Shirley Smith Address

Wellington, New Zealand, November 2016

 

‘Criminal Law and the Problem of Men

or

Manliness, Male Right and Criminal law’

by Ngaire Naffine

Bonython Professor of Law

The University of Adelaide

 

  1. The arguments

I start with the words of the distinguished British social historian John Tosh, talking about what he calls ‘the incontrovertible fact of men’s social power’. Writing in particular about the Victorian period, he said

‘men have seldom advertised the ways in which authority over women has sustained their sense of themselves as men….One explanation for John Stuart Mill’s intense unpopularity in conservative circles is that he voiced unpalatable truths in precisely this area – like his assertion in The Subjection of Women that “the generality of the male sex cannot yet tolerate the idea of living with an equal.”.’[1]

My interest is in the ways that the most influential men of law – scholars, judges and law makers – employed criminal law to enforce and to justify their authority over women and so sustain their sense of themselves as men, but without advertising the fact.

This may sound like a provocation and as excessively polemical. Mindful of this, I will draw heavily on the words of influential legal men, about themselves, their own character, and their sense of civil conduct.  By adopting the point of view and the words of some of the most powerful men of criminal law I hope to let them speak for the mainstream of my discipline. With Tosh I will be arguing that for some of the most instrumental men of law, their ‘authority over women … sustained their sense of themselves as men’ and in a manner which compromised and even flouted their most basic principles, as criminal jurists.

I suggest that the best way to discover the character of legal men, as men, is to see how they defined themselves in relation to those whom they thought they were not, and indeed did not want to be: that is women. And the place where they located and expressed these supposed differences, and felt them most keenly, was in their own homes and in relation to the woman with whom they were living and from whom much was expected – their wife.  The criminal law governing this sphere is therefore very revealing about the character of men.

In their public lives, the men of law had ensured that women were largely out of the way as competitors, commentators and as threats. Women were not permitted to occupy the most important public offices; they could not attend university; they could not vote; and upon marriage their money was handed over to the husband; and marriage was the main occupation permitted women. So in public life, for all of the nineteenth century and much of the twentieth century, men essentially dealt with men and their economic concerns and physical fears were directed at other men. And it was the harms that could be inflicted by men that they sought to make criminal and punish. Men’s fears and concerns were therefore internal to their sex. In terms of the public lives of men, women had been pretty well eliminated as persons of any influence and judges repeatedly declared women not to be ‘persons’ up to nearly the fourth decade of the twentieth century. Middle class men bartered and bantered with middle class men and passed criminal laws to ensure that they were as safe as they could be, as they necessarily encountered other men in their public lives. Their fears for their own safety and their uses of criminal law were directed at other men.

But at home, men had daily contact with the other sex and looked to criminal law to ensure that they were not impeded in the pursuit of their interests, which to put it simply were to have  access to their person and their property. Mill declared that “the generality of the male sex cannot yet tolerate the idea of living with an equal.” And it was ‘the living with’ a woman who was legally and economically not his equal, which brought man’s interests, perceived needs, and own character, as a man, sharply into focus.  An equal woman, a real other person, would necessarily have as her most fundamental right – as the cornerstone of criminal law – the ability to exclude all others from her person. Criminal law did not support her in this: it was employed positively and negatively to ensure that the husband could exercise personal control in the most intimate ways, including the use of force, and in a manner which was utterly anathema to criminal law as a general body of law and principle. In other words, he could lawfully rape her.

 

  1. How was this anathema to a principled criminal law? The problem stated

As the most influential legal philosopher of the twentieth century HLA Hart expressed it, because we ‘are not ‘giant land crabs with an impenetrable carapace’, which extract nutrients from the air,[2] there must at least be ‘rules forbidding the free use of violence and rules constituting the minimum form of property’. These were the minimal conditions of life if we were to be civilised persons living in developed nations.

The right not to be touched and not to be hurt has been regarded as the foundation stone of criminal law as a principled institution and discipline, committed to ensuring civility in our public and private lives. The most basic function of criminal law and justice, it is repeatedly said, is to protect our bodily integrity. The moral and political starting premise of the discipline is that we all, equally, have this right to exclude others from our bodies, sometimes called our persons. John Stuart Mill in On Liberty (1859) called it our ‘sovereignty’, our very personhood.

 

To influential criminal law theorists, this State condemnation of unwanted intrusions and the associated use of force – from assault, to rape, to murder – continues to supply the moral centre or ‘core’ of their discipline. Again and again, the view is expressed that both rape and murder must be condemned outright, and this condemnation is essential to the moral legitimacy of criminal law.[3] A polity which fails to make criminal such conduct, it is asserted, is failing to respect the personhood of all and so can not call itself civilised. This is why rape and murder are often called ‘core’ or ‘central’ crimes.[4]

 

The conundrum at the centre of this paper is that this criminal legal commitment to our bodily integrity, to our right to control our physical borders, has been highly qualified in the case of the crime which, perhaps more than any other, is directed at unwanted intrusions into the body: the crime of rape. The criminality of rape, alongside murder, has been treated as essential: the hallmark of a civilised criminal law. But at the same time, criminal law has quite explicitly suspended the requirement not to assault and not to rape in the case of the husband wanting sex with an unwilling wife.

 

Legal scholars and jurists have gone along with this, accepting the immunity: sometimes explicitly; sometimes by implication; sometimes through silence. A legal exemption from rape prosecution, for every husband, persisted to the dying decades of the twentieth century, with little quarrel from some of the leading criminal legal thinkers. The immunity made legal the rape and it probably made legal the associated force necessary to achieve penetration without consent. Lawmakers and legal scholars knew and accepted this grand exception but persisted with their claims that in the absence of comprehensive crimes of rape and murder, a polity could not call itself civilised.

 

With the benefit of hindsight, this now looks like faulty reasoning within the discipline, but is it? Moreover it appears to be contradictory thinking of a profound nature, for the rape immunity seems to undermine the foundational claims of criminal law to protect our persons, impartially, with vigour, and regardless of our sex. And importantly for our men of law, it confers on them powers over, and rights to, another which are antithetical to their foundational claims about their discipline. It shapes their moral natures, suspending their moral duties and endowing them with rights to the person of another.

 

I wish to reflect on the deep moral and intellectual tensions in the thinking of the men of law, how they managed and sublimated these tensions, because male right to women was so important to them, but so was their sense that they were doing no wrong by asserting it.

This was a profound tension because marriage was fundamental to male life and male interests. Marriage, and their lives with women, was not just an incidental feature of men’s lives. This was a sphere which men were positively expected to enter, occupy and dominate in order to become whole men. As Virginia Woolf observed, marriage was a ‘completing of the instrument’.[5] The man who did not have a wife was suspect and incomplete and it was criminal for him to turn his sexual attentions to other men.

I start my inquiry into my men of law in roughly the middle of my study period, the 1970s, then cast back to the Victorian period and beyond, for the provenance of this thinking by legal men about male right. And then I will track forward to the end of the twentieth century and into the present and consider the implications of this thinking for criminal law and the modern polity.

 

  1. The Problem Illustrated: DPP v Morgan [1976] AC 182

One night in August 1973, in the English city of Wolverhampton, Daphne Morgan was home asleep in the bedroom of her young son, in a single bed, where she habitually slept. She was woken by the presence of four men in the room. One was her husband William Morgan and the others were his friends. All were members of the RAF but William was a good deal older and senior in rank. Daphne was seized and ‘frogmarched’ to another bedroom with a double bed and then serially raped. The three friends raped her first, with the incitement and physical assistance of her husband, and then William raped her too.

The three friends informed the court that William Morgan had told them  that his wife liked kinky sex and that they should ignore any signs of struggle. They said that they believed they had her consent when she did in fact struggle. Morgan knew the truth of  the matter, but he was not charged with rape as a principal offender because he was the husband. On the facts, the court found their claims of belief in consent preposterous. But it went on to assert that the man who genuinely believed he had consent, no matter how unreasonable that belief, did not have the guilty mind of a rapist.  He was not criminally responsible.

Three years after the rapes, the appeal case of  DPP v Morgan [1976] AC 182 was decided by the House of Lords and went on to become a landmark rape case. William Morgan, the husband, was both present and absent from his trial and from the appeal; he was called to account for some things, but not for others. As the husband of the alleged victim, who orchestrated the group rape, William Morgan was not charged as the main offender and, it was assumed, could not be charged. Morgan is perhaps the most famous case on the law of rape and probably the one that has caused the most controversy, but not for the immunity from prosecution of the main rapist. This fact about the case of Morgan passed with little comment. And I am particularly interested in the nature of the attention and inattention to Morgan as a marital rape case – what was noticed and thought to be of interest, and what slipped into the background.

 

  1. What did contemporary legal experts think of the immunity?

First I consider what contemporary legal commentators thought of the non-prosecution of husbands for wife rape. Around the time of DPP v Morgan, a number of England’s and Australia’s leading experts in criminal law scrutinised and endorsed the husband’s immunity. They even examined the force needed to sexually penetrate an unwilling wife. They arrived at different views about the degree of force that could be lawfully used to do this. There was no doubt in their minds that marital rape per se, on its own, was lawful and appropriately so. The differences of agreement were about whether the attendant force would give rise to other offences against the person, such as assault, the rape itself remaining lawful. None expressed deep concern about the immunity or found it of great intellectual or moral interest. Some explained why it made good sense. Later, when it looked like the immunity would be abolished, some actively protested.

The easy acceptance of the immunity, and the assumed good sense of it,  was evident in the scholarship emerging from the leading law schools of Australia and England. Twenty years before Morgan, in 1954, Norval Morris and A L Turner, then senior lecturers in law at the University of Melbourne, had recommended the use of force by a husband against a wife in the following terms.

‘Intercourse…is a privilege at least and perhaps a right and a duty inherent in the matrimonial state, accepted as such by husband and wife.  ….  There will … be some cases where … the wife may consistently repel her husband’s advances. If the wife is adamant in her refusal the husband must choose between letting his wife’s will prevail, thus wrecking the marriage, or acting without her consent.  It would be intolerable if he were to be conditioned in his course of action by the threat of criminal proceedings for rape.’ [6]

Norval Morris went on to become Dean of Adelaide Law School and then one of the world’s leading criminologists, based in Chicago, and was in other ways a great liberal reformer, concerned about the plight of prisoners. It was in his attitude to women and wife rape that he showed incivility. I know of no endeavours by Morris to explain, excuse or rescind these views. And yet Morris, with Turner, imagined wife rape as a sort of marital difficulty: if a wife got out of hand, behaved wilfully, if she assumed unnatural authority, the husband might have to take matters in hand, and assert himself in this sexual manner, and he would be wise to do so. This was not a matter for criminal law.

 

In 1965 the author of Australia’s leading textbook on criminal law, Colin Howard, declared that:

“[A] husband should not walk in the shadow of the law of rape in trying to regulate his sexual relationships with his wife.”’[7]

In 1977 Howard delved into the degrees of violence that the criminal law would tolerate from the husband wanting sex from an unwilling wife. He surmised that

‘If a husband cannot be guilty of rape upon his wife, it follows that he is entitled to overcome her resistance to intercourse. Logically, since rape is an aggravated assault by the fact of intercourse, it follows that if V cannot withhold her consent to intercourse she cannot withhold her consent to an assault made for the purpose of achieving intercourse; so that the law of assault cannot reach a husband who attacks his wife unless the attack is not for the purpose of overcoming her resistance to sexual relations.’[8]

In other words, as long as the husband precisely had the intention to rape, he could not only rape with legal impunity but, logically, he could lawfully use the force needed to achieve it – in order to overcome his wife’s defence of her person.  It was only if the husband employed ‘unjustifiable brutality’ that he might be convicted of assault. (1982 ed, 163)

Glanville Williams, England’s preeminent criminal legal scholar for much of the twentieth century, maintained a consistent position on the domestic power of the husband which he implicitly endorsed. In 1947 he adopted a playful attitude to male right in an article on the marital unity principle – the principle that husband and wife are legally one person – published in England’s leading learned journal, the MLR. Though the marital unity principle was a ‘venerable maxim’, he appreciated that ‘the spouses’ do not ‘participate equally in the personality that is thus created for them’. Instead ‘it would be closer to the rules of the common law to say, in the words of the wag, that “man and wife are one – but the one is the man.” He added, waggishly, that ‘The wife was not reduced to the position in law of say, a dog.’ [9]

In his Criminal Law textbook, which went through repeated editions, from the 1970s, Williams suggested that women enjoyed mastery.  With no contemporary evidence to support it he said ‘That some women enjoy fantasises of being raped’ and that ‘they may, to some extent, welcome a masterful advance while putting up a token resistance’.[10]

In the 1980s Williams’ influence on the Criminal Law Revision Commission on sexual offences helped to ensure the retention of the husband’s rape immunity.[11] By 1992, Williams had become positively animated by the removal of the immunity. He spoke more boldly in defence of the immunity and gave a variety of explanations and defences of the misguided husband. Williams was now seriously worried about the exposure of the husband to criminal prosecution for rape.

After all, he might act ‘in pursuance of what he misguidedly thinks of as his rights’ or he might be ‘suffering from an unbearable sense of the loss of his partner by separation’ or ‘he may even, stupidly, think that by forcing himself upon her he may regain his affection’ or he might be ‘distraught by what he regards as the unfaithfulness of his wife’.[12]  And anyway ‘rape by a cohabitee…though horrible cannot be so horrible and terrifying as rape by a stranger.’[13]  For all of these reasons the foolish husband ‘deserves some consideration’.[14]

Williams and Howard were not only leading scholars but they held the levers of law making; they sat on the government committees that provided critical recommendations about the future of law; thus they provided instrumental advice, in the interests of men and against those of women.

In other ways these men of law were committed to a principled criminal law. Glanville Williams was a liberal progressive thinker who campaigned for abortion and euthanasia rights. Norval Morris campaigned for the rights of prison inmates. It is this progressivism which makes their thinking about the rights of husbands over wives more striking and perhaps more indelible. It suggests an entrenched system of thought and engrained attitudes and a lack of reflection about the problems of consistency with basic criminal law principle.

 

  1. Subjectivism – what Morgan came to stand for

Other members of the legal community spent a good deal of time studying the marital rape case of Morgan but made little of the non-prosecution of William Morgan, as husband. This fact hardly registered. Their attention was instead directed elsewhere, to other legal principles which were of greater disciplinary concern.

DPP v Morgan became intensely interesting to criminal legal scholars in quite another way and it becomes an important case in the ensuing analysis and teaching of criminal law, for decades.[15] It came to stand for the principle that there should not be responsibility for very serious crime in the absence of subjective fault. In the case of rape this meant that the accused must realise that the victim was not consenting. Even a grossly unreasonable belief in consent should be incompatible with responsibility. Rape and Morgan became almost a fixation for the scholar debating the appropriate mental state for truly serious crime and trying to ascertain the principled solution.

Meanwhile Morgan was largely invisible to the scholarly community as a marital rape case – or rather as a case where the main rapist was considered legally incapable of rape, as a principal offender and so was not charged as such. An examination of the facts and charges in Morgan therefore demonstrates, in a dramatic manner, the selective and qualified manner in which criminal law criminalised rape and called men to account. The reception of this case, and what it came to stand for, is also revealing. Lawful wife rape was a given thing, in the background of rape law. What was of real interest was how much a man had to know to be blamed for the rape of a woman to whom he was not married.

 

  1. Going back in time:

How did this remarkable male right to another’s person come to seem so normal and natural and not a hideous perversion of criminal law? And where did it come from?

In 1736 Sir Matthew Hale[16] in his History of the Pleas of the Crown provided a brief statement of the sexual rights of the husband to the wife.

Hale said that ‘ the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.’[17] This was written extra-judicially and published posthumously but it came to assume the force of law, by sheer repetition.[18] Hale has been revered over the centuries as a great jurist.

And yet late in his career, in 1662, Hale presided over a trial of two women charged with the crime of witchcraft, provided a condemning summing up to the jury, the jury swiftly convicted, and Hale sentenced these two old women to death and they hanged.[19] Hale firmly believed in possession by the Devil, and at a time when belief in witches was in retreat, and Hale considered the criminal law an appropriate response to women who used their alleged powers to bewitch to harm others. This case then formed an important precedent for the Salem trials.

The more complete and chilling legal account of male right over women came from William Blackstone who is still feted for his Commentaries on the Laws of England (first edition 1765).  Though Blackstone overstated the case, he wrote of and approved the annihilation of women by men and their absorption into a man, upon marriage.  It is hard to imagine a stronger endorsement of the deliberate legal erasure of human identity and the passing of control over one life to another. The husband is made the master of the very being, the mind, the will and the body, of his wife.

‘By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything… her husand, [is] her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by marriage…For this reason, a man cannot grant anything to his wife, or enter into covenant with her, for the grant would be to suppose her separate existence: and to covenant with her would be only to covenant with himself…’[20] (my emphasis)

This notorious statement by Blackstone has come to be treated as an account of the incapacities of wives neglecting the fact that it is as much a statement about the assumed rights and powers and legal character of men as husbands: it enunciates and approves a man’s right to the money, the body, and in Blackstone’s own words, the very ‘existence’ of the wife.

Coverture bloated and extended the married man: the property, the person, and the very will of another became his. Rather than confining himself to his own human borders, as he was expected to do with other men, he was permitted to extend himself into his wife, turning her into occupied territory.

Hale and Blackstone supply the legal setting of the Victorians and are revered figures to the present day. I now make a leap forward in time to the Victorian period and reflect on the thoughts on male right of two great public figures. One was repulsed by the idea that men should exercise such domestic power; the other endorsed it.

 

The Victorian Debate

In 1869, a century after Blackstone, the political philosopher John Stuart Mill offered a blistering critique of marriage and considered its implications for the moral character of men. In The Subjection of Women[21] Mill described ‘the law of marriage’ as ‘a law of despotism’[22] with ‘the wife [as] the  actual bond-servant of her  husband’.

‘Above all, a female slave has (in Christian countries) an admitted right, and is  considered under a moral obligation,  to  refuse her master the last familiarity.  Not so the wife:  however brutal a tyrant she may be unfortunately chained to,  though it may be  his daily pleasure to torture her, and though she may feel it impossible not to loathe him  – he can claim from  her and enforce the lowest degradation of a human being, that of being made the instrument of an animal function contrary to her inclinations.’ [23]

Mill openly recognised the abuses of married life, where uncivilized behaviour was permitted and indeed countenanced by the state – positively creating men of bad character.  Mill was unusual in that he reflected on the implications of the immunity for male responsibility and accountability, how it shrivelled their moral personhood of men. Said Mill: ‘Even the commonest of men reserve the violent, the sulky, the undisguisedly selfish side of their character for those who have no power to withstand it. The relation of superiors to dependents is the nursery of these vices of character.’[24]

In Liberty, Equality and Fraternity first published in 1873 , James Fitzjames Stephen offered a direct riposte to Mill. Stephen, was the most prolific and influential criminal legal scholar of the nineteenth century, a judge and also the uncle of Virginia Woolf.  He said:

‘There is something… unpleasant…in prolonged and minute discussions about relations between men and women, and the characteristics or women as such. I will therefore pass over what Mr Mill says on this subject with a mere general expression of dissent from nearly every word he says.’ [25]

To Stephen,

‘There are some propositions which it is difficult to prove, because they are so plain, and this is one of them. The physical differences between the two sexes affect every part of the human body, from the hair of the head to the soles of the feet, from the size and density of the bones to the texture of the brain and the character of the nervous system…men are stronger than women in every shape. They have greater muscular and nervous force, greater intellectual force, greater vigour of character….These are the facts, and the question is whether the law and public opinion ought to recognize this difference?’[26]

Stephen believed that it ought.

For Stephen, the criminal law was the wrong sort of law for a marriage. As his biographer observed, Stephen characterised ‘marriage in terms of the ultimate supremacy (or sovereignty) of one party.’[27]

Said Stephen,

“To try to regulate the internal affairs of a family…by law…is like trying to pull an eyelash out of a man’s eye with a pair of tongs. They may put out the eye, but they will never get hold of the eyelash.”[28]

Stephen’s conviction that the powers of the husband extended to the person of his wife was revealed in another landmark case,  Clarence in 1888.[29] Here a husband was at trial charged and convicted for inflicting grievous bodily harm to his wife by transmission of gonorrhoea which he knew he had and which he also knew would cause his wife to refuse sex should she be told about it. So he said nothing. His conviction was quashed on appeal largely due to the reasoning of Stephen. Stephen insisted that the concealment of the disease did not destroy her consent and also that the transmission of the disease did not constitute grievous bodily harm. Along the way Stephen also indicated that he accepted the rape marital immunity anyway, though this was not essential to the case, and so remained obiter.

Piecing together Stephen’s judicial and extrajudicial writing on men we can see that he was consistently and openly patriarchal. He cast the legal actor, its primary rights holder and duty bearer, as a man and in his own image. Women were primarily thought of as wives who were under the protection and control of their husbands who were their natural superiors. Each husband was sovereign of his domestic estate. Stephen was dismissive of Mill’s concerns – that such unqualified power would eat away at the characters of men.

And Stephen was of course not alone in his thinking about the natures of men and women: why men were natural rulers in the domestic sphere and why they alone should exercise power in the public sphere, in so-called civil society. Among the Victorians, there was ‘an unquestioned belief that men and women belonged to different categories’.[30] The Earl of Halsbury, also a leading judge and jurist, was quoted as saying in 1887 that women are ‘not suited to political life’. They ‘are too hypocritical…[they are] not…safe guardians in government’.[31] We might reflect briefly about recent events in the US to consider the modern legacy of these thoughts.

I have already described the legal thinking of the middle of the twentieth century leading up to and around the time of Morgan in the 1970s. Then the immunity of husbands from wife rape was still settled and accepted law and either drew little comment or was positively endorsed.

 

  1. Modernisation/Assimilation/Revision in the 1980s and 1990s

In 1976, SA was the first common law jurisdiction in the common law world to criminalise rape in marriage, but it confined the crime to aggravated rape. There was considerable resistance to even this change. In the 1980s, the various Australian state jurisdictions legislated to criminalise wife rape completely. Canada did so in 1983. New Zealand did so in 1985.

In the last two decades of the twentieth century, the immunity was also considered and removed at common law, with minimal comment and without deep reflection. In 1989, the Scottish High Court of Judiciary employed the language of modernisation in S v HM Advocate in which it recognised the right of the married woman to complain of rape. The law was bound to change because married women had emerged out of status. ‘By the second half of the 20th century … the status of women, and the status of a married woman, in our law have changed quite dramatically.’[32] And so the law followed suit.

In 1991, the House of Lords in its abolition of the immunity in RvR employed similar, terse reasoning, when it spoke of modernisation: ‘[of] the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.[33] The unfortunate implication is that it was not offensive before. In the same year, the Australian High Court employed comparable rhetoric in the equivalent Australian judgment:

‘The notion [of the immunity] is out of keeping …with recent changes in the criminal law of this country made by statute, which draw no distinction between a wife and other women in defining the offence of rape.  It is unnecessary for the Court to do more than to say that, if it was ever the common law that by marriage a wife gave irrevocable consent to sexual intercourse by her husband, it is no longer the common law.”[34]

Here there is even a suggestion that the Australian common law may never have recognised the immunity, though the entire legal community acted as if it did – from police, to prosecutors, to judges, to legal intellectuals. This idea is revived by the Australian High Court some twenty years later in 2012 when it formalises this liberal reinvention of the past.

 

PGA v The Queen

In PGA the official tale of modernisation finds a recent reprise. In PGA the Australian High Court was asked to decide whether a husband could be found guilty of the rape of his wife in 1963, whether it was a crime then known to law, and the majority decided that he could and it was.[35] The court declared that by the nineteen sixties, Australia was an enlightened country in its treatment of women so that the crime of rape could even be committed against a wife. Legal improvement had come early to Australia because we were an especially progressive nation.  Thus, to the surprise of the Australian legal community and probably the common law world the Court declared:

‘By the time of the enactment in 1935 of the CLC Act,  [the relevant SA law] if not earlier (a matter which it is unnecessary to decide here), in Australia local statute law had removed any basis for [the immunity] …. as part of the English common law received in the Australian colonies.  Thus, at all times relevant to this appeal, and contrary to Hale’s proposition, at common law a husband could be guilty of a rape committed by him upon his lawful wife.  Lawful marriage to a complainant provided neither a defence to, nor an immunity from, a prosecution for rape.’[36]

 

The dissenting judges decided that this was not so. They observed that the leading legal intellectuals of the 1960s and 1970s claimed that a man could not rape his wife and that the crime was virtually never prosecuted. This was unfortunate perhaps, they implied, but it conformed to the thinking of the times. It was only in the late 1970s that South Australia criminalised the aggravated rape of a wife when there was exceptional violence, not just normal justified force;[37] other jurisdictions in Australia and the rest of the common law world then commenced a programme of criminalisation and modernisation of rape law through the eighties and into the nineties.

PGA is a highly editorialised tale of progress and enlightenment, of steady improvement; of bringing law up to date and ensuring its full and proper reach. There is little sense of the human rights abuses sanctioned by a law which not only made rape lawful but also made lawful the force, otherwise known as assault, needed to achieve sexual intercourse when compulsion was needed.[38]  Rather there is anodyne talk of changing times. The revisionist history of PGA is not an open consideration of the past uses of a concept; it is more in the form of a denial. It seems to get to a point, quickly, at which one might expect a brave and bold inspection of past uses of concepts but then it pulls up.

 

  1. The New Individualism

So where have we got to now? I have argued that Male sexual right was explicit in the Victorian period. It was still there in the middle of the twentieth century but it is treated more euphemistically. By the end of the century the right was steadily removed: the immunity of husbands from prosecution steadily abolished and in the name of modernisation. And modernisation brings with it a new supposedly gender-neutral character: the person or the individual of the sexual and non-sexual offences against the person, now meant to encompass both men and women, without fear or favour. In the modern period, the search for legal principle is regarded as something which can be done without reference to the profoundly gendered history of criminal law.

What I have observed in this paper is an explicitly male leading legal character supposedly undergoing a transformation, a modernisation, so that he is no longer a particular sex but an anyone.  By the modern period, these explicitly assertive  men have all but disappeared as legal characters; the person has become abstracted; the individual, the citizen, the person and the subject are rigorously used as terms to keep men and women out of it.

In some of the most influential modern scholarship in criminal law today there is a concerted endeavour to find the wrong or harm of the most serious offences in a manner which removes the need to talk about men and women and their very different histories in criminal law. Theory is developed at a remarkably high level of abstraction. There is talk of harm to persons, wrongs to individuals, and there is hardly a man or woman in sight.

Legislation too tries to get men and women out of the picture. The New Zealand offence of ‘sexual violation’, which includes the crime of rape, uses the following abstracted language:  ‘Person A rapes person B if person A has sexual connection with person B, effected by the penetration of person B’s genitalia by person A’s penis.’[39] I assume that Person A who has the penis is meant to be a man but the term is studiously avoided.

Sometimes the pronoun used by criminal scholars to theorise about criminals and criminality is sexed female just to drive home the point that now women can cover the male case. In a discipline seeking to define, punish and explain criminality, this is hardly a compliment to women who are not responsible for the majority of offending.

But we have not had the necessary accompanying reflection on our legal individual’s necessary sex change. This requires attention to the man problem of criminal law. There needs to be open reflection on the moral and intellectual effects of the simple fact that men have occupied all the positions of influence. Men have been the judges, law-makers, academics, the theorists of the state, colonial administrators and they have actively preserved their terrain. They have been all the public figures of influence, and they have also been the authority figures in the home and actively asserted that authority through law. They have engineering the rules of civilised society.

So the conversation of criminal law has been conducted between men, about men and their lives, it is directed towards men and the threats they pose to each other, though men may not be mentioned as men. This is an in-group talking to themselves, excluding from the discussion those who are unlike them, who might offer a different and critical point of view. Wives, for one, are remarkably absent from this discussion. If no robust and respected counter point of view/understanding is permitted, the influential way will just look right and normal and the less influential and different views will seem to be misguided chatterings.

There is in fact a very tight demographic to be observed. It is a small and privileged social and legal world populated by a small culturally homogeneous group of persons, a male elite of rule makers and rule interpreters, located within intellectual families of influence, often actively guarding its terrain, and delivering its opinions to the like-minded. Fitzjames Stephen for example was the son of ‘Sir James Stephen (1789–1859), colonial under-secretary’. He was educated at Eton and then King’s College London and Cambridge where he became a member of the Cambridge Apostles. ‘His proposer was the young Henry Maine, recently appointed regius professor of civil law, and thereafter a lifelong close friend of Stephen.’[40] Each of these institutions excluded women.

Stephen went on to become a Queen’s Council, and a legal member of the Council of India, successor to Henry Maine, and also a High Court judge. His three sons became lawyers.  ‘The eldest, Herbert Stephen who succeeded to the baronetcy, was an authority on criminal law and practice. Harry Lushington Stephen the third son, was judge of the high court of Calcutta and was knighted in 1913’[41]  Such cultural homogeneity and male exclusiveness is likely to cause strictures in thinking and a failure to reflect on the intellectual effects of cast.

Criminal law has a dark history which remains suppressed. Men’s story, within criminal law and the polity, is still not understood as such, nor treated as intellectually interesting– and thus we lose sight of the fact that men’s concerns, behaviour, their persons and their public and private lives have been at the centre of criminal law. There is a failure to consider the intellectual and moral bias effects of men studying men, with men holding all the main positions.[42]

Men as men need to be examined as a subset of the entire population, with a set of interests. The sex specificity of the conversationalists and their interests and their world view needs consideration. Men remain remarkably under-defined and un-visualised in criminal law analysis.

The English cultural critic and artist Grayson Perry recently discussed this problem of the disappearing man in the The New Statesman.[43] He observes that: ‘white, middle-class, heterosexual men, usually middle-aged’… ‘dominate the upper echelons of our society, imposing, unconsciously or otherwise, their values and preferences on the rest of the population. With their colourful textile phalluses hanging round their necks, they make up an overwhelming majority in government, in boardrooms and also in the media.’ He supplies the supporting statistics. For example ‘93 per cent of executive directors in the UK are white men; 77 per cent of parliament is male.’

Perry has coined a term for him: ‘Default Man’. He says ‘I like the word “default”, for not only does it mean “the result of not making an active choice”, but two of its synonyms are “failure to pay” and “evasion”, which seems incredibly appropriate, considering the group I wish to talk about.’ Perry suggests that Default Man is hiding in plain view, typically dressed in a suit. He is therefore difficult to ‘tweezer out’. The influential man in a suit is the natural face and body of power. And it is his history, which is the history of the individual. The new individualism of criminal law has this covert history.

Because we still do not have a criminal legal story of men, as men, and their changing standards of public behaviour, we do not have an understanding of modern men, as men. The dominance of men as offenders across most types of offending is also not treated as a central intellectual, moral and policy problem of criminal law. There is a failure to look at the big picture, criminal law and justice conceived as a whole. Concerns about male behaviour in relation to women are confined to certain laws. As Tosh explains, ‘In the historical record it is as though masculinity is everywhere but nowhere.’[44]

Criminal law and its makers and interpreters could have taken different courses. At several critical moments, it could have gone different ways and it could also have had different later significance. Clarence and Morgan could have been decided otherwise. They were not unanimous judgments. PGA could have. What seem to be the settled views of the middle of the twentieth century falsely suggest one inevitable trajectory.  They could suggest steady progress in the roles of men and women. Not only do I think we go backwards in some ways in the mid twentieth century but by the time we get to the current period, there has been a loss of the true complexity of the story. And the story of male sex right is treated as one of minor significance to criminal law as a whole – as a body of law and principle. It is either thought of as natural modernisation or it is not thought about at all. Men disappear. We have Grayson Perry’s default man.

 

  1. The Civil Society?

For the modern period perhaps the most important thing is the implication for (male) civility today and to know how it works we need to consider openly the workings and effects of power and self interest. Still missing from the modern account of criminal law, offered by the new liberals, is a sense of the sinister uses of central criminal law and how it has been deployed to permit the abuse of women and to give it legal legitimacy as suitable treatment for a less powerful group.

Some of the modern implications of this uncivil criminal law concern the treatment of public women and may include the hate and rage and sex threats directed at women of authority, pushing all but the most intrepid out of public office. There are the internet sexual threats directed at the woman who challenged Brexit. (Gina Miller). And ‘ according to a wide-ranging analysis provided to The Guardian that compared the treatment of politicians in the US, UK and Australia’… ‘Hillary Clinton received almost twice as much abuse as Bernie Sanders on Twitter this year,’[45] The same study ‘shows that former Australian Prime Minister Julia Gillard also received about twice as much abuse as Kevin Rudd.’

But what is to supply a metric of good criminal law for modern times? The articulation of positive standards of modern civil conduct seems no longer to be the province of the modern criminal law scholar. Much of the current writing about crime is about excessive criminalisation – anti-terrorism laws; criminal law stepping in before there is evidence of actual harm. Today’s scholars are understandably preoccupied with the expansion of criminal law, its encroachment into much of modern life, its anticipation of rather than proof of wrongful conduct broadly conceived, and its consequent departure from principle. This has perhaps meant less time for contemplation of what positively constitutes civil conduct, in modern society, and what role criminal law should play in its preservation. In order to rein in the law, there is still a harking back to a narrow core of wrongs and harms – the ‘true’ common law crimes of violence, of murder and rape, whose wrongness is thought not to be in doubt – and how to make such conduct criminal in a principled manner.

The modern polis is now populated by public women as well as public men and this needs to be factored into modern conceptions of civility: though their numbers remain small, women have assumed political and legal leadership in a manner hardly contemplated by influential legal men of the Victorian period, many of whom were dead against it. Lord Chancellor Halsbury spoke out against the right of women to sit on public bodies.[46]

The current Lord Chancellor is a woman, the first ever, appointed in July 2016: the Lords Chancellor date back to the 11th century. This represents a long unbroken line of men. It is only by recognising the male monopoly of civil life and of criminal regulation for much of the history of criminal law that we can ponder the significance of the possible feminisation of critical leadership roles.

2016 has been a year of witnessing women in leadership roles, and what is required of them and what they face as women. What we now have precisely is women of authority and we also have a knowledge of how they are treated but also of their perseverance in the fact of these threats. And with the President Elect of the USA there is no longer a problem of tweezering out one type of man of authority who is explicitly uncivil to women and who has a long history of contempt for women to draw upon and whose contempt did not preclude his election.

This is not to suggest, as some feminists once did, that powerful public women necessarily bring with them more civil conceptions of civility, though it is an interesting possibility.[47] For example hate speech may indeed be something that female world leaders are more willing to see criminalised, given their greater exposure to it. A more civil society will be one in which ‘the generality of the male sex’ can not only ‘tolerate the idea of living with an equal’ but also sitting down with them and with them explicitly contemplate the norms of civil society in light of the highly gendered history of criminal law.

 

[1] John Tosh, ‘Essays: What Should Historians do with Masculinity? Reflections on Nineteenth-century Britain (1994) 38 History Workshop 179 at  184

[2] HLA Hart ‘Positivism and the Separation of Law from Morals’ (1958) 71 Harv LR 607 at  623

[3] For such statements see J Feinberg, The Moral Limits of Criminal Law:  Volume 1 Harm to Others (OUP, 1984);  RA Duff Answering for Crime: Responsibility and Liability in the Criminal Law (Hart, 2007); V Tadros, Criminal Responsibility (OUP, 2005) ; Simester and Von Hirsch, (2011) Crimes, Harms and Wrongs (Hart, Oxford).

[4] V Tadros Criminal Responsibility (OUP, 2005).

[5] From Virginia Woolf Night and Day

[6] Morris and Turner, ‘Two Problems in the Law of Rape’, (1954) 2 University of Queensland Law Journal 247 at 259

[7] Colin Howard, Australian Criminal Law, (1965) at 146.

[8] Colin Howard,  Criminal Law (Law Book Co, 1977, 3rd ed) 62-3

[9] G Williams, ‘The Legal Unity of Husband and Wife’ Jan (1947) MLR 16, 17,18.

[10] G Williams, Textbook of Criminal Law (Stevens and Sons, London, 1983, 2nd ed) 238

[11] Criminal Law Revision Committee in its Fifteenth Report on Sexual Offences (HMO 1984).

[12] Glanville Williams (Jan 1992) New Law Journal 11 at 13

[13] Glanville Williams (Jan 1992) New Law Journal 11 at 12

[14] Glanville Williams (Jan 1992) New Law Journal 11 at 13

[15] Celia Wells ‘Swatting the Subjectivist Bug’ (1982) Criminal Law Review 209; J Temkin  ‘The Limits of Reckless Rape (1983). Criminal Law Review, 5-16. ; J Temkin, ‘Towards a Modern Law of Rape . (1982) 45(4), Modern Law Review, 399-419.  J Temkin Rape and the Legal Process (OUP, 2002, 2nd ed); Simon Bronitt  ‘Rape and Lack of Consent’ (1992) 16 Criminal Law Journal; Ian Leader-Elliott,  ‘The “Subjectivist Bug” in Australian Criminal Law, 1937-1965: A History and Epilogue’ paper delivered to the University of SA 2016.

 

[16] Chief Justice of the Court of King’s Bench 1671-1676

[17] Sir Matthew Hale, Historia Placitorum Coronae (London Professional Books, first published 1736, 1971 ed) vol 1 629.

[18] See Kos Lesses “PGA v the Queen: Marital rape in Australia: the role of repetition, reputation and fiction in the common law” [2014] MelbULR 7.

[19] Gilbert Geis and Ivan Bunn, A Trial of Witches: A Seventeenth-Century Witchcraft Prosecution (Routledge, London and New York, 1997).

[20] William Blackstone (1723-1780), Commentaries on the Laws of England, in Four Books (The Fourteenth Edition with the last Corrections of the Author; and with Notes and Additions by Edward Christian (1758-1823, Chief Justice of the Isle of Ely and the Downing Professor of the Laws of England in the University of Cambridge, now held by Sarah Worthington), Cadell and Davies, London, 1803), Book 1, ‘The Rights of Persons’, Chapter 15, p 442 (Originally published by the Clarendon Press, 1765-1769)

[21] Mill The Subjection of Women in John Stuart Mill On Liberty and Other Essays ed John Gray (OUP 1991) 500. (first published in1869,  written in 1861)

[22] Mill The Subjection of Women 501.

[23] Mill The Subjection of Women 504

[24] Mill The Subjection of Women 509

[25] JFS Liberty, Equality and Fraternity ed Stuart D Warner (Liberty Fund, Indianapolis, 1993) 134-135

 

[26] JFS Liberty, Equality and Fraternity ed Stuart D Warner (Liberty Fund, Indianapolis, 1993) 138

[27] KJM Smith, Portrait of a Victorian Rationalist (Cambridge University Press, 1988) 188.

[28] JFS Liberty, Equality and Fraternity  (London 1873; 2nd ed 1874; reprinted with editorial notes by RJ White Cambridge, 1967) at 162, quoted by KJM Smith, Portrait of a Victorian Rationalist (Cambridge University Press, 1988) 174.

[29] The Queen v Clarence vol 22 (1888) Queen’s Bench Division 23

[30] Katherine O’Donovan Sexual Divisions in Law (Weidenfeld and Nicolson, London, 1985) 75

[31] Quoted by O’Donovan Sexual Divisions in Law at 75

[32] S v HM Advocate 1989 SLT 469 at 473.

[33] R v R [1992] 1 AC 599 at 611 per Lord Lane CJ, Sir Stephen Brown P, Watkins, Neill and Russell LJJ.

[34] R v L (1991) 174 CLR 379 at 389-390.

[35] PGA v The Queen 2012 HCA 21.

[36] PGA v The Queen 2012 HCA 21 per the majority comprising French CJ, Gummow, Hayne, Crennan and Kiefel JJ.

[37] See discussion in Duncan Chappell and Peter Sallmann, ‘Rape in Marriage Legislation in South Australia: Anatomy of a Reform,’ 14, 3, 1982 Australian J of Forensic Sciences 51.

[38] This is the view of Colin Howard advanced in his Australian Criminal Law (Law Book Co, 3rd ed, 1977) 62-3.

[39] NZ Crimes Act 1961 s128 Sexual Violation Defined.

[40] KJM Smith ODNB ‘Stephen, Sir James Fitzjames, first baronet (1829–1894), judge and writer’

[41] Smith ODNB

[42] Like POOH-BAH the Lord High Everything Else in the Mikado. The other role is the Lord High Executioner.

[43] Grayson Perry ‘The Rise and Fall of Default Man: How did the straight, white, middle-class Default Man take control of our society – and how can he be dethroned?’ New Statesman 8 October 2014 .

[44] John Tosh, ‘Essays: What Should Historians do with Masculinity? Reflections on Nineteenth-century Britain (1994) 38 History Workshop 179 at 180.

[45] ‘From Julia Gillard to Hillary Clinton: online abuse of politicians around the world’ by Elle Hunt, Nick Evershed and Ri Liu The Guardian, Monday 27 June 2016. This item reports an Australian survey of tweets. ‘The analysis looked at leadership contests involving both male and female politicians, with the aim of examining if abuse differed between politicians at similar levels in their parties.’

[46] See Katherine O’Donovan Sexual Divisions in Law (Weidenfeld and Nicolson, London 1985 ) 75.

[47] It is one pursued in Gabrielle Appleby and Ngaire Naffine, ‘Civility, Gender and the Law: Critical Reflections on the Judgments in Monis v The Queen (2015) 24, 4 Griffith Law Review 616

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