NCJ Number
74359
Date Published
1980
Length
8 pages
Annotation
The paper examines and criticizes the South Australian criminal code concerning rape-in-marriage and argues that each Australian State should remove the existing immunity for spouse rape.
Abstract
Contrary to the advice of the Penal Methods Reform Committee, the South Australian Government established a new concept of aggravated rape within the framework of marriage. The new law falls far short of applying normal rape standards to the marriage situation, but prosecutes the most severe rape cases which involve violence, the threat of violence, or gross indecency. Besides being ambiguous, and full of interpretative snags, the law anachronistically holds on to the notion that married women are in a different position in terms of consent to sexual intercourse than unmarried women. Experts have argued that criminal law offers no solution to the spouse rape issue, since criminal law is particularly ineffective with regard to passions and close human relations. While agreeing that criminalization would not necessarily reduce the incidence of spouse rape, the article maintains that such a procedure would remove the legal inferiority of the married woman and in its long term effects might bring about a change in public attitudes concerning the status of wives. Since the term 'rape' as a discrete and peculiar offense has already led to many conceptual and practical difficulties, it is suggested that rape within marriage be dealt with under the more general heading of sexual assault. The article concludes that the South Australian legislation is highly complex and unwieldy and has only survived because of the paucity of test cases. The article emphasizes the need for other Australian States to remove immunity for rape-in-marriage offenders. The article contains 12 reference notes and footnotes. For related articles, see NCJ 74354.