Abuse Law – Case Law Update – Forced sexual intercourse without consent within marriage.

In the matter of Jennings v Wilden, the plaintiff, Ms Kirra Wilden, commenced court proceedings in February 2020 against her husband and ex-NRL player, Mr Michael Jennings, seeking damages for her injuries and losses as a result of sexual abuse (four incidents of rape) in 2014 and 2015. The plaintiff also alleged that the defendant, in addition to the sexual abuse, verbally abused her, however, this claim was abandoned during final submissions because the legislation does not recognise verbal abuse as giving rise to an entitlement to damages (and not because the verbal abuse did not occur). The defendant denied ever sexually abusing the plaintiff and has never been charged by NSW Police.  

During the trial, which took place between May and August 2021, the trial judge made note that section 5 of the Married Persons (Equality of Status) Act 1996 (NSW) provides that partners/spouses (including husband and wife) each hold a right of action in tort against the other as if they were not married or together. The trial judge found that the plaintiff was a careful and reliable historian who gave evidence with clarity. On 21 December 2021, the trial judge, Wilson SC DCJ, handed down his judgement accepting the plaintiff’s claim. The plaintiff was awarded $490,000 in damages, including $200,000 for general damages, $50,000 for aggravated damages, $75,000 for exemplary damages, and a $100,000.00 “buffer” for future economic loss.  

The defendant appealed the trial judge’s decision, with the primary issues for the appeal being whether the trial judge:

        a) applied to the defendant’s evidence the standard for appellate review; 

        b) reversed the burden of proof; and 

        c) awarded excessive damages for future economic loss.  

The plaintiff’s lawyers submitted that the plaintiff’s testimony was supported by other evidence, including 47,000 text messages, and that even if the trial judge had given himself an improper direction, it did not impact the entire judgment and should not result in the judgment being overturned.  

On 14 March 2023, the NSW Court of Appeal did not accept that the trial judge had reversed the onus of proof and, rather, it provided that the trial judge had made a careful assessment of the plaintiff’s evidence against a range of tests.  

In relation to the award of future economic loss damages, the Court of Appeal decided that it was not demonstrated that the “buffer” amount awarded by the trial judge for future economic loss was excessive in the sense of it being beyond the range/amount which could reasonably be considered, particularly taking into consideration the fact that the plaintiff had an future employment expectation of 37 years and an unchallenged diagnosis of Post Traumatic Stress Disorder (“PTSD”).  

Ultimately, the Court of Appeal dismissed the appeal and ordered that the defendant pay the plaintiff’s costs.  

We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to the author, Emily Wright, at Littles Lawyers today. 

Further Abuse Law information and case law updates written by our Emily Wright can be found on our website.