Rape in marriage accused dies before trial

Updated November 02, 2012 19:47:05

An elderly man who was being prosecuted in a landmark case for raping his wife nearly half a century ago has died before he could stand trial.

The 81-year-old South Australian man was facing several sex charges including rape allegedly committed against his former wife in 1963.

The elderly man took his fight to the High Court arguing he could not be tried for an offence that was not considered illegal at the time.

His lawyer argued that at the time of the alleged offences it was a common law principle that a man could not be convicted of raping his wife.

His legal team argued that although it would be considered abhorrent by modern standards, the courts could not apply contemporary values to the case.

But the High Court dismissed the man's appeal in May, ruling that the marital rape immunity was not part of the common law.

The matter was referred back to the South Australian District Court for prosecution.

Prosecutors have now advised the court that the man died in September, and tendered his death certificate.

Judge Peter Brebner dismissed the case.

The man's death certificate says the cause of death is unknown and will be the subject of further coronial inquiries.

Women's advocacy groups had welcomed the High Court's decision, saying it would give a lot of people hope that they could seek redress for the terrible crimes committed against them many years ago.

Legal experts also welcomed the judgment, saying it helped clear ambiguity about the complex legal issue.

Previously there were authorities to suggest judges did think there was a marital rape immunity, but the country's highest court has made it clear that there was no such immunity in Australia from 1935.

Topics: courts-and-trials, sexual-offences, adelaide-5000, sa

First posted November 02, 2012 18:08:15