ABSTRACT
This chapter is about High Court’s decision in PGA v The Queen (2012) 245 CLR 355, a case about the legal status of rape within marriage. This decision provides an opportunity to consider how the judges grappled with the masculinism embedded in the law around marriage, property and sexual violence. The jurisprudential contributions of Crennan, Kiefel and Bell JJ in this decision further reinforce the difference amongst women. Whereas Crennan and Kiefel joined the majority in finding that rape was a crime known to the common law in 1963, Bell J was in dissent in finding that it was not. What emerges as significant is that the majority in PGA imagined an historical understanding of spousal immunity for rape at common law as the basis for their judgment. This prompted the development in this chapter of a novel analytical approach, which juxtaposed the various judgments with the imagined judgment written as part of the Australian Feminist Judgment Project. By exposing the gendered dynamics at play in the decision itself, the chapter examines the imagined parameters of the spousal immunity for rape at common law in PGA, and those imagined in the feminist judgment crafted in response to it. It argues that feminist judgment writing, itself a performative act which challenges judicial hegemony in producing juridical texts, provides a glimpse of what challenges might be involved in disrupting facets of the gender regime.
