February 19, 2016

Hegarty v. Shine - 14 Cox C.C. 145 (1878) - Irish Court of Appeal

FACTS: The plaintiff and the defendant had an illicit intercourse for about two years.  In that time the plaintiff contracted a venereal disease from the defendant.

ISSUE: Does consenting to intercourse void the possibility of claiming that knowingly transmitting a venereal disease is assault?

HOLDING: Yes, but this is qualified because the original act was itself "immoral and illegal".

RATIONALE: To have assault the act must be done against the will or consent of the victim.  Sexual intercourse with the consent of the female ...cannot be an assault on the part of the male.  They lived together long enough and to say that this act of deceit would alter their relationship is to say that any other type of deceit should have had the exact same consequence.

DISPOSITION: "... justify the order of the Queen's Bench Division directing a new trial upon the ground of misdirection by the learned judge."