PGA v THE QUEEN : MARITAL RAPE IN AUSTRALIA: THE ROLE OF REPETITION, REPUTATION AND FICTION IN THE COMMON LAW

I INTRODUCTION The following passage is contained in Historia Placitorum Coronae (' Pleas of the Crown ') of Sir Matthew Hale: But the hufband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given up herself in this kind unto her hufband, which fhe cannot retract. 1 Sir Matthew Hale was the Chief Justice of the Court of the King's Bench between 1671 and 1676. His famous treatise, the Pleas of the Crown , was published in 1736, 60 years after his death in 1676. The above passage is the original written source for what is known in English common law as the husband's 'immunity' from prosecution of rape committed against his wife. The husband's immunity from prosecution of marital rape was widely believed to be a valid legal principle with little question for over 200 years. In 1976, South Australia was one of the first jurisdictions in the world to statutorily reform the husband's immunity. In 1991, the High Court decided the case of R v L , 2 wherein the court observed that, if the husband's immunity was ever part of the common law, it was no longer part of the common law. In 2009, the Director of Public Prosecutions of South Australia charged PGA with a number of sexual and assault offences for conduct allegedly committed against his wife dating back to the 1960s. Two of these offences ...