In an odd decision that sets a questionable precedent, an Australian appellate court has decided that although there was no such crime as spousal rape in 1963, because marriage implied consent to sex under common law, a man accused of the new crime of spousal rape should now stand trial for the nearly 50-year-old alleged crime.
It’s doubtful that the facts of such an old case can ever be accurately represented, which raises the question of why courts want to try the man at all, but more importantly the decision sends a clear message that courts can arbitrarily punish people simply by having laws changed and arresting them for violating laws that didn’t exist when they engaged in this or that activity. For example, say a Christian theocracy took hold in some Western country (highly unlikely — I know), made abortion illegal, and then rounded up all the abortion providers for having aborted babies when it was legal to do so. Aside from the divergent politics, there’s really no difference from a legal standpoint.
Even in recent politically-motivated prosecutions in the US, such as the arrests of suspected killers of civil rights activists decades after the fact, the men were charged with crimes that were clearly against laws that stood at the time, and there is no statute of limitations on murder. In fact, the only cases in which people have been prosecuted by civilized nations despite not having broken contemporaneous laws are war crimes trials, e.g. Nuremberg and the Tokyo Trials.
What this suggests is that Australian judges see pre-feminist Australian society as having been ruled over by an illegitimate regime, which would throw into question the legitimacy of the current Australian legal regime, based as it is upon precedent and a constitution that predates 1970 by many decades. Perhaps the only logical conclusion is that Australia is a lawless society, ruled over by strongmen in black robes, and with a constitution worth less than the paper it’s written on.
I took a class once on the state of law in China, and we learned about different types of legal regimes. One, which would seem to apply to primitive societies, is “Rule of Man,” in which there is no law but the ruler’s word. A step up from that is “Rule by Law,” in which the ruler uses laws, usually issued by decree, to control society. Finally, the most enlightened system is “Rule of Law,” in which no man is above the law. One might argue that Australia has descended to Rule by Law, but actually, in retroactively applying today’s law, it appears to be closer to a Rule of Man society, or the most primitive kind of legal regime.
