on a number of levels. The focus of this case note is the manner in which the majority and dissenting judgments approached the history and development of the common law in answering the easily stated legal question--can a husband be guilty of the rape of his wife committed in South Australia in 1963? …

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