References: (1888) 22 QBD 23, [1886-90] All ER Rep 133
Coram: Stephen J, Baron Pollock, AL Smith J
Ratio: The defendant knew that he had gonorrhea. He had intercourse with his wife, and infected her. She would not have consented had she known. He appealed convictions for assault and causing grievous bodily harm.
Held: ‘The question in this case is whether a man who knows that he has gonorrhea, and who by having connection with his wife, who does not know it, infects her, is or is not guilty under s20 . . or under s47 of the same [1861] Act. Section 20 punishes everyone who ‘unlawfully and maliciously inflicts any grievous bodily harm upon any person.’ Section 47 punished everyone who is convicted of an ‘assault occasioning actual bodily harm to any person . .’ Is there an infliction of bodily harm either with or without any weapon or instrument?’ I think there is not for the following reasons.
The words appear to me to mean the direct causing of some grievous injury to the body itself with a weapon, as by a cut with a knife, or without a weapon, as by a blow with the fist, or by pushing a person down. Indeed, though the word ‘assault’ is not used in the section, I think the words imply an assault and battery of which a wound or grievous bodily harm is the manifest immediate and obvious result . . It is further illustrated by reference to 14 and 15 Vict. C19 sect 4, of which the present section is a re-enactment. Section 4 of the earlier Act begins with the preamble, ‘And whereas it is expedient to make further provision for the punishment of aggravated assaults,’ and then proceeds in the words of the present section, with a trifling and unimportant difference in their arrangement.
Infection by the application of an animal poison appears to me to be of a different character from an assault. The administration of poison is dealt with under s24, which would be superfluous if poisoning were an ‘infliction of grievous bodily harm either with or without a weapon or instrument.’ The one act differs from the other in the immediate and necessary connection between a cut or a blow and the wound or harm inflicted, and the uncertain and delayed operation of the act by which infection is communicated. If a man by the grasp of the hand infects another with smallpox, it is impossible to trace out in detail the connection between the act and the disease, and it would, I think, be an unnatural use of language to say that a man by such an act ‘inflicted’ smallpox on another . . .
Is the case, then, within s37, as ‘an assault occasioning actual bodily harm?’ The question here is whether there is an assault. It is said there is none, because the woman consented, and to this it is replied that fraud vitiates consent, and that the prisoner’s silence was a fraud. Apart however from this, is the man’s concealment of the fact that he was infected such a fraud as vitiated the wife’s consent to the exercise of his marital rights, and converted the act of connection into an assault? It seems to me that the proposition that fraud vitiates consent in criminal matters is not true if taken to apply in the fullest sense of the word, and without qualifications. It is too short to be true, as a mathematical formula is true.’ As to the issue of consent to an assault, per Pollock B: ‘The second count charges an assault … I should be inclined to hold that … an assault must in all cases be an act which in itself is illegal and … I cannot assent to the proposition that there is any true analogy between the case of a man who does an act which in the absence of consent amounts to an indecent assault upon his niece, or any woman other than his wife, and the case of a man having connection with his wife. In the one case the act is, taken by itself, in its inception an unlawful act, and it would continue to be unlawful but for the consent. The husband’s connection with his wife is not only lawful, but it is in accordance with the ordinary condition of married life. … The wife as to the connection itself is in a different position from any other woman, for she has no right or power to refuse her consent.’
Stephen J said: ‘If a man laid a trap for another into which he fell after an interval the man who laid it would during the interval be guilty of an attempt to assault and of an actual assault as soon as the man fell in.’
However: ‘It seems to me that the proposition of fraud vitiates consent in criminal matters is not true if taken to apply the fullest sense of the word, and without qualification.’ and ‘Many seductions would be rapes, and so might acts of prostitution procured by fraud, as for instance by promises not intended to be fulfilled.’
. . And: ‘Consent to a surgical operation or examination is not a consent to sexual connection or indecent behaviour. Consent to connection with a husband is not consent to adultery.
I do not think that the maxim that fraud vitiates consent can be carried further than this in criminal matters. It is commonly applied to cases of contract, because in all cases of contract the evidence of a consent not procured by force or fraud is essential, but even in these cases care in the application of the maxim is required, because in some instances suppression of the truth operates as fraud, whereas in others at least a suggestion of falsehood is required. The act of intercourse between a man and woman cannot in any case be regarded as the performance of a contract.’
. . and ‘The woman’s consent here was as full and conscious as consent could be. It was not obtained by any fraud as to the nature of the act or as to the identity of the agent.’
Wills J said: ‘That consent obtained by fraud is no consent at all is not true is a general proposition either in fact or in law. If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say that she did not consent. In respect of a contract, fraud does not destroy consent. It only makes it revocable.’
Statutes: Offences against the Persons Act 1861 20 46
Jurisdiction: England and Wales
This case cites:
- Cited – Regina v Taylor ((1869) Law Rep 1 CCR 194)
It was ‘contrary to common sense’ to describe the infliction of a sexually transmitted disease as an assault. A prisoner could upon an indictment under the section be convicted of a common assault, because each offence (‘wounding’ and ‘infliucting . .
(This list may be incomplete)
This case is cited by:
- Considered – Regina v Tabassum CACD (Times 26-May-00, Gazette 31-May-00, [2000] 2 CAR 328, Bailii, [2000] EWCA Crim 90, [2000] 2 Cr App Rep 328, [2000] Crim LR 686, [2000] Lloyds Rep Med 404, [2000] All ER (D) 649)
The defendant had pretended to be medically qualified in order to obtain the opportunity to examine women’s breasts. He appealed against his conviction for indecent assault, saying that the complainants had consented to the examinations.
Held: . . - Cited – Regina v Brown (Anthony); Regina v Lucas; etc HL (Independent 12-Mar-93, lip, [1994] 1 AC 212, Bailii, [1993] UKHL 19, [1992] UKHL 7, [1993] 2 WLR 556, [1993] 2 All ER 75)
The appellants had been convicted of assault, after having engaged in consensual acts of sado-masochism in which they inflicted varying degreees of physical self harm. They had pleaded guilty after a ruling that the prosecution had not needed to . . - Clarified – Regina v R HL ([1991] 4 All ER 481, [1992] 1 AC 599, Hamlyn, Bailii, [1990] UKHL 9, Bailii, [1991] UKHL 12, Bailii, [1991] UKHL 14, (1992) 94 Cr App R 216, (1991) 155 JPN 752, [1992] 1 FLR 217, [1991] 3 WLR 767, (1991) 155 JP 989, [1992] Crim LR 207, [1992] Fam Law 108)
The defendant appealed against his conviction for having raped his wife, saying that intercourse with his wife was necessarily lawful, and therefore outside the statutory definition of rape. Due to the matrimonial difficulties, the wife had left . . - Overruled – Regina v Dica CACD ([2004] EWCA Crim 1103, Bailii, Times 11-May-04, [2004] QB 1257, [2002] 2 Cr App R 28)
The defendant appealed against his conviction for inflicting grievous bodily harm. He had HIV/Aids, and was found to have transmitted the disease by intercourse when the victims were not informed of his condition. It was not suggested that any rape . . - Cited – Director of Public Prosecutions v Santa-Bermudez Admn (Bailii, [2003] EWHC 2908 (Admin), [2004] Crim LR 471)
The prosecutor appealed a finding of no case to answer on an accusation of assault occasioning actual bodily harm. The victim, a police officer, was searching the pockets of an arrested person, when she was injured by a hypodermic needle. She had . . - Cited – Director of Public Prosecutions v K (a Minor) QBD ([1990] 1 All ER 331, (1990) 91 Cr App R 23)
The defendant a schoolboy aged 15 had spilled some acid during a chemistry lesson. He went to wash his hands, but took a test tube of acid with him. Hearing others coming and panicking, he poured it into an upturned hot air drier. He returned to . . - Cited – Total Network Sl v Revenue and Customs HL (Bailii, [2008] UKHL 19, HL, [2008] BPIR 699, [2008] 2 WLR 711, [2008] STI 938, [2008] 1 AC 1174, [2008] STC 644, [2008] BVC 340, [2008] BTC 5216)
The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . . - Cited – Regina v Linekar CACD (Gazette 11-Jan-95, Ind Summary 19-Dec-94, Times 26-Oct-94, Bailii, [1994] EWCA Crim 2, [1995] 2 WLR 237, [1995] 2 CAR 49, [1995] 3 All ER 70, [1995] QB 250)
L appealed against his conviction for rape. His victim was a woman working as a prostitute. He said that he had simply made off afterwards without payment. He was convicted on the basis that he had procured the act by a false pretence by him that he . . - Cited – Monica, Regina (on The Application of) v Director of Public Prosecutions Admn (Bailii, [2018] EWHC 3508 (Admin), [2018] WLR(D) 765)
The claimant had been an environmental campaigner. She had had a sexual relationship with a man who was unknown to her an undercover police officer. She now challenged the decision not to prosecute him for rape.
Held: Her claim failed. Case . .
(This list may be incomplete)
Leading Case
Last Update: 26 May 2020
Ref: 182069
