Man on trial for raping wife 49 years ago

The 81-year-old man, who has not been identified is to stand trial charged with raping his former wife nearly 50 years ago.

An 81-year-old man is to stand trial charged with raping his former wife nearly 50 years ago, after he failed to convince Australia's highest court that the crime did not exist in the 1960s.

The Adelaide man, who has not been identified, argued that Australia was a "very unenlightened and socially backward country" at that time.

Homosexuality was illegal, Aborigines were not recognised as citizens, the "White Australia" policy was still in force - and rape within marriage was not a crime.

However, five out of seven High Court judges disagreed, ruling that as far back as 1935 - when rape was made punishable by life imprisonment and whipping - the notion that marriage gave men an unrestricted right to sex was no longer part of common law. They ordered that his District Court trial go ahead. As well as rape, the man is charged with carnal knowledge and assault causing actual bodily harm.

The judges heard that he and his wife married in 1962, when she was 17 and he was 31. He allegedly raped her twice the following year, when they were living with her parents in Adelaide. They divorced in 1971, and he was charged in 2010.

The man's legal challenge had already been rejected by the South Australian Supreme Court. His lawyers argued that the "marital exemption" to rape was part of common law until the High Court ruled in 1991 that marriage did not mean a wife gave "irrevocable consent to sexual intercourse by her husband".

They also claimed that Australia was "by modern standards" very backward in the 1960s. Racial discrimination was legal, and there was no such thing as sexual harassment. David Bennett, QC, said the man would not have been convicted had he stood trial in 1963, and he urged the courts not to apply contemporary values to the law as it stood back then.

However, the five judges concluded that by 1963 changes to divorce, property and voting laws - all of which affected women's status - had removed any basis for accepting that argument. The other two judges disagreed, finding that in 1963 - however "abhorrent" the idea might seem now - it was not a crime for a man to rape his wife.

Bennett had already signalled that, if unsuccessful, he planned to mount a second legal challenge, arguing that his client could not receive a fair trial on charges dating back nearly half a century.