For the High Court appeal, the respondent reframed its argument to neutralise the retrospectivity issue. It argued, firstly, that the immunity never existed, and, alternatively, that if it had ever existed it ceased to exist by 1963. Neither argument found favour with Bell and Heydon JJ. They upheld P’s appeal on the basis that there was ample evidence that a marital rape immunity did exist in 1963, and that P should be judged according to that law.
However, the majority upheld the Supreme Court decision. It was influenced by the lack of judicial support for the extra-judicial writings claiming the existence of the immunity, and further questioned whether any immunity that might have existed in England was received into the Australian common law. Ultimately, it found only that if the immunity ever existed in Australia it did not survive the enactment of the rape provision in the Criminal Law Consolidation Act in 1935, by which time women’s legal position in relation to voting, property ownership, the right to sue and be sued and admission into commercial and professional life was incompatible with the existence of a marital rape immunity.
KELLIE TOOLE teaches Criminal Law and Evidence Law at the University of Adelaide.