Not as rare as he should be
Women's groups and many other Australians have been less than happy with Justice Derek Bollen's comments during a rape-in-marriage trial in the South Australian Supreme Court this week. I can understand why.
His direction to the jury wound back, for this trial at least, legal reforms surrounding rape which have been hard won over the past decade.
Justice Bollen said, "There is , of course, nothing wrong with a husband, faced with his wife's initial refusal to engage in intercourse, in attempting, in an acceptable way, to persuade her to change her mind, and that may involve a measure of rougher than usual handling".
Bollen's comments, delivered from under his horse-hair wig, discount the long-overdue recognition that rape is rape, in or out of marriage, which was finally enshrined in law in states and territories (beginning in South Australia in 1976). His comments belong to the days when it was legal for a man to have sex with his wife whenever he chose, and to beat her with a stick providing it was thinner than his thumb.
Calls for action against the judge show that his views on women and rape are not in keeping with community expectations. The former leader of the Australian Democrats, Janine Haines, amongst others, wants him removed, while the South Australian Democrats want Bollen at least barred from presiding over rape and sex cases. The SA director of public prosecutions is appealing against the jury's acquittal of the man charged with five counts of rape and one of attempted rape.
Yet attitudes like Bollen's are not uncommon. Despite documented evidence from domestic violence units that thousand of women are raped in marriage each year, few husbands are charged, and in the minuscule number of cases which reach court, few men are convicted.
Bollen may be a misogynist git, but one can't help feeling his position on the role of women in society and marriage is closer to reality than the expectations of reformists.
Criminalising rape in marriage, although a welcome move, does not mean women can now engage in a partnership of equals, where the wife is no longer the chattel of the husband. For many married women, sex may or may not be accompanied by threats, violence and coercion, but if she's got kids, is financially dependent or has nowhere to go, she will think twice
before denying him sex.
The reality of women's lives is still one of legal and economic subservience to men. The state knows this. Labor MP Michael Lavarch, who chaired the recent report into the status of Australian women, Half Way to Equal, acknowledged that women's economic and social inequality is built in and sustained by the state for its economic advantage — women continue to be discriminated against in employment, ghettoised in low-paid jobs or welfare payments which fall below the poverty line, denied adequate and affordable child-care and seen foremost as wives, mothers or sex objects.
While women are unequal in society and in marriage, they will continue to be subject to unwanted sex. Laws against rape in marriage will not stop this.
"Equality for women could only be achieved if we completely restructured society", said Lavarch last year. "But that would mean a revolution, and I don't think Australia's ready for that." He might find 50% of Australia a lot more ready than he thinks.
By Angela Matheson