R v Clarence (1889) 22 QB 23
Criminal law - Assault - Communication of Venereal Disease
The defendant, Charles James Clarence (CJC) was charged for unlawfully inflicting grievous bodily harm upon his wife Selina Clarence (SC) and occasioning actual bodily harm, under sections 20 and 47 of the Offences against the Person Act 1861. CJC had sexual intercourse and knowingly transmitting Gonorrhoea to SC, who was unaware of his infection.
Having sexual intercourse with a spouse, while knowingly infected with a sexually transmittable disease, without their knowledge, did not constitute “unlawful” or “malicious” conduct, as there was no intention to transmit the infection, despite the known risk of such. Thus, the conduct fell short of an assault under s 20 of the Act. There could be no assault, as sexual intercourse within a marriage was consented to, therefore fell short of the requirements for a conviction under s 47 of the Act.
Wills J held that rape could not have occurred as SC consented to sexual intercourse with CJC. As the sexual intercourse was consensual, the conduct was not deemed an ‘assault’ under s 47 of the Act. In the context, sexual crimes were intended to be dealt with as a class by themselves and it was not the legislator’s intention to deal with sexual offences within s 47. All judges were in agreement that there was a requirement for an assault and an immediate connection between the violent action of the defendant and the onset of the consequences. As the SC had consented to sexual intercourse, there had been no ‘violent action’ that had resulted in her contracting Gonorrhoea. Therefore s 20 could not be applied. Stephen J further opined that CJC could not have acted “unlawfully” as described under s 20, as he had the legal right to have intercourse with his wife, applying a very literal interpretation of the meaning ‘unlawful’. The appeal was allowed and the conviction was quashed.