chapter  4
37 Pages

R v Clarence 1888: Supervising sex

The Clarence case concerned a wife, Selina Clarence, who contracted a sexually transmitted infection or (as such ailments were then known) venereal disease from her husband, Charles Clarence, through vaginal intercourse. Charles 3 was charged, prosecuted and convicted of two non-sexual offences against the person in relation to the disease transmission. This being a diffi - cult and controversial case, it was then sent by the judge to the Court for Crown Cases Reserved (CCCR) so that the legal questions concerned could be authoritatively ruled upon, thereby creating a precedent which would be applied by future courts. In the CCCR a majority of nine proceeded to fi nd that Charles had committed no offence, whether non-sexual or sexual , the other four judges being minded to confi rm the jury’s decision. As a consequence, the husband’s convictions were quashed. 4 In so deciding, the court considered a number of legal questions. These included: the ‘marital rape exemption’, by which a wife was deemed to have consented to ‘natural’ sexual relations with her husband for the duration of the contract (meaning that, although a husband could be convicted of non-sexual abuse in relation to his wife, 5 he could not be convicted of raping or indecently assaulting his spouse – but would fi nd himself in a very different position if anal intercourse was alleged 6 ); the effect of fraudulently obtained consent to sexual intercourse; and the legal implications of disease transmission.