Slike strani
PDF
ePub

or manslaughter, if the person assaulted subsequently dies).' Such a certificate is a bar even to an action by a husband for a doctor's bill and other expenses caused by an assault committed on his wife by the defendant.2

1 R. v. Morris (1867), L. R. 1 C. C. R. 90.

• Masper and wife v. Brown (1875), 1 C. P. D. 97.

CHAPTER VII.

RAPE AND INDECENT ASSAULTS.

ANY person who has carnal knowledge of a woman without her consent is guilty of the felony of rape, and liable on conviction to be sent to penal servitude for life.

not triable at Quarter Sessions.

The crime is

The act must take place without the consent of the prosecutrix, e.g., by force or by drugging her. If, however, the act took place with her consent, it will still be rape provided such consent was obtained by the accused either putting her in fear of bodily harm or practising some fraud upon her; for in such case her consent to the act cannot be called a real consent. For example, if a man has intercourse with a woman by pretending that he is performing a medical operation upon her, or if a man induces a married woman to permit him to have connection with her by personating her husband, he is guilty of rape.

4

5

The act is clearly committed without the consent of the woman if she be asleep or insensibly drunk. Although having carnal knowledge of a girl under the age of sixteen is a misdemeanour whether she consent or not, a person who has such carnal knowledge without her consent can also be convicted of rape.

The slightest penetration is sufficient to complete the offence. If this be not proved, the jury may find the prisoner guilty of an attempt to commit rape, or of an offence

1 24 & 25 Vict. c. 100, s. 48. See indictment, No. 26, in the Appendix.

2 R. v. Jones (1861), 4 L. T. (0. S.) 154.

3 R. v. Flattery (1877), 2 Q. B. D. 410.

4 48 & 49 Vict. c. 69, s. 4.

5 R. v. Young (1878), 14 Cox, 114.

6 R. v. Camplin (1845), 1 Cox, 220.

7 24 & 25 Vict. c. 100, s. 63; and see R. v. Hughes (1841), 2 Moo. C. C. 190; 9 C. & P. 752.

under the Criminal Law Amendment Act, 1885, or of an indecent assault.1

Sir Matthew Hale, C. J., said of a charge of rape, "It is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent." So much depends on the credibility of the woman on whom the offence is alleged to have been committed. It is not essential in law that her testimony should be corroborated, though of course it is most desirable that any corroboration which there may be should be laid before the jury. As a rule, no third person is present at the time; yet corroboration may be afforded by the manner and appearance of the prosecutrix, the state of her clothes, and what she said to any persons whom she met shortly after the offence. If she made no complaint to such persons, this fact will tell in favour of the prisoner. If a medical examination took place shortly afterwards, the evidence of the medical man who conducted it will be most material. Again, the soil of the place where the offence is alleged to have been committed may show indications of a struggle. It may be important also to inquire whether such place was remote and solitary, and whether her cries, if she had made any, could have been heard. The conduct of the prisoner may also be material, e.g., if he fled from his home immediately after the occurrence. The act, if done without consent, is equally a rape, although the prosecutrix be a common prostitute or the mistress of the prisoner. Such facts, however, will operate strongly with the jury on the question as to whether she really consented or not.

Evidence may be given to show that the prosecutrix is of generally immoral character. She may be asked whether she has had connection with other men, but the prisoner is bound by her answer and cannot call evidence to contradict her. She She may further be asked whether she has had connection with the prisoner on other occasions, and if she denies this, evidence may be called to contradict her.5

1 48 & 49 Vict. c. 69, s. 9.

21 Hale, 635.

3 R. v. Tissington (1843), 1 Cox, 48.

4 R. v. Holmes (1871), L. R. 1 C. C. R. 334.

5 R. v. Riley (1887), 18 Q. B. D. 481.

On an indictment for rape the prisoner's wife is, even without his consent, a competent witness for the prosecution as well as for the defence.1

If the prosecutrix made a complaint to a third person shortly after the alleged offence was committed, such person will be a very important witness for the prosecution. Such a witness may not only be asked whether a complaint was made, but also as to the particulars of the complaint; and this evidence is admissible, not as evidence of the truth of the alleged charge, but as corroborating the credibility of the prosecutrix, and as enabling the jury to judge for themselves whether the conduct of the prosecutrix is consistent with her testimony on oath. If, therefore, the defence suggested in cross-examination of the prosecutrix is that her whole story is a fabrication concocted for the purpose of blackmail or the like, the words of her complaint may be given in evidence. So may they, if she has sworn in chief that she did not consent, and in cross-examination it is sought to prove that she did consent, whether it is essential for the prosecution to establish a want of consent or not. But it is still doubtful whether the terms of the complaint are admissible if the defence be mistaken identity, even though in her complaint she named her assailant.2

3

The fact that the prisoner elects to give evidence, and swears that the prosecutrix consented to the connection, is not such an "imputation on her character within the Criminal Evidence Act, 1898, as will entitle the prosecution to prove that the prisoner has been previously convicted." "To say that a man who, in clearing himself, alleges consent on the part of the prosecutrix brings himself within section 1 of the Criminal Evidence Act, 1898, is to my mind a total subversion of the principle of the Act. It is otherwise if he goes out of his way to make an attack upon the prosecutrix, founded on matters outside the pith and substance of the charge. The statement that the prosecutrix consented is a

1 Crim. Law Amendt. Act, 1885, s. 20, and 61 & 62 Vict. c. 36, s. 4.

2 R. v. Lillyman, [1896] 2 Q. B. 167; R. v. Osborne, [1905] 1 K. B. 551; R. v. Norcott, [1917] 1 K. B. 347.

3 61 & 62 Vict c. 36, s. 1 (f) (ii.).

R. v. Sheean (1908), 72 J. P. 232.

[ocr errors]

defence to the charge. The prisoner must not be prevented from denying on his oath that what he did was against her consent."

"1

3

Lastly, it should be noticed that a boy under fourteen cannot be convicted of rape, or of an attempt to rape, or of an assault with intent to commit rape; for the law presumes that he is physically incapable of committing the crime; and this presumption cannot be rebutted by any evidence that he was in fact physically capable of committing it. He can, however, be convicted of an indecent assault. A husband cannot commit this crime upon his wife. But both a boy under fourteen, and a husband,' and even a woman, can be convicted as principals in the second degree.

8

Any person, who unlawfully and carnally knows any girl under the age of thirteen years, is guilty of felony and liable to be kept in penal servitude for life. Any attempt to commit this offence is a misdemeanour punishable with imprisonment with or without hard labour for two years. On an indictment for this offence the prisoner may be convicted of an indecent assault, or of procuring connection by threats or by false pretences, or of having carnal knowledge of a girl between thirteen and sixteen years old. The age of the girl must be strictly proved. If the prisoner is a boy under sixteen years of age, he can be whipped or sent to a certified reformatory school. If the prosecutrix is too young to understand the nature of an oath, she may be allowed to give unsworn evidence; but in this case her evidence must be corroborated in some material particular implicating the accused." The fact that she consented is no defence. Any person, whether owner, occupier or in control of any premises, who allows a girl to be upon such premises

[blocks in formation]

3 R. v. Eldershaw (1828), 3 C. & P. 366; R. v. Waite, [1892] 2 Q. B. 600. 4 R. v. Philips (1839), 8 C. & P. 736; R. v. Jordan (1839), 9 C. & P. 118.

5 Crim. Law Amendt. Act, 1885, s. 9.

6 1 Hale, 629; but see R. v. Clarence (1889), 22 Q. B. D. 23.

71 Hale, 629, 630; R. v. Williams, [1893] 1 Q. B. 320.

8 R. v. Ram (1893), 17 Cox, 609, 610, n.

9 Crim. Law Amendt. Act, 1885, s. 9.

10 R. v. Rogers (1914), 111 L. T. 1115; and see post, p. 1093. 11 Crim. Law Amendt. Act, 1885, s. 4.

« PrejšnjaNaprej »