A Rape may have been committed on a child too young, or rather too incompetent, to be sworn; yet all the circumstances except this, may be proved by other witnesses; the infant alone could prove emissio in vaginam, for no subsequent examination, however immediate, would demonstrate the fact; or when a woman has fainted from the violence committed on her, or has been dishonoured in her sleep,[[631]] and through the agency of soporific drugs, or has died before the trial,[[632]] or been murdered by her ravisher, or has been driven to suicide by mental distraction; in all these cases of increased atrocity, this mode of proof becomes impossible.
But emission, it is said, may be presumed from penetration, Duffin’s case, June, 1821,[[633]] but this is not physiologically true in all cases, and as we have stated, that it may be prevented by accident or interruption, so also emission is said to be evidence of penetration; but this is still less reasonable; for it is obvious that it may easily occur in the mere attempt; yet if reliance can be placed on the authorities already quoted,[[634]] emission alone without any material penetration, but only by injection inter labia, will be sufficient to impregnate, and therefore ought in reason to be considered sufficient to constitute the crime of Rape.
When it has been clearly proved that coition has actually taken place between the parties charged[[635]], the next point to be determined is, whether the woman consented or not. It is not necessary that we should here enter into a detail of all the circumstances which may throw light on this question; but one extraordinary dictum of the more ancient lawyers is worthy of observation, though there is little fear that the error will ever be sanctioned by any tribunal; yet as it is one of the evils of this crime that an unmerited stigma too frequently attaches to the sufferer by it, we are the more anxious to expose the vulgar idea, from which some ignorant persons might still infer that a woman had consented, because she had proved pregnant. “It is said by Mr. Dalton, that if a woman at the time of the supposed Rape do conceive with child by the ravisher, this is no rape; for (he says) a woman cannot conceive unless she doth consent. And this he hath from Stamford and Britton, and Finch. Dalt. c. 160. see also 2 Inst. 190.[[636]] But Mr. Hawkins (P. C. c. 41. s. 2), observes that this opinion seems very questionable: not only because the previous violence is in no way extenuated by such a subsequent consent; but also, because if it were necessary to shew that the woman did not conceive,[[637]] the offender could not be tried till such time as it might appear whether she did or not; and likewise because the philosophy of this notion may be very well doubted of. 1 Hawk. 108. And Lord Hale says this opinion in Dalton seems to be no law. 1 H.H. 131. (see also Mss. Sum. 334). That so absurd a notion as that conception evidenced consent, should in modern times have obtained amongst any whose education and intellect were superior to those of an old nurse is indeed surprising: at this day, however, facts and theory concur to prove that the assentation of nature in this respect, is no ways connected with volition of mind.” Burn’s Just. tit. Rape.
It is not necessary that the quantum of violence be extreme; it is sufficient that the offence is committed without consent; as where a woman is violated in her sleep, or during a fit, and query if she have been intoxicated for that special purpose, so that in truth she should have no rational power to consent or deny; or if the ravisher imposed himself in the night, on a married woman as her husband.
If a woman be compelled by violence to marry, and carnal knowledge be had by force, it is a rape, 1 Hale, 629; but as there is another remedy by statute 3 Hen. 7. c. 2. for the forcible abduction, it is not necessary to enquire whether an indictment will lie, until the marriage be dissolved.
Nor will a subsequent marriage purge the offence: formerly “it was held for law, that the woman (by consent of the judge and her parents) might redeem the offender from the execution of his sentence, by accepting him for her husband, if he also was willing to agree to the exchange, but not otherwise.” Glanv. l. 14. c. 6. Bract. l. 3. c. 28.; and this was reasonable while the prosecution was at the suit of the party by appeal, for as the king could not pardon, the power of remission might be properly left to the person injured; but that outrages might not be too readily compromised to the injury of public justice, the statue 6 Rich. 2 st. 1. c. 6. enacts, that the woman consenting, and the ravisher, be “disabled to challenge all inheritance, dower, or joint feoffment, after the death of their husbands and ancestors,” and the husband, or if she have none, the father or next of blood shall have the appeal[[638]]. But Rape having been made felony by Stat. West. 2. c. 34. and a new appeal given, the option of the woman is now taken away. It would have been unnecessary to have dwelt on this point if a vulgar error did not to this day prevail among the lower orders, that the punishment of Rape might be escaped by the connivance of the nominal prosecutrix, even after judgement.
The party grieved is so much considered as a witness of necessity in this, as in other personal injuries, that in Lord Castlehaven’s case, who assisted[[639]] another man in ravishing his own wife, she was admitted as a witness against him. The same testimony was received in Lord Audley’s case[[640]], 1 East. P.C. 444. 1 Hall, 629: 1 St. Tri. 387. 1 Stra. 633. Hutt. 116.[[641]]
And if the party be dead “the deposition of the girl taken before the committing magistrate and signed by him, may after her death, be read[[642]] in evidence at the trial of the prisoner, although it was not signed by her, and she was under twelve years of age; provided she was sworn, and appeared competent to take an oath, and all the facts necessary to complete the crime may be collected from the testimony so given in evidence.” The King against Fleming and Windham, A.D. 1779. Leach’s C.L. p. 996. But if the declaration be made in articulo mortis, the party knowing herself to be dying, then it is not necessary that she be sworn, for the solemnity of the occasion is more than equivalent to the form of an oath, yet it is necessary that the party should have so much sense and discretion, that, if in sound health, she might have been sworn; for if she have not, then even the fear of death and judgment may not have a sufficient impression on her mind. The melancholy case of Coleman will impress every reader with the importance of carefully noticing the circumstances of dying declarations, lest, by receiving as evidence the ravings of delirium, or at least the imperfect impression of impaired faculties, the innocent should be sacrificed to the errors of the dying; and this is the more necessary in those cases where the atrocity of the crime committed creates an immediate prejudice against every party charged or suspected.
END OF VOL. I.