CHAPTER XXVIII.

1RAPE-CARNALLY KNOWING CHILDREN-ABORTION.

2 ARTICLE 322.

DEFINITION OF CARNAL KNOWLEDGE.

3 CARNAL knowledge means the penetration to any the slightest degree of the organ alleged to have been carnally known by the male organ of generation.

5

4 ARTICLE 323.

DEFINITION OF RAPE.

Rape is the act of having carnal knowledge of a

1 [Draft Code, Part XX, ss. 207-11.]

2S. D. Art. 253 A.

3 [R. S. C. c. 174, s. 226. 24 & 25 Vict. c. 100, s. 63, and see R. v. Cox, 1 Moody 337, and R. v. Allen, 9 C. & P. 31, decided on the earlier enactment, 9 Geo. 4, c. 31, s. 111.] 4 S. D. Art. 254.

5 [See the cases in the Illustrations, and see 1 Russ. Cr. 858, &c. A late decision R. v. Flattery (46 L. J. (M.C.) 130), has thrown much uncertainty over the law. The prisoner was convicted of rape for having procured connection with a girl by falsely pretending that the act was necessary for a surgical or medical purpose, "the prosecutrix making but feeble resistance, believing that the prisoner was treating her medically." Two of the judges laid stress upon the resistance as negativing consent to sexual connection, though not to the act done or supposed to be done. The Court, however, almost, though not altogether, overruled the principle said in R. v. Barrow (L. R. 1 C. C. R. 158) to be "established by a class of cases" (R. v. Jackson, R. & R. 487; R. v. Clarke, Dear.397; R. v. Saunders, 8 C. & P. 265 R. v. Williams, 8 C. & P. 28C) "that where consent is obtained by fraud the act done does not amount to rape." Hardly any of these cases seem to have been cited in the argument, though R. v. Barrow was. In R. v. Flattery, as in R. v. R. Fletcher, the Statute of Westminster 2nd, 13 Edw. 1, c. 34, was referred to as giving a "definition of rape." I do not see how the statute can be treated as defining rape at all The words are purveu est que si homme, ravise femme, espouse, damoiselle, ou autre femme desoremes, par la ou ele ne se est assentue, ne avaunt ne apres eit jugement, &c., e ensement par la ou home ravist femme, &c.. a force tut seit ke ele se assente apres.' " In the Latin version the words "rapiat ubi nec ante nec post consenserit." This cannot be a definition of rape because it contains the word "rape." If however it is taken as being a definition, it implies that there may be cases of rape in which the woman consents, for the]

[woman without her conscious permission, such permission not being extorted by force or fear of immediate bodily harm; but if such permission is given the act1 does not amount to rape, although such permission may have been obtained by fraud, and although the woman may not have been aware of the nature of the act.

2

3 A husband (it is said) cannot commit rape upon his wife by carnally knowing her himself, but he may do so if he aids another person to have carnal knowledge of her.

4

A boy under fourteen years of age is conclusively presumed to be incapable of committing rape.

[punishment is confined to cases of rape where there is no consent before or after. The latter part of the enactment which speaks of consent after the fact appears inapplicable to rape in the modern sense of the word. When the crime is over how can a person consent to it? Had it not been for Coke's comments (2nd Inst. 180, 433, 3rd Inst. 69), I should have thought that the words applied rather to abduction than to what we mean by rape, especially as the statate contains provisions as to the ravishment of wards, in which the word "rapuit" is used, but I cannot think that the legislature intended to lay down any definition at all. Their language implies that the crime was then well known, and so does Coke's comment. The Act was repealed by 9 Geo. 4, c. 31, s. 1.] As to the necessity of resistance on the woman's part see R. v. Fick, 16 U. C. C. P. 379.

1 [See R. v. Dee, Irish C. C. R., reported in Law Times Jan. 24, 1884.

2 The effect of the Criminal Law Amendment Act (48 & 49 Vict. c. 69, s. 4) appears to be that R. v. Flattery is no longer law, though it was recognized as having created doubts as to R. v. Barrow, &c., which doubts are declared to have been well founded, but I think the point doubtful.]

By 48 & 49 Vict. c. 69, s. 4, after reciting that doubts had been entertained whether a man who induces a married woman to permit him to have connection with her by personating her husband is or is not guilty of rape, it is enacted and declared that every such offender is guilty of rape. [The doubts referred to were founded on the cases of R. v. Flattery, R. v. Barrow, &c., noticed in the last note.] In R. v. Francis, 13 U. C. Q. B. 116, R. v. Jackson, R. & R. 487, and R. v. Clarke, Dear. 397 were followed.

3 [1 Hale, P. C. 629. Hale's reason is that the wife's consent at marriage is irrevocable. It may be doubted however whether the consent is not confined to the decent and proper use of marital rights. If a man used violence to his wife under circumstances in which decency or her own health or safety required or justified her in refusing her consent, I think he might be convicted at least of an indecent assault. Hale gives no authority for it, but makes the remark only by way of introduction to the qualification contained in the latter part of the clause for which Lord Castlehaven's Case (3 St. Tr. 402) is an authority. 41 Hale, P. C. 630. See R. v. Groombridge, 7C. & P. 583. The presumption extends to cases of assault with intent to ravish. See R. v. Philips, 8 C. & P. 735. The occasional incorrectness of this presumption is shown by R. v. Read, 1 Den. 377. The presumption is founded, I believe, on the notion that a boy under fourteen cannot be a father, and could not thus inflict what was regarded as the principal injury involved in

rape.

1

Illustrations.

[(1.) 1 A has connection with B, a woman who at the time of the connection is in a state of insensibility. A has ravished B.

2

(2.) A has connection with B, an idiot, who by reason of her idiocy submits, but does not permit the act. A has ravished B.

3

(3.) A has connection with B, an idiot, who permits the act from mere sexual instinct, but without understanding its nature. A has not ravished B.]

4 ARTICLE 324.

5 PUNISHMENT FOR RAPE.

Every one who commits rape is guilty of felony, and liable to suffer death as a felon, or to imprisonment for life, or for any term not less than seven years.

6 ARTICLE 325.

CARNALLY KNOWING CHILDREN UNDER TEN.

7 Every one who unlawfully and carnally knows and abuses any girl under the age of ten years, is guilty of

1 [R. v. Camplin, 1 Den. C. C. 89.

2 R. v. R. Fletcher, Bell, C. C. 63; referring to the definition given in Westm. 2, c. 34. 3 R. v. C. Fletcher, L. R. 1 C. C. R. 39. In R. v. Barratt (L. R. 2 C. C. R. 81), in which the facts are similar to those in the case of R. Fletcher, the judges said that there was no inconsistency between the cases of R. Fletcher and C. Fletcher.] R. v. Connolly, 26 U. C. Q. B. 317.

4 S. D. Art. 255.

R. S. C. c. 162, s. 37; 24 & 25 Viet. c. 100, s. 48. As to assaults with intent to commit rape and indecent assaults on women, see Arts. 310, 311.

S. D. Art. 255.

7 R. S. C. c. 162, s. 39; 24 & 25 Vict. c. 100, s. 50. See also 48 & 49 Vict. c. 69, s. 3. On an indictment for committing the offences defined in Articles 325 and 326, or of attempting to commit such offences, the fact that the girl consented is immaterial; (1 Russ. Cr. 875, 876; R. v. Connolly, 26 U. C. Q. B. 317; R. v. Paquet, 9 Q. L. R. 351; though it is different where the indictment charges an assault; for while the child cannot by law consent to have connection so as to make that connection no offence yet where the essence of the offence charged is an assault (and there can be no assault unless it be against consent) this attempt though a criminal offence is not an assault, and the indictment must be for an attempt to commit a felony if the child is under ten, and for an attempt to commit a misdemeanor if the child is between the ages of ten and twelve; R. v. Martin, 9 C. & P. 217.

felony, and liable to imprisonment for life, or for any term not less than five years.

1 ARTICLE 326.

CARNALLY KNOWING CHILDREN BETWEEN TEN AND

TWELVE.

2

Every one who unlawfully and carnally knows and abuses any girl above the age of ten years and under the age of twelve years is guilty of a misdemeanor, and liable to seven years' imprisonment.

3 ARTICLE 327.

ATTEMPTING TO HAVE CARNAL KNOWLEDGE OF A GIRL

4

UNDER TWELVE.

Every one who attempts to have carnal knowledge of any girl under twelve years of age is guilty of a misdemeanor, and liable to imprisonment for any term less than two years and to be whipped.

6

5 ARTICLE 328.

ABORTION.

Every one is guilty of felony, and liable to imprisonment for life,

(a.) who, being a woman with child, with intent to procure her own miscarriage, unlawfully administers, or permits to be administered, to herself any poison or other noxious thing, or unlawfully uses, or permits to be used on herself, any instrument or other means whatsoever with the like intent; or

1 S. D. Art. 256.

2 R. S. C. c. 162, s. 40; 24 & 25 Vict. c. 100, s. 51.

3 S. D. Art. 245 (c.)

4 R. S. C. c. 162, s. 41; 24 & 25 Vict. c. 100, s. 52.

5 S. D. Art. 236 (j), (k).

R. S. C. c. 162, s. 47; 24 & 25 Vict. c. 100, s. 58.

(b.) 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 poison or other noxious thing, or unlawfully uses any instrument or other means whatsoever with the like intent.

4

2

3 ARTICLE 329.

SUPPLYING INSTRUMENTS TO PROCURE ABORTION.

Every one is guilty of a misdemeanor, and liable to two years' imprisonment, who unlawfully supplies or procures any poison 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 the miscarriage of any woman, whether she is or is not with child, ["even if the intention so to use the same exists only in his own mind, and is not entertained by the woman whose miscarriage he intends to procure).]

66

46

1 [A person who gives another a drug to be taken in the absence of the giver causes it to be taken," and, it would seem, administers" it, though absent when it is taken; R. v. Wilson, D. & B. 127, and cases referred to in the argument; also R. v. Farrow, D. & B. 164.

A thing not otherwise noxious may be noxious if administered in excess, but some things are so commonly noxious (arsenic, e.g.) that perhaps the administration even of a quantity too small to do harm might be held to constitute the offence punished by this section if there were an intent to procure a miscarriage. See R. v. Cramp, L. R. 5 Q. B. D. 307; also R. v. Isaacs, L. & C. 220, and R. v. Hennah, 13 Cox, C. C. 547.]

3 S. D. Art. 239 (c).

4 R. S. C. c. 162, s. 48; 24 & 25 Vict. c. 100, s. 59. To supply a thing which is not noxious with the intent mentioned is not within the section; R. v. Isaacs, L. & C. 220. A, with intent to procure abortion, supplied B, a pregnant woman, with two bottlesful of Sir James Clarke's Female Pills, with direction to take twenty-five at a dose, and that it would have that effect. In that number of pills there was sufficient oil of savin, an article used to procure abortion, to be greatly irritating to a pregnant woman and perhaps to cause an abortion. Held, that A supplied a noxious thing within the statute; R. v. Stitt, 30 U. C. C. P. 30.

5 R. v. Hillman, L. & C. 343.