A Ballarat man has been found guilty of raping his estranged wife while their children were locked outside their house in February 2017.

On Wednesday, a jury of 12 found the man guilty on two counts of rape, both relating to the incident his wife and young son had recalled to police.

It was among a rare group of guilty verdicts for marital rape cases, an expert said, which has only been a crime in Australia for three decades.

Warning: This story contains details of the case that some people may find distressing.

Court hears young son relay details

On February 9, 2017, the little boy sat in an armchair, wringing his hands, detailing the attack for a Visual and Audio Recording of Evidence tape.

Police were asking him to recall what he saw happen at his father's house two days earlier.

"Dad was saying 'get on the bed now', pushing her chest," he said.

"Mum fell down on the bed and he lay on top of her.

"I didn't see the other bit because I ran around the back."

The 10-year-old boy was in his school uniform.

The family had been back in their former home for the afternoon and part of the evening, almost two years after the couple first separated.

Two real estate agents had been and gone to organise the sale of the house.

The boy told police his father had locked all the doors to the house while the children were outside — all except the laundry door, which the boy opened, before running down the hall to the room where his parents were.

The child's drawing of his father's house was provided to police as part of his 2017 statement. ( Supplied )

"He rolled mum over, pulled her pants down, put his rude finger up Mum's bum and then I ran in," he told police.

"I ran in and said 'stop it' and it gave him a fright.

"Mum got up and pulled her pants back up."

The boy kept wringing his hands.

"I unlocked the door. Mum ran outside," he said.

"Well, ladies and gentlemen we'll have a short break", the judge told the jury after the tape finished.

"And Madam Forelady, would you be good enough to ask the jury if they can sit on up 'til 4:30-ish?"

Husband told court claims were 'made up'

Police charged the 35-year-old man, who cannot be named for legal reasons, with raping his wife five times during their marriage breakdown in 2017.

After the jury delivered its verdict, the father was taken into custody and is expected to be sentenced later this year.

In court, the husband categorically denied his wife and son's accounts.

"It didn't happen," he said blankly.

"Everything that your son says," the prosecution asked, "is completely and utterly untrue?"

"Yes, it is made up," the father told the court.

"I put to you", said the prosecutor, "that you raped [your wife] five times, didn't you?"

"No, I didn't," he said.

In what is a common argument for a defence attorney, the barrister told the court the victim engineered the allegations "to make him suffer for rejecting her" after the couple separated, and described her as a "great manipulator".

"She lies and she lies and she lies and the most devilish thing about her is she gets her son to lie too," he said.

"He had left her, walked out on her," he said.

"She was a woman scorned."

The 'scorned woman' defence

The idea has a long history, dating back to 17th century England, with the lines penned by playwright William Congreve commonly paraphrased as "hell hath no fury like a woman scorned".

The original "scorned woman": Welsh actress Sarah Siddons. The defence's argument made reference to a line in the play 17th century play, The Mourning Bride.

Historian and Associate Professor Lisa Featherstone from the University of Queensland said the defence argument is reminiscent of those used in opposition to the criminalisation of marital rape in the 1970s.

"That is so prevalent in all of the parliamentary and media debates," Dr Featherstone said.

"The main opposition is that you can't give women this power because they'll be vindictive and they'll charge people.

"I find it really difficult to believe that a woman, knowing the low rate of success for the conviction of rape charges, knowing there's multiple layers you have to go through to get to court … would put herself through that."

In the past, sex 'part of the marital contract'

Prior to the early 1980s, it was not a crime for a husband to rape his wife in Australia.

"This occurs really from 18th century common law," Dr Featherstone said.

"Where a very famous jurist, [Sir Matthew] Hale, says that part of the marital contract is that women will engage in sex with their husband."

Hale wrote:

"A husband cannot be guilty of rape upon his wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind to her husband which she cannot retract."

Dr Featherstone said the law only began to fall apart after World War II, when a number of cases arose where women questioned their obligation to provide sex to their husbands after separating.

"Basically, they come out with the idea that she really does need to have sex with him until there's at least a formal separation, if not a divorce," she said.

Fast-forward to the 1970s, and second-wave feminists started agitating for legal reform.

"[They argued] that, really, a woman should have bodily autonomy in marriage," Dr Featherstone said.

"There's a whole lot of white men in parliament who suggest that this is a nonsense, that every time a wife is annoyed with her husband she could charge them marital rape.

"It develops a kind of discourse around the 'vindictive wife'."

States and territories ultimately changed the law to treat rape in marriage as the same crime as any other rape.

The last jurisdiction to do so was the Northern Territory in 1994.

Dr Featherstone said although there's a "social revulsion" about marital rape, it is still very hard to get a conviction.

"The law is quite clear, but you still see low rates of prosecution of intimate partner violence, and you still see low rates of [the] guilty verdict," she said.

Intimate partner sexual violence carries 'great shame'

Ballarat Centre Against Sexual Assault operations director Shireen Gunn said sexual violence within intimate relationships is not uncommon.

"If you look at the 1980s, that's only very recent, and while it's been changed in the law, attitudes and beliefs take a long time to change," she said.

"Because this woman has previously consented to sexual activity and there has been a sexual past between the couple … the idea that she then revokes her consent is seen as inconsistent."

Ms Gunn said sexual violence between intimate partners is the last element of family violence to be recognised by the community, which she says has not accepted its prevalence.

"It's an area that is seen as carrying great shame for those who wish to disclose it," she said.

"It's often such a betrayal because they have intimate relationships with them … the assault against the victim can be very devastating and overwhelming.

"As a society we still have to go further in recognising that sexual violence is still a strong and present component of family violence."