Why Is Rape In Marriage A Crime?
Because of Glyn Scott.
The Weekend Australian Magazine - 2016
This is Glyn Scott. You don’t know the name and you certainly won’t know her face because her identity has until today been a secret. Glyn is the woman at the centre of one of the most important cases ever to come before the High Court of Australia. She shies away from the suggestion that she’s a warrior for human rights but her victory was for women everywhere.
Glyn, now 70, married for the first time shortly after she turned 17 in 1962. Her husband, George Pycroft, was a 32-year-old divorcee. Glyn says that she was for years subjected to violence and rape within that marriage, suffering broken bones and losing a baby before escaping. For decades she said nothing but then, when Glyn was in her 60s and George nearly 80, she decided to approach the authorities, and ultimately the police in South Australia. “I wasn’t angry. I just decided I wanted my day in court,” she says. The police didn’t know what to do. More than 44 years had gone by and while rape in marriage has been part of the criminal code since the mid 1980s, it wasn’t a crime in 1963. Or was it? In a case that would mobilise police, divide feminists and electrify the legal community, prosecutors decided to find out.
We see them sitting quietly on the bus or pushing their shopping trolleys. Older ladies, widowed or divorced, with grown-up children, perhaps trying to stretch the pension. Doting on their grandkids. What could they tell us about life for women in Australia in the 1950s and ’60s? When they were young and had so few rights, even to employment after marriage. When women couldn’t get divorced without a reason. When family violence was considered a private matter.
“Australia in 1963 was a very unenlightened society,” says Sydney barrister David Bennett QC. “It still imprisoned people for consensual acts of homosexuality. Women were sacked from the public service for being married. The idea that a man could be guilty of the rape of his wife in 1963 would have been laughed out of court. Today we have all kinds of legislation to protect people’s rights but we were a long way from that happy nirvana in 1963.”
To understand Glyn’s story you have to go back to the working-class suburb of Alberton, near Port Adelaide, where she was raised by her adoptive parents, Jeannie and Charles Harden. They were committed churchgoers and when Glyn was seven, the Hardens enrolled her in Sunday school, where her talent was discovered. She could play piano and sing like a bird. She started going to music lessons but then, when she was 10, one of her Sunday school teachers “started touching my private parts”.
“I tried to talk to Mum, without knowing what words to use,” she says. When Glyn turned 13, her mother suggested she take a job at the local dry cleaners to help the family make ends meet. Her Sunday school teacher was delighted: he would come by the store and molest her there, in a room out the back. She endured the abuse for months before deciding to run away, and was riding her bicycle far from home when a load of hooligans saw her in her distressed state and tried to convince her to get into their car. A passerby stepped up to help. His name was George Pycroft, and he was 29 years old. Glyn was just 14. “He bought me an ice-cream,” Glyn says, “and he called my parents, and took me home.”
Before long, Pycroft was a regular visitor at the Hardens’ home in Alberton, and later in nearby Largs Bay. Unbeknown to her mother he started preying on Glyn, who soon fell pregnant. A wedding was hastily arranged for September 1, 1962. Glyn wore a borrowed dress, and her dad’s black Holden served as the wedding car. The newly married couple spent their first night at a Salvation Army hostel with a shared bathroom at the end of the corridor.
Glyn says that Pycroft from the outset required a lot of sex, and if she didn’t oblige, he’d twist the skin on her arms and around her breasts. “His view was we were married, so he could do whatever he wanted,” she says. He pestered her through the pregnancy and when Glyn went into labour, she says Pycroft raped her before taking her to hospital because he knew it would be days before he could have sex again. The birth was difficult – Glyn was still only 17 – and she developed an infection and needed an operation. It was three weeks before she was allowed to go home with her baby, and when she did, she says Pycroft raped her again. “He tore all the stitches,” she says, in her soft voice. “So when I went back a week later to have the stitches removed, there were none left, just a gaping wound. And a week after that, when I went for my six-week check-up, I was pregnant again.”
With one infant – a boy, Stephen – and another baby on the way, the couple moved out of Glyn’s parents’ place to a house behind the Pier Hotel in Largs Bay. It was here that Pycroft started collecting animals. One day he brought home a dog, then a cat, then kittens, pigeons and rabbits. Glyn began making regular trips to the feed store. It was hard to buy anything because they were always broke – Pycroft worked intermittently but Glyn didn’t see much of the money. She tried to take in knitting but when Pycroft found the wool, he threw it in the bin. No wife of his was going to work.
Glyn says the brutal sex continued “day and night”. She tried sometimes to fight back but a week before her second baby was due, Pycroft came home drunk, demanded sex, and when she refused, she says he kicked her in the stomach. The trauma sent Glyn into labour and her second son, Mark, did not survive. “I didn’t think I’d be able to forgive George for killing my son, but I didn’t have anywhere to go. I was 18. Mum had no money and I had no money.”
Within a year she was pregnant again, this time with a daughter, Christine. Pycroft was drinking heavily and prone to drunken rages. Police came to the house several times, including once when Glyn was found naked, bleeding and pregnant on the driveway by the people who owned the shop across the road. Pycroft had dragged her out on her back by her hair. “But the police didn’t even come inside. There was nothing anyone could do,” she says. “They just said they were sorry they couldn’t get involved because it was a domestic argument.”
One person wanted to help: the man who owned the feed store, Lance Scott. “I would go there with Stephen in a stroller and Christine, after she was born, and just stay there and talk to him, because he was lovely,” says Glyn. Once she went with her hair hanging over her face to hide the bruises. Lance pushed her hair aside, saying: “What happened?” “My husband beats me,” she said, but Scott already knew. “Why don’t you let me take you away?” he said.
“I thought he was being kind,” says Glyn, “because he was much older [24 years older than Glyn] so I didn’t see him, you know, like that.”
By this stage, Glyn says Pycroft had started bashing the children too, including once on the morning of school photographs. Glyn still carries the portrait of her broken boy taken after the startled photographer had covered Stephen’s face with make-up. “Many times I planned to kill him,” Glyn says, “but I thought, if I didn’t do it properly, he would kill me or worse, kill us all. And if I complained that he abused my children and he killed me, who would look after my kids?”
Glyn tried several times to leave her marriage. She rented rooms in a boarding house and started working nights. She had no car, so pushed the children to school on her bike in the rain. She’d sometimes see Pycroft standing by the roadside, watching her. “We moved 17 times in five months. Finally my doctor told me to go into hiding before he killed me, but it was really hard.” It was Scott who helped, finding a house and sending packages of food.
In 1969, Glyn filed for divorce from Pycroft. Two years later, after a slow and gentle courtship, she married Scott. He adopted her children, Stephen and Christine, and they had two more sons, Phillip and Wes. “I fell in love because he was so kind to me,” she says. “But it wasn’t easy for him because I’d have these nightmares. I’d wake up and Lance would be holding me and I’d be shaking.”
They moved to a little farm in Macclesfield, in the Adelaide Hills, where Glyn set up a small clothing business. But it failed after a government grant was unexpectedly cut, and in November 1987 she filed for bankruptcy. They lost the farm and had to move into public housing. In 1995, Glyn faced criminal charges for accepting credit while being an undischarged bankrupt, something she insisted she did not do. She pleaded not guilty but was sent to Adelaide Women’s Prison at Northfield for a year, and for six months had to wear an ankle bracelet. Her conviction was ultimately set aside; Justice Roderick Matheson in the South Australian Court of Criminal Appeal said Glyn had been a victim of a miscarriage of justice. But, she says, “there are still people who think I did something wrong”.
“I had people turning their backs on me,” she says, but worse was to come. In 2001, Lance, by then 80, was diagnosed with cancer. Glyn nursed him until he died in 2003; they had been married for 32 years. Glyn slipped into depression: “I didn’t know what to do without him. My children had grown up and moved away, and they were busy with their own lives. I couldn’t see the point of going on.”
Then, in 2006, Glyn was ironing in front of the TV news in her modest Housing Commission home when a story about abused children came on. “My insides started churning,” she says. “They were saying there was going to be an investigation into child abuse, and I just had to call that number.” That investigation was the South Australian parliamentary inquiry into the sexual abuse of children in state care, chaired by retired Supreme Court judge Ted Mullighan. He has since died, but Glyn describes Mullighan as “the loveliest man. He told me to speak up, and he would try to do something for me.” And so, on March 7, 2006, Glyn found herself giving evidence to the Mullighan inquiry about her abuse at the hands of her Sunday school teacher. She hadn’t meant to talk about Pycroft, but it seemed relevant, because the abuse was why she had run away, which was how she met him and they ended up married.
Mullighan encouraged Glyn to give a formal statement to the South Australian police. The officer assigned to her case, senior constable Jane Pink, had for eight years been working with family violence survivors in the Mount Barker area. She says: “I have never forgotten [Glyn]. There is always a lot of trauma when somebody comes in to give their statement. It’s an emotional time and it was a huge step for her to come forward. She was so dignified. We worked together for about eight months, putting all the pieces of the puzzle together, and she had a profound effect on me. She was traumatised but also determined, in a quiet way. Now I’m proud to call her a friend.”
Detective Scott Simpson, who was then part of Adelaide’s special crimes investigation branch, agrees. “She is one special lady. In some ways it’s amazing that she is still here. I have nothing but admiration for her.”
Over time, the file moved from Simpson’s desk to that of prosecutor Kos Lesses. “As soon as I heard the story, I was determined to bring it to trial,” Lesses says. Why? “Well, it came down to a number of things, but mainly it was the seriousness of the offending. These were brutal crimes.”
Still, it was tricky. By some estimates, fewer than 20 per cent of rape events make it to court. This case was historical. The evidence was more than 40 years old. Detective Simpson says: “With cases like these, corroboration is everything. I thought, how are we going to get to second base? It’s hard enough if it happened yesterday, let alone 40 or 50 years ago.” It wasn’t enough for Glyn to simply say: “I was raped, repeatedly, in my marriage.” Police would need actual events – concrete dates – before any charges could be laid, “so what you end up doing is you have to go back in time, and retrace the victim’s life”.
It took almost three years, but in March 2009 the Director of Public Prosecutions in South Australia took a leap and charged George Pycroft – who was by then 79 years old, remarried with children and in poor health, requiring an oxygen tank to breathe – with six offences: two counts each of assault and carnal knowledge, and two counts of rape, between March 22 and 25, 1963, and on April 14, 1963.
The reason those dates were chosen was because Glyn could clearly remember being raped before she went into hospital to have Stephen (who was born on March 25, 1963), and being raped again when she came home with her son about three weeks later. The hospital had a record of treating Glyn for her torn stitches “which didn’t entirely corroborate a rape event, but it was part corroboration,” says Lesses, “plus we had the testimony of the daughter of the people who owned the delicatessen across the road, who was 15 when she saw [Glyn] being dragged out onto the drive.” Also critical were notes that a psychiatrist from Adelaide’s Hillcrest Hospital had taken during a counselling session between Glyn and Pycroft. “Those notes contained crucial disclosures,” says Simpson. “We found the doctor living in Scotland, and we were prepared to have him come out and speak about the unusual nature of [Pycroft’s] libido and his behaviour towards his wife.”
Lesses says Glyn’s testimony was compelling. “We honestly felt we had a reasonable prospect of conviction,” he says. “Provided, of course, the courts were willing to accept that it was a crime for a man to rape his wife in 1963.”
In legal terms, could a man rape his wife? For hundreds of years the answer to that question was no. She was his property. Carnally, he could do as he pleased. The legal basis for this immunity could be traced to the extra-judicial writings of Sir Matthew Hale, a former Chief Justice of the Court of the King’s Bench, which were published in 1736 in The History of the Pleas of the Crown. Hale said: “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for … the wife hath given up herself in this kind unto her husband which she cannot retract.” In practice, Hale’s maxim – known to courts as the “marital immunity” – means that Glyn had given consent to sex with her husband upon marriage and she could not retract that consent except by divorce.
“That’s why the case was interesting,” says Lesses, “because the standard view was that a husband couldn’t be charged with the rape of his wife. But we formed a view that it wasn’t a settled issue in law, at least not in Australia. People say, well, it must have been the law, because no husband was ever charged with the rape of his wife, but I take issue with the idea that because nobody was charged, that’s a reflection of the law. Because if you were a woman and you picked up the phone in 1963 and called the constabulary and said, ‘I have been raped by my husband’, what would happen? A police car would come. It might linger outside for a while. Your husband might be told to cool off. But would the police charge him? No, because police stayed out of domestic arguments. But we were willing to argue that was a reflection of society, not of the law.”
Pycroft’s legal team disagreed. In their view, their client couldn’t be charged, let alone convicted of rape because he was married to Glyn at the time of the alleged offending.
This was the conundrum that faced the South Australian courts. Was the offence of rape by one spouse of another an offence known to the law in 1963? Nobody seemed sure: the District Court referred the question to the Full Court of the Supreme Court, which ruled that marital rape was indeed a crime, prompting Pycroft’s legal team to appeal to the High Court of Australia.
“That made me really nervous,” says Glyn. “All these judges and lawyers would be talking about my case.” Her police officer friends, including Jane Pink, encouraged her to attend the hearing in Adelaide, the idea being that nobody would pick Glyn as the feminist warrior in the room. In her own words, she’s four-foot-eleven-and-a-half inches tall (when you’re under five-foot, every half inch counts), with soft grey curls. “But somebody must have told them who I was, because the media chased me down the street,” she says, “and some people were criticising me because George was so old, and it was a long time ago, and they were saying: what’s the point?”
The High Court hearing took place over two days in June and September 2011. Pycroft did not appear but his legal team was headed by the acclaimed silk David Bennett QC. “It was a vitally important case,” Bennett tells me, “and in my view, a ridiculous one. My client was in his 80s, and this really was an attempt to charge somebody with something that wasn’t an offence at the time.”
South Australia’s then solicitor-general (now Supreme Court judge) Martin Hinton QC took the opposing view. “This was a question that everyone assumed they knew the answer to, but which had never been decided,” he says. “Could a husband be charged with the rape of his wife in 1963? We argued that while the marriage immunity certainly applied at some point, the law had changed by 1963.” When did it change? “We didn’t have to say,” Hinton says. “We only had to convince the court that it had.”
On May 30, 2012, the High Court announced its decision: it had split 5-2 in favour of Glyn, with the majority – Chief Justice French and Justices Gummow, Hayne, Crennan and Kiefel – holding that if Hale’s marriage immunity ever applied in Australia, it had at some point dissolved, and ceased to exist by 1963. There were two fiery dissents. Justice Dyson Heydon wondered: “What would have happened if [the accused] had been charged immediately after the offences had occurred in 1963?” He doubted that any court would in those days “find in favour of the idea that a man could rape his wife”. Justice Virginia Bell agreed, saying: “It cannot sensibly be suggested that [Pycroft] would have been prosecuted for those offences… This is because, at the time, it was understood that the crime of rape could not be committed by a husband against his wife.”
Criticism came from another, perhaps unexpected, quarter – feminists. Associate professor at the Flinders University Law School, Mary Heath, says: “I am a feminist and I thought the decision was wrong. The High Court is saying that rape in marriage was always a crime and to me, that is disrespectful to the lived experience of many women, who suffered terribly. To say to them, ‘the law was always on your side, and all you had to do was go to the police’. ”
Melbourne Law School senior lecturer Wendy Larcombe agrees. “An extraordinary number of things had to come together to get this case to the High Court. It was in some ways a miracle: the fact that the alleged victim [Glyn] was still alive, and so was her husband. The fact that she had evidence to support her case: she had driven around trying to get help from the police. Neighbours had seen things. There were medical records. For all of that to come together, and for the police to be willing to prosecute, even after so much time had gone by, was a miracle. But I was disappointed. It’s hard to say that, because I know how much [Glyn] suffered. But this decision rewrites history. It ignores the hard work that was done by feminists in the 1970s, who forced change in the law… But of course, I can see why anyone would want the victim to have her day in court.”
And yet, in the end, she didn’t get it. On September 12, 2012 – six years after Glyn first testified, three years after her former husband was charged and just days before the criminal trial was set to resume – George Pycroft died. “I cried,” says Glyn. “I didn’t want George to go to jail. Police told me he probably wouldn’t even if he was found guilty. But I wanted him to be held accountable.” Pycroft, who was 82 at the time of his death, is survived by his wife and their two children. His wife told me: “George can’t speak for himself but he would have told you he was innocent of everything.” His obituary in the Adelaide Advertiser read: “May you now rest in peace.”
It is not in Glyn’s nature to seek attention. She was for a long time reluctant to take her place in Australian legal history as the woman who took the matter of rape in marriage to the High Court and won. She doesn’t see herself as a warrior or a braveheart. It took three years just to convince her to tell her story for this magazine. “But I guess I am getting older now,” she says, “and if my story helps others, then I would like to tell it.” To that end, she recently decided to start a foundation – called Love, Hope and Gratitude – to build shelters to assist women and their children (and their pets). She has also written a book about her experience but it hasn’t yet been published.
“People say it’s too confronting,” she says, “but I don’t see my life like that. I feel full of love and gratitude. And now that the case is over, I’ve found my creative side, just bursting out.” She is growing herbs in the beds Lance built for her, high in the Adelaide Hills. She tends to roses, keeps cats and makes her own goat’s milk soap. The chicks of Lance’s old chooks like to follow her around. She also has a piano these days. Despite everything, she still loves to play.