Rape-in-marriage law introduced by Labor's Peter Duncan in South Australia in 1976 attracts world attention
South Australian attorney general Peter Duncan who commissioned the report into sexual assault laws by a group led by supreme court justice Roma Mitchell (pictured when she became Australia's first female Queen's Counsel in 1963).
Don Dunstan’s Labor state government, with attorney general Peter Duncan steering legislation, attracted world attention when it introduced a bill in 1976 to make it a criminal offence for a husband to rape his wife.
This went further than what was recommended by a special report that Duncan commissioned into sexual assault laws by a group led by supreme court justice Roma Mitchell. The Mitchell Report condemned the idea that a married woman had committed herself to indefinite vaginal (and anal) sex but suggested marital sexual violence should be handled through the family court without criminal charge (except for separated couples).
But, besides 1975 being International Women's Year and South Australia having influential women’s groups and rape action centres in place, the reformist Dunstan Labor government had an attorney general Peter Duncan who believed “a woman should have the protection of the criminal law regardless of whether she was married, unmarried, living with the spouse or not”.
Criminalising marital rape attracted opposition from a wide range of interest groups and individuals, including social conservatives, some religious groups, parliamentarians, and conservative women’s groups. Opposition revolved around state control of the marital bedroom, fear of marital breakdown, the “vindictive wife” and the difficulty of proof.
The legislation introduced to the South Australian parliament in 1976 removed all immunity from prosecution of a husband for raping his wife. The Liberal Party opposed this and advocated setting up more women's shelters and rape crisis centres as a short-term answer to husbands maltreating their wives, sexually or otherwise.
The bill passed in the House of Assembly and went to the Legislative Council where the Liberals had the majority to pass an amendment by their leader Ren De Garis that a husband couldn’t be indicted for raping his wife (except as an accessory) unless the offence involved an assault or threat of bodily harm. He added the same to apply in the case of oral or anal intercourse. Labor’s Anne Levy called this “one of the most incredible amendments I have ever seen” and that she could see no “justification whatsoever for distinguishing between the orifices of the human body in this way”.
DeGaris’s changes were passed and, after a deadlock with the House of Assembly, remained part of the legislation. This meant marital rape was partly criminalised in South Australia in 1976. Full crimination was started by New South Wales and Victoria in 1981, with Queensland the last state in 1989.
