Added: January 10, 2015 – Last updated: June 3, 2017


Authors: Wendy Larcombe and Mary Heath

Title: Developing the Common Law and Rewriting the History of Rape in Marriage in Australia

Subtitle: PGA v The Queen

Journal: The Sydney Law Review

Volume: 34

Issue: 4

Year: December 2012

Pages: 785-807

ISSN: 0082-0512 – Find a Library: WordCat

Language: English

Keywords: Modern History: 20th Century, 21st Century | Oceanian History: Australian History | Types: Marital Rape



Australasian Legal Information Institute, University of Sydney (Free Access)

HeinOnline (Restricted Access)

Sydney Law School, University of Sydney (Free Access)



Mary Heath, Flinders Law School, Flinders

Wendy Larcombe, Melbourne Law School, University of MelbourneResearchGate

Abstract: »In PGA v The Queen (2012) 245 CLR 355, the High Court was asked to determine whether rape in marriage was an offence under the common law of Australia in 1963. The Court held by majority that there was no ‘marital exemption’ from prosecution at the relevant time, as the foundation of any such rule was the presumption that wives gave irrevocable consent to intercourse by their husbands. That presumption was found to have ‘fallen away’ by 1935 as a result of statutory reforms creating access to divorce and property rights for married women. The dissentients considered that the immunity was a settled rule of the common law in 1963 and to restate the law in other terms now would criminalise conduct that was lawful at the time it was committed. This case note argues that the majority judgment fails to engage with this and other important points of principle regarding methods of common law development and its relationship to statutory and extra-judicial sources. Moreover, in finding that the immunity did not form part of the common law from 1935, we suggest this decision implicitly denies the law’s part in authorising marital rape for most of the 20th century, effectively rewriting history.« (Source: Sydney Law Review)


  I Introduction (p. 785)
  II Background and Procedural History (p. 788)
  III R v P, GA in the Supreme Court of South Australia (p. 790)
    A The Majority (Doyle CJ, with whom White J Agreed) (p. 790)
    B The Minority (Gray J) (p. 792)
  IV PGA v The Queen in the High Court (p. 792)
    A The Majority (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) (p. 793)
    B The Minority Judgments (Heydon J and Bell J) (p. 795)
  V Discussion (p. 798)
    A The Status of High Court Dicta (p. 798)
    B Reasoning Regarding Development of the Common Law (p. 800)
    C Implications for the Prosecution of Marital Rape in Australia (p. 803)
  VI Conclusion (p. 806)

Wikipedia: History of Oceania: History of Australia / History of Australia since 1945 | Rape in Australia | Sex and the law: Marital rape