R v Miller [1954] 2 All ER 529

The defendant's wife had left him in 1952. The following year she petitioned for divorce. Before the hearing for the petition the defendant had sexual intercourse with her against her will. He had thrown her to the ground on three occasions and she was in a hysterical and nervous condition as a result of his actions. He was charged with rape and assault occasioning actual bodily harm contrary to s.47 OAPA 1861. The defendant relied on the marital consent exception to rape and that nervous shock does not amount to a bodily injury.

Held:

The petition for divorce did not revoke the marital consent to sexual intercourse thus no charge for rape could result. (The marital consent defence was overruled in R v R). There was nothing to prevent the defendant from being liable for any other offence against the person for actions in committing rape. The defendant was thus liable for ABH.

On the meaning of ABH Lynsky J:

"Actual bodily harm includes any hurt or injury calculated to interfere with the health or comfort of the victim"

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