In spite of the #MeToo movement, the Time's Up organisation and the White Ribbon organisation, violence, especially domestic sexual violence against women, is still rampant in our nation today. Australian women are three times more likely than men to experience violence from an intimate partner and 1 in 6 Australian women have experienced sexual violence from a current or former partner, a report conducted by the Australian Institute of Health and Welfare found. This goes to show that despite the change that is sweeping the world for the better treatment of women at their workplaces and public places, behind closed doors and in the hands of their spouses, nothing much has changed.
In Australia, it can be assumed that this patriarchal mindset stems from Sir Matthew Hale's publication The History of the Pleas of the Crown gave way to the 'marital rape immunity. It demonstrates how a marriage was viewed decades ago; it promoted the perception that one's spouse 'owned' the other, generally women being the objects of possession. The immunity granted freedom to men who raped their partners on the basis that women gave general consent to their husband for sexual intercourse with upon marriage. This clearly shows just how women were treated decades ago, as a plaything or a dog; trained to be submissive to their husbands with no questions asked. It’s utterly disgusting!
This outdated view only ceased to be a part of the South Australian common law after it became the first jurisdiction to remove the idea that the wife gave consent by the time of the establishment of the Criminal Law Consolidation Act in 1935. This now meant that sexually abusive spouses could be prosecuted to the full extent of the law from 1935. However, this amendment also included that rape occurring within a marriage had to be accompanied by violence or threats until 1992. In 1992, the High Court of Australia made a declaration that the ‘marital rape immunity’ was no longer part of the common law of Australia. This has a retrospective effect meaning that the law is applied to all situations as thought it never existed.
This formed the foundation for the case R v L (1991) 174 CLR 379. A South Australian man was accused of two counts of rape of his then wife in 1963. However, due to a “marital rape immunity”, he was allowed to walk free. Supreme courts have the power to abolish common laws which allowed this old-fashioned way of thinking to be erased through the establishment of the Criminal Law Consolidation Act in 1935, which led to the conviction
34 of the defendant after it was found he could be prosecuted by the law after this amendment. The defendant appealed to the High Court in 1991, which made further amendments to the law by removing the qualification that marital rape has to be in junction with threats and violence with a retrospective effect, meaning it can be perceived as if the law it overrode never existed. This allowed the judicial system convict the man in 2010, aged 81, for his crimes.
One can only imagine the sheer relief experienced by the victim and her family at the news that the person who vowed to “love and cherish” her was given the proper punishment after breaking her trust and inflicting immense pain on her.
This is the change we need to bring to the women and their households. This is the hope we need to instil in the women to make them aware that the world is standing behind her so she can come forward bravely with the confidence that justice will be served. She should not have the fear that the world values men more than women, she should not feel that the pain she feels is any less significant than the next human. By taking the case R v L (1991) 174 CLR 379 as an example, we must see to the eradication of this inherent fear in women start progressing from there to better the rest of the world.
From now on, we as lawyers can take steps to fight for justice and always strive to attain it when dealing with cases pertaining to marital rape, where women are often silenced, and it is our job to make their voices heard.