CHAPTER VII.

OF RAPE.

THE crime of rape has always been considered, and still is, a capital crime in our practice. It consists in the forcible carnal knowledge of a woman's person against her will.1

1. Rape is completed by penetration of the privy parts and entry of the body, without any proof of actual emission.

2

It has long been disputed among lawyers, both in this and other countries, whether rape is completed by penetration, or emission is farther requisite. Mr Hume declines giving any opinion of his own on the subject; but Burnett expresses a clear conviction, that penetration alone is not sufficient, and refers to the usual practice of the Courts, where the question asked of the woman is whether the prisoner had “carnal dealings with her," or "had his will of her," or had such “carnal knowledge as a man has with a woman.' But these words are ambiguous, and may mean complete penetration without emission. The ordinary and established style of indictments throws no light on this question, as it merely states that the prisoner "had carnal knowledge of her person, forcibly, and against her will, notwithstanding the utmost resistance in her power." But it may be inferred from this style, that emission is not indispensable; it being an established principle of law, that every essential quality of a crime must be expressly alleged in the indictment. Mr Hume quotes a great variety of cases from the older records, as illustrating this question, but they are by no means decisive of the point; because they are all cases of rape or attempted rape on young girls under the years of puberty, and therefore the physical difficulty to which the verdicts allude, as preventing the completion of the crime,

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1 Hume, i. 301; Burnett, 101.-2 Hume, i. 301.—3 Burnett, 101.—1 Hume, i. 302.

may have been, and probably was, that which arises from the smallness of the female parts in the person injured, which prevented complete penetration, and not the want of actual emission. But this point was settled in the case of William Montgomerie, July 13. 1821, where Lord Gillies laid it down, with the concurrence of the Court, that rape may be perpetrated by complete penetration, without emission; and that when the injured party is below the years of puberty, it is enough if her body had been entered, though not to the degree which takes place with a full grown woman.

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2

In the law of England the greatest doubt has been entertained on this important question, on which the life of prisoners has often in their practice come to depend. That there must be actual penetration, or res in re, is acknowledged in all their authorities,1 though a slight penetration, and such as does not break the hymen, is considered sufficient, that being a membrane sometimes an inch and a half within the orifice of the vagina. But whether there must be emission, as well as penetration, was long the subject of dispute. In the case of the King v. Sheridan, Judge Bathurst directed the jury, that if the man had penetration, and did not withdraw till he chose to do so, the crime was complete without proof of actual emission; and in this opinion Judge Ashhurst concurred in another case. But in a later case, which was reserved for the opinion of all the Judges, and penetration was positively sworn to, but there was no direct proof of emission, it was held by a great majority of the Judges that both were necessary. This doctrine was applied in a case of sodomy, which is governed by the same rules, and where, upon proof of complete penetration and emission, but the latter being out of the body of the sufferer by the violence, the Judges held injectio seminis indispensable, and that the conviction was wrong. At length, therefore, though with great difficulty, and after many vacillations of opinion, the doctrine was settled that penetration and emission must both be proved.

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But all this notwithstanding, they held that penetration is prima facie evidence of emission, unless the contrary appear

1 Hale, i. 628; Hawkins, c. 48, § 3; Russell, i. 558.—2 East. i. 438, 439; Russell, i. 558.3 Russell, i. 559.- Rex v. Russell, East. i. 438, 439; Russell, i. 559.5 Rex v. Hill, 1781; East. i. 439; Russell, i. 559.6 Rex v. Parker; Russell, i. 560.-7 Foster, 274; East. i. 436.

probable from the circumstances of the case; and that, whether it has occurred or not, is a question for the jury.' Accordingly, where the woman swore that the prisoner had his will of her, and remained in her body as long as he pleased, Judge Buller held that sufficient evidence of a rape to be left to the jury, though she could not speak to the actual emission;2 and even where the woman was dead, it was left to the jury to gather from the circumstances of the case, and the deposition she had emitted before the magistrate, whether emission had taken place.3

But all these doubts are now removed in England by the statute 9th Geo. IV. c. 31, § 18, which has enacted, that the crimes of rape, sodomy, and carnal abuse of girls under twelve years of age, are complete " upon proof of penetration only." This statute punishes with death the unlawful and carnal knowledge and abuse of a girl under ten years of age; if above ten and below twelve, the offender is punished with imprisonment and hard labour only. It does not very well appear why the period from ten to twelve is the only one in a woman's life during which her person may be violated without peril to the offender's life. This statute does not extend to Scotland; but the reasons on which it is founded will, doubtless, if the case should arise, have great weight with our Courts.

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Certain it is, that, in practice, the difficulty as to emission is almost always evaded in our Courts by the question being asked in general terms, whether the pannel had his will of her, or whether he had carnal knowledge of her person; an answer to which in the affirmative is always held to be sufficient proof of the completion of the crime. So it was held in particular in the case of James Burtnay, 18th November 1822, where the pannel had sentence of death for a rape on a child of eight years of age, who could not distinctly depone to the emission, from the tenderness of its years.5

2. The knowledge of the woman's person must be against her will; but it is immaterial whether her consent be forced by actual violence or by threats, or the administration of stupifying drugs.

1 East. i. 440; Russell, i. 560.-2 Rex v. Harmwood, 1787; East. i. 440.3 Leach, ii. 854. 9th Geo. IV. c. 31, § 18.5 Unreported; on this point see the case in Hume, i. 303.

2

As robbery and stouthrief is committed by the use of such threats as compel a party to part with his property against his will, so rape is complete if the woman's person be known under the terror of such threats as have deprived her of the unbiassed exercise of her will. Thus it is equally rape to have connexion with a woman with a pistol at her head, or a dagger at her breast, as if she is held till the nefarious purpose is completed. In the case, accordingly, of William and Alexander Fraser, November 14. 1744, a libel was found relevant, which set forth that the woman was carried into Stratherrik, "where 'she was detained in captivity for several days and nights, and carried from place to place, and thereby, and by the terror of her life, compelled to submit to the said William Fraser, his unlawful purposes. The like judgment must be given if the woman faint in the struggle, through terror and fatigue, or if from natural infirmity she is incapable of opposing any effectual resistance. So it was found in the case of James Mackie, February 20. 1660, who was condemned to die for a rape on a poor cripple woman, who was lying bedfast in her father's house alone, and incapable of making any resistance. Indeed, in most cases, it is not so much by the subduing o the woman's bodily strength as by overcoming her resolution by the threat of death, that the crime is completed. In the case, accordingly, of John Murray, Aberdeen, April 1826, an indictment for rape was sustained as relevant, where the principal ingredient of the violence was the drawing of a knife by the pannel, and threatening to stab the girl if she made any resistance. He made a narrow escape, by an objection to the principal witness, In the case of James Thomson and John Dobbie, July 13. 1830, the pannels were convicted and justly suffered death, for a most atrocious case of rape and murder committed on a woman, in a state of semi-stupefaction from blows and ill-treatment, on the high road near Gilmerton in Midlothian. They first ravished her and then thrust sharp stones up the vagina, which entered the intestines and produced death, accompanied by excessive torture. They were convicted of the assault and murder only, the death of the woman having rendered complete proof of the rape impossible.

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Mr Hume seems to incline to the opinion that the like judgment should be given in the case of a woman who is stupified 1 Hume, i. 302.-2 Ibid.; Burnett, 103.-3 Hume, i. 303. Unreported..

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The true

by drugs, and Burnett adopts the opposite view. solution of such a case is to be found in the previous conduct of the parties; if the woman had previously given any indications of consent, the essential character of rape is wanting, and the administration of the drug cannot be considered as decisive evidence of a violent proceeding; if the reverse have occurred, it is as much a rape as if the pannel had struck her on the head, and, during the insensibility then produced, accomplished his nefarious purpose. Accordingly, in the noted case of Luke Dillon, April 1830, the prisoner, a young man of family and fashion at Dublin, was convicted, and sentenced to death for a rape on a young lady to whom he had given a stupifying drug in a hotel there, and during her stupefaction carried to his bed. Her conduct had been rather questionable in going with him alone to a hotel in a town where her parents were living, but, nevertheless, the Court and the jury held the case proved. He was afterwards transported for life, at the earnest intercession of the girl and her relations.

3. In charges of rape, the quality of violence is only required in females above the age of twelve years; below that age it is held that consent cannot be given, and that the connexion must have been involuntary.

In the case of females below the age of puberty, there is only a constructive force, or force in the estimation of law; a girl of those tender years being held to be incapable either of the desire or discretion, which must combine, to have a will in the matter; so that the deed may justly be said to be without her will, even when she makes no resistance. On this account, and on account of the greater depravity implied in such an attempt on an innocent and helpless infant, the pains of law have always been more rigorously applied in such cases than in ordinary rape. Accordingly, on March 8. 1693, William Currie was capitally convicted for a rape on a child of nine years of age; and on September 11. 1671, William Riply, for a rape on a child of six years old, was sentenced to death. This sentence was pronounced after a certification to the whole Court, who found "that the crime of which the said William Riply stands convicted is capital, and adjudged him to be executed accord1 Hume, i. 303.-2 Burnett, 103.3 Hume, i. 303.