On 30 May 2012, the High Court delivered judgment on an appeal from the South Australian Supreme Court case of P, GA.

‘P’ is facing prosecution for allegedly raping his wife in 1963. The defendant argued that an immunity existed in 1963 that prevented a man being convicted of the rape of his wife, and so he cannot be convicted of the offence. The prosecution argued that the immunity never existed, and, alternatively, that if it ever existed it ceased to exist by 1963. The latter argument succeeded.

Adelaide Law School Associate Lecturer, Kellie Toole, was interviewed on the ABC news and Radio National’s ‘PM” regarding the High Court judgment.

Ms Toole says, ‘there is abundant evidence in case law and scholarship that a marital rape immunity did exist in 1963. Its foundations in the 18th century are shaky but that does not negate that lawyers, judges and police proceeded for centuries on the understanding that it existed’.

Legislation enacted in South Australia in 1976 clarified that a marital rape immunity was not part of the law from then onward, but left doubt about the pre-1976 situation.

According to Ms Toole, ‘the principle against retrospective application of law is fundamental. To prosecute Mr P according to modern law, for conduct that was lawful at the time, breaches his human rights.’

Mr P will face trial unless he can argue that the delay between the alleged conduct and the trial is grounds for a stay of proceedings.

The interview is available at here