1st. What is the age, strength of body and mind, situation in life, and general character of the accuser?
2d. The same of the accused.
3d. Had the parties any, and what previous acquaintance and intimacy?
4th. What external and obvious signs are there of violence?
5th. What surgical proof of coition, whether voluntary or violent?
6th. Is either party tainted by any, and what disease?
Time, place, and circumstances of the alleged offence.
A female infant, under twelve years of age, is in law deemed incapable of consenting to any act, much less to her dishonor; the carnal knowledge of such infant, whether she yield or not, is therefore virtually a rape; but whether, if the child be above ten years of age, it be also a felony, has been questioned: Sir Matthew Hale, 1 P. C. 631, was of opinion that such profligate actions, either with or without consent, amount to rape and felony, as well since as before the statute of Queen Elizabeth; but in his Summary, the learned judge appears to have altered his opinion. And the present practice is, that if the child be under ten years of age, then it is felony by the statute; but if she be above ten and under twelve, then it is no rape if she consented, but only a misdemeanour; Stat. West. 1 c. 13, see 1 East’s P. C. 435.
The abominable wickedness of carnally knowing and abusing any woman child under the age of ten years, in which case the apparent consent or non-consent is immaterial, as by reason of her tender years she is incapable of judgment and discretion, is felony without benefit of Clergy, 18 Eliz. c. 7. It is lamentable to reflect that this crime should have been of very constant occurrence, and that it should not unfrequently have been committed by hypocrites, who had been entrusted with the education of their victims. In 1758, John Forbes, chaplain and schoolmaster of Dalkeith,[[614]] was convicted of a variety of libidinous acts, and also several rapes; and of his having carnal knowledge of a girl (one of his pupils) under twelve years of age. He was sentenced to be whipped and banished: the king’s advocate having “in respect it is known to him, that the evidence of the rape and carnal copulation will be proven only by girls under age,” restricted the indictment to an arbitrary punishment. Maclaurin’s Crim. Ca. p. 186. 755.
In 1777, the Rev. Benjamin Russen, a puritanical schoolmaster, was convicted and executed for a similar offence, on a girl under ten years of age. See 1 East. 438. Ann Reg. Many other instances might be cited, if it were necessary here to enforce upon the minds of parents, the expediency of minute enquiry into the habits of those to whom they entrust the custody of their children; and that they should not be deceived by professions of extraordinary sanctity.[[615]] Nature has this revenge against those who pretend exemption from her frailties, that to sustain their hypocricies, they fall into greater crimes than those which they profess to avoid; assuming to be more than man, they degrade themselves to beasts. See case of Thomas Weir and Jane his sister. Maclaurin, C. C. p. 1[[616]].