Article by Cameron Spink

 

A rather intriguing case is to come before the South Australian courts regarding a man who is charged with raping his wife forty-seven years ago. Obviously for those involved the description of "intriguing" is hardly adequate but as a mere bystander I must confess that this case raises several legal and ethical issues worth discussing.

 

As we stand at the moment the South Australian Court of Criminal Appeal has affirmed the right to prosecute this man even though rape within marriage was not a crime in 1963. This raises the fundamental question of whether someone can be retrospectively guilty. That is, can someone commit a future crime?

 

Because of this ruling in the South Australian jurisdiction individuals can be guilty after the fact. To be fair retrospective jurisdiction and punishment has been used consistently through-out history, particularly in the trials after the second world war.

 

Commentator Tory Shepherd, who writes for The Punch, stated "[t]he standards and beliefs of 1963 were wrong. Any alleged rape, assault and carnal knowledge (the current charges) were wrong, even if they weren't strictly illegal". Such a position can be attacked in several ways. Firstly, Shepherd has equated that law and morality should match. This is absurd, there are many ways that law does not adequately cover what is classed as "moral". It is equally muddied by the fact that everyone has a different perception of morality.

 

However, Shepherd's greatest mistake was clarifying the "standards and beliefs of 1963" as wrong. Surely as we move into the future there will be laws that are branded "archaic" and "wrong". Does that mean that the "standards and beliefs" of 2011 are wrong? Indeed, if this is correct why should we even punish this old man for his crimes? After all, standards change and we will eventually be seen as outdated.

 

To be quite honest I can label a few laws that exist today that I think are out of touch with morality. Take, for instance, the gruesome abortion law that requires a doctor to perform an abortion or suggest another practitioner who would. Or the religious tolerance laws that silence those who would speak the truth regarding the interpretation of many holy books. Both don't really seem to fit within a society of "rights" and "equality".

 

Still this does not touch on whether rape within marriage is immoral and, as it is the charge, should be expounded upon. Paul, in his letters, sets out what Christian marriage should look like. In Ephesians 5 wives are told to submit to their husbands and husbands to love their wives and make them holy. In 1 Corinthians 7 Paul states that the wife's body does not belong to her alone and, similarly, the husband's body is not his alone.

 

Paul goes on to command that neither should "deprive each other except by mutual consent" (1 Cor 7:5). This seems to indicate that it is alright for the man to have sex with his wife in all circumstances. However, this would be an incorrect reading of the passage and the ideals of biblical marriage. While wives are required to submit to their husbands, it is the husband's job to love their wife and keep them holy. I would suggest that rape would not be, in any way, a loving act nor would it establish a holy spouse.

 

The marriage partnership, as designed by God, is the creation of one body within two people. Every action that occurs within that body should be designed to strengthen and not tear down. This is why sex is so powerful within biblical marriage. It is an intimacy between two people who are committed to each other and moving towards God. It is a team effort and not like other worldviews that hold that a wife is the property of her husband.

 

Furthermore, marriage is merely the closest example of what humans have for what God has done for us. Indeed, Paul states "husbands, love your wives, just as Christ loved the church and gave himself up for her" (Ephesians 5:25). Christ loves us all but he gives us the choice to follow Him and does not require or force us into His kingdom. In the same way it is not right for a husband to force his wife to have sex with him.

 

Therefore, it is an appropriate position to say that rape within marriage is immoral. However, for most, morality is an evolving concept that is shown as "archaic" in years to come. Without a basis to stand upon one cannot condemn another for immoral actions (as we are all sinners we shouldn't anyway). Particularly not in another time or place. The law, though, does not act with morality in mind but with justice and the upholding of society. Despite these admirable goals the law cannot act retrospectively in denouncing actions that it once allowed. In doing so it undermines the framework that it professes to stand upon.

 

http://www.thepunch.com.au/articles/when-was-rape-not-rape-in-1963

http://news.smh.com.au/breaking-news-national/sa-man-can-be-prosecuted-over-wifes-rape-20110119-19w5o.html