Husband to face rape trial after 50 years

Manic Moran

The problem arises when old acts are amended, some numerous times, acts are combined etc. In such a case the Oireachtas may not have intentionally passed any legislation to be retrospective (complying with Article 15.5.1), but the wording of the new law could be interpreted that way depending on the wording. Your case could end up in the Supreme Court for them to decide

Mmm... I see where you're going, but I'm not buying it. There's no 'intent' qualification in the Constitution either. If a sex act was legal in 1960, an amendment to a law targetting, I don't know, unlawful ice cream sales, was made in 1961, and the sex act was then illegal by way of an unintended consequence of the 1961 amendment, that doesn't negate the fact that it's an ex post facto law as far as the alleged sex offender is concerned and is to be struck down.

NTM

Little Acorn

If the defense is trying to say that the man shouldn't face trial because of when the alleged rape occured -[ because it was legal at the time],
then if he succeeds will that not be completely breaking their current laws regarding rape that are standing today?
How can they accept the defense's arguments without completely breaking, or else rewriting the existing laws that they have now?
Is this what the lawyer is hoping they do, ie- rewrite the current rape laws so that it doesn't include rapes in marriage before 1963?

Because as I posted earlier in this thread, they seem to be saying that under their current law, it doesn't actually matter if the alleged rape was legal at the time.

In its 2-1 decision, the Court of Criminal Appeal held that the prosecution could continue because under the current law, rape in marriage is a crime irrespective of when it occured.

The court of criminal appeal seems to have told the lawyer that basically,
the law is the law and that is how the rape laws stand today.
The current laws don't seem to include any exemption for pre 1963 marital rape cases,
so unless the lawyer somehow gets them to rewrite their current laws, and gets them to add in an exemption for such cases, then there isn't a case there for dismissal based solely on the time period when rape may have occurred. Not if there current law doesn't allow for exemptions anyways.

I don't know all the specifics about Australian rape laws. I'm only going on what the criminal appeal court ruled, "under their current law" etc.

kowloon

Wolfe Tone wrote: »

You cant make laws to punish crimes retrospectively.

Whole lot of people really wishing we could.

Manic Moran

Little Acorn wrote: »

If the defense is trying to say that the man shouldn't face trial because of when the alleged rape occured -[ because it was legal at the time],
then if he succeeds will that not be completely breaking their current laws regarding rape that are standing today?
How can they accept the defense's arguments without completely breaking, or else rewriting the existing laws that they have now?
Is this what the lawyer is hoping they do, ie- rewrite the current rape laws so that it doesn't include rapes in marriage before 1963?

Because as I posted earlier in this thread, they seem to be saying that under their current law, it doesn't actually matter if the alleged rape was legal at the time.

Your assessment of it is correct. However, there is a very strong element of justice which says that the law should not be allowed to stand, or at least should be limited by date. The Legislature is only one facet of the source of law, common law and equity are two other sources. Ordinarly, the legislature will win that battle, but not always, and indeed, one of the judges is of the opinion that this is one of those cases. I would not be surprised to see this case being taken to the High Court of Australia for further review. I hope so, anyway.

The moral compass on retroactive laws is fairly widespread. It's one of the things that countries from the US to Iran agree with in their Constitutions, it's also prohibited, in the case of criminal law, by the European Convention on Human Rights. Just the Aussies are not up to speed with most of the rest of the world here. It is certainly their right to be different, but I wonder if it's not just an oversight.

NTM

SuperInfinity

Did this judge never hear of the two-week rule?

J K

Manic Moran wrote: »

The moral compass on retroactive laws is fairly widespread. It's one of the things that countries from the US to Iran agree with in their Constitutions, it's also prohibited, in the case of criminal law, by the European Convention on Human Rights. Just the Aussies are not up to speed with most of the rest of the world here. It is certainly their right to be different, but I wonder if it's not just an oversight.

NTM

In your view is there ever a circumstance where a retroactive law if it could be passed would be a good thing. Can it ever serve natural justice or basically be the right thing to do?

Manic Moran

In your view is there ever a circumstance where a retroactive law if it could be passed would be a good thing. Can it ever serve natural justice or basically be the right thing to do?

No. The road to Hell is paved with good intentions. There is quite simply too much opportunity for either abuse, or for simple unintented catchment of people if the precedent is allowed.

The entire basis of the criminal code is the presumption that we have public knowledge of what can get you into trouble so that you can avoid it and the behaviour is deterred. If you dispense with that philosophy, then what are you left with?

NTM