Llama, a new reader from Australia whom I am very happy to have on this blog, has left a link to an article about a case that has provoked a lot of debate in Australia:
Lawyers for an elderly man who has been ordered to stand trial for raping his then-wife almost 50 years ago have argued in the High Court that he cannot be tried for something that was not illegal then.
The man, 80, was ordered to stand trial in the South Australian Supreme Court accused of raping his wife in the 1960s.
He took his legal fight to the High Court, where his lawyer David Bennett QC argued the courts could not criminalise conduct that was not illegal at the time.
The court was told that in the 1960s, a long-held common law principle meant that marriage amounted to consent and it was a wife’s duty to obey her husband’s demands for sex.
The question is, of course, whether it is reasonable to bring to trial a person who committed a crime when it was not yet considered a crime. What we have to remember when discussing such a case is that there are two goals a criminal trial aims to achieve: meting out punishment and preventing this particular individual and other individuals from committing the same crime in the future.
I think we can all agree that punishing this man in the court of law for doing something that at that time was perfectly legal would be unfair. This rapist deserves to be shunned and scorned by everybody he knows because no matter what the laws were at any time, most people were still incapable of inflicting this kind of violence on anybody. Obviously, this person is a jerk and there is no doubt in my mind that he had to have known that what he did to his wife was morally (if not legally, at that time) wrong. But putting him in jail as a form of punishment for this rape would be neither legal nor reasonable.
However, there is another aspect to the criminal justice system: crime prevention. A rapist can’t be left roaming the streets because this puts other people at risk. A person who is capable of raping somebody is a scary individual of the kind I don’t want anywhere in my vicinity. (And please don’t start offering me the ageist argument of “Oh, but he is too old to rape.” A well-functioning legal system should not, at any point, take into account the age of anybody who is legally an adult. Just like it shouldn’t take into account anybody’s gender.)
At the same time, locking up criminals is supposed to function as a deterrent to other potential criminals. The only way of combating spousal rape is by placing a few spousal rapists (ideally, of both genders) in jail in order to demonstrate that this crime will not be tolerated by any of us.
I come from a country where street harassment of women is a daily reality. After I moved to North America, I could not believe how amazing it felt to be able to walk down the street or get onto a bus without being groped, grabbed, and told nasty things. Of course, all of this still happens in the US and Canada but the amount of this kind of harassment in my country is on a completely different level. And all it took to make people think twice about harassing others sexually in the streets was a few attention-grabbing trials. The same strategy could prove useful in areas such as spousal rape and female rape of men. For people who are still not convinced that you can rape a spouse and that a woman can rape a man, a few well-publicized trials could be an eye-opening experience.