A husband was charged with rape of his wife after she had left him and petitioned for divorce. He was also charged with an assault.
Held: There was no evidence which entitled the court to say that the wife’s implied consent to marital intercourse had been revoked by an act of the parties or by an act of the court. Referring to Jackson: ‘It seems to me, on the reasoning of that case, that, although the husband has a right to marital intercourse, and the wife cannot refuse her consent, and although if he does have intercourse against her actual will, it is not rape, nevertheless he is not entitled to use force or violence for the purpose of exercising that right. If he does so, he may make himself liable to the criminal law, not for the offence of rape, but for whatever other offence the facts of the particular case warrant. If he should wound her, he might be charged with wounding or causing actual bodily harm, or he may be liable to be convicted of common assault. The result is that in the present case I am satisfied that the second count is a valid one and must be left to the jury for their decision.’ and ‘The point has been taken that there is no evidence of bodily harm. The bodily harm alleged is said to be the result of the prisoner’s action, that is, if the jury accept the evidence that he threw the wife down three times. There is evidence that afterwards she was in a hysterical and nervous condition, but it is said by counsel that that is not actual bodily harm. Actual bodily harm, according to Archbold 32nd Edition page 959 includes ‘any hurt or injury calculated to interfere with the health or comfort of the prosecutor’. There was a time when shock was not regarded as bodily hurt, but the day has gone by when that could be said. It seems to me now that if a person is caused hurt or injury resulting, not in any physical injury but in an injury to her state of mind for the time being, that is within the definition of actual bodily harm, and on that point I would leave the case to the jury.’
Actual bodily harm means any injury ‘calculated to interfere with the health and comfort of the [victim]’ but must be more than transient or trifling
Judges:
Lynskey J
Citations:
[1954] 2 All ER 529, [1954] 2 WLR 138, [1954] 2 QB 282, [1954] 38 Cr App R 1
Jurisdiction:
England and Wales
Citing:
Followed – Rex v Clarke 1949
The defendant was accused of the rape of his wife and assault. At the time they were separated by virtue of a court order recently obtained by her. He replied that the offence alleged was not known to law because of the marriage.
Held: The . .
Cited – Regina v Jackson CA 1891
A husband had no right to confine his wife in order to enforce a decree for restitution of conjugal rights. . .
Cited by:
Cited – Regina v R HL 23-Oct-1991
H has no right to sexual intercourse with W – rape
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 . .
Cited – Fook, Regina v CACD 22-Oct-1993
The defendant appealed his conviction for assault. He had suspected a lodger of theft, and was accused of having assaulted him while interrogating him about it. He locked the complainant in his room, but he then fell whilst escaping through a first . .
Cited – BM, Regina v CACD 22-Mar-2018
The defendant appealed from a preliminary ruling that his body modification services were not in law capable of being consented to and therefore amounted to an assault.
Held: The appeal failed: ‘we can see no good reason why body modification . .
Lists of cited by and citing cases may be incomplete.
Crime
Updated: 29 May 2022; Ref: scu.194944