ease is such as to incapacitate the patient from assenting, is one to be examined with great care. There are many persons laboring under mitigated insanity who are incapable of making contracts, but who, in a modified degree, are responsible for crime.' For a man knowingly to have criminal intercourse with a woman of intellect thus impaired is no doubt peculiarly wrongful; yet if she be capable of consenting, and does consent, it is not rape. And a fortiori is this the case when the man has no knowledge that the woman's intellect is disturbed. Hence, in such cases, if there be consent, a prosecution for rape cannot be sustained.3 Acquies woman defendant for her § 561. In England, having carnal knowledge of a woman under circumstances which induce her to suppose it is her husband has been held by a majority of the judges not to cence by amount to rape; but several of the majority intimated married that, should the point again occur, they would direct the mistaking jury to find a special verdict. In two subsequent cases, where the defendants were indicted for rapes under similar circumstances, Gurney and Aldersen, BB., directed an acquittal for the rape, but held that the defendants might be convicted of the assault, under the stat. 7 Wm. IV. & 1 Vict. c. 85, s. 11; and the judges afterward held, that upon such conviction hard labor might be added to the sentence of imprisonment." husband is no defence. In 1854, in a case where the finding was that the defendant got into bed with a married woman and had criminal connection, she been left to the jury at all, there being no evidence except the fact of connection and the imbecile state of the girl; and all that the court said was, that some evidence of its being against her will and without her consent ought to be given in these cases, and that there was not in that case the sort of testimony on which a judge would be justified in leaving it to a jury to find a verdict. Upon the authority of the decision in the former case of Reg. v. Fletcher, it is enough to say in this case that the evidence here was that the connection was without the girl's consent." 1 See 1 Whart. & St. Med. Jur. ?? 50, 122, 242. 3 Crosswell v. People, 13 Mich. 426, 1860; Baldwin v. State, 15 Tex. App. 275, 1883; a case where the disease set up was occasional epileptic fits which had not produced intermediate insanity. See R. v. Fletcher, L. R. 1 C. C. 39, 1865; State v. Atherton, 50 Iowa, 189, 1878; Bloodworth v. State, 6 Baxt. 614, 1872; State v. Crow, 10 West. L. J. 501, 1853; Thompson v. State, (Tex.) 26 S. W. Rep. 987, 1894. See the Iowa statute. State v. Enright, (Iowa) 58 N. W. Rep. 901, 1894. 1820. R. v. Jackson, R. & R. 487, 5 R. v. Saunders, 8 C. & P. 265, 1838, and R. v. Williams, Ibid. 286, 2 State v. Enright, (Iowa) 58 N. W. 1838. Rep. 901, 1894. being awake and believing him to be her husband, but where at the same time it was found the intention on his part was not to consummate the act by force in case of discovery, but if detected to desist, it was held by Jervis, C. J., Coleridge, J., Alderson, J., Martin, B., and Crowder, J., in a case reserved, that this was not rape.' In 1878, a conviction was sustained by the English Court of Criminal Appeal in a case where the act was partially completed with a married woman, she at the time being asleep, and not consenting, or giving the defendant any reason to believe she consented, and the connection being found by the jury to be against her will.' 1 R. v. Clark, 29 Eng. L. & Eq. 542; Dears. C. C. 397; 6 Cox C. C. 412, 1854; S. P., R. v. Sweenie, 8 Ibid. 223, 1858; R. v. Barrow, L. R. 1 C. C. 156; 11 Cox C. C. 191, 1868. 2 R. v. Young, 38 L. T. (N. S.) 540; s. c. 14 Cox C. C. 114, 1878, Lord Coleridge, C. J., Mellor and Lush, JJ., Cleasby, B., and Lopes, J., assenting. In this case, Huddleston, B., reported as follows: "The evidence proved that the prosecutrix, a married woman, being partially under the influence of drink on the 2d Feb. 1878, went to bed in her lodgings in the Seven Dials with her youngest child about nine o'clock; her husband with another child came home about midnight. cured by a police-constable. None of the parties had ever seen the prisoner before. “In answer to questions put by me the jury found that the prosecutrix did not consent before, after, or at the time of the prisoner's having connection with her, that it was against her will, and that the conduct of the prosecutrix did not lead the prisoner to the belief that she did consent. "I put the last question to the jury in consequence of what fell from Denman, J., in R. v. Flattery, 2 Q. B. Div. 410-414; 13 Cox C. C. 388, 1878. "Upon these findings I directed a verdict of guilty, but reserved the question as to whether the conviction was right, the Court of Criminal Appeal in R. v. Flattery having expressed a desire that the case of R. v. Barrow (L. Rep. 1 C. C. R. 156, 1869; 28 L. J. M. C. 20; 11 Cox C. C. 191) should be "About four o'clock in the morning, when all four were asleep, the prisoner entered the room, the door not having been locked, got into bed, in which were the prosecutrix, her reconsidered." husband, and the two children, and proceeded to have connection with the prosecutrix, she being at the time asleep. When she awoke, at first the prosecutrix thought that it was her husband, but on hearing the prisoner speak she looked round, and seeing her husband by her side, she immediately flung the prisoner off her, and called out to her husband. "The prisoner ran away, but before he could make his escape he was se Lord Coleridge, C. J., said: "We are all of opinion that the addition made by the learned baron to the statement of this case puts an end to any doubt as to the case, under the circumstances, being clearly one of rape." The rest of the court concurred. It may be, however, that this case may be distinguished from R. v. Barrow by the fact that in R. v. Young the connection was at least partially In 1858, in the High Court of Justiciary in Scotland, it was held (two judges dissenting) not to be rape, when the carnal intercourse was effected by the same fraud, there being nothing in the fact to show whether or not the defendant intended to use force.1 In Virginia, in a case where the evidence was that the defendant, not intending to have carnal knowledge of a white woman by force, but intending to have such knowledge of her while she was asleep, got into bed with her, and pulled up her night garment, which waked her, using no other force, it was held that this was not an attempt to ravish within the meaning of the statute.2 In New York it was determined that when the offence was consummated before the prosecutrix, a married woman, found out that the defendant was not her husband, the rape was complete. And so it is said to have been determined in an anonymous case before Thompson, C. J., in Albany, at a court of oyer and terminer. So in an early case, it seemed to be assumed in Connecticut that a stealthy connection with a woman, under the impression on her part that it was her husband, was rape. A contrary view, however, is taken by the Supreme Courts of Tennessee, Alabama,' and North Carolina.8 5 In Ireland, in 1884, in a crown case reserved before all the judges, it was held to be rape where the woman assented to the act under the impression that the defendant was her husband. And it seems most consistent with rulings as to consent in other cases, to hold that consent is not a defence when it was to something essentially different from the act proposed.10 We have already seen that consent is no defence when what the woman agreed to was a medical operation and not sexual intercourse; and the same reasoning ob had when the woman was asleep, and when she could not have given assent. See R. v. Mayers, 12 Cox C. C. 311, 1872. Wyatt v. State, 2 Swan, 394, 1852. 8 State v. Brooks, 76 N. C. 1, 1877, resting in part on the overruled case 1 R. v. Sweenie, 8 Cox C. C. 223, of R. v. Barrow, L. R. 1 C. C. 156, 1858. 2 Com. v. Fields, 4 Leigh, 648, 1832. It would be otherwise if the intent was to use force. Carter v. State, 35 Ga. 263, 1866. 3 People v. Metcalf, 1 Wheel. C. C. 378, 1823. See Walter v. People, 50 Barb. 144, 1867. Anon., 1 Wheel. C. C. 381, 1823. 5 State v. Shephard, 7 Conn. 54, 1828. 1869. In Texas, by statute, the fraud must consist in the use of some stratagem to induce the woman to believe that the ravisher is her husband. Mooney v. State, 29 Tex. App. 257, 1890. 9 R. v. Dee, reported in 31 Alb. L. J. 43; Lond. L. T. Jan. 24, 1885. 10 Supra, 150. 11 Supra, 559. tains when what the woman agreed to was legitimate sexual intercourse with her husband, and not adulterous sexual intercourse with a stranger. But to make out the offence of rape, the defendant must have intended to ravish, by force, or by inducing consent under the belief that he was her husband. And so of acquies cence ob § 562. In England, in a crown case reserved, it was proved that the prisoner made the prosecutrix drunk, and that when she was in a state of insensibility took advantage of it, tained by and violated her. The jury convicted the prisoner, and found that the prisoner gave her the liquor for the purpose of exciting her, and then having sexual intercourse with her, and not with the intention of rendering her insensible. The judges held that the prisoner was properly convicted of rape.2 artificial stupefaction. 1 This is put by Paine, C. B., in R. v. Dee, as follows: "What the woman consented to was not adultery, but marital intercourse. The act was not a crime in law. It would not subject her to a divorce. Were adultery criminally punishable by our law, she would not be guilty. It is hardly necessary to point out (but to avoid any misapprehension I desire to do so) that what took place was not a consent in fact, voidable by reason of his fraud, but something which never was a consent ad hoc." Lawson, J. said: “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 not 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 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 the consent apply to this case. To 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 not consent." 2 Supra, 559; R. v. Camplin, 1 C. & K. 746, 1845; s. c. 1 Den. C. C. 89. In a letter to Mr. Denison, by Mr. Baron Parke (1 Den. C. C. Add. p. 1), that learned judge, in commenting on Camplin's case, says: "Of the judges who were in favor of the conviction several thought that the crime of rape is committed by violating a woman when she is in a state of insensibility, and has no power over her will, whether that state is caused by the man or not-the accused knowing at that time she was in that state." And Tindal, C. J., and Parke, B., remarked, that in Stat. West. 2, c. 34, the offence of rape is described to be ravishing a woman when she did not consent, and not ravishing against her will.” But all the ten judges agreed that in this case, where the prosecutrix was A conviction was sustained in Massachusetts, in 1870, in a case in which the evidence went simply to the fact that the prosecutrix was at the time of the act unconscious through intoxication, though there was no allegation that she was made so by the defendant.1 On the other hand, in New York, where such intoxication was proved, but where there was no evidence that the original intent was to use force, it was held that rape was not made out under the particular statute.2 To rape, it is essential, we should remember, that the act should be intended to be done with force and without the woman's consent. In all cases of alleged unconsciousness, however, we should keep in mind the old caution: Non omnes dormiunt qui clausos et conniventes habent oculos. It is at the same time clear, as we have seen, that connection secured when a woman is bona fide asleep, and known to be such by the defendant, is rape.1 Force is incident to the physical character of the act; against the will (or without consent) must be inferred from all the circumstances of the case, to secure a conviction." made insensible by the act of the prisoner, and that by an unlawful act, and where also the prisoner must have known that the act was against her consent at the last moment she was capable of exercising her will, because he had attempted to procure her consent, and failed, the offence of rape was committed. See, also, comments on this case in R. v. Page, 2 Cox C. C. 133, 1846. 1 Com. v. Burke, 105 Mass. 376, 1870. See State v. Stoyell, 54 Me. 24, 1866. In Com. v. Bakeman, 131 Mass. 577, 1881, on evidence of this character the defendant was convicted of adultery. 2 viction for rape committed on a woman under the influence of ether, see State v. Green, 3 Whart. & St. Med. Jour., (4th ed.) 597; Com. v. Beale, Ibid. 245 et seq., 596, 612. R. v. Mayers, 12 Cox C. C. 311, 1872; R. v. Young, supra, & 561. 5 Carter v. State, 35 Ga. 263, 1866, cited infra, 576. See R. v. Cockburn, 3 Cox C. C. 543, 1849; Com. v. McDonald, 110 Mass. 455, 1872; People v. Bransby, 32 N. Y. 525, 1865; and cases cited supra, ? 650. In an interesting pamphlet by Dr. Stephen Rogers on chloroform (N. Y. Harper & Bros. 1877), it is argued with much force that for the purposes of attack chloroform cannot be effectively used. See 3 Whart. & St. Med. Jur. 8 594. In Com. v. Beale, ut supra, the rightness of the verdict was much doubted at the time, and shortly afterward, People v. Quin, 50 Barb. 128, 1867. In this case, although Judge Johnson, who gave the opinion of the Supreme Court, threw out doubts as to the soundness of the ruling in R. v. Camplin, the decision was put on the single ground that the legislature having after a careful re-examination, and on made carnal knowledge of an intoxicated woman an independent offence, it must be so treated by the courts. Supra, 550. For cases of con 3 the express ground of the doubts entertained, a pardon was granted by Governor Pollock. |