Consent doesn’t end with “I do” – The law on sexual assault in marriage
Sexual assault laws are based on the principles of autonomy, consent, and personal freedom regardless of the relationship between the individuals involved. One of the most common misconceptions that still exists today is the belief that marriage provides legal immunity from sexual assault charges. This is simply not true under current Australian law.
At National Criminal Lawyers, we believe it’s important to clarify the legal position and debunk outdated myths that can lead to confusion, or worse, criminal liability.
The Legal Position: Marriage Is Not a Defence
Australian law is unequivocal on this point: being married to someone does not give you the legal right to engage in non-consensual sexual activity with them. This position is enshrined in state and federal legislation across the country.
For example, under Section 61I of the Crimes Act 1900 (NSW), sexual assault is defined as sexual intercourse without consent, regardless of whether the parties are strangers, dating or legally married. There is no clause in this section, or anywhere else in the Act, that provides a marital defence.
In fact, NSW and other Australian jurisdictions have explicitly abolished any common law presumptions of “marital consent” that once may have existed.
Consent Must Be Freely Given – Always
Consent is the cornerstone of all sexual offences in Australia. It must be:
- Freely and voluntarily given
- Informed and specific to the act
- Capable of being withdrawn at any time
A person has the right to say no to sex at any time, even in a marriage. If sexual activity occurs after consent has been refused, withdrawn, or was never given, it may constitute sexual assault, regardless of marital status.
The Historical Context: Changing the Law
Historically, the idea that a husband could not rape his wife was rooted in outdated English common law. That principle was formally rejected in Australia over several decades, with NSW abolishing the marital rape immunity in 1981.
Today, the law recognises that all individuals have the right to bodily autonomy, and marriage does not override this fundamental human right.
Can Marriage Ever Be Relevant?
While marriage is not a defence, it may sometimes be a relevant contextual factor during a trial or sentencing. For example:
- The nature of the relationship may influence the assessment of consent or intent.
- Past sexual history within the marriage may be raised, but only with strict judicial oversight, and subject to evidence laws.
- A marriage may be considered when assessing credibility, motive, or reasonableness of belief in consent, but never as a standalone defence.
It is also important to note that family violence or coercive control can complicate how consent is assessed, particularly in long-term relationships or marriages involving emotional or physical abuse.
Defending Allegations of Sexual Assault in Marriage
Allegations of sexual assault within a marriage are complex and sensitive.
At National Criminal Lawyers, we take a strategic and compassionate approach to defending such cases. Possible legal defences include:
- Actual consent was present
- The accused had a reasonable belief that consent was given
- Factual disputes about whether the incident occurred as alleged
- Issues with evidence credibility, motive, or inconsistencies
Each case requires a detailed, evidence-based defence strategy, particularly given the serious nature of these allegations and the impact they can have on families, reputations, and future prospects.
Final Thoughts
In Australia, no relationship, including marriage, provides immunity from sexual assault laws. Consent is required at all times marital status does not change that. If you are facing allegations of sexual assault, especially within a domestic or marital context, contact our experienced team without delay.
Call our Parramatta Criminal Lawyers today on 1800 CRIM LAW or click here.
