Text-book of forensic medicine and toxicology

by R. J. M. Buchanan

Stimulation, warmth, and artificial respiration should be resorted to. After respiration has been re-established, friction should be applied to the body. The treatment should be persevered in for several hours. Signs of life may not be seen for two hours. Venesection may be desirable.

CHAPTER XI
OFFENCES AGAINST CHASTITY

RAPE

According to the Statute 24 and 25 Vict. c. 100, sec. 48, rape in England is defined as the “carnal knowledge of a woman against her will.” In Scotland rape is held to be “the carnal knowledge of a woman forcibly, and against her will, or of a girl below twelve years of age, whether by force or not” (Hume, i. 303). An Act passed in 1885 (48 and 49 Vict. c. 69) has materially affected the law on this subject as regards the age of females. To constitute the offence of rape, there must be penetration, but proof of the actual emission of semen is not now necessary. Before the Statute 9 Geo. IV. c. 31, sec. 18, it was also necessary to prove emission, which might be proved either positively by the evidence of the woman that she felt it, or it might be presumed from circumstances; as, for instance, that the defendant, after connection with the prosecutrix, arose from her voluntarily without being interrupted in the act. The slightest penetration of the male organ within the vulva will be sufficient, and the hymen need not be ruptured (R. v. Russen, 1 East P.C. 438, 439). The resistance of the woman must be to the utmost of her power. If, however, the woman yield through fear or duress, it is still rape; but of course much will depend upon the previous character of the woman, and her conduct subsequent to the alleged outrage. The party ravished is a competent witness to prove this and every other part of the case; but the credibility of her testimony must be left to the jury. The defendant may produce evidence of the woman‘s notoriously bad character for want of chastity or common decency, or that she had before been connected with the prisoner himself; but he cannot give evidence of any other particular facts to impeach her chastity (R. v. Hodgson, R. & R. 211). She may be asked if she has had connection with other men, but she need not answer (R. v. Cockcroft, 11 Cox, 410, per Willis, J.). If she deny connection with the men named to her, they cannot be called to contradict her (R. v. Holmes, L.R. 1 C.C.R. 334).

A rape, according to Scottish law, may be committed on a common strumpet; and in England the law goes even further, and admits the possibility of rape on the concubine of the ravisher (1 Hale, 729), “although such circumstances should certainly operate strongly with the jury as to the probability of the fact that connection was had with a woman against her will.” A husband may be guilty of rape on his wife if he hold her while another violates her, as in the case of the Earl of Castlehaven, tried in 1637. Carnal knowledge of a woman by fraud, which induces her to suppose it is her husband, now constitutes a rape by the 48 and 49 Vict c. 69, which enacts that “whereas doubts have 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 hereby enacted and declared that every such offender shall be deemed to be guilty of rape.” It has also been decided that if a man get into bed with a woman while she is asleep, and he know she is asleep, and he have connection with her while in that state, he is guilty of rape (R. v. Mayers, 12 Cox, 311, per Lush, J.). The offence of rape is not triable at quarter sessions.

Upon an indictment for rape, there must be some evidence that the act was without the consent of the woman, even when she is an idiot. In such a case, where there was no appearance of force having been used to the woman, and the only evidence of the connection was the prisoner‘s own admission, coupled with the statement that it was done with her consent, the Court held that there was no evidence for the jury (R. v. Fletcher, L.R. 1 C.C.R. 39).

In another case, where the prisoner was caught in the act by the father of an idiot girl, the learned judge told the jury that if the prisoner had connection with the prosecutrix by force, and if she was in such an idiotic state that she did not know what the prisoner was doing, and if the prisoner was aware of her being in that state, they might find him guilty of rape; but if, from animal instinct, she yielded to the prisoner without resistance, or if the prisoner, from her state and condition, had reason to believe she was consenting, they ought to acquit him. The jury found that he was guilty of an attempt at rape (R. v. Barrat, L.R. 2 C.C. 81).

Where the prosecutrix, an apparent idiot, proved that the prisoner had had connection with her, but it appeared from her examination that though she knew he was doing wrong, she made no resistance, and the prisoner, on being apprehended and charged with committing a rape upon the prosecutrix “against her will,” said “Yes, I did, and I‘m very sorry for it,” it was held that there was evidence to go to the jury of a rape (R. v. Pressy, 10 Cox, 635).

In Scotland, in the case of Hugh M‘Namara (H.C. July 24, 1848, Ark. 521), where the woman was only one degree removed from idiocy, it was laid down that “if she had shown any physical resistance, to however small an extent, the offence would be complete, in consequence of her inability to give a mental consent.”