RIG. 27. DEE. 1884. Married fraud. earliest time in the language of the indictment, which I look upon as the highest exposition of the law which we can have. It has been contended that the true definition is "without her consent," instead of "against her will." I see no reason for making any such change in the definition. The act cannot be found to be done against her will if there was consent express woman— Caror implied, so that it is really a distinction without a difference, nul connection and all that has been said about the Statute of Westminster 2 - Consent obtained by appears to me to be immaterial. The question is, what must be the nature of the consent? In my opinion, it must be consent to the prisoner having connection with her, and, if either of these elements be wanting, it is no consent. Thus, in Flattery's case-where she consented to the performance of a surgical operation, and, under pretence of performing it, the prisoner had connection with her-it was held clearly that, as she never consented to the sexual connection, the case was one of rape; so, if she consents to her husband having connection with her, and the act is done, not by her husband, but by another man personating the husband, there is no consent to the prisoner having connection with her, and it is rape. The general principles of the law as to consent apply to this case. то constitute consent there must be the free exercise of the will of a conscious agent; and therefore, if the connection be with an idiot incapable of giving consent, or with a woman in a state of unconsciousness, it is rape; in like manner if the consent be extorted by duress or threats of violence it is no consent. These are the true principles of law with govern this case, and which I have always heard laid down by the judges in Ireland; and the cases which contravene this principle I should not be disposed to follow, and they have never been followed in this country. Mr. Barton has, with great accuracy, referred us to the line of cases in England, beginning with the case of R. v. Jackson (Russ. & Ry. 487) and culminating in Reg. v. Barrow (L. Rep. 1 C. C. R. 156), and if the latter case be good law it rules the present case in favour of the prisoner. My opinion is, that it should not be followed, but should now be distinctly overruled, having been long since undermined by all sound judicial opinion. I do not comment on the cases intervening between Rex v. Jackson and Reg. v. Barrow. This has been done by the Chief Baron. I will only say that some of them are not only revolting to common sense, but discreditable to any system of jurisprudence, notably those which speak of material consent and animal instincts. There can be no such thing as material consent in the case of a rational being, it must be mental consent or nothing. The case of Reg. v. Barrow is, in its facts, identical with the case before us. It was tried before Kelly, C.B., a great Crown lawyer, and he approved of the conviction, but reserved the point. In the Court of Crown Cases Reserved there was no appearance either for the prosecution or the prisoner, so that the court had no assistance. The REG. v. DEE. woman judgment given by Bovill, C.J. is a very perfunctory one, and does not carry much weight. It is based upon a vague impression of what former cases had decided, and professes to 1884. follow them. In the next case, Reg. v. Flattery (2 Q. B. Div. Married 410), there is a chorus of disapproval of Reg. v. Barrow from all Car- the judges; but it was not necessary to overrule it. In the nal connection next case, Reg. v. Young (14 Cox C. C. 114), the necessity of overruling it was avoided by an amendment made in the case; but, in my mind, it makes no difference at what period of the operation the woman was awake, if she consented under the belief fraudulently induced that the actor was her husband. The necessity now arises, and we overrule it as unsound, and belonging to a class of cases the authority of which was never recognised by the judges in this country. -Consent obtained by fraud. O'BRIEN, J.—In the case of Reg. v. Allen, which is reported in L. Rep. 1 C. C. R. 367, and which was decided in opposition to Reg. v. Fanning (17 Ir. C. L. R. 289), Cockburn, C.J., who delivered the judgment of the Court of Criminal Appeal in England, took no notice of the position that court held in relation to a court of the same authority in Ireland, which had decided the same point the other way, but merely stated that they had considered the case and agreed in the opinion of the dissentient judges, and the decision of the English judges was one on the side of guilt and not of innocence, and was attended with the inconvenience, which was put by the Chief Baron in the discussion, of establishing that what was not a crime in Ireland, as the law of bigamy then stood, was a crime in England. We hold now a similar position, in relation to the court which decided the cases of Reg. v. Barrow and Rex v. Jackson, and others of the same kind, and have to determine, if those cases be not right, that that which is not a crime in England is a crime in Ireland. And the rule which applies to Courts of Appeal in England and Ireland having to decide the same question I take to be this, that in civil cases the Court of Appeal in one country ought to follow the decision of that in another, because there is a power elsewhere, namely, in the House of Lords, of correcting the error, if any; but that this rule does not extend to the Court of Criminal Appeal, because that is the final tribunal in each country for cases reserved, and that therefore each has a right to act independently of the other. Now, the law in England, in the year 1872 at least, whatever was the fluctuation of opinion, is fixed by the statement of Lord Bramwell, made in the case of Reg. v. Middleton (42 L. J. N. S. 84, M. C.), that if a man gets into bed to a woman in the dark, who lets him have connection with her in the erroneous belief that he is her husband, he is not guilty of rape, and he applies that law to the case of a charge of larceny, where money was given to one man that was intended for another, as involving the principle that there is consent to the act, though not to the person, and that there is no crime-that it is not a case of invitus domnus, as it was not, in the other instance, a case of REG. 17. DEE. 1884. Consent obtained by fraud. invita fæmina. Reg. v. Barrow, which laid down the law in accordance with this proposition, and followed Rex v. Jackson and Reg. v. Clarke-so far as that was an authority-was decided in the year 1868. There was no counsel on either side, and the names of Kelly, C.B., when he stated the case, and of Bovill, Married C.J., who gave the judgment in a few lines, as reported, must woman — Car not be considered to add much to the inherent authority of the nal connection tribunal. In Reg. v. Flattery, which was decided at a later period, and which was absolutely contradictory of Reg. v. Barrow, unless effect be given to the distinction taken by Bramwell, B. between consent to the act and consent to the person, doubts were suggested as to the correctness of the decision in the case of Reg. v. Barrow, and those which preceded it; and the doubts so suggested caused Huddleston, B. to reserve the case of Reg. v. Young, and what followed is certainly not calculated to increase one's respect for the wisdom which presided over the line of decisions now under review; for, though Reg. v. Young was stated expressly with the object of challenging the case of Reg. v. Barrow, the case was amended at the hearing by the statement that the woman was asleep, which made the crime itself independent of the fraud, and took the case entirely clear of the decision in Reg. v. Barrow, and so, to use the phrase of Coleridge, J., "removed the case from all difficulty; that is, by leaving the difficulty exactly where it was. We have, therefore, to consider the case of Reg. v. Barrow and the previous cases on which it rests, with the taint of doubt which has descended through the whole line, on their own merits, and for this purpose it is convenient to see the cases in their series of progression, and to consider what reason intervenes that would require them to stop at the point of the present question. We have it that the crime is capable of being committed against a person deprived of reason-that is the case of Reg. v. Fletcher or against a person partially or temporarily deprived of reason (Reg. v. Camplin, 1 Den. C. C. 89), or against a woman overpowered by fear (Reg. v. Jones, 4 L. T. Rep. N. S. 154), or during sleep (Reg. v. Mayes, 12 Cox, C. C. 311). All these cases go upon the ground of incapacity to consent. And it occurred to me during the argument that the link between those cases and the present was capable of being completed by putting the case of a woman who was blind. For I suppose it could not be denied that a woman who was blind, and deceived into supposing another person was her husband, would be the subject of the crime in law. And what difference in reason can exist between the offence of personating the relation of a husband by means of a woman's blindness and by means of the darkness, for one is the veil of infirmity and the other the veil of nature. No doubt the question is open to the argument that the object of the law was to provide for the case of violence or inability to consent, and that, except under certain conditions, it left women to preserve their own virtue, though it has not left persons to preserve their REG. v. DEE 1884, Married property against aggression committed by the same means. That brings us back to the question which in law is the crime of rape. The crime is the invasion of a woman's person without her consent, and I see no real difference between the want of consent and the act being against her will, which is the language of the omen-Car- indictment, though the distinction is taken by Lord Campbell, or nal connection between the negation of consent and positive dissent. Whether -Consent the act of consent be the result of overpowering force, or obtained by fraud. of fear, or of incapacity, or of natural condition, or of deception, it is still want of consent, and the consent must be, not consent to the act, but to the act of the particular person-not in the abstract, but in the concrete, for otherwise the consent, in principle, would be just like the act of handing money in the dark to one person which was received by another, who would, nevertheless, in that case be guilty of a crime. The repeated question of the rule acted on in England evinces a strong consciousness that it was not at all right; and though Bovill, C.J., in Reg. v. Barrow, declared that the question was closed and not to be reopened, it has since been constantly treated as open, and now remains open, to be closed by a judgment of this court, which will give the same defence to female virtue against the thief in the dark as against the open ways of the highwayman, and will remove an opprobrium from the law that it is right to say has not lain upon it in this country, of having no sufficiently stern provision against what is an abominable form of crime. ANDREWS, J.-I concur in the law as laid down in the judgments of the Lord Chief Justice and the Lord Chief Baron; and the only additional observations I desire to make are these, that upon the reserved case, as amended, I do not understand that the question of guilty or not guilty was withdrawn from the jury. I take it that what the Lord Chief Justice really did was to send to them the question of guilty or not guilty, telling them, in effect, that upon their special findings, and the undisputed facts, they should find the prisoner guilty. Upon this instruction the credibility of the prosecutrix remained a matter for the consideration of the jury, and it would have been open to them, if they disbelieved her evidence, to have acquitted the prisoner. It is manifest, however, that they believed her evidence, and the question now before the court appears to me to be, in substance, whether the prisoner was entitled to an acquittal. In my opinion he was not, and I agree that the conviction ought to be affirmed. MURPHY, J.-Dee was indicted for having committed the crime of rape on a married woman named Gorman. He was tried before the Lord Chief Justice. At the trial the woman proved that, &c. (See case stated.) The Chief Justice left to the jury certain questions stated in the case, and, on receiving the answers as set forth in the case, told the jury they should convict the prisoner, reserving for this court the question whether, &c., &c. (see case). On the case stated, in my opinion, clearly and REG. v. DEE. 1884. Married women Car - Consent obtained by fraud. distinctly, the plain and simple question for our consideration is whether the accused, Dee, being proved to have had connection with this woman during the time that she was under the belief it was her husband who was in the bed with her, was guilty of the crime of rape. I place no importance on the fact that it appears the woman during the act discovered that it was not her husband who was with her, and then did not further consent to the act. I take the nal connection clear question to be, whether the accused having, by fraud or device, induced the woman to believe that she was submitting her person to her husband, and having thus obtained her consent to the act of connection, committed the crime of rape. The case on behalf of the accused has been argued by Mr. Dunbar Barton, and I know I express the unanimous opinion of the court in stating that he has argued it with great clearness and ability, having brought before us every case bearing on the question, and I admit he has shown in the cases cited terminating with Reg. v. Barrow in the Court of Criminal Appeal, that a great majority of the judges in England before whom the question arose have decided that the crime of rape is not committed under the circumstances I have stated. I do not at all assent to the reasoning advanced in support of these decisions; it appears to me most irrational. To my mind nothing can be more absurd than the reasons assigned for and the distinctions made in most of these decisions. The definition of rape in the Statute of Westminster is stated to be where "a man doth ravish a woman married, maid, or other, where she did not consent neither before or after." Whether it is taken to be without consent or against consent, without will or against will, I hold each to mean the same. Where the will does not accompany the act there is no consent, and every invasion of a man's person or property without consent or will is against consent and will. A written document is placed before a man, which he reads and understands, and by signing which he knows that some right or privilege is passing to another; he consents to sign it; then turning aside for a moment, another document is substituted for that which he had read, believing it to be the same he signs it. Is he bound by the contents of that which he has signed? Has he consented to it? He certainly has not. This woman consented to intercourse with her husband, and the accused induces her to believe he is her husband and so obtains possession of her person. She never consented to this violation of her virtue. A counsel for the Crown said, she did not consent to adultery, and this was the act the accused committed. If accused was not guilty of the crime of rape, which involves an assault on a woman's chastity and virtue, he was guilty of no offence. It is said he was guilty of an assault, having done violence to her person by even touching her without or against her consent, for before he can be held guilty of an assault this must be assumed; but at the same time it is said he is not guilty of any assault on her virtue, because she consented to the act of sexual intercourse. In my opinion this is not law. |