REG. v. DEE. 1884. - Cur - Consent resist, believing the man to be her husband, but that on discovering that he was not her husband, which was after the commencement, but before the termination of the proceeding, her consent or acquiescence terminated, and she ran down stairs. It appeared, I think manifestly, that the prisoner knew the woman was Married deccived, as she said to the prisoner in his presence and hearing woman when he came into the room, "You are soon home to-night," to nal connection which he made no reply. At the time my own opinion, founded obtained by upon well-known cases in England, was that the prisoner was not fraud. guilty of rape, but at the request of the counsel for the Crown I left certain questions to the jury, and upon their findings directed them to find a verdict of guilty, reserving the case for the consideration of this court, which is now called upon to decide the question which arises. There have been several cases in England which have arisen on the point, whether the having connection with a married woman by personation of her husband amounts to the crime of rape. Rape may be defined as sexual connection with a woman forcibly and without her will: (Reg. v. Fletcher, 8 Cox C. C. 134.) It is plain, however, "forcibly " does not mean violently, but with that description of force which must be exercised in order to accomplish the act, for there is no doubt that unlawful connection with a woman in a state of unconsciousness, produced by profound sleep, stupor, or otherwise, if the man knows that the woman is in such a state, amounts to a rape. The case which the court has to deal with is that of connection with a married woman obtained by personation of the husband while the woman is awake. On this point subtle distinctions have been drawn. The earliest reported case appears to be that of Rex v. Jackson (Russ. & Ry. 487). There the prisoner was convicted of burglary with intent to commit a rape on a married woman. It appeared in evidence that the prisoner got into the woman's bed as if he had been her husband, and had partial connection with her. The case was considered by the twelve judges. Four of the judges thought having carnal knowledge of a woman whilst she was under the belief that the man is her husband would be a rape, but the other eight judges thought it would not; but several of the eight judges intimated that if the case should occur again they would advise the jury to find a special verdict. This case cannot be regarded as one of much authority. Doubts seem to have existed in the minds even of the majority. However, in Reg. v. Saunders (8 C. & P. 265), in the year 1838, a married woman, a Mrs. Cleasby, in like manner submitted to connection with a man believing him to be her husband, but on discovering the mistake she ran and hanged herself, but was cut down and recovered. Gurney, B. directed the jury that the evidence did not establish a rape, as she consented, but that if they found that it was a fraud on her, and that she did not consent as to the person, they might find the prisoner guilty of an assault, which was accordingly so found, the court proceeding on the enactment of 7 Will. 4 & 1 Vict. c. 85, s. 11, which provides that on the trial REG. DEE. 1884. woman — of any person for any felony which includes an assault, the jury may acquit of the felony and find the party guilty of an assault, if the evidence should warrant such finding. I do not myself understand the application of the statute. If the consent of the woman prevented the crime being a rape, it would seem that it Married Car would also prevent it being an assault, which consent excludes. nal connection The same point arose in the case of Reg. v. Clarke (1 Dears. C. C. - Consent 397) where, under similar circumstances, the jury having obtained by fraud. found the prisoner guilty, the judge reserved the case, and upon argument the judges held that they were bound by the decision in R. v. Jackson, and that they ought not to allow the question to be opened, and the conviction was quashed. Reg. v. Barrow is reported in 1 L. Rep. C. C. R. 156. All the judges, Bovill, C.J., Channell, B., Byles, Blackburn, and Lush, JJ., there held, under similar circumstances, that when the consent is obtained by fraud, the act does not amount to rape; contrary, however, to the opinion of Kelly, C.B., before whom the case was tried, expressed at the trial. The case of Reg. v. Flattery was not a case of personation of a husband, but of sexual connection by a medical man, under pretence of his performing a surgical operation on a woman. In that case the prisoner was adjudged guilty of rape, it being clear that the woman did not submit knowingly to connection but to a different act, Kelly, C.B. saying "the case is therefore not within the authority of those cases which have been decided, decisions which I regret, that where a man by fraud induces a woman to submit to sexual connection it is not rape." Mellor, Denman, and Field, JJ. and Huddleston, B., all expressed their dissatisfaction with the dictum of Rea v. Jackson, and their desire that the case should be reconsidered. The last case on the subject of personation appears to be that of Reg. v. Young (14 Cox. C. C. 114). Though the prisoner was held to have been properly convicted in that case, it does not clearly illustrate the precise point which is now before us, for on the facts as explained by the judge who tried the case it appeared that the commencement of the sexual connection in that case, which was one of personation, took place while the woman was asleep. Before its completion, however, she awoke and called out to her husband. It would seem that the criminal and felonious act of penetration was completed while the woman was asleep, and therefore unconscious. It is well settled, as I have observed, that connection with a woman while unconscious does constitute rape. The question arises now for our consideration, are we bound to follow the decisions in England to which I have referred? The series of cases to which I have drawn attention appear to be an echo of the first case of Rex v. Jackson. The others followed, no further argument being treated as necessary. Nevertheless, if the doctrine thus established had been adopted by the judges in England without objection, I do not think that this court should establish a different legal determination, unanimity on such points being of great importance. In its inception, however, that original case of Rex v. Jackson was REG. υ. DEE. 1884. - Consent fraud. dissented from by four of the twelve judges who heard it, while of the majority several apparently doubted the doctrine there contended for. In the case of Reg. v. Flattery all the judges desired that this doctrine should be reconsidered. In Ireland, until the present case, no similar question seems to have arisen; Married and it appears to me, under all the circumstances, that it is com- woman- Carpetent for us, and it is our duty, to consider the doctrine nal connection of those English decisions upon their merits. Now, rape obtained by being defined to be sexual connection with a woman without her consent, or without and therefore against her will, it is essential to consider what is meant and intended by consent. Does it mean an intelligent, positive concurrence of the will of the woman, or is the negative absence of dissent sufficient? In these surgical cases it is held that the submission to an act believed to be a surgical operation does not constitute consent to a sexual connection, being of a wholly different character; there is no consensus quoad hoc. In the case of personation there is consensus quoad hanc personam. Can it be considered that there is a consent to the sexual connection, it being manifest that, had it not been for the deceit or fraud, the woman would not have submitted to the act. In the cases of idiocy, of stupor, or of infancy, it is held that there is no legal consent, from the want of an intelligent and discerning will. Can a woman, in the case of personation, be regarded as consenting to the act in the exercise of an intelligent will? Does she consent, not knowing the real nature of the act? As observed by Mr. Curtis, she intends to consent to a lawful and marital act, to which it is her duty to submit. But did she consent to an act of adultery? Are not the acts themselves wholly different in their moral nature? The act she permitted cannot properly be regarded as the real act which took place. Therefore the connection was done, in my opinion, without her consent, and the crime of rape was constituted. I therefore am of opinion that the conviction should stand confirmed. no PALLES, C.B.-The real question for decision is whether the consent found deprives the act of the prisoner of the character of rape. It now arises for the first time in this court, and, in strictness, we approach it unfettered by authority. The decisions of the Court for Crown Cases Reserved in England are most valuable to us as authorities. We pay them (as we are bound to do) the highest respect, and give them the most careful consideration. Were they in reference to the question in controversy, uniform and consistent, we should be slow to depart from them in a proceeding like the present, in which the question is raised in a form in which the decision will not be capable of being brought to the Court of ultimate Appeal. Nevertheless, they do not bind us in law, nor where they are, as here, varying and inconsistent, can they relieve us from the responsibility of deciding according to our own views of the law. All of the decisions have been brought before us in their REG. v. DEE. 1884. Married woman -Consent obtained by fraud. chronological order by Mr. Dunbar Barton in the course of his lucid and admirable argument, and no one who has carefully considered them can avoid arriving at the conclusion that at some period a change took place in the application of the legal principles upon which they were based. I think that the change Car- is to be dated from Reg. v. Camplin (1 Den. C. C. 89) decided in nal connection 1845. That was a case reserved upon a conviction for rape, the act charged having been committed upon a girl thirteen years of age while she was insensible from liquor given to her by the prisoner, for the purpose, not of causing insensibility, but of exciting her. It was heard before thirteen judges, ten of whom were for affirming, and three for reversing the conviction. Reasons were not given for the judgment; but Patterson, J., when subsequently pronouncing sentence, stated that the great majority of the judges were of opinion that the evidence that the act was without the consent and against the will of the prosecutrix was sufficient. Parke, B. evidently thought that this statement of the ratio decidendi was incorrect. He accordingly appears to have handed the reporter, Mr. Denison, a note of the real reasons for the opinion of the judges. This-note is printed in the addenda to the first volume of Denison's Reports (app. xvii.), and part of it is in these words: "and Tindal, C.J. and Parke, B. remarked that in a Statute of Westminster 2, c. 34, the offence of rape is described to be ravishing a woman where she did not consent,' and not 'ravishing against her will."" This statute was not expressly made the ratio decidendi there, but the above description of the crime was adopted by Platt, B., in Reg. v. Ryan (2 Cox C. C. 115), was relied upon by counsel for the Crown in the case in which the question next arose-Reg. v. R. Fletcher (Bell C. C. 63), and being made the ratio decidendi there, received the authority and sanction of the Court for Crown Cases Reserved. To prevent misconception, however, I desire to say that, in my opinion, the case is nowise decided that rape was not the "forcible violation of a woman against her will," or that the old allegation in indictments, "contra voluntatem suam,' contra voluntatem suam," was inaccurate. decides no more than that absence of consent amounts, in relation to such an act, to dissent. The description of the offence in the Statute of Westminster is objected to by Stephen, J. in his Digest of Criminal Law, p. 171, as a definition which itself contained the word to be defined, and he adds that were it not for Lord Coke's Commentary upon the statute he should have thought the words applied rather to abduction than to rape. The latter view is, in my opinion, unsustainable; and, as I consider it the turning-point of this case, I may be excused for saying a word in reference to it. So far back as the reign of Edward IV. a case will be found in the Year-books (9 Edw. 4, p. 26, No. 35), of an indictment in which the charge was made in the words, "felonice cepit et eam carnaliter cognovit contra voluntatem suam," omitting “rapuit," and it was held bad by reason of this omission, and the reason It as In given is that at common law rape was not felony, and being made |