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.
Clarissa's Blog 
“And all it took to make people think twice about harassing others sexually in the streets was a few attention-grabbing trials.”
I’m confused, are you saying that attention grabbing trials in US/Canada made harassers think twice, or that that the trials in your country made people think twice? Do you see evidence that the American criminal justice system is an effective deterrent? Or could there be other explanations?
IMHO opinion, the criminal justice system in the United States is a very inefficient crime deterrent. Punishment works best when it is immediate, certain and short; but harassment prosecutions are just the opposite. Prosecutions take ages, and odds of actually being convicted are quite low. We try to compensate giving out (potentially) long sentences, but the risk of a 10 year sentence doesn’t actually deter criminals much more than a 1 year sentence (humans are irrational like that).
If I were dictator, I’d let the police throw any suspected harasser in jail for 24 hours, without a trial. Make the punishment immediate, likely, and short. (A 50% chance of going to jail for a day is WAYYYYY more deterring than a 1% chance of going to jail for 3 years.) Sure there’d be some abuse, but a false accuser sending you to jail for a day isn’t the worst thing in the world. Certainly better than going to jail for years and then having a criminal record afterward.
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In my country nothing is being done about any form of harassment. But in North America, really great results have been achieved. The only explanation I have ever heard for this are the public trials of the eighties.
The US justice system is, indeed, deeply flawed. But compared to the place where I come from it’s remarkably more advanced and fair. Of course, my frame of reference influences my view of it.
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“Sure there’d be some abuse, but a false accuser sending you to jail for a day isn’t the worst thing in the world. ”
How long would it take until it is not really a punishment anymore ? I am pretty sure that sooner or later, this kind of punishment would deteriogate to the effectiveness of parking tickets and fines for public peeing (I have several of the first and one of the latter and often brag about both)
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Wow, I had now idea.
Was it worse In America before the 80’s?
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I’m going to have to disagree on this one.
The justice system, before anything else, is supposed to keep the citizens safe. But a system, in which anybody could be doing something right now that will later be declared illegal and result in prosecution, does not provide safety.
Crimes like rape often provoke very reactionary ideas. We want justice – often just a cover up word for payback. In this case we feel like he got away with something he shouldn’t have gotten away with – which is true by today’s standards. But you’re forgetting that he is in fact not the real culprit of that injustice. The real cause was the system itself. So the victim might very well have a case against the state and claim damages. I certainly think that would be the right way of dealing with it.
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In the US this case would have been thrown out of court. In fact no DA would have brought it. The guy is being tried under an ex post facto law for a crime that would be barred by the statute of limitations. I’d be amazed if they don’t have the same protections in Australia.
“If I were dictator, I’d let the police throw any suspected harasser in jail for 24 hours, without a trial. Make the punishment immediate, likely, and short. (A 50% chance of going to jail for a day is WAYYYYY more deterring than a 1% chance of going to jail for 3 years.) Sure there’d be some abuse, but a false accuser sending you to jail for a day isn’t the worst thing in the world.”
Then you’d be a foolish and tyrannical dictator. It’s not the worst thing in the world only if you’re not the one being thrown in jail.
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Exactly. I’m actually a bit surprised – Australia follows English common law too, doesn’t it?
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Another disagreement here, you shouldn’t apply justice retroactively, if it was legal at the time it should remain a legacy legality for people who committed the act at the time. Retroactive justice is not fair or just.
For an example can you imagine if a Republican government got in and passed an anti-abortion law making an abortion illegal (classing it as pre-meditated murder of a helpless pre-individual), then decided to apply this retroactively? It’s easy to say ‘well he is a rapist’ using today’s standards however (and I am pretty sure proof of a 50 year old crime will be hard to find tbh) it sets a bad precedent for the future. Again we have to defend the worst case scenarios rather than the easy ones because it starts there and once you have precedent…
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How about the people who collaborated with bloody dictatorships, then? Should there be no ways of bringing them to justice because when they were committing their crimes, what they were doing was not only legal but fully supported by the state?
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There have often been persecutions of collaborators in dictatorships. But those are different in as much as they are dealing with crimes against humanity while one person raping another is (today) a crime against a person. The equivalent here would be to prosecute those who implemented the system that legalized rape. Unfortunately, even if such people were alive, I doubt there was anyone directly responsible.
Best we can do is learn from such shameful errors and try to avoid them in the future.
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I agree in that more than a criminal prosecution this probably should have been a case for the civil courts. This would allow to attract attention to the issue in a more reasonable way.
As people observed, there is pretty much no way the prosecution is going to win this. And I think prosecutors are aware of that but just want to send a message. Of course, I might be wrong here.
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While I agree with assorted commentators that the prosecution is unlikely to be successful, with Clarissa that it may well be a conciousness-raising trial (although why they’d chose such a weak case to highlight the crime I do not know), and I also agree that in principle the rule that one should not be able to be convicted of a crime which was not a crime at the time the act was committed, I can envisage a scenario where the prosecution could be successful.
In the run up to R v R (1992) which was the landmark case for marital rape in the UK, marking the first official change in the law since the 1700’s, there had been a number of successful prosecutions for marital rape in the lower courts, which did not change the law as they were non-binding court decisions. When the case succeeded to the House of Lords, those cases were considered as part of the evidence showing that attitudes to the act had changed and therefore that the common-law, the will of the ruled, had also changed. If the prosecution can show sufficient evidence of a change in attitudes towards marital rape prior to the legislative change that criminalised it, they may be able to show that the common-law had changed even if the statutes hadn’t, and therefore uphold the prosecution case.
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Very interesting observations. You are always a fount of useful information, FD. Thank you.
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Ah well – I try not to comment unless I have something relevant to add! Glad to know I’m succeeding. 😀
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Adi, in the US the victim can’t sue the legislators or the state for not enacting a law. They have an absolute prerogative as to what to enact or not enact, although if they enact something that’s unconstitutional the courts can strike it down.
2dnin, the abortion example you gave isn’t a good one. In the US laws increasing criminal liability are deemed to run prospectively rather than retrospectively, unless otherwise indicated by the legislature, and even then the defendant can’t be subject to ex post facto laws. I’m surprised that an Australian court would consider the law to run retrospectively even if they aren’t subject to US constitutional constraints.
As for the consciousness raising issue, the question is why bring up something that might or might not have occurred 50 years ago? If women are being raped by their husbands after the law was passed then you can prosecute them. If women were being raped by their husbands before the law was passed,but aren’t being raped now, then the law is working and there’s no need to bring in people who acted before the law was passed.
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Which was the point AYY, here we have a case of someone attempting to make the law apply retrospectively which shouldn’t be allowed :). The US has one thing right there.
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Also FD, I don’t understand how they can argue that some successful prosecutions can show that the common law has changed. They would have to factor in the number of unsuccessful prosecutions, and the number of prosecutions that could have been brought but weren’t.
Also the people don’t bring the charges, the prosecutors do, so the number of successful prosecutions shows the will of the prosecutors and some jurors, not the will of the people.
If the will of the people had changed, then there would have been a formal change in the law.
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For some reason I can’t get the quote function to work, apologies for the slight unclearness that may add to reading!
“They would have to factor in the number of unsuccessful prosecutions,”
That was part of the thinking, although it is useful to note that not all cases would have counted due to defendants being not found guilty due to charges not proven as opposed to charges inapplicable, which is what is under consideration – the applicability in law of the charge.
“and the number of prosecutions that could have been brought but weren’t.”
Not relevant legally speaking – only cases before the court have any weight – if cases not having been brought had any legal weight then the common law could hardly evolve – because the weight of all the cases that had previously not been brought would always outweigh the first lone test case!
“Also the people don’t bring the charges, the prosecutors do, so the number of successful prosecutions shows the will of the prosecutors and some jurors, not the will of the people.”
The jury deciding whether to convict is the will of the people here, not the judge or the prosecutor. Whether the jury of 12 peers really bears extrapolation to the common will of the people is arguable, but legally, that is what it stands for.
“If the will of the people had changed, then there would have been a formal change in the law.”
Remember, we are talking common law here, not statute law – common law evolves as judicial decision and convictions do, not by statute, unless expressly revoked by statute.
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FD,
“not all cases would have counted due to defendants being not found guilty due to charges not proven as opposed to charges inapplicable, which is what is under consideration – the applicability in law of the charge.”
But if the law wasn’t on the books then how could the charges be brought at all?
“only cases before the court have any weight – if cases not having been brought had any legal weight then the common law could hardly evolve – because the weight of all the cases that had previously not been brought would always outweigh the first lone test case!”
We must have a different understanding of common law. In the US the common law is a historical concept. It doesn’t evolve after the applicable statute is enacted. So once the legislature enacts a rape statute, you can look to the historical common law to interpret an ambiguity, but you can’t change the statute by arguing that the common law has evolved.
“we are talking common law here, not statute law – common law evolves as judicial decision and convictions do, not by statute, unless expressly revoked by statute”
Pls see my previous comment. In the US a person is entitled to rely on the statutory law and the appellate decisions interpreting the statute as of the date of the offense. He’s not criminally liable for failing to recognize how the will of the people has changed. Also what would be the point of imposing criminal liability on someone who failed to recognize the way the will of the people has evolved if he hasn’t violated a statute?
I’m amazed that Australian law would be different on this point.
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Ah – yes, I think we have a terminology problem. Common law has multiple meanings, dependent upon the situation.
“But if the law wasn’t on the books then how could the charges be brought at all?”
Because common law is not necessarily a matter of statute – it does not have to be ‘on the books’ to be an enforceable legal principle. In English law, which both the American and Australian legal systems are based upon, (although they have diverged from and evolved away at different times and in different directions, with Australia remaining closer to English) in this particular sense, common law is the law based upon and around judicial precedent and other authorities in the absence of, and in the interpretation of statutes.
“In the US the common law is a historical concept. It doesn’t evolve after the applicable statute is enacted. So once the legislature enacts a rape statute, you can look to the historical common law to interpret an ambiguity, but you can’t change the statute by arguing that the common law has evolved.”
Common law has the principle of persistence; i.e. in the absence of express revoke/ updating by statute it remains in force and is altered by overturning or distinguishing precedent. When the acts in question occurred, there was no statute covering marital rape, thus the common law presumption of irrevocable consent between husband & wife would have applied; unless as I suggested, the prosecutors can show that common law practise had changed prior to the common law being revoked by statute.
As the court will be dealing with matters prior to the enactment of the statute, whether or not there is a statute now is irrelevant – they are concerned with the law as it stood when the acts were committed, and so there is no question of them changing the statute by arguing that the common law has evolved. My theory is that they will essentially be arguing about the exact point when the common law on marital rape evolved away from Hale’s prescription.
The case would be different if they were looking to prosecute someone for something that is now legal which was illegal when committed – but in this sense the prosecution would be arguing that the common law at the time and the current statute law are in concord.
“In the US a person is entitled to rely on the statutory law and the appellate decisions interpreting the statute as of the date of the offense. He’s not criminally liable for failing to recognize how the will of the people has changed.”
One of the primary principles in most jurisdictions is that ignorance of the law is not necessarily a defence. And if they can prove that the common law had changed at that point it will be because there is sufficient evidence to show that if he failed to recognise that attitudes to marital rape had changed, then he was put of step with society.
As an aside, America is as I understand it, not a purely civil law system – it also relies heavily on case and common law, although of course, development of American common law post 19th century, has followed the American courts, not the English ones.
“Also what would be the point of imposing criminal liability on someone who failed to recognize the way the will of the people has evolved if he hasn’t violated a statute?”
See above – common law is the remedy in the absence of statute. In the case of marital rape it is the generally held principles pertaining to the rights and duties of marriage as agreed by society.
“I’m amazed that Australian law would be different on this point.”
Why on earth would you be surprised that Australian law would be different from American? There are numerous legal systems and all of them have their good and bad points according to the societies which they operate in, which may or may not appear the same from an external perspective. American law is not, and I realise this may be heresy to some, the ultimate exemplar of all that is good and just and fair. None of them are. They are all imperfect.
Finally, I’d like to restate that I’m not necessarily arguing in favour of this prosecution – as I said in my first comment, I don’t understand the rationale myself – but I am attempting to explain a possible line of legal reasoning behind it.
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FD,
I think your argument goes too far. Laws don’t just come out of nowhere. They reflect public opinion. If the rape statute can be applied in this way, then any statute can be applied that way on the theory that when the legislature enacted the law they were just following public opinion which had changed years before, so you can convict someone for doing something that was legal when he did it. Criminal law will become chaotic and arbitrary, and no one will know what he is or is not supposed to do. (In fact I just read something about a French court imposing a damage award on a husband for not having sex with his wife, so I guess the point is why should any guy get married?)
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To take any legal action in this case would be absurd. If no crime has been committed, please, let it go. This man obviously is not a rapist. I mean, if he had smoked crack 50 years ago, then never touched it again, would you call him a crackhead? Enough already…
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Wow. Rape is like recreational drug use? You can’t call somebody a rapist if they’ve commited rape, only if they’re planning on doing it again? This *was* an intelligent discussion.
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To quote an obviously talented blogger “It’s OK, bud, they have medication for that nowadays. Contact a doctor and stay strong.”
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This sounds like a blogger I would like to read. . . 🙂 🙂
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