Man Fights Charge Of Raping Wife In 1963

[ozpharlap]

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.

Hmm, I don't think they miss the point as the fact is, there is a legal argument that has reached the mid level of the court hierarchy within Australia, with just one level to go. Thus, the question being discussed herein, i.e., "is a statute of limitations applicable in a criminal matter" is a valid query, albeit it is not applicable.

 

My understanding is that in some Asian countries a statue of limitations is applicable to some criminal matters.

 

Back to the main issue, as the OP notes, the Supreme Court (South Australia) has already ruled (on a point of law (to consider a question of law concerning the validity of the charges) in a 2-1 decision) that the charges against the man should proceed.

 

The point of law being, "that 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.

 

The defence's counter argument was that 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. Complication being, that SA's rape laws were revamped in 1976, removing this presumption however, there is another common law presumption that a person should not be made liable for a crime by the retrospective operation of the law.

 

There is no question that there was always a law against rape, regardless if it happen in a marriage or not. However, there was a common law exception which, has later, in 1991, been denounced as questionable if not utterly wrong.

 

Personally, with due respect to the court and not in any way trying to influence the decision of the court, I think they will uphold the law but fail to find against the man due to the time that has elapsed since the alleged offence ... it being almost 50 years vintage, the man would find it almost impossible to remember the facts or have the ability to gather evidence in order to dispute the allegations

[ozpharlap]

Just for explanation, in common law countries a law may be presumed to be the law up an until a higher court decides otherwise.

 

Thus, the law which prevailed at the time (in this case, either an interpretation of the statute law (i.e., the Crimes Act) and it's affect by the common law (judge decided law) was that the common law overrides the statute law and an exception exist, i.e., no rape in marriage. However, in 1991, the High Court of Australia stated, "this common law exception was preposterous and wrong".

 

Thus, the legal argument is not one of retrospectivity, but a correct application of the law as it should have existed with the 1991 interpretation of the common law doctrine applicability in mind, regardless of when the alleged crime took place.

 

It was more than likely that the 1991 case was not specifically about rape, but the point of law still stands.

 

:beer:

[Redbaron]

Just re read the article and it will be interesting to see how this proceeds... If I were the prosecutor, I'd be looking at what else I could charge him with as well - sexual assault, assault, other things which will stick if the rape "proves" to be not illegal.

 

In plain English, while there was no law against marital rape in 1963, and one may assume rape within marriage was not against the law - the high court in 1991 declared that idea preposterous and wrong therefore making it illegal to have committed rape in the past (even though people may have assumed that since they were married, they were entitled to sex.)