Marital rape: retrospectivity and the common law

Abstract

The principle against retrospectivity is fundamental to legal systems across the world and is of particular importance in criminal prosecutions. Australia has a body of common law regarding the retrospective application of statutory criminal provisions, but has rarely considered retrospectivity in the common law itself. The 2012 marital rape case of PGA v The Queen offered an opportunity to consider how the principle against retrospectivity applies in the Australian common law to the prosecution of historical criminal offences. This article contends that the High Court missed the opportunity that PGA presented, by taking an unnecessarily narrow view of the principle against retrospectivity. The result of the High Court’s approach is that a significant gap still exists in our jurisprudence and the case declined to address the moral dilemma of balancing the principle against retrospectivity with the implications of upholding a marital rape immunity.