Introduction

The bibliography provides information on writings dealing with the history of rape, including sexual child abuse, sexual harassment, sexual molestation, child prostitution, forced prostitution, sexual slavery, sexual(ized) violence. The blog informs about calls for papers, forthcoming events and new literature in this field.

February 2, 2013

ART: Developing the Common Law and Rewriting the History of Rape in Marriage in Australia: PGA v The Queen

Author: Wendy Larcombe and Mary Heath
Title: Developing the Common Law and Rewriting the History of Rape in Marriage in Australia
Subtitle: PGA v The Queen
Journal: The Sydney Law Review
Volume: 34
Issue: 4
Year: December 2012
Pages: 785-807
ISSN: 0082-0512
Language: English
Full Text: Sidney Law School [Free Access], informit [Restricted Access]

Abstract: »In PGA v The Queen (2012) 245 CLR 355, the High Court was asked to determine whether rape in marriage was an offence under the common law of Australia in 1963. The Court held by majority that there was no 'marital exemption' from prosecution at the relevant time, as the foundation of any such rule was the presumption that wives gave irrevocable consent to intercourse by their husbands. That presumption was found to have 'fallen away' by 1935 as a result of statutory reforms creating access to divorce and property rights for married women. The dissentients considered that the immunity was a settled rule of the common law in 1963 and to restate the law in other terms now would criminalise conduct that was lawful at the time it was committed. This case note argues that the majority judgment fails to engage with this and other important points of principle regarding methods of common law development and its relationship to statutory and extra-judicial sources. Moreover, in finding that the immunity did not form part of the common law from 1935, we suggest this decision implicitly denies the law's part in authorising marital rape for most of the 20th century, effectively rewriting history.« [Source: Sydney Law Review]