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being the law, the cases in this relation will now be considered as follows:
1. Acquiescence obtained by Fear. $ 1142. Where the woman is insensible, through fright, or even where she ceases resistance under fear of death or duress, the consummated act is rape. a Thus, where a father by his ferocity established “a reign of terror” in his family, and under this power his daughter remains passive while he has carnal intercourse with her, this intercourse, effected by terror, and without consent, is rape. b Nor is it necessary that there should be force enough to create “reasonable" apprehension of death. c But it is necessary to prove in such case, that the defendant intended to complete his purpose, in defiance of all resistance. d
It is admissible for the prosecution on this head to give evidence of the defendant's bodily strength, and of the prosecutrix's bodily weakness. e
2. Acquiescence obtained by Ignorance of Nature of Act. $ 1143. The consent of a female of very tender years, or even her aiding the prisoner in the attempt, is no defence.f And in
or by a power which induces the wo- is for the jury to decide ; and in the man to suppose that it is her husband, last case to acquit of the rape. R. v. amounts to an assault." R. v. Lock, Hallett, 9 C. & P. 748; Wright v. State, 27 L. T. N. S. 661. According to an- 4 Humph. 194. See ante, $ 751 a. other report (Law Rep. 2 C. C. R. 12), 6 R. v. Jones, 4 L. T. N. S. 154. the language of the Chief Baron was, c Walter v. State, 40 Ala. 325. " It is much like the case of an act done d R. v. Wright, 4 F. & F. 967; to a person while asleep. And although Strang v. People, 24 Mich. 1 I do not say that connection with a e State v. Knapp, 45 N. H. 148. woman in that state would be rape, it f Hays r. People, 1 Hill N. Y. R. would be an assault." And see par- 351 ; Stephen v. State, 11 Georg. 225; ticularly post, $ 1156 b.
O'Meara v. State, 17 Ohio St. 515 ; a Dalt. c. 105, 607; 1 Hawk. P. C. Moore v. State, Ibid. 521 ; State v. Ca. 41 ; see W. & S. Med. Jur. vol. ii. Handy, 4 Harring. 566; Davenport v. $ 264; Pleasant v. State, 8 Eng. (3 Com. 1 Leigh, 588; R. v. Martin, 9 C. Ark.) 360 ; Wyatt v. State, 2 Swan & P. 213; 2 Moody, 123; R. v. Johnson, (Tenn.), 394 ; Lewis v. State, 30 Ala. L. & C. 632; 10 Cox C. C. 114; but see, 54; R. v. Rudland, 4 F. & F. 967. as qualifying this, R. v. Read, 1 Den. Whether resistance ceased because it C. C. 377; 2 Car. & Kir. 957; Smith was useless and dangerous, or because v. State, 12 Ohio St. R. 466 ; People v. the prosecutrix ultimately consented, McDonald, 9 Mich. 150.
1859, before the court of criminal appeal, it was held rape by Lord Campbell, C. J., and all the judges, where a man had carnal knowledge of a girl of thirteen, of imbecile mind, and the jury found that it was by force, and without her consent, she being incapable of giving consent from defect of understanding, but it was not found to be against her will. g
In Georgia the same principle has been somewhat amplified by holding that where sexual intercourse is had with one over ten, who is still a child in stature, constitution, and physical and mental development, the court may be justified in saying that the party is in like manner incapable of giving consent. h
Under this head, also, may fall the cases presently to be noticed, where a married woman consents under the belief that it is her husband. i
As to how far acquiescence produced by surprise or fraud will be a defence, has been the subject of much consideration in the English courts. Thus in one case it was ruled that it was not an assault with an intent to commit a rape, for a medical man, under the pretence of administering an injection, to induce a woman to kneel down with her face on the bed, and then to attempt sexual connection with her by surprise ; but it was said that it would have been rape had the defendant intended to have connection with the prosecutrix by force and had succeeded. j And so also, as will presently be seen, when connection with a girl was obtained by inducing her to believe she was at the time submitting to medical treatment, the judges held that consent obtained by such process was no defence. k But it must be a clear case of ignorance and simplicity in the prosecutrix to justify a conviction of rape when connection was obtained by the defendant by this process with her acquiescence. l The effect of artificial stupefaction will be considered under another head. That of an unconscious submission during sleep has been discussed elsewhere. n
Unconsciousness through mental disease. Here must again.be invoked the position that in cases of rape, “without her consent
g R. v. Fletcher, 8 Cox C. C. 131. So also State v. Farr, 28 Iowa, 397.
h Stephen r. State, 11 Georg. 225.
k R. v. Case, post, $ 1145.
n W. & S. Med. Jur. vol ü. $ 246, 264, 275. See post, § 1146.
is to be treated as convertible with "against her will." o From this it follows that carnal intercourse with a woman incapable, from mental disease (whether that disease be idiocy or mania), of giving consent, is rape.p But the question as to whether the mental disease is such as to incapacitate the patient from assenting, is one to be examined with great care. There are many persons laboring under mitigated insanity who are capable of making contracts, and who, in a modified degree, are responsible for crime. For a man knowingly to have criminal intercourse with a woman of intellect thus impaired is no doubt peculiarly wrongful; yet if she is capable of consenting, and does consent, it is not rape. And a fortiori is this the case when the man has no knowledge that the woman's intellect is disturbed. Hence, in such cases, if there be consent, a prosecution for rape cannot be sustained.
3. Acquiescence obtained by Mistake or Imposition as to the Per
$ 1144. In England, having carnal knowledge of a woman under circumstances which induce her to suppose it is her husband, was held by a majority of the judges not to amount to a rape ; but several of the majority intimated that should the point again occur, they would direct the jury to find a special verdict. 8 In two subsequent cases, where the defendants were indicted for rapes under similar circumstances, Gurney and Alderson, Bs., directed an acquittal for the rape, but held that the defendants might be convicted of the assault, under the stat. 7 Wm. 4 & 1 Vict. c. 85, s. 11, and the judges afterwards held, that upon such conviction, hard labor might be added to the sentence of imprisonment.t
In 1854, in a case where the finding was that the defendant got into bed with a married woman and had criminal connection, she believing him to be her husband, but where at the same time it was found the intention on his part was not to consummate the act by force in case of discovery, but if detected, to desist, it was held by Jervis, C. J., Coleridge, J., Alderson, J., Martin, B., and Crowder, J., in a case reserved, that this was
O Ante, 1141.
a See 1 Wh. & St. Med. Jur. p As to idiocy, see this affirmed in (1873) $ 50, 122, 242. R. r. Pressy, 10 Cox C. C. 635; R. v. po Crosswell v. People, 13 Mich. 426. Fletcher, 8 Cox C. C. 134 ; Stephen v. See R. v. Fletcher, L. R. 1 C. C. 39. State, 11 Ga. 225; State v. Tarr, 28 s R. v. Jackson, R. & R. 487. lowa, 397; State v. Crow, 2 Wh. & St. t R. 2. Saunders, 8 C. & P. 265, and Med. Jur. (1873.) $ 271; as to mania, R. v. Williams, Ibid. 286. R. v. Charles, 13 Shaw's J. P. 746; as to stupefaction, post, $1146.
not rape. U
In 1858, in the high court, of justiciary in Scotland, it was held (two judges dissenting) not to be rape, when the carnal intercourse was effected by the same fraud, there being nothing in the fact to show whether or no the defendant intended to use force. v
In Virginia, upon an indictment on statute of 1822, ch. 31, $ 3, the evidence was that the defendant, not intending to have carnal knowledge of a white woman by force, but intending to have such knowledge of her while she was asleep, got into bed with her, and pulled up her night garment, which waked her, using no other force, and it was held that this was not an attempt to ravish within the meaning of the statute. w But in New York a contrary rule has been held ; and it was determined that when the offence was consummated before the prosecutrix, a married woman, found out that the defendant was not her husband, the rape was complete. x And so it is said to have been determined in an anonymous case before Thompson, C. J., in Albany, at a court of oyer and terminer. y So in an early case it seemed to be assumed in Connecticut that a stealthy connection with a woman, under the impression on her part that it was her husband, was rape. 2 A contrary view, however, was taken by the supreme courts of Tennessee a and Alabama. b And the latter is technically the sounder view. Force is an essential ingredient of rape; and without force used, or intended to be used, though consent obtained by fraud is no defence tion;
u R. v. Clark, 29 E. L. & Eq. 542; to use force. Carter v. State, 35 Ga. Dears. C. C. 397; 6 Cox C. C. 412; 263. S. P., R. v. Sweenie, 8 Cox C. C. 223 ; * People v. Metcalf, 1 Wheel. C. C. R. v. Barrow, 1 L. R. C. C. 156; 11 378. See Walter v. People, 50 BarCox C. C. 191.
bour, 144. v R. v. Sweenie, 8 Cox C. C. 223. y 1 Wheel. C. C. 381.
w Com. v. Fields, 4 Leigh, 648. It z State v. Shephard, 7 Conn. 54. would be otherwise if the intent was a Wyatt v. State, 2 Swan, 394.
b Lewis v. State, 30 Alab. 54.
to a prosecution for assault, there is not the intent necessary to sustain a prosecution for rape. c
$ 1145. Whether rape existed when a medical man had sexual connection with a young girl, who made no resistance, solely from a bona fide belief that the defendant was (as he represented) treating her medically, was a subject of much discussion in England, in a case in which, under a special statute, the defendant had been convicted upon such evidence of an assault. " I entertain no doubt whatever in this case," said Wilde, C. J.; "to my mind, it is perfectly clear that the prisoner has been properly convicted. The learned recorder told the jury that the girl was of age to consent, and if they thought she had consented to what the prisoner had done, they ought to acquit the prisoner ; but if they were of the opinion that she was ignorant of the nature of the prisoner's act, and made no resistance, solely from the belief that she was submitting to medical treatment, they ought to find him guilty. That was a most proper direc
and the jury have found that the prisoner was guilty, and that the girl made no resistance because she supposed he was, as he represented to her, treating her medically. She was, according to the evidence, but fourteen years old, and it is quite reasonable to suppose that in this case this young person might have been totally ignorant of the nature of the act of the prisoner, and how it would affect her character, her station, and her happiness for the rest of her life. She consented to be medically treated by the medical man under whose care she had been placed by her parents. Was the defilement of her person medical treatment ? Did the prisoner commit no legal, nor moral, and no ecclesiastical offence? To contend that a medical man could be justified in such conduct, under any conceivable circumstance, is not to be tolerated in a court of justice. Here the young woman did not resist in consequence of the representation of the prisoner. It was a most wicked act on the part of the defendant, and I am of opinion that the verdict of the jury was perfectly right.” d“I am of the same opinion,” said Alderson, B.; " in the case where a man obtains possession of a woman's
c See particularly remarks of Kelly, Den. C. C. 580 ; 1 Eng. L. & Eq. 544. C. B. in R. v. Lock, cited ante, note See R. v. Stanton, 1 Car. & Kir. 415, 2,$ 1141, and post, $ 1156 b.
and ante, $ 751 a, 1143. d R. v. Case 4 Cox C. C. 220; 1