R v Miller [1954] 2 Q.B. 282
MARITAL RAPE – CONSENT – ASSAULT OCCASIONING ACTUAL BODILY HARM –S.47 OFFENCES AGAINST THE PERSON ACT 1861 (OAPA)
Facts
The defendant, Mr Miller, was the husband of the victim who, at the time of the alleged offence, had left the defendant 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. At the close of the prosecution case, the defence submitted that there was no case to answer: a husband could not rape his wife, as a wife impliedly consented to intercourse for the duration of the marriage.
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Issues
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.
Decision/Outcome
Lynskey J held, applying the law as it then stood, that the defendant could not be guilty of rape in these circumstances. The wife’s departure and pending divorce petition had not revoked the consent that the law then implied from marriage. There was no court order or agreement to separate; the judge considered that a separation agreement, particularly one containing a non-molestation clause, would have revoked that consent. 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, evidence that she had been thrown down three times and left in a ‘hysterical and nervous condition’ ([1954] 2 Q.B. 282, 292 per Lynskey J) was capable of supporting the charge under s.47 OAPA. The judge left that count to the jury, but the verdict ultimately recorded was not guilty of rape and guilty of common assault.
