cannot understand the

nature and consequence of such act, he is guilty of rape. 22 There must be, however, some evidence that the act was without her consent.23 But when she is incapable of expressing any intelligent assent or dissent, or of exercising any judgment in the matter, the offense is rape, though no more force be used than is necessary to accomplish the carnal act, and though the woman offer no resistance.24

§ 432. Clevenger's view.-Clevenger, in his work on Medical Jurisprudence of Insanity, gives the following comprehensive statement of the law upon this subject as applied by the American courts: "Sexual intercourse with a woman who is so destitute of mind as to be incapable of giving consent is rape, though she does not resist. The test of mental capacity under this rule is whether she was capable or incapable of giving consent or of exercising any judgment in the matter. And very slight proof of force is necessary where the woman lacks the intelligence to comprehend the nature and consequences of the act, and to distinguish morally and legally between right and wrong; and when the man does not suppose that he has her consent the force rcquired and which is involved in the carnal act is sufficient. But where the will is active, though perverted, the act is not rape, when all idea of force or unwillingness is distinctly disproved. And the mere fact that a woman is weak-minded does not disable or debar her from giving consent to the act. and intercourse with her when she is capable of exercising. her will sufficiently to control her personal actions is not rape; and if there is reasonable doubt whether force was used the jury should acquit though the woman was of weak mind. A woman with less intelligence than is requisite to

22 State v. Williams, 149 Mo. 496. 51 S. W. 88.

23 Reg. v. Connolly, 26 U. C. Q. B. 317.

24 Gore v. State, 119 Ga. 418, 46 S. E. 671, 100 Am. St. 182; State v.

make a contract may consent to sexual intercourse so that the act will not be rape upon the part of the man. And connection with a woman who is in a state of dementia, and not idiotic, but approaching toward it, having a predisposition to be with men and a morbid desire for sexual intercourse, is not rape when no circumstances of either force or fraud accompany the act; nor is intercourse without resistance with a woman subject to epileptic fits, where the evidence does not show that she was under the influence of a fit at the time. The burden of proof of insanity at the time of the act, and that the carnal knowledge was obtained by force and without consent, rests with the prosecution. There must be some evidence that she was incapable, from imbecility, of expressing assent or dissent, and when consent is given from mere animal passion or instinct, it is not rape, and a conviction can not be sustained in the absence of evidence as to her general character for chastity and decency, or anything else to raise a presumption that she did not conEvidence of the connection and the imbecility alone is insufficient. But evidence of habits of decency raises a presumption that she would not have consented."25 The foregoing statement constitutes an epitome of the English and American decisions upon the questions involved.

sent.

§ 433. Woman sane but insensible.-When a woman is reduced to a state of insensibility by the use of drugs or intoxicating liquors, sexual intercourse with her while in

Warren, 232 Mo. 185, 134 S. W. 522, Ann. Cas. 1912 B, 1043.

25 Clevenger's Med. Jur. of Insanity, 201-202; State v. Orth, 101 Kans. 183, 165 Pac. 652; State v. Ivy (Mo.), 192 S. W. 733; State v. Smith, 95 Wash. 271, 163 Pac. 759; State v. Bragdon, 136 Minn. 348, 162 N. W. 465. See also 2 Bish.

New Crim L. (8th ed.), §§ 1121, 1123; 1 Whart. Crim. L. (11th ed.) §§ 694, 703; Russ. on Crimes (9th Am. ed.) 906; Clark & M. on Crimes, § 295; May's Crim. L.,

195; 2 Roscoe's Crim. Ev. (8th ed.) 1119; 13 Crim. L. Mag. 510; Clark's Crim L. 186.

such condition, by a man other than her husband, constitutes rape.26 And whether her insensible condition has been produced by the man or not is immaterial.27 This is the modern English rule as well as the American rule.2

28

§ 434. Woman asleep.-The rule applicable to the case where the woman is senselessly drunk is also applicable where she is asleep.29 If she is asleep at the time of the act, so as to be unconscious of it, it is done without her consent and constitutes rape.3 30

§ 435. Consent induced by intimidation.-It has frequently been said that force is a necessary element in the crime of rape.31 It is to be observed, however, that it may be constructive as well as actual; and furthermore, that fear may take its place. If, at the time a man has carnal knowledge of a woman, her mind is so overpowered by fear induced by him as to cause her to make no resistance, the offense is rape. 32 Where the woman is paralyzed from fear

26 Commonwealth v. Burke, 105 Mass. 376, 7 Am. Rep. 531, Beale's Cases 457, Derby's Cases 334; Reg. v. Fletcher, L. R. 1 C. C. 39, 10 Cox Cr. C. 248; Quinn v. State, 153 Wis. 573, 142 N. W. 510, 46 L. R. A. (N. S.) 422.

27 Commonwealth v. Burke, 105 Mass. 376, 7 Am. Rep. 531, Beale's Cases 457, Derby's Cases 334.

28 Commonweath v. Burke, 105 Mass. 376, 7 Am. Rep. 531, Beale's Cases 457, Derby's Cases 334; Reg. v. Fletcher, Bell Cr. C. 63, 8 Cox Cr. C. 131; Reg. v. Camplin, 1 Car. & K. 746, 1 Den. Cr. C. 89, 1 Cox Cr. C. 220.

29 Reg. v. Young, 14 Cox Cr. C. 114; State v. Shroyer, 104 Mo. 441, 16 S. W. 286, 24 Am. St. 344; Ma

lone v. Commonwealth, 91 Ky. 307, 15 S. W. 856, 12 Ky. L. 895; Payne v. State, 40 Tex. Cr. 202, 49 S. W. 604, 76 Am. St. 712; State v. Welch, 191 Mo. 179, 89 S. W. 945, 4 Ann. Cas. 681, in which it is held that if offense is complete before the woman awakens, her consent afterward is no defense.

301 Whart. Crim. L. (11th ed.), $$704, 705; Malone v. Commonwealth, 91 Ky. 307, 15 S. W. 856, 12 Ky. L. 895.

31 State v. Murphy, 6 Ala. 765, 41 Am. Dec. 79n.

32 Rice v. State, 35 Fla. 236, 17 So. 286, 48 Am. St. 245; People v. Kincannon, 276 I11. 251, 114 N. E. 508.

and terrified into submission her consent to the act is void.33 The law does not require the doing of impossible or useless acts.34 A reasonable apprehension of death, however, is not essential.35 Fear of grievous bodily harm is sufficient. "An acquiescence obtained by duress, or fear of personal violence, will avail nothing, the law regarding such submission as no consent at all. If the mind of the woman is overpowered by a display of physical force, through threats, expressed or implied, or otherwise, or she ceases resistance through fear of great harm, the consummation of unlawful intercourse by the man would be rape.' 9936

§ 436. Carnal knowledge of a child.-Carnal knowledge of a child, however young, with her consent, was not rape under the English common law. 37 The first statute of Westminster, passed in 1275, made the carnal knowledge of a child "within age" (12 years), even with her consent, a misdemeanor.38 The second statute of Westminster, passed ten years later, made rape a felony, but it was silent as to the age of the victim.39 The statute of 18 Elizabeth, passed some three centuries later, made the carnal knowledge of a child under ten years of age, with her consent, a felony.40

331 Hawk. P. C. 122, ch. 16, § 6; State v. Ruth, 21 Kans. 583; Austine v. People, 110 I11. 248; Reg. v. Woodhurst, 12 Cox Cr. C. 443; Doyle v. State, 39 Fla. 155, 22 So. 272, 63 Am. St. 159.

34 Austine v. People, 110 I11. 248; 2 Bish. New Crim. L. (8th ed.), § 1125. See also Strang v. People, 24 Mich. 1. But see Whittaker v. State, 50 Wis. 518, 7 N. W. 431, 36 Am. Rep. 856n.

35 Waller v. State, 40 Ala. 325; Crosswell v. People, 13 Mich. 427, 87 Am. Dec. 774.

36 McQuirk v. State, 84 Ala. 435, 4 So. 775, 5 Am. St. 381. See also

2 Bish. Crim. L. (8th ed.), § 1125; 1 Whart. Crim. L. (11th ed.) § 700, 3 Greenl. Ev. (16th ed.), § 211; Huston v. People, 121 Ill. 497, 13 N. E. 538; State v. Ward, 73 Iowa 532, 35 N. W. 617; State v. Long, 72 Conn. 39, 43 Atl. 493; People v. Flynn, 96 Mich. 276, 55 N. W. 834. 37 Reg. v. Johnson, 10 Cox Cr. C. 114; Moore v. State, 17 Ohio St. 521.

38 Stat. Westm. I, ch. 13; 1 East P. C., ch. 10, § 1; 4 Bl. Comm. 212.

39 Stat. Westm. II, ch. 34; 1 East P. C., ch. 10, § 1; 4 Bl. Comm. 212. 40 Stat. 18 Eliz., ch. 7, § 4.

This statute, however, did not describe the felony as rape. All of these statutes form part of our American common law. And under this law the courts hold that carnal knowledge of a child under ten years of age, even with her consent, constitutes a felony.11

In this country statutes have been passed raising the age of consent, and making the crime rape within the age fixed, even when the child consents to the act. Under these statutes the age of consent varies greatly in the different states, in a few reaching as high as eighteen years. 42 In Illinois it is sixteen years.* S. 43 In many of them it is fourteen

years.

Ignorance of the accused as to the victim's age, and a bona fide belief on his part that she was above the age of consent at the time of the act, constitute no defense.44

The prosecution has the burden of showing, beyond a reasonable doubt, that the child was within the age of consent at the time of the act.45 Testimony as to the child's age at

41 Works v. State, 131 Ark. 593, 199 S. W. 531; State v. Kampert, 139 Minn. 132, 165 N. W. 972; Johnson v. Commonwealth, 7 Ky. L. (abstract) 47; Stephen v. State, 11 Ga. 225; Gosha v. State, 56 Ga. 36.

42 State v. Newton, 44 Iowa 45; State v. Woods, 49 Kans. 237, 30 Pac. 520; State v. Wright, 25 Nebr. 38, 40 N. W. 596.

43 Illinois: Hurd's Rev. Stat. (1916), ch. 38, § 237. The statute provides: "Every male person of the age of seventeen years and upwards, who shall have carnal knowledge of any female person under the age of sixteen years and not his wife, either with or without her consent shall be adjudged to be guilty of the crime of rape;

provided, that in case the said parties shall be legally married to each other before conviction, any legal proceedings shall abate, and provided, that every male person of the age of 16 years and upwards who shall have carnal knowledge of a female forcibly and against her will shall be guilty of the crime of rape."

44 State v. Baskett, 111 Mo. 271, 19 S. W. 1097; State v. Sherman, 106 Iowa 684, 77 N. W. 461; People v. Ratz, 115 Cal. 132, 46 Pac. 915; State v. Houx, 109 Mo. 654, 19 S. W. 35, 32 Am. St. 686; Heath v. State, 173 Ind. 296, 90 N. E. 310.

45 State v. Houx, 109 Mo. 654, 19 S. W. 35, 32 Am. St. 686; Lawrence v. State, 35 Tex. Cr. 114, 32 S. W. 530.