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REG.

v. DEE.

1884.

Married

woman

- Consent

is applicable to rape. It has been said by Mr. Barton that a consent sufficient to deprive an act of the character of assault is essentially different from consent to carnal connection. This is of course true; and the distinction would render intelligible

decisions that something which amounted to consent to an

Car- assault was not consent to carnal connection. The distinction nal connection does not, however, advance a step towards the converse proposiobtained by

tion, that there may be a consent to carnal connection (which fraud. involves physical contact) consistently with an absence of consent

to such physical contact; and this is the proposition which would be established by these three cases if they cannot be explained in the mode I have suggested. It seems to me that logically it is the inevitable resalt of Fletcher's case, that the consent which must be absent to constitute rape is the same consent the absence of which involves the minor offence of assault, and that if there were, as there unquestionably was in Saunders' and Williams' cases, acts which involved assaults the crime committed in each case was rape. These cases were followed by Reg. v. Case (1 Den. C. C. 580), the first of this class which came before the Court for Crown Cases Reserved, after its formal constitution by statute. There the connection took place under the pretence of medical treatment. There the indictment was for assault, and the Recorder told the jury that if they were satisfied that the girl was ignorant of the nature of the act, and made no resistance, solely from the bonâ fide belief that the defendant was, as he represented, treating her medically, they should find him guilty. The only question which appears to have been raised was whether the fact of her not having resisted amounted to consent. The decision of Wilde, C.J. is put on a rational ground. “ She consented to one thing; he did another thing, materially different." Then he adds these words, which would tend to show that he had in his mind the effect on Rex v. Jackson (Russ. & Ry. 487) of the reasons of the judges in Reg. v. Camplin (1 Den. C. Ć. 89): "The cases which have been referred to show that where the consent is caused by fraud the act is at least an assault, and perhaps amounts to rape.” Alderson, B. says: “The objection that it amounted to rape was not taken ;” and Platt, B. added, “She consents to one thing and he does another." It is interesting to observe, in the judgments of Wilde, C.J. and Alderson, B., delivered ten years before Fletcher's case, the first indications of a doubt whether the doctrine as to the nature of consent which obtained in cases of assault should not be extended to those of rape. During the thirty years which have since elapsed, the true nature of consent has been discussed in numerous cases, and in ever-varying forms; and the distinction between it and mere submission is now established, far beyond cavil. Before, however, referring to the only cases on the subject which I shall mention, it will be convenient to call attention to the cases in which Rex v. Jackson (Russ. & Ry. 487) has been re-affirmed in the Court for Crown Cases Reserved.

REG.

v. DEE,

1884.

They are Reg. v. Clarke (1 Dears. C. C. 397), decided prior to, and Reg. v. Barrow (L. Rep. 1 C. C. R. 156) subsequently to, Fletcher's case. In Clarke's case the very pointto be now determined was putin by Mr. Hall for the Crown. “I contend,” he says, “that the consent of the prosecutrix was not to the connection with the prisoner, but

Married. to a connection with her husband. She submitted to what she

sup- woman- Carposed to be the exercise of a legal right." He, however, omitted to nal connection suggest any reason for reconsidering Rex v. Jackson (Russ. & Ry; obtainedenly 487) other than that although it had been followed in subsequent

fraud. cases, “the matter, he apprehended, was still open for argument." He did not cite the definition of the offence in Stat. West. 2, c. 34, or the observations of Parke, B., on Reg. v. Camplin (1 Den. C. C. 89); nor did he advert to the possibility of Rex v. Jackson (Russ. & Ry. 487) having been decided on the absence of dissent, as distinguished from the presence of consent, or the several judicial opinions which showed that such a ratio decidendi could no longer have been maintained. The argument failed to induce the court to reconsider the question, and the judgment, which was pronounced by Jervis, C.J., was: “We cannot permit the question to be opened now, but are bound by Rex v. Jackson (Russ. & Ry. 487). Reg. v. Barrow (L. Rep. 1 C. C. R. 156) was decided nine years after R. Fletcher's case (8 Cox C. C. 131) on a case reserved by Kelly, C.B., which referred to the judgment of Lord Campbell in the latter case, and stated that he thought the case “was made out as

the act itself, coupled with the pushing aside of a baby the prosecutrix had in her arms, amounted to force, and there was certainly no consent before, and the reverse immediately afterwards." The case was heard by five judges, of whom Kelly, C.B. was not one. No counsel appeared for either the Crown or the prisoner, and the case is disposed of in the following words by Bovill, C.J., who delivered the judgment of the court : “ It does not appear that the woman was asleep or unconscious at the time when the act of connection commenced.

It must be taken, therefore, that the act was done with the consent of the prosecutrix, though that consent was obtained by fraud. It falls, therefore, within the class of cases which decide that where consent is obtained by fraud, the act does not amount to rape.” The judgment, by excluding the applicability to cases where the prosecutrix was asleep or unconscious, adopts the judgment in Fletcher's case, but it seems to have there escaped attention that one of the effects of that judgment was to abolish the old distinction between such absence of consent as must exist in rape, and that which will constitute an assault. This would have made not only the circuit decisions of Reg. v. Saunders (8 C. & P. 265) and Reg. v. Williams (8 C. & P. 286), but the ruling of that court itself in Reg. v. Case (1 Den. C. Č. 580), authorities for the prosecution, and would have called for a determination of the distinction there taken by Wilde, C.J. and Platt, B. between the act consented to and the act committed. Thus the cardinal point in the case,

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fraud.

Res. the point upon which alone it must have been concluded by the

judge at the trial, “there was certainly no consent," was wholly Dek.

lost sight of in the decision. I fear cases are too often decided 1884. as they are argued, and where feebly argued, as was Reg. v. Clarke Married

(1 Dears. C. Č. 397), or not argued at all, as was Reg. v. Barrow woman- Car- (L. Rep. 1 C.C.R. 156), are decided without much consideration. nal connection of the many cases in which the nature of the consent is con

- Consent sidered I shall refer to but two-Reg. v. Locke (L. Rep. 2 C. C. R. obtained by

10), and Reg. v. Flattery (2 Q. B. D. 410). The indictment in Reg. v. Lock (L. Rep. 2 C. C. R. 10) was for an indecent assault upon boys. The judge left it to the jury to consider whether the boys merely submitted to the acts in ignorance, or if they exercised a positive will, and consented to what the defendant did, telling them in the former case to convict, and in the latter to acquit. The question reserved was, whether the characteristic of an assault, that it must be against the will of the patient, existed in the case of submission to the act, through ignorance of its nature, and when there is no positive exercise of the will in the way of dissent, or whether the active exercise of an actually dissenting will is necessary to be proved to constitute an assault. Kelly, C.B., evidently having in his mind the result of his reservation in Reg. v. Barrow (L. Rep. 1 C. C. R. 156), distinguishes the case from one of rape. “Though I do not say that connection with a woman in such a case would be rape, it would be an assault. It involved actual physical contact. It may, therefore, be an assault, and though there was submission on the part of the children, I do not think there was any consent, for they were incapable of exercising their will one way or another.” Martin, B. saw no evidence of consent. Grove, J. said: “I do not think an actually dissenting will is necessary. The question is between the positive and the negative, and I think the mere negation of assent is sufficient.” Notwithstanding the observations of Kelly, C.B., it appears to me that, once it is established that the element in rape is the absence of consent, and not the existence of dissent, the principle of this decision would extend as well to an indictment for rape as to one for assault. This was the question which arose in the next caseReg. v. Flattery (2 Q. B. D. 410). There the act was committed under the pretence of performing a medical operation, but the indictment was not for assault, as in Reg. v. Case (1 Den, C. C. 580), decided before Fletcher's case, but for rape. In that case the prosecutrix made but feeble resistance to the act, believing, as she swore, that the prisoner was merely treating her medically and performing a surgical operation, and submitting to his treatment solely because she so believed, such belief having been wilfully and fraudulently induced by the prisoner. The case stated that unless such submission amounted in law to consent, there was no consent to the prisoner having connection with the prosecutrix; and the question reserved was, whether, under those circumstances, the conviction was warranted. The court were unanimously of

REG.

DEE.

18S4.

- Consent

opinion that it was; and it will be found that the distinction between the act consented to, and the act actually committed, which was relied on by three of the judges in Reg. v. Case (1 Den. C. C. 580), is pointedly made the ground of their decisions by four out of the five judges who constituted the court.

Kelly,

Married C.B. says: “She submitted to a surgical operation and nothing woman -- Carelse.” Mellor, J.: “It is said that submission is equivalent to nal connection consent, and that here there was submission—but submission to

obtained by what? Not to carnal connection.” Field, J.: “The question fraud. is one of consent or not consent, but the consent must be to sexual connection.” Huddleston, B.: “ The question is whether the prosecutrix consented that the prisoner should have connection with her.” Three of the judges-Mellor and Field, JJ. and Huddleston, B.-state that they should like to have the point decided in Barrow's case reconsidered, and Field, J. says he should hesitate to apply that case. These are the only cases which I think it necessary to refer to. Each one of them, except Reg. v. Clarke (1 Dears. C. C. 397; 24 L. J. N. S. 25, M. C.) and Reg. v. Barrow (L. Rep. 1 C. C. R. 156), advanced a step towards a more reasonable and philosophical consideration of the nature of consent as an answer to a charge of rape. The principles established by Rey. v. Case (1 Den. Č. C. 580) and Reg. v. R. Fletcher (Bell C. C. 63), taken together, removed the basis on which alone R. v. Jackson (Russ. and Ry. 487) rested, and if these principles be acted upon they overrule that case and Reg. v. Clarke. Reg. v. Barrow was inconsistent with the law as established by Reg. v. Case and Reg. v. Fletcher, and if it stands its effect must be one which was never intended to overrule either of these cases. But if it had that effect, it, in its turn, was overruled by the subsequent decisions of Reg. v. Flattery (2 Q. B. Div. 410) and Reg. v. Young (14 Cox C. Č. 114)—the former of which can stand only upon the principles of both Reg. v. Fletcher and Reg. v.

Cuse; and the latter of which rests on Reg. v. Fletcher. We have thus, on the one hand, Reg. v. Case, Reg. v. Fletcher, Reg. v. Flattery, and Reg. v. Young cases at this moment recognised in all courts as subsisting law; and, on the other, Jackson's case, followed without argument or reasoning in Clarke's case and Barrow's case. This at least enables me to consider the question as one of pure law, unfettered by authority. Let me so consider it. Consent is the act of man, in his character of a rational and intelligent being, not in that of an animal. It must proceed from the will, not when such will is acting without the control of reason, as in idiocy or drunkenness, but from the will sufficiently enlightened by the intellect to make such consent the act of a reasoning being. That this is so is but an instance of the application of a principle of widespread application, which in criminal law appears under the maxim Actus non facit reum nisi mens,

sit rea, which determines the nature of the act of execution of all legal instruments, of which it is of the essence that it bo accompanied by the intellect, and which applies in the innumerablu VOL. XV.

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woman

Reg. cases in which intention governs. I feel that I owe an apology

to my hearers in insisting upon so elementary a proposition, but

nothing is in my opinion too elementary to encounter a doctrine 1884. so abhorrent to our best feelings, and so discreditable to any Married

jurisprudence in which it may succeed in obtaining a place, as Cara

that which, more than once, was laid down in England, that a nal connection consent produced in an idiot by mere animal instinct is sufficient

Consent obtained by

to deprive an act of the character of rape. I think it follows fraud. that (excluding cases iu which the doctrine of estoppel applies)

an act done under the bona fide belief that it is another act different in its essence is not in law the act of the party. That is the

present case—a case which it is hardly necessary to point out is not that of consent in fact sought to be avoided for fraud, but one in which that which took place never amounted to consent. The person by whom the act was to be performed was part of its essence. The consent of the intellect, the only consent known to the law, was to the act of the husband only, and of this the prisoner was aware. As well put by Mr. Curtis, what the woman consented to was not adultery, but marital intercourse. The act consented to was not a crime in law ; it would not subject her to a divorce. Where adultery criminally punishable by our law she would not be guilty. Compare the case now with Reg. v. Flattery (2 Q. B. Div. 410), a decision subsequent to any of those relied on for the prisoner. In it the act to which the consent was given, one of medical treatment, was different in nature from the act committed, and on this difference in nature the case turned. Viewing man as an animal, it might be said that the act here consented to and the act committed were of the same nature. Thus, the case might be distinguished from Reg. v. Flattery, and the animal instinct of the idiot held to be consent. But if I be right in holding that, in determining the legal relations of man to man, we regard him not as the animal but as the rational being, and if in administering the common law of this country, we are, as I believe us to be, at liberty to remember that it is the law of a Christian country, the growth of centuries of Christian wisdom-a law which, on the one hand, constituted the crime of rape as the protection of virtue, and on the other hand gave effect to the divine institution of marriage, by subjecting the wife to the will of the husband I cannot entertain any doubt that the violation by a stranger of the person of a married woman is, in the view of that law, as it is in morality, an act different in nature from the lawful act of the husband. If this be so, Reg. v. Flattery (2 Q. B. Div. 410) rules this case. For these reasons I am of opinion that the conviction should stand.

LAWSON, J.-The question reserved for us in this case is whether, upon the evidence, the prisoner was entitled to have an acquittal directed, and in my opinion he was not. I have always understood that the offence of rape consisted in “having carnal knowledge of a woman against her will.” I see no reason for departing from that definition, which is found from the

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