R v L

[1991] HCA 48

HIGH COURT OF AUSTRALIA

Mason C.J. Brennan, Deane, Dawson and Toohey JJ.

THE QUEEN v. L.

(1991) 174 CLR 379

3 December 1991

Constitutional Law—Criminal Law

Constitutional Law (Cth)—Inconsistency between Commonwealth and State laws—State law providing that married person not presumed to have consented to sexual intercourse with spouse—Commonwealth law empowering Family Court to relieve spouse from obligation to perform marital services or render conjugal rights—The Constitution (63 and 64 Vict., c. 12), s. 109—Criminal Law Consolidation Act 1935 (S.A.), s. 73(3)—Family Law Act 1975 (Cth),s. 114(2). Criminal Law—Rape—Consent—Husband and wife—Whether wife irrevocably consents to sexual intercourse.

Decisions

MASON C.J., DEANE AND TOOHEY JJ. The respondent is facing trial on two counts of rape of his wife, contrary to s.48 of the Criminal Law Consolidation Act 1935 (S.A.) ("the State Act"). The section reads:
" A person who has sexual intercourse with another person
without the consent of that other person - (a) knowing that that other person does not consent to

sexual intercourse with him;

or (b) being recklessly indifferent as to whether that other person consents to sexual intercourse with him,

shall (whether or not physical resistance is offered by that other person) be guilty of the felony of rape and liable to be imprisoned for life."

2. The first count, with which we are not concerned, alleges an act of oral intercourse. The second count alleges an act of vaginal intercourse; it is that count that led to the making of an order on 15 March 1991 that "such part of the cause in action No.126 of 1990 pending in the Supreme Court of South Australia ... as involves the interpretation of the Constitution be removed into this Honourable Court". A question of interpretation of the Constitution is said to arise primarily because of the existence of s.73(3) of the State Act on the one hand and s.114(2) of the Family Law Act 1975 (Cth) ("the Commonwealth Act") on the other. The motion seeking removal identified the question in these terms: "Is section 73(3) of the Criminal Law Consolidation Act,

1935 (S.A.) invalid by reason of inconsistency with section 114(2) of the Family Law Act 1975 or by reason of inconsistency with any other provision of the Family Law Act 1975 or of the Marriage Act 1961".

The contention that the sub-section is invalid is based on s.109 of the Constitution which reads:

" When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid."

3. Section 73(3) of the State Act, which is one of several sections under the heading "Procedure in Sexual Offences", reads:

" No person shall, by reason only of the fact that he is married to some other person, be presumed to have consented to sexual intercourse with that other person."

4. Section 114(2) of the Commonwealth Act, which is part of a section relating to injunctions, reads: " In exercising its powers under sub-section (1), the
court may make an order relieving a party to a marriage from any obligation to perform marital services or render conjugal rights."

5. The respondent submitted that the two provisions are directly inconsistent in that the State Act "eliminates the obligation to perform 'conjugal rights' for every married person in the State of South Australia" while the Commonwealth Act "assumes the existence of the obligation (to render conjugal rights) but gives the Family Court a discretion to relieve a party from it if appropriate". Section 114(2), the respondent argued, preserves the common law notion of "conjugal rights" and that notion, he said, involves the proposition that a wife, by virtue of being married, cannot refuse her consent to sexual intercourse with her husband; that a husband has a "right" to sexual intercourse and that a wife has an obligation to submit to it.

6. The respondent further submitted that, if the two provisions are not inconsistent, nevertheless the Commonwealth "has intended to 'cover the field' concerning the legal consequences of marriage" and that the State Act seeks to regulate one of those consequences.

7. There is no inconsistency between the two provisions, direct or indirect. Section 114(2) is in aid of the injunctive orders that may be made pursuant to s.114(1). The latter sub-section empowers the Family Court to grant "such injunction as it considers proper" in the circumstances there mentioned, including an injunction for the personal protection of a party to a marriage, restraining a party from entering or remaining in the matrimonial home and for the protection of the marital relationship. By the use of the word "any", s.114(2) recognises that there are or may be obligations to perform marital services or render conjugal rights. But it does not identify those services or rights, let alone give statutory endorsement to any particular service or right. For its part, s.73(3) of the State Act does no more than rebut any presumption there may be that a party to a marriage has consented to sexual intercourse with the other party to the marriage. Section 73(5) precludes a person from conviction of rape of a spouse unless the act was accompanied by or was associated with an assault, act of gross indecency or otherwise as set out in the sub-section. The respondent did not rely upon sub-s.(5) as part of his argument, except to say that "it appears to revive the common law principle that there is an obligation to consent to sexual intercourse as a result of marriage. It appears to revive it but apply it in a limited way."

8. The relationship between sub-ss.(3) and (5) is curious. Section 48 of the State Act in effect defines rape as non-consensual intercourse. In terms of that section and s.73(3), whether the victim is the wife of the accused or not, it is incumbent on the Crown to prove absence of consent. Nothing in the State Act relieves the Crown of that obligation though, where a spouse is the victim, the Crown has the additional burden of establishing one of the acts identified in the paragraphs of sub-s.(5). Sub-section (3) makes it clear that, in the case of a spouse who is the victim, no consent is to be presumed "by reason only of the fact" that victim and accused are married to each other. In the case now before the Court the Crown must prove an absence of consent on the part of the respondent's wife; its task in discharging that burden is neither rendered impossible nor complicated by any presumption of law or fact that sexual intercourse was consensual.

9. The respondent's further argument that the Commonwealth has covered the field fares no better. Whatever the scope of the power of the Parliament to make laws with respect to marriage, Constitution, s.51(xxi) it is apparent that the Commonwealth Act does not attempt comprehensively to regulate the rights and obligations of the parties to a marriage and in particular says nothing to express or imply an obligation to consent to sexual intercourse by a party to a marriage. Refusal to consummate a marriage is no longer a ground for dissolution, cf. Matrimonial Causes Act 1959 (Cth), s.28(c). In one of the early decisions on the Commonwealth Act, In the Marriage of Pavey (1976) 25 FLR 450, at p 455; 10 ALR 259, at p 263, the Family Court accepted that sexual intercourse between the parties to a marriage may have ceased without the marriage having "broken down irretrievably" s.48(1) of the Commonwealth Act. Furthermore, there is no indication of an intention on the part of the Parliament even to touch upon behaviour within marital relationships which may amount to a criminal offence involving serious personal violation. Indeed, if such an intention were evident, a question would arise whether such a law could be characterised as a law with respect to marriage.

10. The Marriage Act 1961 (Cth) is concerned with capacity to marry, the formalities required for the solemnisation of marriages in Australia and the recognition of foreign marriages. In no way does it attempt to regulate the rights and obligations of the parties to a marriage.

11. It follows that in neither the Commonwealth Act nor the Marriage Act has the Commonwealth sought to cover the field in any way relevant to the outcome of these proceedings.

12. Although what has been said really disposes of the inconsistency argument, it may be useful to say something more about the reference in s.114(2) of the Commonwealth Act to marital services and conjugal rights, since the respondent's argument rests on the proposition that the sub-section preserves the common law. In Tansell v. Tansell (1977) 19 SASR 165, at p 177 Bray C.J. described the sub-section as "in a sense the mirror image of the old decree of restitution of conjugal rights in the ecclesiastical courts". In Bartlett v Bartlett (1933) 50 CLR 3 the Court was concerned with the implications of a refusal of sexual intercourse where there had been a decree for restitution of conjugal rights. Evatt J. said ibid., at pp 22-23:
" This analysis of some of the leading cases shows that
it is not correct to assert that a deliberate and continued refusal of sexual intercourse can never be relied upon by the other spouse for the purpose of evidencing failure in the duty to 'render conjugal rights.' On the contrary, such wilful refusal may in all the circumstances prove or tend to prove that one of the spouses is according merely nominal and not real adherence to the decree requiring restitution. It follows that the persistent and wilful refusal of sexual intercourse cannot always be treated as an irrelevant part of the inquiry in these cases." But there is nothing in the judgment of Evatt J. that would support the proposition for which the respondent contends, namely, that the notion of conjugal rights carries with it a continuing obligation on the part of a spouse to consent to sexual intercourse as a necessary legal consequence of marriage. This is made clear by the statement of Dixon J. that compliance with a decree for restitution of conjugal rights "does not require the resumption of sexual intercourse". Ibid., at p16; see also Hunt v. Hunt (1943) 62 WN (NSW) 129, at pp 131-133.

13. At the time of the passing of the Commonwealth Act, the Criminal Codes of Queensland, Western Australia and Tasmania contained in the definition of rape the words "not his wife". The Criminal Code (Q.), s.347; The Criminal Code (W.A.) s.325; The Criminal Code (Tas.), s.185. The non-Code States - New South Wales, Victoria and South Australia - had no comparable exclusion in their statutes dealing with rape. Crimes Act 1900 (NSW), s.63; Crimes Act 1958 (Vic.), s.44; Criminal Law Consolidation Act 1935 (S.A.), s.48. But, as has been seen, the legislation of South Australia now makes special provision where a spouse is involved. The Court was told that, at the time of the passing of the Commonwealth Act, there had been no decision of a court of a non-Code State relating to any immunity on the part of a husband charged with raping his wife. But there had been decisions of the English courts which bore on the question.

14. The earliest of these decisions was The Queen v. Clarence (1988) 22 QBD 23. It did not involve a charge of rape. It was a case stated by the Recorder of London and reserved for the consideration of all judges, before thirteen of whom the case was argued. The prisoner had been convicted of "unlawfully and maliciously inflicting grievous bodily harm" upon his wife and on a further charge of assault upon her "occasioning actual bodily harm". The circumstances giving rise to the charges were that the prisoner was, to his knowledge but not that of his wife, suffering from a venereal disease at the time he had intercourse with her. A majority of the court held that the conduct of the prisoner did not constitute an offence under either of the provisions under which he had been charged. In the course of their judgments several of the judges made comments on the question of whether a man could be convicted of raping his wife. For instance Wills J. said ibid., at p 33:

" If intercourse under the circumstances now in question constitute an assault on the part of the man, it must constitute rape, unless, indeed, as between married persons rape is impossible, a proposition to which I certainly am not prepared to assent, and for which there seems to me to be no sufficient authority."

Hawkins J. ibid., at p 52 spoke in like terms as did Field J. ibid., at pp 57-58. On the other hand, A.L. Smith J. ibid., at p 37, Stephen J. ibid., at p 46, (with whose judgment Mathew J. and Huddleston B. agreed ibid., at pp 38, 56 respectively, and Pollock B. ibid., at pp 63-64, suggested that, in the absence of statute, a man could not be convicted of raping his wife. Stephen J. did so by noting that, in the then most recent edition of his Digest of the Criminal Law, 4th ed. (1887) the statement that "a husband might under certain circumstances be indicted for rape on his wife" which had appeared in the first edition had been "withdrawn". The other English decisions include rulings by trial judges to the effect that, while marriage carries with it an implied consent by a wife to sexual intercourse with her husband while ordinary relations subsist, that presumption is displaced by a separation order having the effect of a decree of judicial separation, The King v. Clarke (1949) 2 All ER 448; (1949) 33 Cr App R 216, (semble) by a separation agreement, The Queen v. Miller (1954) 2 QB 282, by a decree nisi of divorce, The Queen v. O'Brien (1974) 3 All ER 663, or where the husband has given an undertaking to the court not to molest the wife. Steele (1976) 65 Cr App R 22.

15. None of these decisions lends credence to the proposition that, by virtue of her marriage, a wife gives her consent to sexual intercourse with her husband, whatever the circumstances. In The Queen v. McMinn (1982) VR 53 the Full Court of the Supreme Court of Victoria held that, there being a non-molestation order in force against the applicant pursuant to s.114 of the Commonwealth Act, he could be convicted of the rape of his wife. The Court was prepared to assume (without deciding) that marriage carried with it a consent to sexual intercourse, but "only whilst ordinary relations subsist between the parties". Ibid., per Crockett J. at p 57.

16. A proposition in absolute terms seems to depend upon the following statement by Sir Matthew Hale in The History of the Pleas of the Crown (1736), vol. 1, p 629:
" But the husband cannot be guilty of a rape committed
by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract."

17. As Lord Lane C.J., delivering the judgment of the Court of Appeal in The Queen v. R, (1991) 2 WLR 1065, at p 1067; (1991) 2 All ER 257, at p 259, pointed out, Hale's work was published in 1736 though the author had died sixty years earlier. Lord Lane continued:
"there can be little doubt that what he wrote was an
accurate expression of the common law as it then stood, despite the fact that it was contained in a part of the work that his revision had not yet reached".

18. But, even in the ecclesiastical courts, the obligation to consent to intercourse was not asserted in unqualified terms. Thus in Popkin v. Popkin (1974) 1 Hagg Ecc 765n. (162 ER 745, at p 747) Sir William Scott (Lord Stowell) observed:
"The husband has a right to the person of his wife, but not
if her health is endangered." And Clarence's Case makes it clear that there was no unanimity among the judges a century after Hale wrote. In The Queen v. R the Court of Appeal rejected any rule of irrevocable consent as "anachronistic and offensive". (1991) 2 WLR, at p 1074; (1991) 2 All ER, at p 266. The decision of the Court of Appeal was affirmed by the House of Lords (1991) 3 WLR 767) after the hearing of the present appeal had concluded. Without endeavouring to resolve the development of the common law in this regard, it is appropriate for this Court to reject the existence of such a rule as now part of the common law of Australia.

19. We are concious of the restraints upon the development of the common law underlying decisions such as State Government Insurance Commission v. Trigwell, (1979) 142 CLR 617; Public Service Board of N.S.W. v. Osmond (1986) 159 CLR 656 and Lamb v. Cotogno. (1987) 164 CLR 1. But the situation here is that the respondent invites the Court to give its support to a proposition which, in the terms contended for, does not have the backing of the common law for which he contends. It must be acknowledged that there is support for the proposition in some non-binding judicial statements and in some learned writings tracing back to Hale. But that support has been seriously undermined by the qualifications introduced by the various decisions to which reference has been made in this judgment. In any event, even if the respondent could, by reference to compelling early authority, support the proposition that is crucial to his case, namely, that by reason of marriage there is an irrevocable consent to sexual intercourse, this Court would be justified in refusing to accept a notion that is so out of keeping with the view society now takes of the relationship between the parties to a marriage. The notion is out of keeping also with recent changes in the criminal law of this country made by statute, which draw no distinction between a wife and other women in defining the offence of rape. The Criminal Code (Q.), s.347 as enacted by Act No. 17 of 1989; The Criminal Code (W.A.), s.325 was repealed by Act No. 74 of 1985 and see now Ch. XXXIA-Sexual Assaults; The Criminal Code (Tas.), s.185(1), enacted by Act No. 71 of 1987; Crimes Act (N.S.W.), s.61T; Crimes Act (Vic.), s.40 read with s.62. It is unnecessary for the Court to do more than to say that, if it was ever the common law that by marriage a wife gave irrevocable consent to sexual intercourse by her husband, it is no longer the common law.

20. The question identified in the notice of motion should be answered no. The part of the cause removed to this Court should be remitted to the Supreme Court of South Australia to be dealt with in accordance with the answer given by this Court.

BRENNAN J. The accused L was charged on information before the Supreme Court of South Australia on two counts of rape under s.48 of the Criminal Law Consolidation Act 1935 (S.A.) and a retrial on that information is pending. The retrial awaits the resolution of a question removed into this Court relating to the second count in the information alleging that the accused "had vaginal sexual intercourse with (JML), his wife, without her consent". The prosecution intends to rely on s.73(3) of the Criminal Law Consolidation Act which reads as follows:

" No person shall, by reason only of the fact that he is married to some other person, be presumed to have consented to sexual intercourse with that other person."

2. Counsel for the accused submits that s.73(3) is invalid by reason of inconsistency with the Family Law Act 1975 (Cth) and the Marriage Act 1961 (Cth) in general and with s.114(2) of the Family Law Act in particular. Commonwealth law, so the argument runs, covers the field of marriage and divorce and the laws of a State cannot alter the legal incidents of marriage by denying the right of a husband to have sexual intercourse with his wife without her consent. Section 114(2) of the Family Law Act, which empowers a court exercising jurisdiction under that Act to "make an order relieving a party to a marriage from any obligation to perform marital services or render conjugal rights", is said to be a statutory recognition that unless such an order is made there is an obligation on the wife to submit or consent to any demand by her husband for sexual intercourse per vaginam whenever and however made.

3. The argument assumes that, by the law of marriage, a husband has a right to have sexual intercourse with his wife whenever he wishes, irrespective of the circumstances, and, if need be, to take her by force and that a wife has, by virtue of her marriage, consented to any act of sexual intercourse with her by her husband. That is not and has never been the law of marriage.

4. The legal nature of the institution of marriage is not to be found in the common law. Holdsworth, A History of English Law, vol. I, 3rd ed. (1922), p 622; see also Latey on Divorce, 14th ed. (1952), pp 1-2, observes that "(t)he temporal courts had no doctrine of marriage". See also Pollock and Maitland, The History of English Law Before the Time of Edward I, (1985), vol. II, pp 367-368, and he records that jurisdiction in matrimonial causes was vested in the ecclesiastical courts from at least the 12th century. Perhaps earlier, following the promulgation of the Episcopal Laws of William I: see The Laws of the Kings of England from Edmund to Henry I, ed. A.J. Robertson (1925), p 235 until the 19th century. The doctrines of the law of marriage were developed in the ecclesiastical courts, not in the courts of common law. Sir William Scott (later Lord Stowell) in Lindo v. Belisario (1795) 1 Hag Con 216, at pp 230-231 (161 ER 530, at pp 535-536) referred to differing opinions as to the nature of marriage: the early opinion of the Ecclesiastical Court that marriage is "a sacred, religious, and spiritual contract", another opinion that it is merely a civil contract. His Lordship thought that neither of those opinions was completely accurate, holding marriage to be "a contract according to the law of nature, antecedent to civil institution, ... a contract of the greatest importance in civil institutions, ... charged with a vast variety of obligations merely civil". In Hyde v. Hyde and Woodmansee, (1866) LR 1 P and D 130, at p 133, Lord Penzance defined marriage as "the voluntary union for life of one man and one woman, to the exclusion of all others" and that definition has been followed in this country and by this Court(39) Calverley v. Green (1984) 155 CLR 242, at pp 259-260; Khan v. Khan (1963) VR 203, at p 204. It is the definition adopted by the Family Law Act, s.43(a) of which requires a court exercising jurisdiction under that Act to have regard to "the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life". Marriage is an institution which not only creates the status of husband and wife but also, without further or specific agreement, creates certain mutual rights and obligations owed to and by the respective spouses Eversley's Law of Domestic Relations, 6th ed. (1951), pp 2-3. It is necessary to say what is meant by a mutual right in the law of marriage.

5. The courts exercising jurisdiction in matrimonial causes have spelt out the mutual rights of spouses in the course of proceedings for divorce a mensa et thoro and for restitution of conjugal rights (remedies available in the original ecclesiastical jurisdiction), proceedings for judicial separation (the statutory successor to the divorce a mensa et thoro) and proceedings for divorce a vinculo matrimonii on grounds of desertion or cruelty. The legal incidents of marriage relating to sexual intercourse are to be found in the law applied in proceedings of these kinds, not in the common law. The common law attached incidents of its creation to the relationship of husband and wife (for example, a husband's liability for purchases of necessities by his wife) but it had no charter to define the rights and obligations which touch the personal relationship of the spouses and which are therefore the essential incidents of the institution of marriage. The rights and obligations which touch that personal relationship - connubial rights and obligations - are an essential part of, but do not exhaust, the legal incidents of marriage.

6. The connubial rights of spouses are mutual and there are corresponding mutual obligations, but they are not susceptible of specific enforcement by order of a court. As a lifetime exclusive union of a man and a woman can hardly be maintained by court order, connubial obligations must be performed voluntarily by each of the spouses, acknowledging the rights of the other spouse. The unique relationship of each marriage, the delicacy of a relationship which is intended to survive good times and bad, temptations and despondency, and the vicissitudes of family life preclude the possibility of curial enforcement of connubial rights. The occasions for exercising a connubial right and performing a connubial obligation depend upon the circumstances prevailing at a particular time and those circumstances cannot be known by a court in advance and are oftentimes difficult for a court to appreciate accurately in retrospect. Therefore the courts have never made orders for the mandatory performance of a connubial obligation. The ecclesiastical courts made decrees for the restitution of conjugal rights but the decree commanded a general resumption of cohabitation and did not purport to compel a spouse to do or abstain from doing particular acts in performance of a connubial obligation Hunt v. Hunt (1943) 62 WN (N.S.W.) 129. The legal significance of connubial obligations was to be found in the making of decrees based on breaches of those obligations. Breaches were established only by proof of conduct that was a gross infringement of a connubial right or by proof of a continuous failure to perform a connubial obligation in satisfaction of the corresponding connubial right of the other spouse.

7. The courts exercising jurisdiction in matrimonial causes recognized the mutual rights of husband and wife relating to sexual intercourse and, in granting or withholding their decrees, ascertained whether either party had wilfully and persistently refused to accord the right of sexual intercourse to the other party. From the days of the ecclesiastical courts, however, it was accepted that no mandatory order to compel sexual intercourse would be made. The approach of the ecclesiastical courts appears in Forster v. Forster (1790) 1 Hag Con 144, at pp 154-155 (161 ER 504, at p 508), where Sir William Scott said that it was true -

"'That the duty of matrimonial intercourse cannot be compelled by this Court, though matrimonial cohabitation may.' This species of malicious desertion is a ground of divorce in some countries - certainly not so here - and still less will it justify a wife, in a resort to unlawful pleasures, that lawful ones are withdrawn. It is not however to be considered as a matter perfectly light in the behaviour of a complaining husband, that he has withdrawn himself without cause, and without consent, from the discharge of duties that belong to the very institution of marriage; and if he has so done, he ought to feel less surprise if consequences of human infirmity should ensue."

When Mrs Orme, Orme v. Orme (1824) 2 Add 382 (162 ER 335); see also McDonough v. McDonough (1925) 42 WN (NSW) 78, complained that, though her husband allowed her to live in the same house with him, she "was denied access to his person and bed", Sir Christopher Robinson denied the jurisdiction of the Consistory Court of London to make a decree for the resumption of sexual intercourse between parties who were actually cohabiting. Although a decree of restitution of conjugal rights did not compel a respondent to have sexual intercourse with a petitioner after they resumed living together, persistent and wilful refusal of intercourse was a relevant factor in ascertaining whether the decree had been complied with. Bartlett v. Bartlett (1933) 50 CLR 3, at pp 9, 22-23. When statutory jurisdiction in divorce was added to the ecclesiastical jurisdiction of the court, persistent and wilful refusal of sexual intercourse was a relevant factor in determining whether the refusing party had deserted the other, Drake v. Drake (1896) 22 VLR 391; Simons v. Simons (1898) 24 VLR 348, or had given the other just cause to leave, Synge v. Synge (1900) p 180, at pp 195- 196; affd (1901) P 317; Dale v. Dale (1951) 53 WALR 42, but it did not amount in itself to desertion. Maud v. Maud (1919) 26 CLR 1; Weatherley v. Weatherley (1947) AC 628; Dorr v. Dorr (1947) St R Qd 235. Jeune P in Synge v. Synge (1900) P 180, at p 193, said that "a refusal of matrimonial intercourse has never been regarded as a matrimonial offence". Sexual intercourse was realistically treated as an aspect, albeit an important aspect in most cases, of married life the absence of which might, dependent on the total relationship of the parties, be significant to the determination of a charge of desertion. In Powell v. Powell (1948) 77 CLR 521, at p 524 Latham C.J. said:

"Neither a husband nor a wife can repudiate the status of marriage - they remain married whether they like it or not - but one of them may so behave as to destroy some or all of the various elements which constitute married life. Cussen J. indicated these elements in Tulk v. Tulk (1907) VLR 64, at pp 65-66: 'Marital intercourse, the dwelling under the same roof, society and protection, support, recognition in public and in private, correspondence during separation, making up as a whole the consortium vitae, which the old writers distinguish from the divortium a mensa et thoro, may be regarded separately as different elements, the presence or absence of which go to show more or less conclusively that the matrimonial relationship does or does not exist. The weight of each of these elements varies with the health, position in life, and all the other circumstances of the parties.'"

8. The extent of the mutual right to sexual intercourse depends upon the circumstances of the particular marriage. A wilful and persistent refusal to have sexual intercourse is not to be attributed to a spouse when the circumstances of family life are antipathetic to sexual intercourse. In Orme v. Orme, Sir Christopher Robinson observed (1824) 2 Add, at p 385 (162 ER, at p 336):

"Matrimonial intercourse may be broken off on considerations (of health, for instance, and there may be other) with which it is quite incompetent to this Court to interfere."

And, in Jackson v. Jackson, (1924) P 19, at p 27, Hill J. said:

"Refusal to occupy the same bed and refusal to have sexual intercourse may be a fact which, taken with other facts, has weight in considering whether the husband has really caused the wife to live apart. I say may be, because even so, in my view, the refusal of sexual intercourse would have to be considered in connection with the age of the parties, the state of their health, the number of children they already had, and a number of other circumstances."

The obligation of a spouse to consent to sexual intercourse depends on the circumstances: when it is reasonable to consent, there is a connubial obligation to do so. Lush on the Law of Husband and Wife, 4th ed. (1933), p 33, describes the right to sexual intercourse "at all reasonable times and subject to fit health" to be "a condition going to the very root of the contract". But what is reasonable depends on the state of health of the spouses, Heard v. Heard (1942) 43 SR (NSW) 82, and it varies from marriage to marriage, from time to time, from one set of circumstances to another. Holborn v. Holborn (1946) 63 TLR 87; (1947) 1 All ER 32. The persistent making of unreasonable sexual demands is itself a breach of connubial obligation which may entitle the other spouse to withdraw from cohabitation. Holborn v. Holborn; Heard v. Heard (1942) 43 SR (NSW), per Jordan C.J. (diss.) at p 87.

9. The mutual right to sexual intercourse is one of the elements of the mutual right to a full consortium vitae. See In the Marriage of Pavey (1976) 25 FLR 450, at pp 453-454; 10 ALR 259, at pp 261-262; 1 Fam LR 11,358, at pp 11,360-11,361, and it is to be seen in the context of all the conjugal rights to which a spouse is, by virtue of his or her status, entitled. Hunt v. Hunt (1943) 62 WN (NSW at p 133. The context appears in the form of the decree of adherence in Scotland (a decree of restitution of conjugal rights) quoted by Rich J. in Bartlett v. Bartlett. (1933) 50 CLR, at p 9. That decree -

"'Ordains the defender to adhere to the pursuer, his wife, her society, fellowship, and company, and to cohabit, converse with, treat, cherish, and entertain her at bed and board, and otherwise as a married person should do to his wife, and that during their joint lives'".

A corresponding obligation rests upon a wife.

10. Far from relegating a wife to the position of a sexual chattel, the status of wife created by marriage confers on a wife a right (to adopt the language of the Scottish decree) to live with her husband, to have him listen and talk to her, to be cherished, to be entertained at bed and board and treated with respect. These are not rights which can be enforced by decree but they are rights attached to the status of husband and wife. To jurists in the ecclesiastical courts, the attachment of these rights to the status of a wife distinguished the institution of marriage from the state of concubinage "which degrades (a woman) as the object of loose desire and mere sensual gratification". Poynter, AConcise View of the Doctrine and Practice of the Ecclesiastical Courts in Doctors' Commons, 2nd ed. (1824) pp 2-4. Marriage is an institution which casts upon a husband an obligation to respect a wife's personal integrity and dignity; it does not give the husband a power to violate her personal integrity and destroy her dignity. It would be impossible to preserve, much less to foster, the institution of marriage as an exclusive union of man and wife for life if it were otherwise.

11. To acknowledge a connubial obligation not to refuse sexual intercourse wilfully and persistently is to acknowledge that the giving of consent to acts of sexual intercourse is necessary to perform the obligation. It would have been inconsistent with such an obligation to hold that, on marriage, a wife's general consent to acts of sexual intercourse has been given once and for all. If no further consent was required on the part of a wife, how could there be a wilful and persistent refusal of sexual intercourse by her? The ecclesiastical courts never embraced the notion of a general consent to sexual intercourse given once and for all on marriage by either spouse. The doctrine of the ecclesiastical courts was quite different, namely, that each spouse has a mutual right to sexual intercourse provided the right be exercised reasonably, subject to the health of the spouses and the exigencies of family life. It is a right to be exercised by consent. It is a right the exercise of which is intended to foster and maintain connubial love, not to be an occasion of abuse and degradation.

12. The Family Law Act says nothing to the contrary. It does not provide that a husband has a right to sexual intercourse whenever and however he wishes or that a wife is to be taken to have consented to any act of sexual intercourse with her husband irrespective of the circumstances. The Family Law Act could not so provide. The legislative power of the Parliament is limited to the enactment of laws with respect to the institution of marriage and no support could be found in s.51(xxi) of the Constitution for a law which purported to change the essential incidents of marriage. In the Marriage of Cormick (1984) 156 CLR 170, at p 182.

13. To avoid the possibility of conflict between the right of a husband in respect of sexual intercourse with his wife and s.73(3) of the Criminal Law Consolidation Act, the Commonwealth sought to deny the existence of continuing legal rights of the spouses in respect of sexual intercourse. It was submitted that -

"the Family Law Act embraces a view about the institution of marriage which accords a respect for the spouses' free and equal choice as to what that union means to them above and beyond that which the Act lays down and the conditions therefore upon which it may continue." (Emphasis added.)

If I understood this argument correctly, it was submitted that the mutual rights of spouses in respect of sexual intercourse have been abolished and the status of husband and wife no longer entitles them to claim from each other a reasonable sexual expression of their connubial relationship. The condition on which a marriage may continue is said to be the continued agreement of the spouses and, in the context of sexual relations, each spouse is free to consent to or refuse intercourse on any occasion without reference to the rights of the other spouse. Such an argument eliminates the difference between the status of husband and wife bound by mutual obligations to consent to sexual intercourse when it is reasonable to do so and the relationship of a man and a woman who, not being bound by those obligations, are free to give effect to their individual desires of the moment in deciding whether to engage in sexual intercourse or not. The argument was supported by the abolition of the "fault" grounds of divorce and the consequent power of either party to separate from the other and to put an end to the marriage. That circumstance combined with the abolition of jurisdiction to decree restitution of conjugal rights or judicial separation, s.8(2) of the Family Law Act, have eliminated the occasions when the courts have found it necessary to spell out the mutual rights of the spouses and the occasions when, in consequence of a breach of connubial obligation by one spouse, the courts have granted relief to the other. It must be said that the Family Law Act, in its provisions relating to divorce, operates without reference to the rights and obligations of the parties arising from the marriage, but it does not abolish connubial rights and obligations. If it had that effect the Act would be invalid, for the institution of marriage and the status of husband and wife are inseparable from the connubial rights and obligations which are the incidents of the institution and which give content to the status. However, in my view, the Act leaves connubial rights and obligations intact. The jurisdiction conferred by s.114 of the Act (especially sub-ss.(1)(d) and (2)) assumes the continued existence of those rights and obligations. If the Act were to deny their relevance in the exercise of all jurisdiction under the Act, the Act would be open to the reproach that s.43(a) is no more than a piece of cynical window-dressing to mask a legislative attack on the institution of marriage which that section proclaims a "need to preserve and protect". For my part, I would hold that the connubial rights and obligations arising from marriage were unaffected by the enactment of the Act save as to their extinguishment by divorce or suspension by a decree under s.114. I would reject the Commonwealth's submissions. It does not follow, however, that a husband's right in respect of sexual intercourse is inconsistent with s.73(3) of the Criminal Law Consolidation Act or that a wife is to be taken to consent to any act of sexual intercourse with her by her husband.

14. The notion that there may be some such inconsistency arose not from the incidents of marriage but from a definition by Hale of a husband's liability for the crime of rape at common law. Hale's History of the Pleas of the Crown (1736), vol. 1, p 629 states that a "husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract". As we have seen, by marriage a wife has not "given up herself" to her husband so as to expose herself to what would ordinarily be described as rape by her husband. Had the ecclesiastical law been as Hale thought it to be, the wife would have been relegated to the rank of concubine. Although Lord Lane C.J. in Reg. v. R (1991) 2 WLR 1065, at pp 1067-1068 thought that Hale was supported by Lord Stowell's observation in Popkin v. Popkin(65) that a "husband has a right to the person of his wife, but not if her health is endangered", I am respectfully unable to find that support in what Lord Stowell said. His Lordship was speaking of a wife's refusal of the advances of a husband who was infected with venereal disease and who had engaged in conduct that was "most improper and violent". I do not understand his Lordship to hold that a husband has "a right to the person of his wife" without her consent. I would understand this sentence in his Lordship's judgment to be consistent with - not to undermine - the substantial doctrine of the ecclesiastical courts.

15. Hale's reason for limiting a husband's liability for the crime of rape does not accord with the law of marriage. Nevertheless, the elements of the crime of rape were fixed in the light of Hale's mistaken reason so that the scope of the crime of rape at common law did not extend to acts of sexual intercourse between husband and wife. Hale's assertion that a husband could not be guilty (as a principal in the first degree (1794) 1 Hag Ecc 765n (162 ER 745, at p 747)) for rape of his wife was accepted as the common law. In Bellchambers (1982) 7 A Crim R 463, at p 465 Neasey and Everett JJ., commenting on Hale's statement, said:

"Despite a substantial degree of judicial criticism of this principle (for example, the views expressed nearly 100 years ago in parts of some of the dissenting judgments among those of the thirteen judges who comprised the Court of Crown Cases Reserved in Clarence (1988) 22 QBD 23 it still expresses the common law, which may, however, as in Tasmania, be varied by statute."

That opinion accords with the decisions in other Australian jurisdictions. See C (1981) 3 A Crim R 146, at p 150; Reg. v. McMinn (1982) VR 53.

16. The reason assigned by Hale for limiting the scope of the crime of rape was accepted by a majority of the judges in Reg. v. Clarence (1888) 22 QBD 23, but one of the majority was Stephen J., the author of A Digest of the Criminal Law. In the first edition of the Digest he gave effect to Hale's statement in Art.254(71):

"(1.) A husband (it is said) cannot commit rape upon his wife by carnally knowing her himself, but he may do so if he aids another person to have carnal knowledge of her."

But he added a footnote(72) to that text:

"1 Hale, PC 629. Hale's reason is that the wife's consent at marriage is irrevocable. Surely, however, the consent is confined to the decent and proper use of marital rights. If a man used violence to his wife under circumstances in which decency or her own health or safety required or justified her in refusing her consent, I think he might be convicted of rape, notwithstanding Lord Hale's dictum. He gives no authority for it, but makes the remark only by way of introduction to the qualification contained in the latter part of clause (1), for which Lord Castlehaven's Case (1631) 3 St Tr 401 is an authority."

In the fourth edition (published in 1887), however, the author altered the footnote at p 194, fn 4 to state his opinion that in the circumstances postulated a man might be convicted "at least of an indecent assault". The reference to conviction for rape was deleted. This explains the statement by Stephen J. in Clarence where he said (1888) 22 QBD at p 46

" I wish to observe on a matter personal to myself that I was quoted as having said in my Digest of the Criminal Law that I thought a husband might under certain circumstances be indicted for rape on his wife. I did say so in the first edition of that work, but on referring to the last edition (p 124 (sic), note), it will be found that that statement was withdrawn."

The view which his Lordship had expressed in the first edition was echoed by some of the judges in the minority in Clarence. Wills J. said ibid., at p 33:

" If intercourse under the circumstances now in question constitute an assault on the part of the man, it must constitute rape, unless, indeed, as between married persons rape is impossible, a proposition to which I certainly am not prepared to assent, and for which there seems to me to be no sufficient authority."

And Field J.'s view was this ibid., at p 57:

"But it is argued that here there is no offence, because the wife of the prisoner consented to the act, and I entertain no doubt that, if that was so, there was neither assault nor unlawful infliction of harm. Then, did the wife of the prisoner consent? The ground for holding that she did so, put forward in argument, was the consent to marital intercourse which is imposed upon every wife by the marriage contract, and a passage from Hale's Pleas of the Crown, vol.I p 629, was cited, in which it is said that a husband cannot be guilty of rape upon his wife, 'for by their mutual matrimonial consent and contract the wife hath given up herself in this kind to her husband, which she cannot retract.' The authority of Hale, C.J., on such a matter is undoubtedly as high as any can be, but no other authority is cited by him for this proposition, and I should hesitate before I adopted it. There may, I think, be many cases in which a wife may lawfully refuse intercourse, and in which, if the husband imposed it by violence, he might be held guilty of a crime."

In Scotland, Hale's statement was adopted by Baron Hume in 1797 in his Commentaries on the Law of Scotland, Respecting Crimes vol.1, p 306 and followed by later writers but in S. v. H.M. Advocate (1989) SLT 469, at p 473 the Lord Justice-General, speaking for the High Court of Justiciary, doubted Hume's view:

"Our first observation is that if what Hume meant was that by marriage a wife expressly or impliedly consented to sexual intercourse with her husband as a normal incident of marriage, the reason given affords no justification for his statement of the law because rape has always been essentially a crime of violence and indeed no more than an aggravated assault. Even in Hume's time there was no immunity for a husband who assaulted his wife even if the assault contained elements of the grossest indecency. If, on the other hand, Hume meant that by marriage a wife consented to intercourse against her will and obtained by force, we take leave to doubt whether this was ever contemplated by the common law, which was derived from the canon law, regulating the relationship of husband and wife."

17. Hale's (and Hume's) reason for the common law rule that a husband could not be guilty as a principal in the first degree of raping his wife was extremely dubious. In my respectful opinion, Stephen's footnote in the first edition of his Digest is to be preferred over his footnote in the fourth edition. Stephen's doubts expressed in the first edition were, I think, well founded; Hale, Hume, and Stephen in the fourth edition were, in my respectful opinion, wrong in principle. Hale's reason for the rule is not supported by the law of marriage. Nor is that reason supported by any other doctrine of the common law. The common law prohibited one spouse from being a witness for or against the other, see, for example, Tindal C.J. in O'Connor v. Marjoribanks (1842) 4 Man and G 435, at p 443 (134 ER 179, at p 182) but exceptions were admitted on the ground of necessity, Bacon, A New Abridgment of the Law, 6th ed. (1807), vol. II, p 578, when a husband inflicted bodily injury on his wife or deprived her of liberty, Wakefield's Case (1827) 2 Lewin 279 (168 ER 1154); Reeve v. Wood (1864) 5 B. and S.364 (122 ER 867); Hawkins, Pleas of the Crown, 8th ed. (1824), vol.II, p 601, or assisted a third party to rape her, Lord Audley's Case (1631) 3 St Tr at cols. 402,414. Thus a wife was competent to testify against her husband on a charge of assault and battery (even a battery by a husband's mere kissing of his wife against her wish. Reg v. Pearce (1840) 9 Car and P 667 (173 ER 1003); R. v. Azire 1 Strange 633 (93 ER 746)). There seems to be no reason other than Hale's statement why a wife might not be a competent witness at common law against her husband on a charge of marital rape. See, for example, Best, Principles of the Law of Evidence, 7th ed. (1883) pp 176, 177.

18. Irrespective of the validity of Hale's reason for declaring that a husband could not be guilty as a principal in the first degree of rape of his wife, it appears that a substantive rule of the common law was established by his declaration. Thus Sir Samuel Griffith, in drafting his Criminal Code in accordance with his understanding of the common law, defined the relevant element of rape to be "carnal knowledge of a woman, not his wife". Draft Code, s.353 enacted as The Criminal Code (Q.), s.347; (W.A.), s.323 (1902) and s.325 (1913). These provisions have been amended: see The Criminal Code, Evidence Act and Other Acts Amendment Act 1989 (No.17 of 1989) (Q.), s.31; and the Acts Amendment (Sexual Assaults) Act 1985 (No.74 of 1985) (W.A.), ss.8 and 10; and see The Criminal Code (Tas.), s.185(1), substituted by s.18 of the Criminal Code Amendment (Sexual Offences) Act 1987 (No.71 of 1987) (Tas.). In common law jurisdictions, however, exceptions were judicially introduced to the substantive rule in cases where the ordinary relationship of husband and wife had been interrupted by the making of a decree nisi, Reg. v. O'Brien (1974) 3 All ER 663 or a separation order, Clarke (1949) 33 Cr App R 216; (1949) 2 All ER 448 or even by the spouses' making of a separation agreement, Reg. v. Miller (1954) 2 QB 282 on the ground that, in those situations, there was no deemed consent.

19. The House of Lords has held recently in Reg. v. R (1991) 3 WLR 767 that "in modern times the supposed marital exception in rape forms no part of the law of England", ibid., at p 776. Their Lordships viewed this decision in the same way as Lord Lane C.J. had viewed it in the Court of Appeal (Criminal Division):

"This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it." (1991) 2 WLR at p 1074.

In my respectful opinion, the common law fiction has always been offensive to human dignity and incompatible with the legal status of a spouse. However, a mere judicial repeal of the section would extend the liability for conviction of the crime of rape to cases which would be excluded from liability for conviction by s.73(5) of the Criminal Law Consolidation Act.

20. It is not necessary to consider the present state of the common law in South Australia, for s.73(3) of the Criminal Law Consolidation Act abolishes Hale's reason for investing the husband with immunity for marital rape and dispels Hale's misunderstanding of the effect of marriage upon a wife's consent to sexual intercourse. The common law fiction of consent has been statutorily removed. As the common law fiction found no resonance in the law which defined the nature and incidents of marriage, s.73(3) does not affect the institution of marriage. Section 73(3) is wholly consistent with the law of marriage in that both deny that marriage carries with it the wife's irrevocable and general consent to acts of sexual intercourse with her husband. The effect of s.73(3) operating in conjunction with s.48 of that Act is to extend the liability for conviction of the crime of rape to include cases of non-consensual sexual intercourse by a husband with his wife falling within s.73(5). The protection of the criminal law of rape is thus extended to wives where the offence "consisted of, was preceded or accompanied by, or was associated with -

(a) assault occasioning actual bodily harm, or threat of such an assault, on the spouse;

(b) an act of gross indecency, or threat of such an act, against the spouse;

(c) an act calculated seriously and substantially to humiliate the spouse, or threat of such an act;

or (d) threat of the commission of a criminal act against any person" s.73(5).

Sections 48 and 73 leave untouched the mutual connubial rights and obligations of spouses in respect of sexual intercourse and they do not otherwise affect the institution of marriage. Sections 48 and 73 operate consistently with the Marriage Act and the Family Law Act. Section 114 of the latter Act has the same work to do now as it had before s.73(3) was enacted. Therefore the question which led to the removal of part of this cause into this Court, namely:

"Is section 73(3) of the Criminal Law Consolidation Act, 1935 (S.A.) invalid by reason of inconsistency with section 114(2) of the Family Law Act 1975 or by reason of inconsistency with any other provision of the Family Law Act 1975 or of the Marriage Act 1961"

should be answered: No. The cause should be remitted to the Supreme Court of South Australia with a direction that it be dealt with in accordance with the answer given by this Court.

DAWSON J. I agree that there is no inconsistency between s.114(2) of the Family Law Act 1975 (Cth) and s.73(3) of the Criminal Law Consolidation Act 1935 (S.A.). The Family Law Act assumes, but does not seek to define, those "marital services" and "conjugal rights" the performance or rendering of which forms part of a marriage. As Brennan J. demonstrates in his judgment, the mutual rights and obligations of the parties to a marriage are traceable to ecclesiastical law and do not owe their origin or existence to the common law or to legislation. The Family Law Act, understandably enough, does not attempt any comprehensive definition of the rights and obligations of the parties to a marriage. The power of the Commonwealth Parliament to legislate with respect to marriage (Constitution, s.51(xxi)) is predicated upon the existence of marriage as a recognizable (although not immutable) institution. Just how far any attempt to define or redefine, in an abstract way, the rights and obligations of the parties to a marriage may involve a departure from that recognizable institution, and hence travel outside constitutional power, is a question of no small dimension. But all that s.114(2) does is to make available, without specifying or defining what constitutes "marital services" or "conjugal rights", a remedy in the form of an order relieving a party from any obligation to perform or render them. That sub-section operates in aid of the preceding sub-section, which confers power to grant a wide variety of orders or injunctions. Neither s.114 nor any other section of the Family Law Act has anything to say about the extent to which consent to sexual intercourse is to be implied from the marriage contract and s.73(3) of the Criminal Law Consolidation Act, in removing any presumption of consent, does not therefore impinge upon the operation of the former enactment. There is no conflict.

2. A submission was put on behalf of the accused that s.114AB(1) of the Family Law Act, in attempting to preserve the concurrent operation of certain State and Territory laws, otherwise evinces an intention to exclude State laws. That submission cannot be sustained. Section 114AB(1) provides:

"Sections 70C, 70D, 114 and 114AA are not intended to exclude or limit the operation of a prescribed law of a State or Territory that is capable of operating concurrently with those sections."

The sections mentioned in s.114AB(1) deal with injunctions and powers of arrest in situations of domestic violence and reg.19 of the Family Law Regulations (Cth) prescribes a number of State and Territorial enactments dealing directly or indirectly with remedies for domestic violence.

3. But in seeking to ensure that, as far as possible, State and Territorial laws operate concurrently upon the limited matters dealt with by ss.70C, 70D, 114 and 114AA of the Family Law Act, s.114AB(1) does not have anything to say about the rights and duties of the parties to a marriage and does not operate to exclude a State legislature from denying a presumption of consent to sexual intercourse arising out of marriage.

4. Sir Matthew Hale in his History of the Pleas of the Crown (1736), vol. 1, p 629 appears to have originated the notion that consent to sexual intercourse is to be implied from marriage, regardless of the circumstances. That proposition is more often than not couched in terms of an irrebuttable presumption. Indeed, that is the way s.73(3) of the Criminal Law Consolidation Act approaches the matter. Upon that approach it is apparent that Hale's view can no longer represent the common law, if it ever did. Hale relied upon no authority other than his own assertion (which nevertheless was of considerable weight) and that authority was eroded by the inevitable recognition of the fact that, at least in some circumstances of separation, consent cannot be presumed. That led the High Court of Justiciary in Scotland in S. v. H.M. Advocate (1989) SLT 469 to ask whether the revocation of a wife's implied consent to intercourse, which is revocable, is capable only of being established by separation. The Court gave its answer in the judgment of the Lord Justice-General, Lord Emslie, ibid., at p 473:

"In our opinion the answer to that question must be no. Revocation of a consent which is revocable must depend on the circumstances. Where there is no separation this may be harder to prove but the critical question in any case must simply be whether or not consent has been withheld."

That view was adopted by the House of Lords in Reg. v. R (1991) 3 WLR 767 and should be adopted here. It is, of course, unnecessary to express any opinion on the matter for the determination of this case. But I think that it is appropriate to say that, whatever may have been the position in the past, the institution of marriage in its present form provides no foundation for a presumption which has the effect of denying that consent to intercourse in marriage can, expressly or impliedly, be withdrawn. There being no longer any foundation for the presumption, it becomes nothing more than a fiction which forms no part of the common law.

Orders

This Court answers the question identified in that part of the cause removed in action No. 126 of 1990 pending in the Supreme Court of South Australia as follows:
Question: Is section 73(3) of the Criminal Law
Consolidation Act 1935 (S.A.) invalid by reason of inconsistency with section 114(2) of the Family Law Act 1975 (Cth) or by reason of inconsistency with any other provision of the Family Law Act or of the Marriage Act 1961 (Cth)? Answer: No.

Remit that part of the cause to the Supreme Court of South Australia.

Direct that the cause be dealt with in accordance with the answer given by this Court.