R v Miller  2 Q.B. 282
MARITAL RAPE – CONSENT – ASSAULT OCCASIONING ACTUAL BODILY HARM –S.47 OFFENCES AGAINST THE PERSON ACT 1861 (OAPA)
The defendant, Mr Miller, had been the husband of the victim who, at the time of the alleged offence, had left the respondent and filed a petition for divorce on grounds of adultery. During this period, the defendant met with the victim and had intercourse with her against her will. This caused the victim to suffer significant mental distress. The defendant was charged with both rape and, in the alternative, assault occasioning actual bodily harm under section 47 OAPA. An appeal was brought on the basis that the defendant had no case to answer; a husband could not rape his wife, as a wife impliedly consented to intercourse for the duration of the marriage.
Whether the common law rule as to the implied consent of a wife remained good law and, if so, whether there were circumstances, such as the use of force or violence, in which this consent could be revoked. This case also raised the question of whether psychological damage, expressed in the dated language of nervous hysteria, was capable of constituting actual bodily harm.
That the appellant could not be guilty of rape, as the implied consent of a wife to have intercourse with her husband could only be revoked by court order or a binding separation agreement. In the circumstances, this consent had not been revoked. Nevertheless, a husband was not entitled to use force or violence for the purposes of exercising his right to intercourse; to do so would amount to an assault. Moreover, as a ‘hysterical and nervous condition’ ( 2 Q.B. 282, 292 per Lynskey J) is a recognised form of bodily harm, such an assault would constitute an offence under s.47 OAPA.