CHAPTER V.

SEXUAL OFFENCES.

THE necessity for protecting a child of tender years from Early law. sexual outrage was very early recognised by our English law. The Statute Westminster 1st (a) enacted "That none do ravish any maiden within age (i.e., of less than twelve years), neither by her own consent nor without . . . and such as be found culpable shall have two years' imprisonment, and after shall fine at the king's pleasure." A further statute, passed in the reign of Elizabeth, (b) made it felony without benefit of clergy to have unlawful carnal knowledge of a girl under ten years; carnal knowledge of a girl between ten and twelve continuing to be a misdemeanour under the older statute. The Offences against the Person Act, 1861, (c) did no more in this respect than consolidate the old law, and repeal the earlier statutes; while the Act of 1875, (d) (bearing the same title), raised the age at which carnal knowledge was felonious to twelve, and at which it was a misdemeanour to thirteen. The Criminal Law Amendment Act, 1885, (e) again raised the age to thirteen and sixteen Present law. respectively, at which it now stands.

As the whole of this Act is set out in the Second Part of this book, it is only necessary here to deal shortly with sections 4 and 5, which are the most important in their bearing upon the protection of children.

SECTION 4.

Section 4 enacts that "any person who unlawfully (a) Defilement of and carnally knows (b) any girl under the age (c) of girl under 13.

(a) 3 Edw. 1, c. 13.

(b) 18 Eliz. c. 7.

(c)24 & 25 Vict.c. 100, ss. 50 and 51.

(d) 38 & 39 Vict. c. 94, s. 4.

(e) 48 & 49 Viet. c. 69, ss. 4 & 5 ;

post, pp. 171 & 172.

Attempt.

Juvenile offenders.

Evidence not on oath.

Meaning of
"unlawful."

thirteen years shall be guilty of felony, and being convicted thereof, shall be liable at the discretion of the Court to be kept in penal servitude for life, or for any term not less than five (now three) years, or to be imprisoned for any term not exceeding two years, with or without hard labour.

Any person who attempts (d) to have unlawful carnal knowledge (b) of any girl under the age of thirteen years. shall be guilty of a misdemeanour, and being convicted thereof, shall be liable at the discretion of the Court to be imprisoned for any term not exceeding two years, with or without hard labour.

The section goes on to provide that where the offender is under sixteen years of age, he may be whipped, in accordance with the provisions of the Juvenile Offenders Whipping Act, (f) or be sent to a certified reformatory.(g)

Provisions similar to those contained in section 13 of the Prevention of Cruelty to Children Act, 1904,(h) are made for the evidence (e) of children of tender years, with the exception that, whereas the latter Act provides for such evidence in writing being treated as a deposition within the meaning of 11 & 12 Vict. c. 42, there is no such provision in the former. (i)

Evidence so given must be "corroborated (f) in a material particular implicating the accused."

(a) Unlawful.-Unlawful carnal knowledge within the meaning of the Act "is neither more nor less than carnal knowledge of a female by one who is not her husband." ()

Prostitution, though not an indictable offence, is "unlawful," for "there are illegalities of which the law takes notice, although not sufficiently grave to form the subject of an indictment." ()

Carnal knowledge, therefore, taking place under any

(f) 25 Vict. c. 18, post, p. 232.

(g) Post, p. 132.

(h) Post, p. 82.

(i) Post, p. 217.

(k) Per Lord Craighill, 13 Cl. Sess. Cases, 4th series, p. 9.

(7) Per Bramwell, B., R. v. Howell, 4 F. & F. 160.

other circumstances than where the parties are legally married, is "unlawful."

(b) "Carnal knowledge," says Mr. Justice Stephen, Carnal know"means the penetration to any, the slightest degree, of ledge. the organs alleged to have been carnally known, by the male organ of generation.” (m)

The 63rd section of the Offences against the Person Act, (n) which made the evidence of carnal knowledge complete without evidence of emission, applied only to offences under that Act, and it was consequently doubted whether under the present Act proof of emission was necessary. This doubt has now been set at rest by the decision of the Court for Crown Cases Reserved in R. v. Marsden, (o) where it was held that under the above section of this Act proof of emission was not necessary. "The law remains the same as it has been since the statute 9 Geo. IV. c. 31, namely, where carnal knowledge. constitutes a crime, that crime is complete without emission, upon proof of penetration.” (p)

A boy under 14, though presumed incapable of carnal knowledge, may be convicted of an indecent assault. Quære, can he be convicted of attempted rape? (q)

(c) Age. The production of a certificate of birth from Proof of age. a district registry office is sufficient evidence of the date. of birth. (1) The mother's evidence is sufficient to prove a child's age, (8) and in one case in the writer's recollection, where the mother was unable to be present through illness, the child was allowed by Coleridge, L.C.J., to give evidence of her own age. (t)

(d) Attempts.-"An attempt to commit a crime," says Definition of Stephen, J., (u) "is an act done with intent to commit that attempt. crime and forming part of a series of acts which would

R. v. Collins overruled.

constitute its actual commission if it were not interrupted . . the offence may be committed in cases in which the offender voluntarily desists from the commission of the crime itself."(x) In the case of R. v. Taylor,(y) cited to support this latter proposition, where the prisoner was charged with attempting to set fire to a haystack by lighting a lucifer match, it is to be observed that he desisted because he found he was watched; had he voluntarily desisted, his previous conduct could not semble be held to constitute an "attempt" to commit the crime; a locus penitentiae being doubtless allowed.

Formerly it was held that no one could be convicted of an attempt to commit a crime where it was impossible that the crime could actually have been committed,(≈) but "that is a decision," said Coleridge, L.C.J., "with which we are not satisfied . . . and in our opinion is no longer law." (a) The case of R. v. Collins has now been clearly and definitely overruled in the case of R. v. Ring,(b) which has laid it down that it is not necessary for the prosecution to prove that the felony alleged to have been attempted could in fact have been committed. Quære, still, however, whether it would be held, that where there is an irrebuttable presumption at law against the possibility of the commission of a crime (as, e.g., the capacity of a boy under fourteen to commit rape) that a conviction of the attempt to do that which the law presumes cannot be done would be good? (c)

Where a letter was written with intent to incite a person to commit an unnatural offence, and the person to whom it was addressed and who received it did not read it, it was held that the sending of the letter proved the attempt to incite, though it was doubtful whether it could be said to amount to inciting. (d) Quere, may the

(r) R. v. Roberts, Dears. C. C. 539.

(y) 1 F. & F. 511.

() R. v. Collins, 33 L. J. 177.
(a) R. v. Brown, 24 Q. B. D. at

P. 359.

(b) 17 Cox, 491.

(c) R. v. Williams, ante, p. 57. (d) R. v. Ransford, 13 Cox, 9.

prisoner in the alternative to the attempt be convicted of

a common assault ?(e)

(e) Evidence not on oath.-See section 15 of the Unsworn Prevention of Cruelty to Children Act, 1904.(f) It is to testimony. be observed that while the latter Act has specially provided that an unsworn statement, such as is therein provided for, shall be deemed to be a deposition within the meaning of 11 & 12 Vict. c. 42, s. 17, it has been held that a statement taken under this section of the Criminal Law Amendment Act was not such a deposition, Not a “deposiand could not be admitted as evidence at the trial in the absence of the witness.(g)

tion."

indecent

When the charge was one of indecent assault only, evidence not on oath has hitherto been inadmissible. Where the prisoner was charged with the full offence of carnal knowledge, and the jury, upon the unsworn evidence of the prosecutrix, brought in a verdict of indecent Verdict of assault, it was held that the conviction was good.() assault. "This,' said Lord Coleridge, "is an anomaly which may lead to a prisoner being indicted for the greater offence under section 4, when it is known that he can only be convicted of the lesser offence under section 9, on unsworn evidence given in support of the charge and made admissible by section 4. This is an unsatisfactory state of the law which I hope will soon be remedied." In R. v. Owen (i) the prisoner was indicted on two counts, one charging indecent assault, the other common assault. After he had given evidence on his own behalf, the jury found him guilty on the second count, but acquitted him on the first. Had the prisoner been tried on the second count alone his evidence would have been inadmissible, and the chairman accordingly reserved the point. The Court for Crown Cases Reserved held that the conviction was right.

In another case, in which the prisoner was likewise indicted on two counts, the first charging an attempt. (h) R. v. Wealand, 20 Q. B. D. 827.

(c) See R. v. Guthrie, 39 L. J. 95. (1) Post, p. 83.

(g) R. v. Pruntey, 16 Cox, 344.

(i) 20 Q. B. D. 829.