My adventures in the Law (Episode I)

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.

1998.

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.

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2 Comments

  1. lets just say this. from someone who lives in WA. i find alot of our laws and legislations ridiculous! i also find that at times they bring in stuff as a knee jerk reaction to an event. i mean i am not saying the intro of the BWS is bad. i am just saying i worry about our system sometimes.

    one such law i find amusing is the tax levy we still have to pay which was introduced way back when to fund the ammunition for the soldiers in like ww2. and we are still paying it. that tells you something hey…

    Reply

  2. “Anonymous” aka laziicat –

    Qld has some great legal anachronisms too! One we only just recently got rid of (recent being mid 2005, I think) was Telling Fortunes is a Crime. Punishable by Imprisonment. Must have been a carry over from more religious, medieval days …

    Reply

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