PGA v The Queen [2012] HCA 21: High Court rejects marital rape appeal

A man who argued he could not be guilty of raping his wife because no such offence existed in 1963 has lost his appeal to the High Court in PGA v The Queen [2012] HCA 21 (30 May 2012).

The South Australian man was charged in 2010 with the rape in 1963 of his wife, with whom he lived at the time. While rape was an offence in South Australia in 1963, it was not defined in legislation.

A Judge of the District Court of South Australia stayed the trial of the man and reserved for determination by the Full Court the question of whether the rape of one spouse by another was an offence in 1963. A majority of the Full Court found that the man could be guilty of the rape of his wife in 1963.

A majority of the High Court dismissed the appeal.  The majority held that if the marital exemption to rape was ever a part of the common law of Australia, it had ceased to be so at least by the time of the enactment of s 48 of the CLC Act in 1935.  Local statute law, including legislation about divorce, property and voting, had removed any basis for the acceptance of Hale's proposition as a part of the common law applicable in Australia in 1963.  The majority emphasised that this conclusion involved no retrospective variation or modification of a settled rule of the common law of Australia.

Read a newspaper report here.

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