The act must have been done without the woman's consent, unless her consent was obtained by threats or fear of bodily harm, or obtained by the false personation or fraud stated in the above article. Therefore, it has been held that, if the connexion took place when the woman was in a state of insensibility, from liquor with wh ch she was made drunk by the accused, (though the liquor was given only to excite her), it was rape (1). It was also held that, where a man got into bed to a woman while she was asleep and knew she was asleep, and had connexion with her while in that state, he was guilty of rape. (2)

It is no excuse that the woman consented at first, if the offence was afterwards actually committed by force or against her will. (3) Even that the woman was a common strumpet, or the mistress of the ravisher is no excuse; (4) although such circumstances as these should, certainly, operate strongly with the jury as to the probability or improbability of the fact that connection was had against the woman's consent.

Although article 181 makes it an indictable offence merely to have carnal connexion with a girl between the ages of fourteen and sixteen years, even with her consent, an indictment for the graver offence of rape will lie against one who ravishes such a girl, or has carnal connection with her, without her consent. (5)

Where a medical man, by pretending to be treating, medically, a young girl under fourteen, had connection with her, she being led to believe that it was part of the treatment, the prisoner was held to be guilty of an indecent assault. (6) It would now be a rape, and it was so held to be, in a more recent case, where the prosecutrix, a girl of nineteen, had consulted the prisoner a quack doctor as to her illness, and he, under pretence of performing a surgical operation, had connection with her, she submitting under the belief that he was merely performing the surgical operation, and that belief being wilfully and fraudulently induced by the prisoner. (7)

Although the party who complains of being ravished is a competent witness upon every part of the case, the credibility of her evidence is a matter for the jury to appreciate according to the circumstances. If she be of good reputation and if she make known the offence and seek out the offender without delay, or if the accused take flight; all such circumstances as these will help the probability of her evidence. If on the other hand her reputation is bad, and her evidence be uncorroborated by the testimony of other witnesses; if the place where the alleged outrage took place was one where she might have made herself heard, and she made no outcry; these will have a tendency to throw doubt on her evidence; (8) especially if she be flatly contradicted by the accused, who is now, under the Canada Evidence Act 1893, sec. 4, a competent witness.

The defendant may adduce evidence to shew that the woman is of notoriously bad character, unchaste, and of indecent habits, or that she is a common prostitute; or to shew that she has previously had carnal connection with the prisoner of her own free will; (9) but he cannot adduce evidence of other particular acts with other persons, so as to impeach her chastity. (10)

If asked on cross examination whether, outside of the prisoner, she has had carnal connection with other men, named to her in the questions, and if she deny

(1) R. v. Camplin, 1 Den, 89; 1 C. & K. 746.

(2) R. v. Mayers, 12 Cox, 311.

(3) 1 Hawk. c. 41, s. 7.

(4) 1 Hale, 729.

(5) R. v. Ratcliffe, 10 Q. B. D. 74; 52 L. J. (M. C.) 40.

(6) R. v. Case 1 Den 580; 19 L. J. (M. C.) 174.

(7) R. v. Flattery, 2 Q. B. D. 410; 46 L. J. (M. C.) 130.

(8) 4 Bl. Com. 213.

(9) R. v. Riley, 18 Q. B. D. 481; 56 L. J. (M. C), 52.

(10) R. v. Hodgson, R. & R. 211; R. v. Clark, 2 Stark, 243; R. v. Barker, 3 C. & P. 589; R. v. Martin, 6 C. & P. 562.

having had any such intercourse with them, her answer will be conclusive and those men cannot be called to contradict her. (1)

As penetration to the slightest degree is sufficient to constitute carnal knowledge, a penetration of such a depth as not to injure the hymen was held sufficient to constitute a rape. (2)

When actual penetration is not proved the defendant may, nevertheless, on an indictment for rape be found guilty,--by virtue of article 711 post,―of an attempt to commit a rape, or he may be convicted of an indecent assault, or of a common assault. (See article 713, post).

An indictment charged A. with rape, and B. as an abettor. The jury found A. guilty of an attempt at rape and B. of aiding A. in the attempt; and the conviction was aflirmed. (3)

The following are some of the older definitions of rape:

EAST-Rape is the unlawful carnal knowledge of a woman by force and against her will." (4)

COKE.-In the second Institute, gives the following, from the Mirror: “ Rape is when a man hath carnal knowledge of a woman by force and against her will." (5)

HALE.Rape is the carnal knowledge of any woman above the age of ten years against her will, and of a woman-child under the age of ten years with or against her will." (6)

HAWKINS." It seems that rape is an offence in having unlawful and carnal knowledge of a woman by force and against her will. (7)

BLACKSTONE.-Rape is

the carnal knowledge of a woman forcibly and

against her will." (8)

RUSSELL. Rape has been defined to be the having unlawful and carnal knowledge of a woman by force and against her will." (9)

These definitions and some of the judicial constructions placed upon the words, "forcibly" and "against her will," have helped to produce the common notion that, to constitute a rape, there must have been desperate resistance on the part of the woman and the employment of overpowering force on the part of the man.

The present definition as contained in the above article, 266, namely "the act of carnally knowing a woman, without her consent," is much better calculated to meet the ends of justice than the old definitions. Bishop argues the matter out, as follows :

While, thus, [during sleep], there may be rape of a woman who does not resist, one in the normal condition, awake, mentally competent, and not in fear, will oppose with a vehemence and by measures varying with her special nature and the particular circumstances, this greatest of all outrages, unless she mentally consents. So that, though in words she objects, if she makes no outcry and no resistance, she, by her conduct, consents, and there is no rape. (10) In just principle, it is believed that the extent and form of the resistance should in

(1) R. v. Holmes, L. R., 1 C. C. 334; 41 L. J. (M. C.) 12; R. v. Cockcroft 11 Cox, 410; R. v. Hodgson, R. & R. 211.

(2) R. v. Russen, I East, P. C. 438, 439; R. v. McRue, 8 C. & P. 641.

13) R. v. Hapgood, L. R. 1 C. C. R. 221; R. v. Wyatt, 39 L. J. (M. C.) 83, S. C. (4) East P. C. 434.

(5) 2 Inst. 180.

(6) 1 Hale P. C. 628.

(7) 1 Hawk. P. C. Curw. ed. p. 122, s. 2.

(8) 4 Bl. Com. 210.

(9) 1 Russ. Cr. 3d. Ed. 675.

(10) Reynolds v. P. 41 How. Pr. 179; Brown v. C. 82 Va. 653.

C

each case be shown to the jury, who, weighing this evidence with the rest, will find as of fact whether or not the woman consented. But the question seems commonly to be treated by the courts as a question of law, and they often lay it down that the resistance must be to the extent of the woman's ability. (1) Some of the cases, both old and modern are quite too favorable to the ravishers of female virtue. Thus, where a man locked his servant girl of fourteen in a barn and had connection with her, a verdict for rape was set aside because the judge at the trial refused to direct the jury that to convict they must be satisfied she resisted the defendant to the extent of her ability, though he did tell them that the act must have been done by force and against her will and resistance.' Said the learned judge in the Court of Appeals: The resistance must be up to the point of being overpowered by actual force, or of inability, from loss of strength, longer to resist, or, from the number of persons attacking, resistance must be dangerous or absolutely useless, or there must be dread or fear of death. (2) Various other cases state that the woman's will must oppose the act, and that any inclination favoring it is fatal to the prosecution. The latter terms are not under the ordinary facts repugnant to good doctrine. And the stronger ones just quoted might not be very objectionable in a barbarous age; but, in our age, to compel a frail woman, or girl of fourteen, to abandon her reason, and measure all her strength with a robust man, knowing the effect will be to make her present deplorable condition the more wretched, yet not to preserve her virtue,-on pain of being otherwise deemed a prostitute instead of the victim of an outrage,-- is asking too much of virtue and giving too much to vice. The text of the law, we have seen, and, it is believed, the better judicial doctrine, requires only that the case shall be one in which the woman did not consent. Her resistance must not be a mere pretence, but in good faith." (3)

A man who gave a girl of thirteen, a quantity of intoxicating liquor to excite her, and, on her becoming drunk, violated her, while insensible to what he did, was held to have committed a rape. (4)

Ether or chloroform administered to a woman and overcoming her mental and physical nature, will have the same effect in law as administering intoxicating liquor In an Ohio case, Lawrence, J., laid it down that where a woman has chloroform given her by a man, for the purpose of obtaining with her carnal intercourse to which she would not otherwise consent, then if she had the capacity to hear, feel, and remember, and a capacity to speak and, forcibly resist, but the inclination to do so was lost, the will overcome by the action of chloroform, either operating upon the will faculty, or the judgment and reflective faculties (or sexual emotions), so that the mind was thereby incapable of fairly comprehending the nature and consequences of sexual intercourse, and the defendant, knowing these facts, had unlawful carnal knowledge of her, forcibly, that would be rape. And it would, in such a case, be wholly immaterial whether the entire mind was disordered and overthrown, or only such faculties thereof as are rendered incapable of having just conceptions, and drawing therefrom correct conclusions in relation to the alleged rape." (5)

Hale tells us that, in his time, rape was a felony by statute and that it was anciently punished by loss of life But in process of time that punishment seemed too hard; but the truth is, a severe punishment succeeded in place thereof, namely, castration and the loss of the eyes, as appears by Bracton (who wrote in the time of Henry III), lib. 3, c. 28. But, then, though the offender was convict at the King's suit, the woman that was ravished, if single, might, if she pleased, redeem him from the execution, if she elected him for her husband, and the offender consented thereto." (6)

(1) Anderson v. S. 104 Ind. 467; Oleson v. S. 11 Neb. 276, 38 Am. R. 366. (2) P. v. Dohring, 59 N, Y. 374, 382, 17 Am. R. 349.

(3) Reg. v. Rudland, 4 F. & F. 495. See 2 Bish New Cr, L. Com. s. 1123. (4) Reg. v. Camplin, 1 Den. C. C. 89; 1 Car & K. 746.

(5) S. v. Green, Whart & St. Med. Jur. 2 Ed. s. 459; 2 Bish. New Cr. L. Com. s. 1126.

(6) Hale P. C. 626, 627.

Under the Roman law rape,-raptus mulierum,-was punished with death and confiscation of goods It is said to be the general opinion of civilians that under the Roman law the offence might be committed, not only by forcible connection with a woman against her will, but by carrying off her person from her friends with a view to debauch her. (1)

As Lord Hale has said, rape is a most detestable crime and should be severely punished; but it is a crime of such a nature that an accusation can be easily made and is hard to prove, but it is still harder to be defended by a person accused of it, though he be never so innocent. (2)

At a recent Assizes in Warwickshire, an English judge, (Baron Huddleston), made some rather startling remarks on a similar subject.

The learned judge said there were two criminal charges in the calendar, made under a recent act of parliament, which had given great trouble and anxiety to those entrusted with the administration of justice. He meant the Criminal Law Amendment Act, which the legislature, prompted by many excellent persons, with the best intentions, passed for the purpose of preventing outrages and crimes upon women and children. No doubt it was most desirable that severe punishment should follow upon those who were guilty of the horrible crime of immorality with little children, but he ventured to express his great doubt a doubt arising from an experience of courts of justice of nearly fifty years, a doubt fortified by an experience as a judge twelve years-whether it was to the advantage of the public to afford greater facilities for charges of a particular sort which were made by adult females against men. He believed he was giving the experience of his learned brothers when he said that the majority of these charges were untrue. Some were put forward by women for the purpose of shielding their own shame, sometimes for the purpose of extorting money, sometimes even, as he had known happen, by women for the mere purpose of getting their expenses paid and a trip to the assize town, sometimes from no conceivable motive whatever. He had in his recollection three cases in that court in which charges were brought by women against men, in which it was proved without doubt that all those three cases were utterly false and without the slightest foundation. In one of those instances a man was convicted and sentenced to five years' penal servitude, but circumstances appeared in the course of the case which seemed to him to require investigation Investigation took place, and the result was that the accused was liberated, but not before having been several months in prison. Such instances taught them that, in these cases, men wanted protection rather than women. He pointed out that it was criminal to be unduly intimate with a girl under sixteen years of age, and remarked that this part of the act gave rise to charges of an extraordinary character. Calendars were full of them almost at every Assize. He referred to a case at Exeter in which men were charged with immorality with girls under sixteen, but who looked quite thirty. (3)

268. Attempt to commit rape. -Every one is guilty of an indictable offence and liable to seven years' imprisonment who attempts to commit rape.

269. Defiling children under fourteen.-Every one is guilty of an indictable offence and liable to imprisonment for life, and to be whipped, who carnally knows any girl under the age of fourteen years, not being his wife, whether he believes her to be of or above that age or not. 53 V., c. 37, s. 12.

(1) Mackenzie Rom. L. 3 Ed. 362.

(2) 1 Hale 634.

(3) 13 Cr. L. Mag. 372.

270. Every one who attempts to have unlawful carnal knowledge of any girl under the age of fourteen years is guilty of an indictable offence and liable to two years' imprisonment, and to be whipped. 53 V., c. 37, s. 12.

See article 685, post, and the Canada Evidence Act 1893, sec. 25, post, as to evidence of children of tender years.

Upon a trial for either of these offences, the jury may, under article 713, if the evidence points to that conclusion, return a verdict of guilty of an indecent assault, or common assault.

271. Killing unborn child.-Every one is guilty of an indictable offence and liable to imprisonment for life who causes the death of any child which has not become a human being, in such a manner that he would have been guilty of murder if such child had been born.

2. No one is guilty of any offence who, by means which he, in good faith, considers necessary for the preservation of the life of the mother of the child, causes the death of any such child before or during its birth.

By article 219 a child only becomes a human being when it has completely proceeded, in a living state, from the body of its mother; and it is not homicide to kill a child which becomes extinct before it has so become a human being. So, that, article 271 will meet the case of any wilful and unlawful killing of a child which, in consequence of the injuries inflicted upon it, becomes extinct either while it is still in the womb or while it is proceeding but has not yet completely proceeded from its mother's body.

See articles 219, and 239, ante, and comments thereunder.

See, also, remarks on sub-section 2 of this article, post, p. 191.

ABORTION.

272. Using means to procure abortion.-Every one is guilty of an indictable offence and liable to imprisonment for life who, with intent to procure the miscarriage of any woman, whether she is or is not with child, unlawfully administers to her or causes to be taken by her any drug or other noxious thing, or unlawfully uses any instrument or other means whatsoever with the like intent. R.S.C., c. 162, s. 47.

273. Woman using means to procure her own abortion.-Every woman is guilty of an indictable offence and liable to seven years' imprisonment who, whether with child or not, unlawfully administers to herself or permits to be administered to her any drug or other noxious thing, or unlawfully uses on herself or permits to be used on her any instrument or other means whatsoever with intent to procure miscarriage. R.S.C., c. 162, s. 47.

274. Supplying means to procure abortion.—Every one is guilty of an indictable offence and liable to two years' imprisonment who unlawfully supplies or procures any drug or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure