Australian husband could be tried for alleged 1963 rape of his wife

SYDNEY - A 79-year-old Australian could be charged with raping his wife almost 50 years ago after an appeals court ruled that the matrimonial consent laws in place at the time do not protect him from prosecution, a news report said Wednesday.

The judges of the South Australian Court of Criminal Appeal ruled by two to one that new laws could be applied.

The alleged offence took place in 1963 when marital rape was not a crime.

“Since then, it has been clear that it is no longer the law,” Chief Justice John Doyle said in a written judgment reported Wednesday by national broadcaster ABC.

The Court had been asked to rule on whether the rape of a spouse was an offence in 1963. It was not making a judgement on the accused’s specific case.

Doyle also said there was no statute of limitations to protect the unnamed man from being tried, even though the changes in the law came after the alleged offence.

New laws were passed in 1976 making non-consensual sex in marriage a crime. The Court ruling also referenced a 1991 High Court ruling which rejected the principle of matrimonial consent.

Justifying his dissenting vote, Justice Tom Gray said the rules of the day should apply.

“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,” Gray wrote. “His conduct in 1963 was at that time lawful.”