Criminal law in the bedroom: a study of South Australian 'rape in marriage' legislation

Criminology Research Council grant ; (11/77)

This research aimed to assess the impact of rape law reform in South Australia. The main changes in law investigated were:

  • In 1975 legislation was passed enlarging the definition of rape to include non-consensual anal penetration of both men and women.
  • Further legislation was passed in 1976 extending the definition of rape to include oral intercourse.
  • The same legislation removed the immunity of husbands from prosecution for the rape of their wives.
  • On the evidentiary side legislation was passed which placed restrictions on the introduction of .. evidence about a victim's previous sexual experiences and general sexual morality, and which effectively excused the alleged victim from having to give evidence at the preliminary hearing.

The study also explored the operation of the South Australian Police Department procedures for dealing with sexual offence complaints. At that time, a squad of specially trained policewomen attended the complainant throughout the investigative and court process. Also investigated were the medical procedures for treating victims and for collecting forensic evidence. These were accomplished by a panel of doctors at a major Adelaide public hospital. This panel included female practitioners, thus giving a victim the choice of a woman doctor.

The empirical research was conducted over a six month period in 1978 when extensive interviews were carried out with women's groups, lawyers, politicians, doctors, marriage guidance counsellors and many others with direct involvement in the area.

In broad summary it was found that the changes were essentially the result of strong political pressures brought to bear by the impact worldwide and at the local level of the modern women's movement. This was coupled with a government which was very receptive to women's rights. It was found that the legal changes were generally accepted as well-based in policy and sensible in direction. There were, however, strong pockets of resistance, in some instances ideological and in others technical. Ideological resistance to the rape in marriage prohibition arose from religious and conservative interests. Technical objections to the evidentiary changes in the law were raised by the judiciary and the defence bar. These groups generally felt that the changes had unduly tilted the delicate scales of justice too much towards the prosecution in the effort to achieve justice for the victim. Amongst prosecuting and defence lawyers there was widespread dissatisfaction with the final form of the legislation, as amendments were necessitated by parliamentary compromise. There was one notable instance in which a judge of the South Australian Supreme Court redrafted a large portion of the evidentiary legislation and included the result in his reported judgement in a case.

At another level the research revealed a climate of opinion which suggested that quite radical legislative reforms can be achieved and can be quickly accepted by the community generally if politicians have the courage of their convictions to act in accordance with what they think should be done rather than balk at proposals because of perceived pockets of vocal opposition.

Specifically, the new definition of rape appears to be working quite well. It was too early to make definitive statements about the impact of the evidentiary provisions because there was still a strong element of judicial discretion involved and, at the time of writing the report, a pattern had yet to be established. The researchers did have criticisms of the police procedures; despite the well-intentioned inclusion of policewomen in the system, there appeared to be far too much duplication of interviewing which compounded the stress experienced by the victim. At the time of the research, the medical panel of women doctors was in difficulty because of dwindling levels of interest in the scheme.

Most importantly, at the broad sociological level it seemed clear to the researchers that the legal and procedural changes accomplished were part of a process of social and attitudinal change. Placing the sexes on an equal level as far as sex offence law is concerned clearly has had an important symbolic, educational and conceptual impact and has set the pattern for continual movement in that direction.

A monograph article based upon the research is soon to appear in the Adelaide Law Review monograph series. Another article dealing specifically with rape in marriage is soon to be published in an American social science journal.