R v Dica: Lessons in Practising Unsafe Sex
| Author | Mitchell Davies |
| DOI | 10.1350/jcla.68.6.498.54140 |
| Published date | 01 November 2004 |
| Date | 01 November 2004 |
| Subject Matter | Comment |
COMMENT
Rv Dica: Lessons in Practising Unsafe Sex
Mitchell Davies*
The decision by the Court for Crown Cases Reserved in R vClarence1that
a husband was not liable under s. 20 of the Offences against the Person
Act 1861 for the reckless transmission to his wife of venereal disease
because, although not knowing of his condition, she had consented to
the act of intercourse, has rightly come to be regarded as wrong in recent
years. With the House of Lords in R v Wilson2exploding the myth
(perpetuated by Clarence) that the word ‘inflict’ within s. 20 required
proof of an assault, the decision in Clarence, predicated upon the deter-
mination that the wife’s consent precluded an assault from having taken
place, began to look doubtful. Other difficulties stood in the way of a
successful s. 20 prosecution in such circumstances, however, not the
least of which was the belief (perpetuated by Wilson) that although the
word ‘inflict’ did not require proof of an assault, it did presuppose that
some violence had been directly applied to the person of the victim by
the accused. If this view is correct, its effect is to hold that although the
reasoning in Clarence was wrong, in outcome the decision was correct:
with consensual sexual intercourse (at least on the Clarence facts) entail-
ing no violence, there had, on this hypothesis, been no infliction of
grievous bodily harm. The decision of their Lordships in R v Ireland and
Burstow,3whilst not finally clarifying whether the words ‘inflict’ and
‘cause’ (the word used in s. 18 of the Offences against the Person Act
1861) are for all purposes synonymous,4importantly removed from the
former term its necessary correspondence with the violent and direct
application of force to the victim’s person.
Accordingly, for the first time, the law was expressly bringing within
the ambit of s. 20 offences of poisoning, including the ‘poisoning’ of
another by the transmission of sexual diseases. The Clarence concern to
endorse the inviolability of the husband’s licence to have intercourse
with his wife at will (how can conduct be unlawful which it is the
husband’s right to demand?) had belatedly been replaced by a desire to
protect the inviolability of the person. The desire to protect perceived
conjugal rights in Clarence was, in part, given efficacy by the court’s
endorsement of the principle that mistakes as to merely qualitative
*Director of Legal Studies, Cayman Islands Law School.
1 (1886–90) 16 Cox CC 511.
2 [1984] AC 242.
3 [1998] AC 147.
4 Lord Steyn (ibid. at 159) considered any difference between the two words to be
‘not significant’. Lord Hope, in the only other speech to be delivered, concluded (at
164): ‘But for all practical purposes there is, in my opinion, no difference between
these two words’. His Lordship went on to qualify this statement slightly by
observing that whilst ‘cause’ is a neutral word, ‘ “inflict” implies that the
consequence of the act is something which the victim is likely to find unpleasant or
harmful’.
498
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