Husband to face rape trial after 50 years

OutlawPete

Three Judges are debating this at the moment and one of the three argues that in 1963, according to the law that was applicable at the time: a man could not commit the offence of rape of his wife, as he was immune from doing so, based on a point of 'common law' regarding the unfettered right to sex.

MAN accused of raping his wife almost 50 years ago will face trial following a landmark court ruling.

A Court of Criminal Appeal ruling has paved the way for the accused, 79, to be prosecuted for multiple offences including rape, assault and carnal knowledge that allegedly occurred in 1963.

At the time, common law held a husband could not rape his wife because the marriage "contract" granted him unfettered right to sex.
The court's judgement, published this month, is expected to ignite debate in legal circles over rape and sexual offence laws that pre-date its inclusion in legislation.

SA Law Society president Ralph Bonig said the differing views of both arguments made the matter contentious.

"The judgement is likely to cause debate in the legal community because of the balancing of 21st century values against old law and I suspect that the judgement will be carefully scruitinised by a number of people including academics," he said.

"The facts of this case are reasonably unique given the overlapping of time between the various laws that exsisted."

Victim's Rights Commissioner Michael O'Connell hailed the judgement as a victory for victims.

"It's a good affirmation that rape in marriage was wrong," he said.

"But I suspect there are still some people, including people from certain cultural backgrounds, that would be unaccepting of that. So the question may confront the court again."

The man, who cannot be identified, was due to stand trial in the District Court last year.

However, the matter was referred to the Court of Criminal Appeal when debate arose over the legality of the charges.

Rape laws were reformed in 1976, abolishing the "right to sex" concept and making it a crime to have unwanted sexual intercourse within marriage.

In its 2-1 decision, the Court of Criminal Appeal held that the prosecution could continue because under the current law, rape in marriage is a crime irrespective of when it occured.

Chief Justice John Doyle said the modern version of the Criminal Law Consolidation Act included no presumption that marriage equated to ongoing consent to sex.

"Since then (1963) it has become clear that it is no longer the law that a husband cannot be guilty of raping his wife," he said.

"I have concluded that even if at an earlier time, in 1963 or thereabouts, the answer to that question would have been in the negative, today it must be answered in the affirmative."

A High Court decision in 1991 ruled it was no longer the common law that by marriage a wife gives "irrevocable consent to sexual intercourse by her husband".

Chief Justice Doyle said by that conclusion, the Court of Criminal Appeal should apply those statements when deciding on the state of the common law today.

Dissenting, Justice Tom Gray said the defendant should be tried based on the laws of the day.

"In my view, at his trial on the information presented in 2010, the defendant is entitled to have his conduct judged according to the law in force at the time of the alleged offending in 1963," he said.

"That law included the presumption of consent. That is the law that should apply to the trial of the defendant."

Justice Richard White agreed with Chief Justice Doyle.

Source

So, members of the jury After Hours, the question I put to you is: should this 79 year old man, go to trial for something that was "legal" back in 1963, when this incident allegedly took place?

Do you agree with Judges Doyle and White, who believe he should go to trial or do you agree with Juctice Gray who, while he concedes that the law at the time was "repugnant", he still none-the-less takes the position that the applicable law of the time should still stand.

FatherLen

ha face rape

Wolfe Tone

You cant make laws to punish crimes retrospectively.

Dissenting, Justice Tom Gray said the defendant should be tried based on the laws of the day.

Not popular, but he is right.

DrumSteve

Rape is Rape.

we'llallhavetea_old

well if you can't charge every person who smoked in a pub before the ban was put in place then you can't charge the man with rape tbh.

Wolfe Tone

OP, poll is a bit wrong, have an option for him to be tried on todays law, or the law of the day?

we'llallhavetea_old

MUSSOLINI wrote: »

OP, poll is a bit wrong, have an option for him to be tried on todays law, or the law of the day?

well he either broke the law or didn't so the poll is correct

Tar.Aldarion

MUSSOLINI wrote: »

OP, poll is a bit wrong, have an option for him to be tried on todays law, or the law of the day?

How can he be tried on the law of the day for something that was legal?

Wolfe Tone

we'llallhavetea wrote: »

well he either broke the law or didn't so the poll is correct

Good point, then its simple, no he shouldn't.

Gunsfortoys

I voted for Pete. I am nearly sure he was drunk and disorderly in public sometime before it became illegal. I also believe he may be 79 years of age.*

































*I stand by my claims.

Wolfe Tone

Tar.Aldarion wrote: »

How can he be tried on the law of the day for something that was legal?

Dissenting, Justice Tom Gray said the defendant should be tried based on the laws of the day.

He made that mistake too!

chin_grin

DrumSteve wrote: »

Rape is Rape.

Not without the 'e'. Then it's rap. Yo.

Dravokivich

you cant backdate charges like based on a law that changed after an event took place, which as the story seems to indicate did not re-occur after the law was ammended.

like duh!

Mr. Presentable

As the educated poster above averred, you should not be liable to prosecution for an act subsequently criminalised.

Are you going to prosecute people who drove in Dublin CC at 50kph for 100 years according to the new law that says the limit is 30?

Davidius

Allowing retroactive laws could open the system up to plenty of abuse, couldn't it?

J K

MUSSOLINI wrote: »

You cant make laws to punish crimes retrospectively.

You can make retrospective laws.
It is generally deemed to be a bad practice to do so. But if they want to, there is nothing to stop them.

This myth was used a lot with regard to Banks in this country and other corrupt people where it was said that you could not make a new law now that would find someone retrospectively guilty for the new offense. However you could do so if you actually wanted to.

TheZohanS

OutlawPete wrote: »

So, members of the jury After Hours, the question I put to you is: should this 79 year old man, go to trial for an that was "legal" back in 1963, when this incident allegedly took place?

No, if it was legal back then he should not go on trial, and let's not confuse "legal" with "socially acceptable".

Do you agree with Judges Doyle and White, who believe he should go to trial or do you agree with Juctice Gray who, while he concedes that the law at the time was "repugnant", he still none-the-less still takes the position that the applicable law of the time should still stand.

Agree with Justice Gray. It' is however unfortunate that the law at the time was unfit for purpose.

Dravokivich

J K wrote: »

You can make retrospective laws.
It is generally deemed to be a bad practice to do so. But if they want to, there is nothing to stop them.

This myth was used a lot with regard to Banks in this country and other corrupt people where it was said that you could not make a new law now that would find someone retrospectively guilty for the new offense. However you could do so if you actually wanted to.

making a new law now to charge for something happening now, is not the same as charging for something that occured 13 years before the law was changed, 35 years after that law was changed...

Saruman

No he should not face trial not matter if what he did is reprehensible today.

Can you imagine with this new stupid blasphemy law that people were hauled in to court because of blasphemous remarks they made 50 years ago?

Madness....
Anyway do we not have a statute of limitations here?

Saadyst

J K wrote: »

You can make retrospective laws.
It is generally deemed to be a bad practice to do so. But if they want to, there is nothing to stop them.

This myth was used a lot with regard to Banks in this country and other corrupt people where it was said that you could not make a new law now that would find someone retrospectively guilty for the new offense. However you could do so if you actually wanted to.

Yeah, of course a government can, but it's definitely not a good idea.

Would be a massive blow to human rights, and go against the principles of democracy / representation and freedom etc etc

Edit: Actually the wiki states- "The imposition of retroactive criminal sanctions is prohibited by Article 15.5.1° of the constitution of Ireland. Retroactive changes of the civil law have also been found to violate the constitution when they would have resulted in the loss in a right to damages before the courts, the Irish Supreme Court having found that such a right is a constitutionally protected property right."

PrincessLola

No, from a legal perspective he should not be on trial.

If he did rape his wife then hes a bastard, but he still can't face a trial.

prinz

It depends on the exact wording of the present day legislation he is being charged under. In theory he shouldn't be tbh but the precise wording of the Act or section may have opened a loophole, not applicable across every law, but in relation to this one in particular.

J K

Saadyst wrote: »

Actually the wiki states- "The imposition of retroactive criminal sanctions is prohibited by Article 15.5.1° of the constitution of Ireland. Retroactive changes of the civil law have also been found to violate the constitution when they would have resulted in the loss in a right to damages before the courts, the Irish Supreme Court having found that such a right is a constitutionally protected property right."

F<ck it. Dev, the bastard sneaked into his poxy constitution.
We just need a referendum to get rid of article 15 and then we can screw with peoples human rights.

humbert

Legally it shouldn't be possible but ethically he should be punished. Non-consensual sex is isn't something that is ethically ambiguous.

Once again religion giving horrible people a mandate to do horrible things.

liah

Personally when it comes to rape or murder I don't see why we cannot retroactively apply sentences. It's not like there aren't different classifications of crime, just because you could retroactively charge someone for a violent crime doesn't mean you have to be absurd and make it apply for literally all crimes. Violent crime is a different league altogether, imo.

If it were possible for someone to kill somebody within legal limits via some sick loophole (not that it was a loophole, but you get the idea) and was made illegal the next year I wouldn't want them running around loose, or if they had raped a child, etc.

However, that said, how on earth would they go about proving it?

professore

He has to be tried based on what the law was when the act was committed. Otherwise you will get someone making laws in the future just so they can throw someone they don't like into jail.

The only exception seems to be if the government was overthrown and the new one tries citizens based on their own laws, like the Nuremberg trials after WW2.

prinz

humbert wrote: »

Once again religion giving horrible people a mandate to do horrible things.

Or in this case....the legal system.

seamus

humbert wrote: »

Legally it shouldn't be possible but ethically he should be punished. Non-consensual sex is isn't something that is ethically ambiguous.

Oddly enough, it is.
In some jurisdictions, consent can be boiled down to finer grains where a man can be tried if he ejaculates without the woman's consent, even if she has otherwise agreed to unprotected penetrative intercourse.

Standards change, society evolves. Just because we consider "consent" today to be a black-and-white issue, doesn't mean that society has always considered it so. It was still impossible for a man to be charged with raping his wife in this country up until relatively recently because society believed that through marriage a man had obtained de facto consent to have sex with his wife.

I'm sure back in 1963, someone would have made the same remark - "There's no ambiguity here, ethically a man is entitled to have sex with his wife whenever he wants".

Once again religion giving horrible people a mandate to do horrible things.

I wouldn't specifically blame religion for this. Most civilisations have tended to be male-centric with subservient women.

kiddums

Rape is wrong, no matter if its illegal or not.

However,
The man did not break the law. How can he be charged for not breaking the law?
Just because its illegal now is no excuse.

And I'm someone who thinks the manditory charge for rape should be castration.

prinz

Saadyst wrote: »

"The imposition of retroactive criminal sanctions is prohibited by Article 15.5.1° of the constitution of Ireland. Retroactive changes of the civil law have also been found to violate the constitution when they would have resulted in the loss in a right to damages before the courts, the Irish Supreme Court having found that such a right is a constitutionally protected property right."

Article 15.5.1 is not relevant here as the Oireachtas did not set out to enact rape legislation specifically to apply retrospectively. It seems the problem here is that the later legislation wasn't worded sufficiently clearly to cover the circumstances such as in the case in the OP. So the spirit of the law would be not to apply it but according to the letter of the law it is possible apparently to pursue a marital rape charge even though this was 'exempt' at the time. The job of the judges is not to decide if the law is badly framed or how they think it should be, but to apply it as it is.


This decision does not mean that they are going to start charging people with anything else.

Little Acorn

prinz wrote: »

It depends on the exact wording of the present day legislation he is being charged under. In theory he shouldn't be tbh but the precise wording of the Act or section may have opened a loophole, not applicable across every law, but in relation to this one in particular.

Yeah, I think they are saying that the present day legislation regarding rape does make it legally allowable for this man to be brought to trial.

In its 2-1 decision, the Court of Criminal Appeal held that the prosecution could continue because under the current law, rape in marriage is a crime irrespective of when it occured.

So if this is the actual law regarding rape today [ie..that rape is a crime nomatter when it was commited]
then I don't know how his defense is going to get around that.

Micky Dolenz

Is he still married to her and why is she bringing the case now?

seamus

So the spirit of the law would be not to apply it but according to the letter of the law it is possible apparently to pursue a marital rape charge even though this was 'exempt' at the time.

Indeed. Without reading the statute, I imagine the law was written in such a way to prevent any kind of statute of limitations from coming into play and say that the crime of rape doesn't "expire". The spirit of the law would be to not convict someone who committed rape before it was a crime (as there was no crime to "expire"). However the letter of the law would allow any rape to be pursued at any time.

Our constitution protects us from any such application of the law, letter or otherwise. I don't think the same protection necessarily exists in the States.

steddyeddy

Theres laws in some countries stating that a man is better than a woman, which is more important the law or the people they are designed to protect?

humbert

seamus wrote: »

Oddly enough, it is.
In some jurisdictions, consent can be boiled down to finer grains where a man can be tried if he ejaculates without the woman's consent, even if she has otherwise agreed to unprotected penetrative intercourse.

Standards change, society evolves. Just because we consider "consent" today to be a black-and-white issue, doesn't mean that society has always considered it so. It was still impossible for a man to be charged with raping his wife in this country up until relatively recently because society believed that through marriage a man had obtained de facto consent to have sex with his wife.

I'm sure back in 1963, someone would have made the same remark - "There's no ambiguity here, ethically a man is entitled to have sex with his wife whenever he wants".

I wouldn't specifically blame religion for this. Most civilisations have tended to be male-centric with subservient women.

Well as a simple rule of thumb wrt ethics I ask myself if I'd hold the same view in the other person's shoes.

Quite often highly unethical actions are condoned where they are the status quo. This doesn't actually make these actions ethically ambiguous, just thoughtlessly conducted and accepted. However given the intimate nature of sex and the conspicuous nature of non-consent (assuming we're not talking about passive acquiescence) I don't think ignorance is an excuse.

I don't regard religion as a cause, just an obstacle to change and an means by which superior social groups can justify egregious inequality. Religion in Ireland was exactly that and as it's influence has diminished the legal system has changed.

Millicent

Micky Dolenz wrote: »

Is he still married to her and why is she bringing the case now?

Yeah, I was wondering about that myself. Bit of a strange one. Perhaps she only now is strong enough to leave him?

Can't decide either way, Pete. Every piece of my being abhors what he did but he wasn't the only one in his day to think it was acceptable so I don't know. While I'd love to see him get his comeuppance, legally I'm not sure if I agree with retroactively trying him for what is now a crime but wasn't then.

Millicent

steddyeddy wrote: »

Theres laws in some countries stating that a man is better than a woman, which is more important the law or the people they are designed to protect?

That's a good point, actually. I'm torn though.

J K

I think that you used to be able to sue another man for stealing your property if he had it off with your wife. On the basis that your wife was chattel or property.

eilo1

Its a tough one.

Objectively I think "how can you be tried for something that isnt/wasnt illegal". That just isnt fair.

But then on the other hand how could you not know its an awful thing to do.
As well as that the hurt caused at the time is clearly still real as why else would the case be brought all these years later.

I hope he is tried though, its just not right to get away with rape.

OutlawPete

Update on this:

THE High Court has been asked to stop the rape-in-marriage prosecution of a 79-year-old South Australian man on the grounds he had a marital right to sex when the alleged offences took place in 1963.

Responding to a 2-1 decision of the SA Court of Appeal that the man should face trial, Legal Services Commission lawyers yesterday filed an application for special leave with the High Court's Adelaide registry. The application argues the common law in 1963 had not developed to a point that created a rape-in-marriage offence.

It further argues that 1976 state legislation making marital sex subject to the criminal law by removing the presumption of consent should not be applied retrospectively.
The defendant, who cannot be named, is facing a number of criminal charges, including one count of carnal knowledge in 1961 and four counts of assault occasioning actual bodily harm. But only the rape charges -- two counts in 1963 -- are the subject of the special leave application.
Start of sidebar.

Writing for the majority in the Court of Appeal last month, Chief Justice John Doyle said some of the complex points of law raised by the case were best suited to High Court review.

But Chief Justice Doyle concluded the 1976 laws could be applied retrospectively, leaving the defendant capable of being found guilty of raping his wife because their marriage did not give rise to a presumption of consent to intercourse.

In the dissenting opinion, judge Tom Gray said the presumption of irrevocable consent to sexual intercourse in marriage was "repugnant".
"It is difficult to understand how such a view could ever have been held," Justice Gray said.

"In 2010 it is accepted that marriage ought to be a relationship of trust and respect, not one of abuse."

But Justice Gray said the issue at law was whether the defendant was entitled to be tried according to the substantive law applicable at the time.
"In 1963 it was still the common law, recognised and applied in South Australia, that a man could not commit the offence of rape of his wife," Justice Gray said.

"Traditionally, a fundamental principle of most legal systems is that the legal consequences of situations should be judged according to the law in force at the time.

"This is part of a wider principle that people should be judged by their contemporaries and by contemporary standards and beliefs, rather than many years later by people with perhaps very different standards and beliefs."

Tayla

I'm a bit confused about this.....

Back when it happened did he actually have a 'right to sex'? as in was it in the marriage contract?
Or was the 'right to sex' just imagined?

prinz

Tayla wrote: »

I'm a bit confused about this.....
Back when it happened did he actually have a 'right to sex'? as in was it in the marriage contract?
Or was the 'right to sex' just imagined?

It wasn't actually written down in any contract which the bride and groom signed, but it was accepted in law that you couldn't technically 'rape' your wife as it was understood that consent was given by virtue of being married.

super_furry

Should we now lock up anyone who sold or took methadrone last year? It's a less emotive or severe case, but the same principle.

prinz

super_furry wrote: »

Should we now lock up anyone who sold or took methadrone last year? It's a less emotive or severe case, but the same principle.

Well we're not in South Australia so no. Also laws tend not to be retrospective in nature.

phill106

So can we sue england for invading?
Will america be tried for enslaving african people?
I dont think laws should be retrospective.

JONJO THE MISER

So if abortion was made illegal in the states again, does that mean millions of people can be charged with murder?

TheInquisitor

What i can't understand is why it took 50 bloody years for her to tell the Guards?

prinz

phill106 wrote: »

So can we sue england for invading?
Will america be tried for enslaving african people?
I dont think laws should be retrospective.

They aren't. There just seems to be a loophole in this case.

JONJO THE MISER wrote: »

So if abortion was made illegal in the states again, does that mean millions of people can be charged with murder?

No.

Manic Moran

Our constitution protects us from any such application of the law, letter or otherwise. I don't think the same protection necessarily exists in the States.

It does.

Article 1 of the US Constitution applies specifically both to Federal and State legislation. Section 9 limits Congress: "No bill of attainder or ex post facto Law shall be passed." Section 10, "No State shall <snip> pass any Bill of Attainder, ex post facto Law"

Article 15.5.1 is not relevant here as the Oireachtas did not set out to enact rape legislation specifically to apply retrospectively. It seems the problem here is that the later legislation wasn't worded sufficiently clearly to cover the circumstances such as in the case in the OP. So the spirit of the law would be not to apply it but according to the letter of the law it is possible apparently to pursue a marital rape charge even though this was 'exempt' at the time. The job of the judges is not to decide if the law is badly framed or how they think it should be, but to apply it as it is.

You're kidding, right?

The legislature cannot get around Constitutional limitations by specifically saying "this law is intended to be exempt from the Constitutional limitation". That's exactly why we have Constitutional limitations in the first place!

Art 15.1.1 says as follows:
"The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission"

It does not say "The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission, unless the Oireachtas specifically says that it's declaring an act to be infringements of the law which were not so at the date of their commission"

Australia apparently has no such Constutional protection, hence the case managed to proceed. This is a bit of a glitch in the system, I think.

NTM

prinz

Manic Moran wrote: »

You're kidding, right?

Not exactly. The problem arises when old acts are amended, some numerous times, acts are combined etc. In such a case the Oireachtas may not have intentionally passed any legislation to be retrospective (complying with Article 15.5.1), but the wording of the new law could be interpreted that way depending on the wording. Your case could end up in the Supreme Court for them to decide. Article 15.5.1 relates to the intentional and deliberate passing of retroactive legislation.

Manic Moran wrote: »

This is a bit of a glitch in the system, I think.

Exactly.

meditraitor

Well in the case of Ireland and our banks/politicians I think we can get them because we are not autonimous anymore and the EU/IMF could possibly stamp laws from other states within the EU onto charges of neglect against the government/Banks even if Irish law doesnt have an equivilent law?

Or if we are lucky enough one of these countries could invade us and force their laws(hopefully better) onto us retrospectively just like the yanks do all over the world.