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With the Statutes relating thereto. By CHARLES PALMER PHILLIPS, of Lincoln's-inn, Esq., Barrister at Law. In 8vo. 1863. "Mr. Phillips has shewn, not only great diligence in collecting cases bearing upon the various topics which he has treated, but considerable judgment in the manner in which he has dealt with them. He has spared no pains to make his work reliable as a legal text-book, and at the same ti me equally useful to publishers, authors, artists, and other persons who are interested in works of literature, art, or design. In a word, such a book has long been wanted, and Mr. Phillips has given abundant proof of his ability to meet the desideratum."-Solicitors' Journal, Nov. 14, 1863. Stevens & Sons, Law Booksellers and Publishers, No. 26, Bell-yard, Lincoln's-inn. THE JURIST. LONDON, AUGUST 18, 1866. they trace the history of rape from the common law, by which it was a capital offence. The crime was reduced to a misdemeanour by the Statute of Westminster 1 (Edw. 1, c. 13), which made it punishable by fine and imprisonment. It was again made felony by the Statute of Westminster 2 (13 Edw. 3, c. 34), and THE case of Reg. v. Charles Fletcher (12 Jur., N. S., they contend, that as the latter statute does not alter part 1, p, 505), which came before the Court for the the offence, so the Statute of Westminster 1, c. 13, Consideration of Crown Cases Reserved, was tried be- must be looked to for the definition therein contained. fore Mr. Justice Keating at the last assizes at War- The statute provides, that the King prohibiteth that wick, when the prisoner was convicted of rape upon a none do ravish or take away by force any maiden girl who was an idiot, with one side and foot paralysed. within age, neither by her consent nor without her There was no evidence as to the circumstances under consent, nor any wife or maiden of full age, nor any which the connexion took place. The fact, however, other woman, against her will. There is in the Norwas admitted. The defence was, that the girl had man French no such change of expression as 66 without consented to the intercourse, and that it had pre- her consent" to "against her will;" and the preceviously taken place. In answer to the prisoner's dents of indictments have always contained the words question, whether the prosecutrix knew him, she re- against her will," which shews the construction placed plied, "Yes, the man at Richards's." The medical upon the statute; and it is argued that it was too evidence proved that her condition was consistent hastily assumed, that the expression "against her will," with previous intercourse. The prisoner was convicted, used in indictments, differed from the expression, and the learned judge reserved the question whether" without her consent," used in the Statute of Westhe ought to have left it to the jury, as there was no evidence except the fact of connexion, and the imbecile state of the girl's mind. The Court quashed the conviction. Cases of rape upon insane and idiotic women present great difficulties. They depend so much upon a correct definition of idiotcy, and of the crime of rape. Is the legal definition of rape accurate? Rape is defined to be the carnal knowledge of a woman by force, and against her will (1 East's P. C. 434; 4 Bl. Com. 210; 1 Hawk. P. C. 397). In Reg. v. Richard Fletcher (28 L. J., M. C., 85), Lord Campbell said, "To constitute rape it is not necessary that the connexion with the woman should be against her will; it is sufficient if it be without her consent." And Mr. Justice Willes said, in that case, that at the Old Bailey he told a jury that a consent produced by mere animal instinct would be sufficient to prevent the act from constituting rape. The statute providing for its punishment in the State of Michigan, in America, adheres to the common-law definition. It provides, that if any person shall ravish and carnally know any female of the age of ten years or more by force and against her will, he shall be punished, &c. minster 2, c. 34, and therefore it is doubtful whether Reg. v. Richard Fletcher, presently referred to, is a true exposition of the law. At all events, it is a most inconvenient one. It is a much safer definition of rape which requires evidence of an active expression of dissent. If we interpret the words "against the will, or without the consent" to mean an active expression of the will, then there may be many cases where serious crimes may be perpetrated which will not amount to rape. Or if we are to interpret them to mean an active resistance, then there may be natural causes not the result of any act by the criminal which may prevent the exercise of such resistance. Does mental incapacity to consent dispense with the necessity of giving evidence of active expression of the will, or active resistance? Is there any real ground of distinction between the cases of Reg. v. Richard Fletcher and Reg. v. Charles Fletcher, and which heads this paper? In the former case the prisoner was indicted before Hill, J., for a rape upon Jane Jones, who it appeared was thirteen years old, but of such weak intellect as to be incapable of discriminating between in which she lived from those of her neighbours. The act was witnessed, but no resistance appeared to have been offered. The judge put some questions to the prosecutrix on entering the witness box, and was satisfied that she was not of sufficient intelligence to be sworn. The prisoner was found guilty, but the jury stated that she was incapable of giving consent from defect of understanding. The conviction was affirmed by the Court for the Consideration of Crown Cases Reserved. The Indian Penal Code, which is considered a mas-right and wrong, and of distinguishing the house terpiece of legislation, declares that a man commits a rape who has sexual intercourse with a woman-first, against her will; secondly, without her consent; thirdly, with her consent, where her consent has been obtained by putting her in fear of death or of hurt; fourthly, with her consent, where the man knows that he is not her husband, and that her consent is given because she believes him to be her husband; and, fifthly, with or without consent where under ten years of age. This is in accordance with Lord Campbell's definition in Reg. v. Richard Fletcher. We may now take rape to be the ravishing of a woman against her will or without her consent. It remains to be seen whether there is any real distinction between these two forms of expression. There are some who doubt whether there is any real distinction between them; and in support of their view The facts of these two cases resemble each other very much. In each there was sexual intercourse; in each there was an absence of evidence of active resistance; in each the female was regarded as an idiot; in each the defence was consent on the part of the woman. The inference is, that they should be decided in the same way, unless, indeed, there is same distinction to be drawn from the degree of idiotcy exhibited in the two cases. The mind of one was, no doubt, a perfect blank; the mind of the other shewed the capability of impression, and she was able to answer intelligibly the question put to her by the prisoner as to her knowledge of him. She identified the prisoner, and the person in whose service he lived. Was she, then, an idiot in the legal sense of that term? These cases shew that there are degrees of idiotcy, and that where there is a gleam of intelligence, consent may be presumed if active resistence is not established. This leads one into a metaphysical inquiry as to the constitution of the human mind. There is no doubt that man has two faculties-the understanding and the will. The understanding represents that portion of the mind which is more particularly the seat of intelligence, or, the intellect, and the will represents that portion of the mind which is the seat of the affections, or, as we commonly express it, the heart. The one is masculine in its character, the other is feminine. When the two are united we have a rational being, the degree of union creating the degree of rationality. It is for this reason that God is said to have made them male and female at the beginning, and the union of the intellect with the affections is the marriage which is said to be inviolable. When this marriage has not taken place, the understanding may be a blank, whilst the will may be active, and vice versâ; and upon this principle all crimes may be accounted for. When man is enjoined not to separate what God has joined together, it implies that man has the power of doing that which is forbidden, viz. separating the will from the intellect. How this is effected it would be foreign to our present object to stop to inquire. All we are careful to establish is the fact of its existence. The absence of intellect is what constitutes idiotcy and this state is not inconsistent with a strong will. Children illustrate this daily. Their intellects are not expanded, and yet we find them doing wicked things, because the will predominates over the unexpanded intellect, and they have not the power of discerning between right and wrong. Mr. Justice Patteson says, in the case of Reg. v. Cockburn (3 Cox's C. C. 543), "My experience has shewn me that children of very tender age may have very vicious propensities." The passions of an idiot may be strong; the deprivation of intellect does not destroy her animal propensities. It is notorious that male idiots have a strong desire for the sex, and why should not female idiots have their desire also for the opposite sex. The animal instincts have a logic of their own entirely distinct from the intellectual powers, although the intellectual powers have a countervailing influence over the animal; when the latter are deficient the former may be proportionately strong. The law has properly drawn the distinction. Consent has reference to the intellect; will has reference to the animal instincts. This leads us to inquire what is the legal definition of idiotcy, and if an idiot is incapable of consenting to sexual intercourse. In The People v. Cornwall (5 Amer. Law Reg. 344, Michigan), Mr. Justice Cooley, in a most able judgment in a case where the question was, whether an insane woman could consent to sexual intercourse so as to destroy its criminal character, after defining "idiot,” "insane," and "fool," said, “All these definitions imply either a weakness or perversion of the mind or its power, not their destruction. Hence an idiot cannot be said to have no will, but a will weakened or impaired-a will acting, but not in conformity with these rules, and motives, and views which control the actions of persons of sound mind. Indeed, in an insane person the will is too often fearfully active, and entire uncontrolled by reason or persuasion. There is here no lack of will, but a perversion of it; nor is this the most conclusive answer to the argument. If there is no will, how are voluntary actions continued? Actions like respiration are instinctive, and independent of the will; but eating and drinking, and numerous other acts which necessarily imply the exercise of the will, are performed by idiots and insane persons, and their exercise demonstrates the existence of a will that can assent to, and dissent from, what are clearly voluntary acts. I have, therefore, no hesitation in holding that both idiots and insane persons are possessed of a will, so that it may be legally and metaphysically said that a carnal knowledge may be had of their persons forcibly and against their will.” From the brief note of the Scotch case of M'Namara (Arkley, 521), in 2 Bish. Cr. L., § 939, note, the Court told the jury, that if they believed that the prisoner had actually penetrated her, and that she had shewn any physical resistance to however small an extent, the offence would be complete, in consequence of her inability to give a mental consent. These cases (cited) clearly imply that the same circumstances must exist to constitute rape in the case of an idiot or insane woman, as when the woman is of sound mind. The word "will," when employed in defining the crime of rape, is not construed as implying the faculty of mind by which an intelligent choice is made between objects, but rather as synonymous with inclination or desire; and in that sense it is used with propriety to persons of unsound mind. In one of the cases, Richard Fletcher or Charles Fletcher, the term "idiot" cannot have been accurately used. A gleam of intelligence will make all the difference between a female who is capable and one who is incapable of consenting. Such a person is of weak intellect, but not an idiot. The deduction to be drawn from the case of Charles Fletcher is, that in such a case a girl is capable of giving her consent, and as there was no evidence that it was against her will, there was no case for the jury. It is only on the ground that these are degrees of idiotcy that the two cases can be considered law. We cannot assume that complete idiotcy existed in both cases. We must take it, therefore, that this is the distinction in the two cases. But it is said that this is too subtle a distinction upon which to hang so serious a crime. In the earlier case, Lord Campbell, in delivering judgment, said the question is, what is the real definition of the crime of rape? Whether it is a ravishing 18 when also the prisoner might have known that the act was against her consent at the last moment that she was capable of exercising her will, because he has attempted to procure her consent and failed, the offence of rape was committed." In Ryan's case the prosecutrix was an idiot, but her father stated that her general habits were those of decency and propriety. Platt, B., in summing up, said, the question is, did the connexion take place with her con a woman against her will, or without her consent? If the former is the correct definition, the crime is not in this case proved; if the latter, it is proved. In that case her incapacity to give consent was the only evidence that the act was done without her consent, and the conviction was affirmed. In the latter case the idiotic state of the girl was the only evidence that the act was done against her will; and it was held that there was no evidence for the jury. A distinction must exist in the two forms of ex-sent, and he left it to the jury to say whether she was pression. "Will" is synonymous with inclination or desire, "against the will" implies active resistance, shewing unwillingness. Mr. Justice Cooley (supra) says, "We are aware of no adjudged case that would justify us in construing the words 'against the will,' as equivalent in meaning with 'without her intelligent assent;' nor do we think that sound reason will sanction it." Without her consent then, requires an exercise of the intellect. A girl may shew active resistance for a long time, and yet the act may be committed under such circumstances of passive resistance or apparent willingness as would lead to the inference that the woman consented. The cases referred to are distinguishable. In the one she had the discriminating intelligence to enable her to consent, and there was no active resistance shewn. In the other she had not that intelligence; and the Court held that she could not be supposed to give that which she had not the power of giving, and they assumed that the necessary consent was wanting, and so the offence was committed without her consent. The earlier case was decided upon the authority of Camplin's case (1 Den. C. C. 89), which was acted on in Ryan's case (2 Cox's C. C. 115), and the words of the Statute of Westminster 2, c. 34, which defines the crime to be, where a man doth ravish a woman married, maid, or other, where she did not consent, neither before or after. Camplin's case was one where the possession of the person of a girl thirteen years of age was obtained by fraud or trick. She was made drunk by the prisoner, and whilst insensible he took advantage of her, and ravished her; and ten judges against three upheld the conviction. Alderson, B., puts the case upon the ground of fraud. He says, that resistance was rendered impossible by the liquor which the prisoner had administered, and he compared it to a case put by Patteson, J., where a man knocks a woman down and makes her insensible, and has connexion with her while in that state; and on the same ground it may be likened to the case of a man who watches a woman's husband leaving his home in the morning, and immediately after creeps into the wife's bed, and has intercourse with her, she assenting under the belief that he was her husband. The presumed consent in all these cases was obtained by fraud or trick-not being what the law implies by consent-the doctrine of actual resistance could not form an ingredient in the case. It is clear that it was upon this ground that Camplin's case was decided; for the reasons furnished by Parke, B., upon which the ten judges agreed were, that "when the prosecutrix was made insensible by the act of the prisoner, and that an unlawful act, and likely to consent from the inference they might draw from her mental imbecility, coupled with the evidence as to her general habits, and he told them that they might infer that she did consent if her habits had been loose and indecent, but that here the presumption was that the girl did not consent. Do these cases support the decision in Richard Fletcher's case? There the girl was held incapable of consenting from defect of understanding. In Camplin's case the girl was, equally by reason of defect of understanding, or rather in consequence of insensibility produced by the prisoner; and in Ryan's case the jury were evidently of opinion that the girl's imbecility raised a presumption that she did not consent, although it is true that there was evidence of want of consent, independently of her mental incapacity. Now, while it is necessary to protect a woman who is an idiot or insane person against men who would take advantage of their diseased minds to commit a crime of this kind, it is equally necessary to take care that a man who is ignorant of her state of mind, but who has been led to the commission of the act by her importunity, should not suffer punishment; and if the doctrines established in the two cases of Fletchers be carefully attended to, these results could not be brought about. It is reasonable to hold, that where there is no mind-where the mind is an absolute blank-that the act was done "without her consent;" that, in fact, such a person cannot consent. If "against her will" is not equivalent in meaning with "without her consent," though the definition of the offence implies the existence of a will in the woman which has opposed the carnal knowledge, no violence is done to the law by holding in any case where the woman, from absence of mental action, does not willingly acquiesce, that the physical force necessary to effectuate the purpose, however slight, is against her will. As Baron Alderson in Camplin's case said, a woman may be supposed to have a general will not to be ravished, and the man is not to be excused, because she was prevented, or was unable to exercise it in the particular case. If, then, a man knowing a woman to be insane, should take advantage of that fact to have knowledge of her person, when her mental powers were so impaired that she was unconscious of the nature of the act, or was not a willing participator, there should be no difficulty in holding the act to be a rape, notwithstanding distinct proof of opposition might be wanting. S. G. G. |