Fictions and Myths in PGA v The Queen

Abstract

With the common law method, rules are constructed amidst fictions and myths. These legal inventions are not simply falsehoods, and indeed it is misleading to think of them in this way. Rather, the fictions and myths of the common law are legal stories known to be false, but deemed to be true, in order to achieve certain legal purposes. They are fairly and appropriately deployed only when their inventive nature is recognised and their purposes acknowledged. Our aim is to demonstrate the proper and improper uses of myths and fictions in common law reasoning by means of a close analysis of a single case, PGA v The Queen, which made extensive use of both. PGA is an important case in its own right. It arose from the first common law jurisdiction in the world in which marital rape was recognised as a crime, and the High Court in PGA declared this crime to have existed for many more decades than was ever thought to be the case. Here, a majority of the High Court asserted that marital rape was a crime known to the common law of Australia as far back as the early twentieth century. This startling judgment fundamentally challenged the established legal view, held for most of the twentieth century, that husbands were immune from prosecution for the rape of their wives. So secure was this understanding of rape law right across the AngloAustralian legal world that there was hardly any prosecution of marital rape and precious little case law. In PGA, the High Court relied on both myths and fictions to achieve this common law reconstruction.