CHAPTER II. RAPE, ETC. RAPE. THE offence of having carnal knowledge of a woman Definition of by force against her will. rape. cannot be con Certain persons cannot be convicted of this crime. Persons who An infant under the age of fourteen is deemed in law victed of the to be incapable of committing this offence, on account crime. of his presumed physical incapacity. And this is a presumption which cannot be rebutted by evidence of capacity in the particular case. Neither can a husband be guilty of a rape upon his wife. But both a husband and a boy under fourteen may be convicted as principals in the second degree, and may be punished for being present aiding and abetting. To constitute the offence, the act must be committed Essentials of the crime. by force, and without the consent of the female. If, however, she yielded through fear of death or duress, it is nevertheless rape; for here the consent is at most imperfect. So also when she submitted under a false. representation, such as that she was about to undergo medical treatment, she being ignorant of the nature of the act (y). But the crime is not committed when the woman has consented to the act of connection under the belief that the man was her husband. In that case, however, the man may be convicted of an assault (2). It is equally rape though the female is a common pros (y) R. v. Flattery, L. R. 2 Q. B. 410; 46 L. J. (M.C.) 130. (2) R. v. Barrow, L. R. 1 C. C. R. 156; 38 L. J. (M.C.) 20. It is doubtful whether, after the remarks of the Judges in R. v. Flattery, R. v. Barrow would now be followed. Credibility of of the woman. titute or the concubine of the prisoner; but circumstances of this nature will probably operate with the jury in their consideration as to whether there was consent. It is necessary to prove penetration, but not anything further (a). If the prosecution fail to prove this, the prisoner may nevertheless be convicted of the attempt. At almost every trial for this crime the words of Sir the testimony Matthew Hale are recalled: "It is an accusation easy to be made and hard to be proved, but harder to be defended by the party accused, though innocent." It will be well to estimate the degree of credibility of the testimony of the woman, for of course she is a competent witness. On this point we cannot do better than remember the words of Blackstone (b). The credibility of her testimony, and how far she is to be believed, must be left to the jury upon the circumstances of fact that concur in that testimony. For instance, if the witness be of good fame; if she presently discovered the offence and made search for the offender; if the party accused fled for it; these and the like are concurring circumstances, which give greater probability to her evidence. But, on the other side, if she be of evil fame, and stand unsupported by the testimony of others; if she concealed the injury for any considerable time after she had opportunity to complain; if the place where the fact was alleged to have been committed was where it was possible she might have been heard, and she made no outcry; these and the like circumstances carry a strong, but not conclusive, presumption that her testimony is false or feigned. The prisoner may call evidence to her generally bad character for want of chastity or indecency, and of her having had connection with him previously, but not of her having had connection with others. As to the last point she may be asked the question, but is (a) 24 & 25 Vict. c. 100, s. 63. not compelled to answer it; if she denies it, the person referred to cannot be called to contradict her (c). The punishment for this crime, which is a felony, is penal servitude to the extent of life (d). CARNALLY ABUSING CHILDREN. To unlawfully and carnally know and abuse any girl, Carnally abusing if she is under the age of twelve years, is a felony, children. punishable by penal servitude to the extent of life; if between twelve and thirteen, whether with or without the consent of the girl, it is a misdemeanor, punishable by imprisonment not exceeding two years (e). In this offence it is immaterial whether the act were done with or without the consent of the child. She may be a witness on her oath if she appears sufficiently to understand the nature and obligation of an oath. young females Another offence may be noticed here:-By false pre- Procuring tences, false representations, or other fraudulent means, to have conto procure any female under the age of twenty-one nection, &c. years to have illicit carnal connection with any man is a misdemeanor, punishable by imprisonment not exceeding two years (ƒ). To commit an indecent assault upon any female, or Indecent assault, &c. to attempt to have carnal knowledge of a girl under twelve years of age, is a misdemeanor, punishable by imprisonment not exceeding two years (g). It is no defence to a charge or indictment for an (c) R. v. Holmes, L. R. 1 C. C. R. 334; 41 L. J. (M.C.) 12. (d) 24 & 25 Vict. c. 100, s. 48. (e) 38 & 39 Vict. c. 94, ss. 3 and 4; but the latter section does not prevent a conviction for felony under the statute 24 & 25 Vict. c. 100, s. 48. R. v. Ratcliffe, 10 Q. B. D. 74; 52 L. J. (M.C.) 47; 40 L. T. N. S. 388. (f) 24 & 25 Vict. c. 100, s. 49. (g) Ibid. s. 52. Sodomy and bestiality. Attempt, &c. indecent assault on a young person under the age of thirteen to prove that he or she consented to the act of indecency (h). UNNATURAL CRIMES. To commit the crime against nature, with mankind or with any animal, is a felony, punishable by penal servitude; the penal servitude may extend to life, but may not be less than ten years (i). The evidence is the same as in rape, with two exceptions: (a) It is not necessary to prove the offence to have been committed without the consent of the person upon whom it was perpetrated. (b) Both parties, if consenting, are equally guilty; but if one of the parties is a boy under the age of fourteen years, it is felony in the other only. To attempt to commit the said crime, or to make an assault with intent to commit the same, or to make any indecent assault upon a male person, is a misdemeanor, punishable by penal servitude to the extent of ten years (j). Attempt to procure abortion, by the woman, ATTEMPTS TO PROCURE ABORTION. Three classes of persons may be guilty of crimes under this heading. The woman herself-the person who procures or supplies the drug, &c.-some other person. For a woman being with child, with intent to procure her own miscarriage, to administer to herself any poison or other noxious drug or thing, or to use any instrument or other means; or (h) 43 & 44 Vict. c. 45, s. 2. (j) Ibid. s. 62. As to obtaining money by threatening to accuse of this crime, v. p. 111. For any person to do the same with intent to procure by some other the miscarriage of any woman, whether she be with person. child or not, is a felony, punishable by penal servitude to the extent of life (k). It is not necessary that the drug administered should have any tendency to produce miscarriage; it is enough if it is "noxious" and is given with the intent charged, if it is in itself hurtful (1). means. For any person to procure or supply poison or other Supplying the noxious thing, or any instrument or other thing, knowing that the same is intended to be unlawfully used with intent to procure the miscarriage of a woman, is a misdemeanor, punishable by penal servitude to the extent of five years (m). CONCEALMENT OF BIRTH. of birth. If a woman is delivered of a child, every person who Concealment by any secret disposition of the dead body of the child, whether it died before, at, or after its birth, endeavours to conceal the birth thereof, is guilty of a misdemeanor, punishable by imprisonment not exceeding two years. A person tried for and acquitted of murder may be sentenced for concealment of birth, if the facts justify that conclusion (n). proved. The denial of the birth only is not sufficient. There What must be must be some act of disposal of the body after the child is dead (o). In order to convict a woman of attempting to conceal the birth of her child, a dead body must be found and identified as that of the child of which she is alleged to have been delivered (p). It will be noticed (k) 24 & 25 Vict. c. 100, s. 58. (0) R. v. Turner, 8 C. & P. 755. |