Jump to content

Man Fights Charge Of Raping Wife In 1963


Julian2

Recommended Posts

Adelaide man fights charge of raping wife in 1963

 

AN Adelaide man, 79, may have to stand trial for the alleged rape of his wife almost 50 years ago.

 

The High Court will next month determine whether or not he stands trial.

 

The landmark case, which has already been the subject of a Supreme Court appeal, is being closely watched by the legal fraternity and police Australia-wide because of its nature.

 

Lawyers acting for the accused, who cannot be identified, have been granted special leave to appeal the decision of the Supreme Court which last December ruled in a 2-1 decision the charges against the man should proceed.

 

The man was charged in early 2009 with two counts of rape, assault and carnal knowledge which allegedly occurred in 1963 when he was married to the woman. The pair separated in 1969 and divorced in 1971.

 

Start of sidebar. Skip to end of sidebar.

 

End of sidebar. Return to start of sidebar.

 

The man was arraigned to stand trial in the District Court in late 2009, and in July 2010 his lawyers lodged an application for a stay in the proceedings.

 

The same month, Director of Public Prosecutions Stephen Pallaras QC asked the Full Court of the Supreme Court to consider a question of law concerning the validity of the charges.

 

In late December the Full Court returned its judgment, ruling the man will stand trial on the rape charges because rape in marriage was a crime regardless of the prevailing law at the time, stating that the court must follow a 1991 High Court ruling that there is no irrevocable consent to sexual intercourse through marriage.

 

Under Common Law at the time of the alleged offending, a husband could not be charged with rape because it was held that marriage gave him the right to have sex with his wife. SA's rape laws were revamped in 1976, removing this presumption.

 

Appeal documents lodged with the High Court reveal the man's lawyers are seeking to have the matter returned to the Supreme Court for reconsideration.

 

"The appellant contends that, at the time of the commission of the alleged offences in 1963, the common law, in both England and Australia, had not developed to such an extent to provide for rape to occur by a husband of his wife, except in very limited circumstances which were not applicable to him," the submission states.

 

It states "very few, if any, cases" address the problem confronting the court in this case.

 

"However, there can be no doubt that, in general, the modern view is a person should not be made liable for a crime by the retrospective operation of the law," it states.

 

" ... The available evidence overwhelmingly favours the view, that in 1963, a husband could not be found guilty of the rape of his wife, because the common law considered that a wife gave her consent to sexual intercourse with her husband upon marriage and the same could not be retracted."

 

A submission by Solicitor-General Martin Hinton, acting for Attorney-General John Rau, states the "marital exemption was not, and had never been a valid statement of the common law regarding the relations of husband and wife" and even if it had been, was no longer part of the common law in 1963.

 

"The rights and privileges of married women in Australia by the mid-20th century were entirely inconsistent with the principle that a wife gave irrevocable consent to sexual intercourse with her husband upon marriage," it states.

 

"The critical question is whether consent was withheld."

 

http://www.adelaidenow.com.au/ipad/charges-of-1963-wife-rape-fought/story-fn6bqphm-1226118804872

Link to comment
Share on other sites

 

...

 

In late December the Full Court returned its judgment, ruling the man will stand trial on the rape charges because rape in marriage was a crime regardless of the prevailing law at the time, stating that the court must follow a 1991 High Court ruling that there is no irrevocable consent to sexual intercourse through marriage.

 

Under Common Law at the time of the alleged offending, a husband could not be charged with rape because it was held that marriage gave him the right to have sex with his wife. SA's rape laws were revamped in 1976, removing this presumption.

 

...

 

"However, there can be no doubt that, in general, the modern view is a person should not be made liable for a crime by the retrospective operation of the law," it states.

 

...

 

A submission by Solicitor-General Martin Hinton, acting for Attorney-General John Rau, states the "marital exemption was not, and had never been a valid statement of the common law regarding the relations of husband and wife" and even if it had been, was no longer part of the common law in 1963.

 

"The rights and privileges of married women in Australia by the mid-20th century were entirely inconsistent with the principle that a wife gave irrevocable consent to sexual intercourse with her husband upon marriage," it states.

 

"The critical question is whether consent was withheld."

 

http://www.adelaidenow.com.au/ipad/charges-of-1963-wife-rape-fought/story-fn6bqphm-1226118804872

 

There seems to be so much wrong with this. What was the law AT THE TIME?? Who the fuck cares if it was "... entirely inconsistent with the principle that a wife gave irrevocable consent to sexual intercourse with her husband upon marriage" It was THE LAW and "... the modern view is a person should not be made liable for a crime by the retrospective operation of the law

Link to comment
Share on other sites

IMHO rape is rape and consent is required,

 

but you should be allowed to very quickly dissolve the marriage if she decides not to put out any more...

 

Ok for today, but how were you feeling about this in 1963? Under the law, rape is whatever the law says it is. And what this guy did was not rape at that time.

Link to comment
Share on other sites

I have said this for many years, legal cases like this go all the way to the top because some lawyer & Judge wants to see his name in lights, to be remembered in literature ... there are only a few judges that get remembered for their incisive legal insight, but within fringe groups these "contrarian" (sic) judges bathe in the limelight of their own self importance :beer:

 

Is it rape:

 

maybe he thought she did want it; or

maybe she may have acted that she did and then went into a crazed mental state because of some childhood incident and thought she did not; or

maybe he did,

 

but who will ever know except the two that were there.

 

However, I have seen, and been involved in, many a case where what seems to be is not. Also, the old adage never under estimate a woman's scorn is never more true, woman do and have lied to get what they want :beer:

Link to comment
Share on other sites

What are the statute of limitation laws regarding rape? I can only assume, like murder is in America, that there is no statute of limitations.

 

I can agree to murder having a statute of limitations, not sure about some other crimes especially non violent crimes like fraud, etc. I would not want a limittion for treason. What about rape, child molestation, etc?

Link to comment
Share on other sites

What are the statute of limitation laws regarding rape? I can only assume, like murder is in America, that there is no statute of limitations.

 

I can agree to murder having a statute of limitations, not sure about some other crimes especially non violent crimes like fraud, etc. I would not want a limittion for treason. What about rape, child molestation, etc?

In all states, of Australia, an inditable or non-inditable crime has no time limits. An inditable crime is any crime that carries a serve of imprisonment of 2 or more years :beer:

 

Each State in Australia has it's own Limitations Act.

 

A stature of limitations is a piece of legislation which prevents a claim for a particular type of matter after a certain period. Often a statute of limitations will still allow a claim to be brought as long as there is an explanation in evidence to the court of why the claim was not brought for such a long time such as the inability for the evidence of the claim to materialize. The most commonly referred to statute of limitation in, for example, New South Wales is for Torts or Contracts, although there are a number of statutes of limitations for different types of matters such as personal injury, aircraft, building and construction, superannuation, leases, property settlement, family provision claims and virtually any other type of claim which is available, the one that people most often refer to is a Tort claim (which does not include damages for personal injury or defamation). This is limited to six years by the from the date when cause of action accrues under s14(1)(B) of the Limitation Act 1969 (NSW). However, the limitation period is suspended while person is under a disability because of s.11(3)and s52(1)(d) Limitation Act 1969.

 

:beer: :beer: :beer:

Link to comment
Share on other sites

Not sure the statute of limitation applies in this case as, according to the article, rape was not a crime at the time it occurred. How I read it the S of L only applies to crimes which were illegal at the time. Bear in mind rape was NOT illegal at the time of the alleged offense.

 

IE If they made cigarettes illegal tomorrow - I could not be prosecuted next week for being a smoker today.

Link to comment
Share on other sites

Not sure the statute of limitation applies in this case as, according to the article, rape was not a crime at the time it occurred. How I read it the S of L only applies to crimes which were illegal at the time. Bear in mind rape was NOT illegal at the time of the alleged offense.

 

IE If they made cigarettes illegal tomorrow - I could not be prosecuted next week for being a smoker today.

 

Why do people keep missing this basic point? All the talk about S of L, he-said-she-said are meaningless. There was no crime because there was no law saying what he did was a crime.

Link to comment
Share on other sites

Archived

This topic is now archived and is closed to further replies.

×
×
  • Create New...