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R v Clarence

[1888] 22 QBD 23

Case summary last updated at 14/01/2020 18:08 by the Oxbridge Notes in-house law team.

Judgement for the case R v Clarence

A man had gonorrhoea, though he knew and didn’t tell his wife, and had sex with her, passing it onto her and causing her injury. He was convicted of GBH under s.20 and occasioning actual bodily harm under s.47 by jury. HL allowed his appeal. LJ Wills said that consent is still consent even if not informed e.g. if a prostitute accepts bad money for sex, she does not fail to consent to sex as such a proposition would be “childish”. LJ Stephen says that fraud does not always vitiate consent since in a case since a man with two wives would always be held guilty of rape if the second wife would not have had sex with him had she known that he had a first wife. This does not mean he was raping her each time he had sex with her. (surely the argument is not that he raped her but that he committed GBH, which he did since he caused her serious illness and did so maliciously i.e. with full awareness of what could happen. The assault he inflicted upon her, as stated by LJ Hawkins, was that he had sex with her when she was in danger of serious illness, which case law establishes as illegal. Assault is a crime regardless of consent, consent being immaterial in sexual relations between man and wife. He assaulted her (consent does not matter), he did so maliciously and he inflicted serious wounds on her and therefore ought to be found guilty). This is obviously no longer good law. 

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