The crime of violating a child, under the age of consent, is the more scrupulously to be investigated, as one mode of proof is too frequently excluded; the testimony of the sufferer, if she be of very tender age, is not evidence; the greater therefore the atrocity of the offence, the greater is the difficulty of conviction; “If the rape be charged to have been committed on an infant under twelve years of age, she may still be a competent witness, if she hath sense and understanding to know the nature and obligations of an oath, or even to be sensible of the wickedness of telling a deliberate lie; nay, though she hath not, it is thought by Sir Mathew Hale,” (1 P.C. 634) “that she ought to be heard without oath, to give the Court information; and others have held, that what the child told her mother or other relations, may be given in evidence; since the nature of the case admits frequently of no better proof. But it is now settled, by a solemn determination of the twelve Judges; that no hearsay evidence can be given of the declarations of a child, who hath not capacity to be sworn; nor can such child be examined in Court without oath: and there can be no determinate age at which the oath of a child ought either to be admitted or rejected;” but their admissibility depends upon the sense and reason they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded to them by the Court. Brazier’s case, 1 Leach’s Crown Law, 237. Powell’s case, ib. 128. Rex v. Travers, 2 Strange, 700.[[617]]
A female may suffer violation at any age beyond absolute infancy; and the criminal records also furnish examples of brutality towards women of a very advanced period of life. As to the other sex, it may frequently be necessary to consider, at what age a boy may be capable, or an old man incapable, of committing the offence[[618]]. No determinate line can be drawn in either case, every instance must therefore rest upon its peculiar circumstances; this may however be allowed as a general rule, an attempt at violation is as extraordinary on the part of extreme youth, as its completion is improbable in advanced old age. Sir M. Hale says (1 P.C. 631), “A male infant under the age of fourteen, is presumed by law incapable to commit a rape, and therefore it seems cannot be found guilty of it. For though in other felonies malitia supplet ætatem; yet as to this particular species of felony, the law supposes an imbecility of body as well as of mind.” (4 Bl. Com. c. 15). This imbecility however is not universal, as we have previously shewn when treating of the age of Puberty.
After having determined the age, the most material examination is as to the relative bodily strength of the parties. It is at all times difficult to believe that in a mere conflict of strength, any woman of moderate power of body and mind, could suffer violation, so long at least as she retained her self possession,[[619]] All accusation therefore must be viewed with suspicion, if there be not a great disparity of strength in favour of the assailant. But this remark must not be construed to extend to cases, where by long continued violence, intimidation, or other circumstances, the woman is ultimately overcome; for her mental suffering may very considerably exhaust her power of resistance; “and it is no excuse or mitigation of the crime, that the woman at last yielded to the violence; and consented either after the fact, or before, if such consent was forced, by fear of death, or duress,” 1 Hawk. Pl. c. 41. s. 2. Co. Lit. 123. 1 Hale’s Pl. 629. The mental power of the sufferer is also to be regarded; if it were considerable, greater power of resistance is to be expected; the contrary, if the woman were weak and timid; and if she were actually imbecile, “A poor innocent that could not say him nay;” the crime varies little or nothing in atrocity from the violation of an infant. We are not aware that any such case is on record, though the late investigations into the conduct of some keepers of mad-houses leave reason to fear that such crimes have been committed.
The external signs of violence ought to be enquired into upon the spot on which the crime is said to have taken place, and that as soon after the alleged commission as possible; that the state of surrounding objects may be determined, as well as the incidental injuries, as bruises, strains, &c. which either of the parties may have received in the struggle; the state of their clothes must be examined, and every circumstance, however minute, carefully noted. The case of Abraham Thornton, Warwick assizes, 1817, and the subsequent proceedings on the appeal in the King’s Bench, Easter T. 1818, 1 Bar. & Ald. 405, will shew how material such examination may prove. Many of the observations to be made on cases of murder equally apply to those of rape; to them we must refer.
It is not necessary that the party violated should be proved a virgin[[620]] up to the period of the alleged crime; for it may be committed on the person of a married woman, or of a widow; nay more, the law extends its protection against violence to those who have been notoriously unchaste; even a common strumpet is still under the protection of the law, and may not be forced, (1 Hawk. Pl. 108.) and it is not certain that she had not repented, and determined to reform. Yet in the case of a person of notoriously bad reputation the strongest possible evidence would be required to warrant a conviction.
“A very considerable doubt having arisen as to what shall be considered sufficient evidence of the actual commission of this offence, it is necessary to enter into an enquiry which would otherwise be offensive to decency. Considering the nature of the crime, that it is a brutal and violent attack upon the honor and chastity of the weaker sex, it seems more natural and consonant to those sentiments of laudable indignation which induced our ancient lawgivers to rank this offence among felonies, if all further enquiry were unnecessary after satisfactory proof of the violence having been perpetrated by the actual penetration of the unhappy sufferer’s body. The quick sense of honor, the pride of virtue, which nature, to render the sex amiable, hath implanted in the female heart, as Mr. Justice Foster has expressed himself, is already violated past redemption, and the injurious consequences to society are in every respect complete. Upon what principle, or for what rational purpose, any further investigation came to be supposed necessary, the books which record the dicta to that effect, do not furnish a trace.” 1 East. P. C. 436.
But on the other hand it must be allowed, that as this is a crime peculiarly easy in accusation, and difficult in defence; and as experience has shewn that prosecutions for this offence are very frequently resorted to from motives of revenge, malignity, disappointment, or extortion; the law has done well to extend its best protection to the possibly innocent, while it reserves its severest punishment for the truly guilty. It has occurred that there has not been the slightest ground for the accusation, that coition has never taken place, or been attempted by the party charged; the ordinary details are easily invented, and very colourable circumstantial evidence is soon obtained by the designing accuser; it is only in the minuter points of examination, to which the present practice gives occasion, that she will trip in her evidence; it is to that only that the accused can look for safety when a well forged tale, artfully compounded of truth and falsehood, is prepared for his destruction. Nor is it uncommon that a woman, who has actually consented to her own dishonor, should, on fear of discovery, or on disappointment, or from jealousy, prefer an accusation of rape against her seducer; here the main fact being true, the coition having taken place, and under the usual circumstances of secresy, the life of a prisoner depends on the mere question of consent or violence; the prosecutrix being the principal, or more generally, the only witness, it is essential that her testimony should be subjected to the most rigid examination, and that all external circumstances should be sought which might tend to confirm or destroy it.
The first and most material point to be proved is, that the venereal congress or coition has actually taken place; but as to the exact legal definition of this act, much difference of opinion has existed; for while some learned authorities have held, that penetration alone is necessary, others have maintained that the crime is not perfected without emissio seminis also. Lord Coke, defining “carnal knowledge,” says, there must be penetratio, that is res in re; but the least penetration maketh it carnal knowledge.[[621]] So in the case of Russen the schoolmaster, it was proved by two surgeons on behalf of the prisoner, and corroborated by four others who had examined the girl, that the Hymen (which they considered an indubitable mark of virginity[[622]]) was whole and unbroken, and that the passage was so narrow that a finger could not be introduced. But it was admitted that this membrane, the existence or non-existence of which has been strongly controverted,[[623]] was in some instances situated an inch or an inch and a half beyond the Vagina;[[624]] and Mr. Justice Ashhurst, who tried the prisoner, left it to the jury whether any penetration were proved, for if there were any, however small, the rape was complete in law. The jury found him guilty, and he received judgment of death. But before the time of execution, the matter being much discussed, the learned judge reported the case to the other judges for their opinions, whether his direction were proper. And upon a conference, it was unanimously agreed by all assembled (in the absence of De Grey, C. J. and Eyre B.) that the direction of the judge were perfectly right. They held that in such cases, the least degree of penetration is sufficient, though it may not be attended with the deprivation of the marks of virginity. It was therefore properly left to the jury by the judge; and accordingly the prisoner was executed. This decision appears to be well warranted by physiological observation, for as it is evident from the concurrent testimony of the highest medical authorities, that penetration in vaginam, is not necessary to conception, (vide ante, p. 203.) it would be absurd to contend that more were necessary to constitute Rape in law, than Generation in nature[[625]]. The utmost wrong to the one party, and the malignant intent of the other, have been complete; and the injury on the one hand, and malice on the other, are truer criteria for the administration of justice, than the dicta of lawyers, or the etymologies of schoolmen.
Lord Coke, (12 Rep. 37.) Sir M. Hale in his Summary,[[626]] and Hawkins P. C. say that there must be both penetratio and emissio seminis, and this appears to be the law of the present day, as decided by Skynner, C. B. Gould, Willis, Ashhurst, Nares, Eyre, and Hotham, against Lord Loughborough, Buller, and Heath, Lord Mansfield, though present, having given no opinion of his own; (a circumstance from which we might infer that he agreed with the minority). The argument is stated to have turned on the words carnal knowledge, to which the majority contended that emissio seminis was absolutely necessary; if therefore it be true that certain Eunuchs[[627]] have power of erection, and consequently of penetration, they may morally ravish without incurring the punishment of Rape; for it is certain that they can have no emissio seminis;[[628]] or a man may have perpetrated all the more atrocious parts of his crime, and yet being interrupted in the least voluntary constituent of it, (Hill’s case)[[629]] escape the well-merited vengeance of the law; while it is evident on the other hand, that the innocent victim has suffered, in body, mind, and reputation, as much, as if the crime had been legally completed.
But admitting the fact of emission to be necessary to the constitution of this crime, it remains to enquire whether the proof of this fact must be specifically made out in evidence, or whether it shall be presumed. In Matthew Cave’s case (Oct. 1747) Chief Justice Willes directed the prisoner to be acquitted for want of proof; but on the other hand, Mr. Justice Foster, Clive, J. (in Blomfield’s case, A.D. 1758) Bathurst, J. and Baron Smythe (in Sheridan’s case, 8 Geo. 3) and Buller, J. (in Harmwood’s case, Winchester Spring assizes, A.D. 1787) held the contrary; the latter case is the more worthy of consideration, as it was subsequent to the decision in Hill’s case, and tried by one of the judges present at the discussion: “He said, in giving judgment, that he recollected a case where a man had been indicted for a Rape, and the woman had sworn that she did not perceive any thing come from him; but she had had many children, and was never in her life sensible of emission from a man:[[630]] and that was ruled not to invalidate the evidence which she gave of a Rape having been committed upon her.” 1 East. P. C. 440.