PGA v The Queen

The High Court of Australia considered an appeal by PGA against the conviction for two counts of rape. The alleged offences occurred in 1963 against the appellant's then spouse. The central dispute revolved around whether the common law of Australia in 1963 presumed a wife's consent to intercourse within marriage, thereby creating an immunity for a husband from prosecution for rape of his wife.

The legal issues before the Court were twofold: first, whether the common law of Australia in 1963 included a presumption of marital consent to intercourse, often referred to as the "marital exemption" or "marital immunity"; and second, whether the common law as articulated in *R v L* (1991) 174 CLR 379, which rejected such a presumption, applied retrospectively to conduct alleged to have occurred in 1963.

The Court reasoned that the historical basis for the presumption of marital consent, as articulated by Hale in the 17th century, was tied to the nature of marriage at that time, when it was considered a virtually indissoluble union. However, the Court noted that by the 19th century, and certainly by the mid-20th century, attitudes towards marriage had evolved significantly, with divorce becoming more accessible. This evolution in the understanding of marriage as a contract that could be terminated undermined the reasoning upon which the marital exemption was founded. The Court implicitly rejected the notion that the common law in 1963 retained an absolute presumption of consent, particularly in light of the changing social and legal landscape surrounding marriage.

The appeal was dismissed.