Type:	Journal Article
Title:	Developing the Common Law and Rewriting the History of Rape in Marriage in Australia: PGA v The Queen
Other Titles:	Sydney Law Review
Authors:	Larcombe, Wendy Heath, Mary
Year:	2012
Citation:	Vol.: 34
Notes:	In PGA v The Queen (2012) 245 CLR 355, the High Court was asked todetermine whether rape in marriage was an offence under the common law ofAustralia in 1963. The Court held by majority thatthere was no ‘maritalexemption’ from prosecution at the relevant time, as the foundation of any suchrule was the presumption that wives gave irrevocable consent to intercourse bytheir husbands. That presumption was found to have ‘fallen away’ by 1935 as aresult of statutory reforms creating access to divorce and property rights formarried women. The dissentients considered that the immunity was a settledrule of the common law in 1963 and to restate the law in other terms nowwould criminalise conduct that was lawful at the time it was committed. Thiscase note argues that the majority judgment fails to engage with this and otherimportant points of principle regarding methods of common law developmentand its relationship to statutory and extra-judicial sources. Moreover, in findingthat the immunity did not form part of the common law from 1935, we suggestthis decision implicitly denies the law’s part in authorising marital rape formost of the 20th century, effectively rewriting history.
URI:	https://anrows.intersearch.com.au/anrowsjspui/handle/1/14171
Physical description:	Pages 785-809
Appears in Collections:	Journal Articles

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