An 81-year-old Australian man on Wednesday lost a bid to have charges that he raped his wife in the 1960s dropped on the grounds that forcing a spouse into sex was not a crime at the time.
The man, known only as PGA, had asked the High Court of Australia to dismiss the case brought by his wife, arguing that prior to 1976 in Australia a woman could not refuse sexual intercourse with her husband.
His lawyers had submitted that, at the time of the alleged rape in 1963, Australia was a “very unenlightened and socially backward country by modern standards”.
They said that at the time homosexuality was a crime, there was no such thing as sexual harassment, Aborigines were not full citizens and racial discrimination was legal, with the so-called “White Australia policy” in full force.
But the High Court on Wednesday dismissed his case, ruling 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… 1935″.
“Local statute law, including legislation about divorce, property and voting, had removed any basis for the acceptance of (the) proposition (that rape was legal in marriage) as a part of the common law applicable in Australia in 1963,” the court said.
The man separated from his wife in 1969 and they divorced in 1971. It was not clear why it took her until 2009 to take the allegations to police.
He now faces trial on charges of rape, assault occasioning actual bodily harm and carnal knowledge.