In 1998, I was horrified to discover that Western Australia was patting itself on the back for having legislatively removed the concept of a wife always consenting to sex with her husband. Yes, way back then in 1998, the State of WA changed its laws so that a man could rape his wife. Before 1998, a man who had sexual intercourse with his wife, whether or not she agreed, could not possibly have raped her. That act of having said “I do” in some half-thought out ceremony however many years ago was all the ‘consent’ the law needed.
And then I was even more shocked to discover that the change to the laws was only just on the cards for Queensland.
What prompted that change was the horrific case of H (1995) A Crim R 88 – whose husband raped her, in front of the baby-sitter and their children, and who was sentenced to a non-custodial sentence (he didn’t go to jail). I’m not highly supportive of the prison system, myself; but it was the WA Court of Appeal’s reasoning that really made my blood boil. One of their reasons for imposing a non-custodial sentence was that, to imprison the husband, would be to deprive the raped H and her children of “the support and assistance” of the rapist vis-a-vis his role, presumably, as breadwinning husband. Never mind the clear treatment of her as something less than human.
As a commercial lawyer, I don’t often have to deal with any type of crime, so this has lain dormant in my mind until I read about some further proposed changes to the law.
The law is inherently conservative. I am aware of this. Change is slow. Changing the law requires multifarious strategies: ‘softly, softly’; fight from all angles; agitate; cogitate; but most of all persistence.
Western Australia is, with much fanfare, considering whether to bring in a statute (parliament) created defence of ‘battered woman’.
I would, most certainly, advocate the creation of the defence of battered woman/person syndrome.
It was in 1998 that ‘Battered Woman’s Syndrome’ hit the big time law books – in the case of Osland v the Queen. This meant that it had been lurking in the lower courts system for at least half a decade prior. In Osland, it didn’t succeed to mitigate the woman’s sentence, or, indeed, vitiate her conviction.
You see, BWS doesn’t fit into traditional self-defence. Because the defence of self-defence was created by men, with men in mind – it requires immediacy, proportion of response to immediate threat created. Case law has come some way to altering and broadening the definition of self-defence. And it will be a very good thing that a statue-based defence is created.
But I am flabberghasted that it has taken so long. And I expect the furore to be great – people still fail to acknowledge the devastating impact family violence has on an individual, and it is still viewed through a stereotyped “it doesn’t happen to people like us” lens.
I sincerely hope it the ‘BWS defence” gets into the lawbooks, and that other states will follow suit.