R v Clarence (1889) 22 QB 23
Criminal law – Assault – Communication of Venereal Disease
Facts
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.
Issue
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.
Decision/Outcome
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.
Updated 20 March 2026
This article accurately summarises the facts and outcome of R v Clarence (1889) 22 QBD 23 as a matter of legal history. However, readers should be aware of several important subsequent legal developments that substantially affect the contemporary significance of this case.
First, the marital rape exemption applied in Clarence — the principle that a husband could not rape his wife because she gave irrevocable consent upon marriage — was abolished by the House of Lords in R v R [1992] 1 AC 599, and this position is now enshrined in the Sexual Offences Act 2003. The reasoning in Clarence on this point is therefore no longer good law.
Second, the approach to reckless transmission of disease has been significantly developed. In R v Dica [2004] EWCA Crim 1103, the Court of Appeal held that reckless transmission of HIV causing grievous bodily harm could found a conviction under s.20 of the Offences Against the Person Act 1861, provided the complainant had not consented to the risk of infection. The court in Dica expressly declined to follow aspects of Clarence on this point. This was further considered in R v Konzani [2005] EWCA Crim 706, which confirmed that consent to sexual intercourse does not equate to consent to the risk of disease transmission. Clarence is therefore no longer authoritative on the s.20 question in this context.
This case retains value as a historical illustration of Victorian-era legal reasoning and as a point of contrast for understanding how the law has developed, but students should not treat it as representing current law on either marital immunity or the scope of s.20 of the 1861 Act.
