Bampton v Bampton
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON |
| Judgment Date | 24 June 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J0624-2 |
| Court | Court of Appeal |
| Date | 24 June 1959 |
[1959] EWCA Civ J0624-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Hodson,
Lord Justice Sellers and
Lord Justice Harman.
Mr JOHN THOMPSON, Q.C., Mr E. TERENCE READ and Hiss DEBORAH M. ROWLAND (instructed by Messrs Booch & Blackwell, Agents for Mesers Brutton, Birkett & Walsh, Portsmouth) appeared on behalf of the Petitioner (Appellant).
Mr THOMAS G. FIELD-FISHER (Instructed by Messrs Amphlett &Co. Agents for Messrs Donelly & Elliott, Gosport) appeared on behalf of the Respondent.
Tills is an appeal from a Judgment of Mr Justice Barnard sitting at Winchester on the 27th November 1958 when he dismissed a petition for divorce presented by Mrs Doris Eileen Bampton against her husband founded upon sodomy and cruelty. She learned Judge found that the cruelty was not proved, partly because he did not find that the wife's health had been injured, or that she was in reasonable apprehension of injury to health, but also in respect of the serious allegation of cruelty as opposed to sodomy he held that the wife was a consenting party to some disgusting sexual perversions which had. taken place between them, the husband using the wife's mouth. The sodomy charge he dismissed on the ground that the wife had consented to the sodomy, and therefore was not entitled to relief. The husband by his pleading had dened the charges of sodomy and charges of cruelty, and In the alternative pleaded that his wife had condoned both by living with his until the 10th September 1957 when he loft this country for Jamaica in the course of his service as a steward on board a merchant ship. By a supplemental petition, the was referred to an incident which took place on the 11th Fe binary 1968 when the parties sot at Portsmouth and there were hard words between them, but that has no prominence in this case now.
The question which falls for decision (and it is the main ground of appeal) is whether the consent of the wife to the act of sodomy as opposed to the cruelty was a bad, to her obtaining relief: and, if such consent is a bar, whether It is right to say that there was here a real consent. In considering the second question, the relationship of husband and wife lies in the background. It should be recognised that the relationship of husband and wife being what it is, and the obligations of one to the other being what they are, it is not readily to be taken against a wife in a situation such as exists In this case specially a young wife, that there has been a real consent. If the same acts were under consideration between two persons not being husband and wife where tills relationship did not exist, the presence or absence of consent would have to be considered in a different way.
First as to the facts. Was there a real consent? The learned Judge held that as to the act of sodomy, there was. The parties were married in the year 1955 when the wife was only nineteen years, of ago, and the husband was twenty-five; and the acts of sodomy which were proved took place from 1955 onwards, beginning -with an attempt made in April 1955 before the birth of the younger child, who was born on the 6th June 1965. That attempt was rebooted and was successfully opposed by the wife; but, as the Judge found, subsequently, during the next two years of the married life, there were attempts which were successful. In this connection I Should say that the wife was a witness who was obviously a straight-forward witness, frank and simple In character, and moreover intelligent, able to appreciate the questions which were put to her, and fully alive to her obligations to her husband which she had token upon herself on marriage. She was by no means anxious to bring this marriage to an end; she was very much in love with her husband and was anxious to keep It In being not only for her own sales, but for that of the children - there being the children of the marriage, the one I have already mentioned, and one born in the same year as the marriage.
The husband's evidence, in so far as it was in conflict with that of the wife, was rejected by the learned jugge. But in finding the so proved, he was supported in his finding by an ssion which the husband himself made that he may have penetrated the back passage of the wife on one occasion. There was evidence of another witness, a friend of the partion, who gave evidence that the husband made an admission to him which supported the wife's case. The learned Judge did not express himself as feeling wholly ready to rely upon that. But there was that further corroboratve evidence, and so far as the finding of sodomy is concerned, it has not been challenged in this court
As to consent, I think it is necessary to road -what the wife said in her evidence about this. Firstly, as to the attempt. She was asked to say when her husband first made the desire to enter her rectum apparent, and she answered: "In 1955. we were lying in bed, and I had my back to him, and he started messing around with himself on my buttocks, and he said he said he had always fanelod some of that". She continued: "I said, well, you are not going to get it from me. He then said something to the effect, 'Let me have a little try'. He continued to mess around with no. He was trying to insert his penis into my rectum". She was asked if he succeeded, Gad she replied. "No because I told him it was becoming too painful. He tried about six or seven timeses altogether" during the period 1955 or 1957. Then she said that he succeeded on about five occasions. She was asked: "(Q) Did you object to that, or consent to It, or what I (A) I told him it was very painful, and that I wouldn't consent to it, but he was always as affectionate to ma at those times. That was the only thinks enjoyed. He was always very affection at with it and before and during the time he was wording up to it. (Q) It may be said that you should have fought him off, or something of that kind. I think you agree you didn't fight him off? (A) I didm't fight, no. (Q.) Tell my Lord why, (A) well, because for one thing I was glad of the affection he was showing me, and he always bragged what other women did. I was worried if I might lose him if I didn't let him try". She was then as bad her age, and she said twenty-four, so that in 1955 she was just twenty-one - the husband being six years older. She was asked why she had not complained, and her answer was I thought that has something I could handle myself. I thought that, once I was sterilised, my husband would stop those things', the his story of that matter being that she had had a very difficult confident on the birth of each of her children, and the danger of her having any further children was so great that it was thought right with the consent of both the husband and the wife, that she should be sterilised, and that had been done in 1957. The last occasion when sodomy was commited, she said, was In August 1957, which was the year that she left. She had sexual intercourse with her husband after the last occasion. It was on the 10th September that he actually wont to sea, and she would not have anything more to do with him.
With regard to the question of consent., so far as ordinary sexual intercourse was concerned, it is clear that the wife was able, when she wished, to refuse the husband sexual intercourse because site said that sometimes, when he required sexual relations, she did refuse it In another part or her evidence in cross-examination the cross-examination was not directed, of course, to the question Of consent because the husband's case was that the sodamy had not been commited - she was asked to remember the particular occasion when she complained that he was hurting her, and she spoke of two different occasions and said: "There was a time when he started in ay rectum and I asked him to carry on in a normal fashion, which he did, and there was a time", and then she refers to another occasion. That answer indicates that he did not continue in the act of sodomy, or attempt to commit the act of sodomy, when she asked him to do otherwise.
In that state of the evidence, bearing In Hind not only the relationship between husband and wife which I have mentioned, but also the fact that there were still other disgusting activities which took place between those two people which the wife, whether she disliked their or not, assented to over a period of time, I feel it impossible to find myself in disagreement with the...
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...consent to the acts alleged. Two decisions of this Court appear to be relevant. They are Statham v. Statham, 1929 Probate, 131, and Bampton v. Bampton, 1959, 2 All England Reports, 766. In Statham v. Statham the issues were whether there had been any act of sodomy, and, if so, whether the......