Rape is the unlawful and carnal knowledge of a woman by force and against her will: a ravishment of the body and violent deflowering her, which is felony by the common and statute law. Co. Litt. 190, 124.^[610] Formerly it was the law (especially in case of appeals of rape) in order to prevent malicious accusations, that the woman should immediately after, “dum recens fuerit maleficium,” go to the next town, and there make discovery to some credible persons of the injury she had received: and afterwards acquaint the high constable of the hundred, the coroners and the sheriff with the outrage. Glanv. l. 14. c. 6: Bract. l. 3. c. 28. 1 Hales P. C. 632. Afterwards by statute Westm. 1. 3. Ed. 1. c. 13. the time of limitation was extended to forty days. At present there is no time of limitation fixed, for it is punished at the suit of the king, and the maxim of law takes place, that, nullum tempus occurrit Regi. The appeal of Rape (for there were formerly several appeals beside that of murder) has been long obsolete; see Jac. Law Dic. tit. Appeal, and is now abolished by the statute 59 Geo. 3, c. 46:^[611]. But though there is no time limited, a jury will seldom give credit to a stale complaint. In Scotland it is said the limit was twenty-four hours; the King against Colonel Charteris, Maclaurin’s Crim. Cases, p. 66. 69. And in a medical point of view it is yet more necessary that examination should be immediate, many collateral proofs might be observed on an early enquiry, all signs of which would be obliterated in a few hours.^[612] This remark applies as well to the supposed criminal as to the sufferer; both should in all possible cases be subjected to immediate surgical examination; the case related by Sir Matthew Hale, (P.C.) furnishes an instance where an innocent man might have been saved from a malicious prosecution, to the hazard of his life, by this precaution. FoderÈ, in his work on Medical Jurisprudence, vol. 4, p. 363, mentions two cases from Zacchias, where the falsehood of an accusation was determined by a comparative inspection of both parties. See also the same work, and vol. 4, p. 365. 370.^[613]

As this is a crime of which the accusation is peculiarly easy, and the disproof proportionably difficult, more than ordinary acuteness is necessary for its investigation; and this can be best exercised while the event is recent, and before one or other of the parties can have time, deliberately, to frame the account of their injuries or innocence: here, as in some cases of murder, to which we shall have occasion to allude, the medical practitioner is likely to be one of the earliest witnesses to the conduct of the accuser (if not also, of the accused), immediately after the alleged transaction; to him therefore the Court will look, not only for surgical, but also for general observations. The following are among the first that will occur.

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].

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.

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.