In 1991, in both Australia and England, the pre-eminent courts in the hierarchy had occasion to comment on the common law proposition that a man could not it be found guilty of raping his wife. The marital immunity for rape dated back to the early eighteenth century, when Sir Matthew Hale, in his History of the Pleas of the Crown,1 stated that a husband can commit no rape upon his wife because "by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract". That it took some 225 years for Hale's proposition to be judicially identified as a legal fiction not in keeping with modern times is remarkable in itself. That the last vestiges of the ethos behind the presumption of spousal immunity are still being felt in the sentencing of sex offenders, particularly those convicted of raping partners or ex-partners, is a matter for grave concern. Though the immunity ha-. been rejected, its passing has only heightened the public/private divide more acutely for the courts which are now required to intrude on sensitive issues they were previously forbidden to consider. The courts have shown themselves to be uneasy in this unfamiliar environment and have been slow to embrace the new jurisdiction. With legal and community attitudes recognising little distinction between married and non-married partners, one is further led to speculate as to how other cases of partner rape, that were never within the umbrella of the marriage exemption, are now being dealt with in the post abolition years.