Doug Quixote June 3, 2012 at 7:07 pm
Rape in Marriage?
The High Court decided three days ago that there is no doctrine which says that a man cannot be convicted of raping his wife.
In 1963 – yes 1963 – “PGA” had sexual intercourse with his wife, who avowed that she had not consented to that intercourse.
The man is on trial for rape, right now.
The Court decided by 5 judges to 2 (one male and one female judge dissenting, in case you were wondering) that if there ever had been such a doctrine it had no application in Australia, certainly by 1935.
Those who have hidden behind the doctrine, accepted law most would have thought, must now be a little nervous.
PGA v The Queen  HCA 21.
Frank Willmott June 3, 2012 at 7:15 pm
So if a woman doesn’t have an orgasm is that rape?
Doug Quixote June 3, 2012 at 7:37 pm
To treat the question seriously, consent must happen before intercourse, and cannot be withdrawn after the event. At what point it may be withdrawn, once given, so as to make it rape is one of ‘those’ questions.
Frank Willmott June 3, 2012 at 7:51 pm
I thought stop meant stop even when you’re in. For example if she was experiencing pain. On the other hand if you were coming and she said pull out, most difficult. I think you could plead loss of mind and control…insanity at that point. Do you have a copy of the law before you?
Doug Quixote June 3, 2012 at 7:57 pm
Which law? Every jurisdiction has its own, and the word rape does not appear anywhere in the statutes these days. It is however the best descriptor we have.
Frank Willmott June 3, 2012 at 8:07 pm
And the guy is over 80 and in poor health. But by the sounds of it was a real bastard, a violent domesticator. And no law against it at the time, so although there may be some retrospective justice what a can of worms to open. Women encouraged to follow suit, the courts coming to a standstill. Like you state, men replaying all their sexual encounters over their lifetimes, including while being in different stages of inebriation. It will be just like living in Sweden. Perhaps all sexual acts will need to be recorded on camera in the bedroom to cut down litigation. Or just play safe, put some soft music on, dim the lights, maybe a glass of red, and take advantage of yourself.
Frank Willmott June 3, 2012 at 8:32 pm
Victoria Legal Aid state : “The law makes rules about sex and sexual touching. It says that any sexual touching without your agreement (consent) is unlawful. This is known as a sexual offence and is a serious crime.
The law applies to sexual penetration, which includes anything that involves a penis touching a vagina, anus or mouth. It also includes putting an object or a part of the body into contact with a vagina or anus. The law also applies to touching a person in a sexual way, like touching another person’s vagina, penis, anus or breasts.
If you don’t agree and someone threatens you or touches you sexually they are breaking the law.
If someone has sex with you or touches you sexually when you are asleep, unconscious or so affected by alcohol or drugs that you are not able to agree, it is still sexual assault.
Sexual assault is behaviour of a sexual nature that makes you feel uncomfortable, frightened or intimidated. If someone has sex with you or touches you sexually and you don’t agree with this, they are breaking the law. They can be charged with a criminal offence.
This is the case even if you started having sex or agreed to be touched sexually but then changed your mind.” I think any decision on this in court is going to be influenced by the choice of judge and their state of mind.
Frank Willmott June 3, 2012 at 8:15 pm
Come to think about it how the hell is she going to prove rape occured so long ago. Where are the external markings? Internal bruising? The semen samples? She might have witnesses. The kids.
Doug Quixote June 4, 2012 at 6:51 am
This passage from PJ Fitzgerald, ‘Criminal Law and Punishment’ quoted in Justice Heydon’s dissenting judgement deserves requoting :
[T]he idea of the rule of law … is based on the demand that the citizen should be ruled by laws and not by the whims of men. In the sphere of criminal law this idea has become crystallized as … a principle according to which only breaches of existing criminal law should be punishable. The justification of this principle, which has been adopted as an actual rule in some legal systems, though not in the English legal system, is that the citizen should be able to know beforehand what conduct is permitted and what forbidden; for only in this way can he order his affairs with certainty and avoid coming into conflict with the law. It is this demand for certainty with regard to the provisions of the criminal law that militates against retrospective criminal legislation. When Parliament creates a new crime, it almost invariably legislates for the future only. This, however, is just what the courts cannot do. Our legal system is such that a court can only decide a point of law which arises in some actual case before the court, and consequently the court’s decision always relates back to the facts of this case, facts which of course precede the decision. If, therefore, a court manufactures a new crime, it thereby determines after the event that the defendant’s conduct, which at the time of commission was not prohibited by law, is a criminal offence. To countenance this type of retrospective criminal legislation means that certainty and consequently freedom are at an end. Bentham long ago pointed out that when the judges make law like this, they are treating the citizen as a man treats his dog, hitting him every time he does something to which the master takes exception. Animals and young children can only be trained in this way. Sane and adult members of a free society, however, are entitled to demand first to be told what conduct is forbidden so that they may choose whether or not to keep within the law.”
148. Fitzgerald put the second objection to “the creation of new offences by the courts” thus:
“Even suppose that a court could decide that the kind of act which the defendant had done would in future, though not in the instant case, constitute a crime, there is still the objection that this type of proceeding is not consonant with democratic government. If Parliament creates a new crime, the citizens whose liberty is thereby restricted have the consolation that this was done by their elected representatives whom they chose to perform this sort of activity, and whom in due course they may re-elect or reject. The judges, on the other hand, are appointed by the Crown, virtually irremovable and in practice accountable to no one. That such a body should have the power to decree that certain acts shall constitute crimes is totally incompatible with the notion of democracy.”
Wow, is all I can say. Thank you for your indulgence.
Frank Willmott June 4, 2012 at 3:56 pm
It is hard not to agree with both points Fitzgerald makes. What muddies the first is the concept that we have to be told what is a criminal offence – ie right or wrong. Given a chance. Could be said that the we should carry a moral code with us at all times, and that rape fits into a wider sense of right or wrong. For instance, if it was legal to rape, would you? Soldiers do in wartime. I wonder how many experience shame afterwards. If you could do a lab experiment on the soldier-rapist and were able to flash the image of their mother, sister, wife etc watching, would they be able to continue? And if not, why not?
There is a query also over the second point made by Fitzgerald. What is his model? Enlightened judges to this point seem the best people to preside over grey law. Nick Cohen, wrote an article for the Observer in 2009 titled “In rape cases, ‘no’ means ‘no’ to everyone except the British public. Judges and the police have come far since the 70s. How sad juries haven’t kept pace.” “Julie Bindel [journalist], who can often seem the last principled feminist in England, has sat through dozens of rape cases and told me: “I gaze into juries’ eyes and see middle-aged women in particular wanting to blame the victim. They look at the man in the dock and think he’s like their sons.”…. “But today’s dominant style is for women to be bawdy and empowered: to try to drink as much as the men around them, talk as dirty and boast about their control of their lives…. “The jury, a representative sample of the people who pass them [the rape victims] in the street, takes their account of themselves literally and says that, if the defendant is really so brassy and sassy and in control of her life, then rape isn’t the responsibility of the rapist and the victim must pay.”
So if we cannot rely on judges to bring sanity to grey law, then what is the model to be?
Doug Quixote June 4, 2012 at 6:24 pm
True about juries, Frank. The men see themselves or their mates and the women see their sons : “there but for the grace of god go I” as it has been put.
However, I am an optimist and I think that juries get it right most of the time.
They sit there and watch the victim and the defendant for days on end, sometimes months, and I trust their collective rationality to sort out truth from fiction.