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CHAPTER THE SIXTH.
OF RAPE, AND THE UNLAWFUL CARNAL Knowledge of
Definition of RAPE has been defined to be the having unlawful and carnal knowledge of a woman, by force, and against her will. (a)
Eliz. c. 7. s. 1.
Made a capital This offence has, for many years past, been justly visited with offence by 18 capital punishment: but it does not appear to have been regarded as equally heinous at all periods of our constitution. Anciently, indeed, it appears to have been treated as a felony, and, consequently, punishable with death: but this was afterwards thought too hard; and, in its stead, another severe but not capital punishment was inflicted by William the Conqueror, namely, castration and loss of eyes; which continued till after Bracton wrote, in the reign of Henry III.(b) The punishment for rape was still further mitigated, in the reign of Edward I., by the statute of Westm. 1. c. 13. which reduced the offence to a trespass, and subjected the party to two years' imprisonment, and a fine at the King's will. This lenity, however, is said to have been productive of terrible consequences; and it was, therefore, found necessary, in about ten years afterwards, and in the same reign, again to make the offence of forcible rape a felony, by the statute Westm. 2. c. 34. The punishment was still further enhanced by the statute 18 Eliz. c.7. s. 1., which enacts, that any person committing felonious rape or ravishment, and found guilty by verdict, or outlawed, or confessing the crime upon arraignment, shall suffer death without benefit of clergy. And an indictment for this offence may be prosecuted at any time, and notwithstanding any subsequent assent of the party grieved. (c)
(a) 1 Hawk. P. C. c. 41. s. 2. 1 Hale 627,628. Co. Lit. 123 b. 2 Inst. 180. 3 Inst. 60. 4 Blac. Com. 210. 1 East. P. C. c. 10. s. 1. p. 434.
(b) 4 Blac. Com. 211. 1 Hawk.
P. C. c. 41. s. 11. 1 Hale 627. Bract. lib. 3. c. 28. Leg. Gul. 1. 1. 19. Wilk. Leg. Anglo-Sax. 222, 290.
(c) 1 Hale 631, 632. 1 East. P. C. c. 10. s. 9. p. 446.
All who are present, aiding and assisting a man to commit a Of aiders and rape, are principal offenders in the second degree, whether they be men or women; and they are also ousted of clergy. (d) there may be accessories before and after in this offence; for though it be made felony by a statute, which speaks only of those who commit the offence, yet accessories, before and after, are consequentially included: but such accessories have their clergy. (e)
The law presumes, that an infant, under the age of fourteen Of persons years, is unable to commit the crime of rape; and, therefore, it capable of seems that he cannot be guilty of it. (f) This doctrine, however, rape. proceeds upon the ground of impotency, rather than the want of discretion; and such infant may, therefore, be a principal in the second degree, as aiding and assisting in this offence, as well as in other felonies, if it appear by sufficient circumstances, that he had a mischievous discretion. (g) A husband cannot be guilty of a rape upon his wife, on account of the matrimonial consent which she has given, and which she cannot retract: but he may be guilty as a principal by assisting another person to commit a rape upon his wife; for though in marriage the wife has given up her body to her husband, she is not by him to be prostituted to another. (h) Where a party took a woman by force, compelled her to marry him, and then had carnal knowledge of her by force, it appears to have been holden, that she could not maintain an appeal of rape against her husband, unless the marriage were first legally dissolved but that when the marriage was made void ab initio, by a declaratory sentence in the ecclesiastical court, the offence became punishable, as if there had been no marriage. (i) The forcible taking away and marrying a woman against her will is, however, made felony by the statute 3 Hen. 7. c. 2. (j)
The offence of rape may be committed, though the woman at last yielded to the violence, if such her consent was forced by fear of death or by duress. (k) And it will not be any excuse that she was first taken with her own consent, if she were afterwards forced against her will; nor will it be an excuse that she consented after the fact, or that she was a common strumpet, or the concubine of the ravisher: for she is still under the protection of the law, and may not be forced. (a) Circumstances of this kind, however, though they do not necessarily prevent the offence from amounting to a rape, yet are material to be left to the jury, in favour of the party accused, especially in doubtful cases. (1) The notion that if the woman conceived it could not be a rape, because she must, in such case, have consented, appears to be quite exploded. (m)
(d) Rex v. Vide and others, Fitz. Corone, pl. 86. 1 Hawk. P. C. c. 41. s. 10. Lord Baltimore's case, 4 Burr. 2179. 1 Hale 628, 633. 1 East. P. C. c. 10. s. 1. p. 435. Rex v. Burgess and others, Trin. T. 1813, post, 561.
(e) 1 Hale 631, 632, 633. As to accessories being consequentially included, see ante, 32.
Tri. 387. 1 Hale 629. Hutt. 116. 1
(f) 1 Hale 630. Ante, 3.
(g) Id. ibid.
(i) 1 Hale 629.
(j) Post. Chap. viii.
(k) 1 Hawk. P. C. c. 41. s. 6. 1 East. P. C.c. 10. s. 7. p. 444.
(a) 1 Hawk. P. C. c. 41. s. 7. 1 East. P. C. c. 10. s. 7. p. 444, 445. 4 Blac. Com. 213.
() 1 East. P. C. c. 10. s. 7. p. 445.
(h) Lord Castlehaven's case, 1 St. s. 8. 1 East. P. C. c. 10. s. 7. p. 445.
Of the persons upon whom maybe
Of the carnal knowledge necessary to
Of emissio seminis.
A question lately arose, whether having carnal knowledge of a married woman, under circumstances which induce her to suppose it is her husband, amounts to a rape. The prisoner broke and entered a house by night, in order to have connection with the owner's wife if he could pass as her husband, but not meaning to force her if she discovered the fraud; he was in the act of copulation when she made the discovery, and immediately and before completion he desisted. Upon an indictment for burglary with intent to commit a rape, the jury found that he entered with the intent to pass for the woman's husband, and to have connection with her if she did not make the discovery, and to desist if she did. Upon a case reserved, four of the Judges thought that the having carnal knowledge of a woman whilst she was under the belief of its being her husband would be a rape; but the other eight Judges thought that it would not: and Dallas, C. J. pointed out forcibly the difference between compelling a woman against her will, when the abhorrence which would naturally arise in her mind was called into action, and beguiling her into consent and co-operation. But several of the eight Judges intimated that if the case should occur again, they would advise the jury to find a special verdict. (a)
It is agreed that there must be penetratio, or res in re, in order to constitute the "carnal knowledge," which is a necessary part of this offence. (n) But a very slight penetration is sufficient. Thus, where it was proved on behalf of a prisoner, who was charged with having ravished a young girl, that the passage of her parts was so narrow that a finger could not be introduced; and that the membrane called the hymen, which crosses the vagina, and is an indubitable mark of virginity, was perfectly whole and unbroken; but it was admitted that the hymen is in some cases an inch and in others an inch and a half beyond the orifice of the vagina; Ashhurst, J. left it to the jury to say whether any penetration were proved. And the Judges afterwards held upon a conference, (De Grey, C. J. and Eyre, B. being absent,) that this direction was perfectly right; and that the least degree of penetration is sufficient, though it may not be attended with the deprivation of the marks of virginity.(0)
But whether or not there must be emissio seminis, in order to constitute a rape, is a point which has been much doubted, and upon which very different opinions have been holden.(p) The later cases differ also upon this question. Thus, in a case of sodomy, which is governed by the same principles as rape, six Judges held, upon a special verdict finding penetration but the emission out of the Loay, that both emission and penetration were necessary: while on the other hand five Judges thought that the injectio seminis was not necessary; and they said that injec
tion cannot be proved in the case of a child, or of bestiality, and that penetration may be evidence of emission. (q) Subsequently to this case, Willes, C. J. presiding at a trial for this offence, adopted the doctrine of the proof of emission being necessary: (r) but that great crown lawyer, Mr. J. Foster, held otherwise upon a similar occasion, (s) as did Clive, J. upon another trial a few years afterwards.(t) The matter was further considered, in a case where the prosecutrix could not prove any emission; and Bathurst, J. directed the jury, that if they believed that the prisoner had his will of her, and did not leave her till he chose it himself, they should find him guilty, though an emission were not proved; and after the jury had returned a verdict of guilty, he said, that it was always his opinion, that it was not necessary to prove emission; and Smythe, B., who was present at the trial, was clearly of the same opinion. (u) And in a case which has been before mentioned, where it was agreed that the least degree of penetration was sufficient, it seems that the jury were directed by Ashhurst, J. that if the penetration were proved, the rape was complete in law. (w) The weight of the authorities, therefore, after these cases had been decided, was supposed to be much against the necessity of the proof of emission as well as penetration.(x)
But a more recent case appears to have introduced the contrary doctrine. The case, which was reserved for the opinion of the Judges, stated, that the fact of penetration was positively sworn to; but that there was no direct evidence of emission. From interruption, it appeared probable that emission was not effected; and the jury, under the direction of the learned Judge who tried the prisoner, found a verdict of guilty, but said, that they did not find the emission. Upon this case three of the Judges (y) held, that the offence was complete by penetration only; but seven of them (2) held both emission and penetration to be necessary: they thought, however, that the fact should be left to the jury. One judge was absent; (a) and Lord Mansfield only stated, that a great majority seemed to be of opinion that both were necessary. It is said that the majority, in this case, proceeded upon the ground that carnal knowledge (which they considered could not exist without emission) was necessary to the consummation of the offence: but that this definition was denied by the others, who observed, that carnal knowledge was not necessary to be laid in the indictment, but only that the defendant ravished the party.(b)
(q) Rex v. Duffin, O. B. 1721, or 1722, Baron Price's MS. 1 East. P. C. c. 10. s. 3. p. 437, 438. The Judges thus differing in opinion, it was proposed to discharge the special verdict, and indict the party for a misde
(r) Rex v. Cave, O. B. 1747, Serj. Forster's MS. 1 East. P. C. c. 10. s. 3. p. 438.
(s) 1 East. P. C. ibid.
(t) Rex v. Bloomfield, Thetford, 1758, Serj. Forster's MS. 1 East. P. C. ibid.
(u) Rex v. Sheridan, O. B. 8 Geo. 3. 2 MS. Sum. 333. 1 East. P. C. c. 10. s. 3. p. 438.
(w) Rex v. Russen, ante, note (o). (x) 1 East. P. C. c. 10. s. 3. p. 439. (y) Lord Loughborough, Buller, J. (who tried the prisoner) and Heath, J. (z) Skynner, Ld. C. B., Gould, Willes, Ashhurst, and Nares, Justices, and Eyre and Hotham, Barons.
(a) Perryn, B.
(b) Rex v. Hill, 1781. MS. Gould. and Buller, Justices. 1 East. P. C. c. 10. s. 3. p. 439, 440.
In a later case from the privy council, upon proceedings under a court martial against a seaman for sodomy, it was stated that there was complete penetration and emission: but the emission was out of the body of the person on whom the sodomy was committed; and, upon full consideration, the Judges were of opinion that injectio seminis was essential; and they stated as their opinion that, upon the authority of what a series of later years had been understood to be the law, and had been acted upon as such, the offence was not complete, and that the prisoner should not have been convicted.(x)
Upon the authority of these cases it seems, therefore, that at the present time, the offence would not be considered as complete without some proof of the emissio seminis. But this doctrine is not free from considerable difficulty; and appears to be fairly open to the observation, that where the violence has proceeded to the extent of an actual penetration of the unhappy sufferer's body, an injury of the highest kind has been effected. The quick sense of honour, the pride of virtue, which nature, in order to render the sex amiable, has implanted in the female heart, is violated beyond redemption; and the injurious consequences to society are in every respect complete. (c)
Supposing, however, that emission is necessary, it seems that penetration is prima facie evidence of it, unless the contrary appear probable from the circumstances. (d) Thus, where a woman swore that the defendant had his will with her, and had remained on her body as long as he pleased, but could not speak as to emission, Buller, J. said, that it was sufficient evidence of a rape to be left to the jury.(e) And he mentioned a case, which he recollected, of an indictment for a rape, where the woman had sworn that she did not perceive anything come from the man, and that, though she had many children, she never was in her life sensible of emission from a man; and that this was ruled not to invalidate the evidence which she gave of a rape having been committed upon her. In a case where the party ravished had died before the trial, her deposition, corroborated by other evidence of actual force and penetration, was held sufficient to warrant a conviction, though there did not appear to be any direct evidence of emission. It was left to the jury to determine whether the crime had been completed by penetration and emission; and they were directed that they might collect the fact of emission from the evidence, though the unfortunate girl was dead, and could not therefore give any further account of the transaction, than that which was contained in her deposition before the magistrate. (ƒ) If something occurs to create an alarm to the party while he is
(x) Rex v. Parker, Hil. T. 1812. MS. Bayley, J.
(c) 1 East. P. C. c. 10. s. 3. p. 436, 437. Fost. 274.
(d) The majority of the judges in Hill's case, ante, note (b), thought the question of emission was a fact for the jury; and see the opinion of Bathurst, J. ante, 559, and see 1 East. P. C. c. 10. s. 3. p. 440.
(e) Rex v. Harmwood, Winchester, Spr. Ass. 1787. 1 East. P. C. c. 10. s. 3. p. 440. The indictment was for an assault with intent to ravish; and the learned judge ordered the defendant to be acquitted of that charge, upon the evidence appearing to amount to proof of an actual rape.
(f) Rex v. Flemming and Windham, 2 Leach. 854.