Man Accused of Raping Wife 49 Years Ago Faces Trial Marital rape wasn't legal in 1963, Australia's highest court decides By Rob Quinn, Newser Staff Posted May 31, 2012 2:36 AM CDT 10 comments Comments Judges at the High Court in Canberra decided 5-2 against the defendant. (Wikimedia/Nicholas Brown) (Newser) – Australia's highest court has decided that an elderly man should stand trial for allegedly raping his then-wife nearly 50 years ago. Lawyers for the man, who is now 81, unsuccessfully argued that marital rape was legal at the time of the alleged offense in 1963, saying that at the time, Australia was a "very unenlightened and socially backward country by modern standards," and the court should not apply today's values to the law as it stood at the time, the BBC reports. By 1963, changes in laws relating to divorce and property meant "lawful marriage to a complainant provided neither a defense to, nor an immunity from, a prosecution for rape," five judges wrote in a majority opinion. Two judges dissented, arguing that a man could not have been convicted of raping his wife in 1963 and it was "abhorrent" to punish somebody for something that was not an offense when it was committed, the Australian reports. The couple divorced in 1979 and the ex-wife will testify against her former husband, who is also charged with four counts of assault.