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[was punished with death, in case the damsel was betrothed to another man: and in case she was not betrothed, then a heavy fine of fifty shekels was to be paid to the damsel's father; and she was to be the wife of the ravisher all the days of his life, without that power of divorce which was in general permitted by the Mosaic law (x).
The civil law punishes the crime of ravishment with death and confiscation of goods; under which it includes both the offence of forcible abduction or taking away a woman from her friends, of which we last spoke, and also the present offence of forcibly dishonouring them; either of which, without the other, is in that law sufficient to constitute a capital crime (y). Also the stealing away a woman from her parents or guardians and debauching her, is equally penal by the emperor's edict, whether she consent or is forced ; "sive volentibus, sive nolentibus mulieribus tale facinus fuerit perpetratum.” And this, in order to take away from women every opportunity of offending in this way, whom the Roman law supposes never to go astray without the seduction and arts of the other sex; and therefore, by restraining and making so highly penal the solicitations of the men, they meant to secure effectually the honour of the women. “ Si enim ipsi raptores metu, vel atrocitate pænæ, ab hujusmodi facinore se tempe
репӕ raverint, nulli mulieri, sive volenti, sive nolenti, peccandi locus relinquetur ; quia hoc ipsum velle mulierum, ab insidiis nequissimi hominis, qui meditatur rapinam, inducitur. Nisi etenim eam solicitaverit, nisi odiosis artibus circumvenerit, non faciet eam velle in tantum dedecus sese prodere.” But our English law does not entertain quite such sublime ideas of the honour of either sex, as to lay the blame of a mutual fault upon one of the transgressors only; and therefore makes it a necessary ingredient, in the crime of rape, that it must be against the woman's consent.
“ against her consent” would be the more proper definition of this
(s) Deut. xxii. 25.
[Rape was punished by the Saxon laws, (particularly those of king Athelstan,) with death (z); which was also agreeable to the old Gothic or Scandinavian constitution(a). But this was afterwards thought too hard ; and in its stead another severe, but not capital, punishment, was inflicted by William the Conqueror; viz., castration and loss of eyes (6); which continued till after Bracton wrote, in the reign of Henry the third. But in order to prevent malicious accusations, it was then the law (c), 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 has suffered; and, afterwards, should acquaint the high constable of the hundred, the coroners, and the sheriff, with the outrage (d). This seems to correspond in some degree with the laws of Scotland and Arragon, which required that complaint must be made within twentyfour hours; though afterwards the time of limitation, in England, was extended to forty days (e).
At present there is no time of limitation fixed; for, as it is now punished by indictment at the suit of the Crown, the maxim of law takes place that nullum tempus occurrit regi; but the jury will rarely give credit to a stale complaint. During the former period, also, it was held for law, that the woman, by the 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 (f).
In the third year of Edward the first, (by the statute
[Westm. 1, c. 13,) the punishment of rape was much mitigated: the offence itself of ravishing a damsel within age, that is, twelve years old, either with her consent or without, or of any other woman against her will, being reduced to a trespass, if not prosecuted by appeal within forty days; and subjecting the offender only to two years' imprisonment and a fine at the king's will. But this lenity being productive of the most terrible consequences, it was, in the thirteenth year of Edward the first, found necessary to make the offence of forcible rape, felony (9). And by statute 18 Eliz. c. 7, it was made felony without benefit of clergy.] All these enactments were afterwards repealed by 9 Geo. IV. c. 31; which however still made the offence a capital felony: but, by the provision in force at the present time, every person convicted of the felonious crime of rape shall be liable to be kept in penal servitude for life, or for any term not less than five
years, or to be imprisoned for any term not exceeding two years, with or without hard labour (1).
[An infant under the age of fourteen years, is presumed by law incapable to commit a rape; and therefore cannot be found guilty of it (i);—for though in other felonies malitia supplet ætatem, as in some cases has been shown, yet as to this particular species of felony, the law supposes an imbecility of body as well as mind (k).
The civil law seems to suppose a prostitute, or common harlot, incapable of any injuries of this kind (1); not allowing any punishment for violating the chastity of her who hath indeed no chastity at all, or at least hath no regard to it. But the law of England does not judge so hardly of offenders, as to cut off all opportunity of retreat
(9) Stat. Westm. 2, c. 31.
(1) 24 & 25 Vict. c. 100, s. 48; 27 & 28 Vict. c. 47.
(i) See R. v. Jordan, 9 Car. & P. 118. The law is the same in the case of an assault with intent to
commit a rape. (R. v. Eldershaw, 3 Car. & P. 396.)
(k) 1 Hale, P. C. 631; vide sup.
(1) Cod. 9, 9, 22; Ff. 47, 2, 39.
[even from common strumpets, and to treat them as never capable of amendment: and therefore holds it to be felony to force even a concubine or harlot: because the woman may have forsaken that unlawful course of life (m); for, as Bracton well observes, “ licet meretrix fuerit antea, certe tunc meretrix non fuit, cum reclamando nequitie ejus consentire noluit" (n):
As to the material facts requisite to be given in evidence and proved upon an indictment for rape, they are of such a nature that, though necessary to be known and settled for the conviction of the guilty and preservation of the innocent,—and therefore to be found in such criminal treatises as discourse of these matters in detail, —their discussion here would not be desirable. We shall therefore merely add upon this head, a few remarks from Sir Matthew Hale, with regard to the competency and credibility of witnesses, which may, salvo pudore, be considered.
And, first, the party ravished may give evidence upon oath, and is in law a competent witness; but the credibility of her testimony, and how far she is to be believed, must be left to the jury upon the circumstances of fact that occur in that testimony. For instance, if the witness be of good fame ; if she presently discovered the offence and made search for the offender; if the party accused fled for it;—these and the like are concurring circumstances, which give greater probability to her evidence. But on the other side, if she be of evil fame, and stand unsupported by others; if she concealed the injury for any considerable time after she had opportunity to complain ; if the place where the fact was alleged to have been committed was where it was possible she might have been heard, and she made no outcry ;—these and the like circumstances carry a strong, but not conclusive, presumption that her testimony is false or feigned.] It is to
(m) 1 Hale, P. C. 629; Hawk. (n) L. 3, c. 27. P. C. b. 1, c. 41, s. 2.
be observed, that she is not compellable, on her examination, to answer the question whether she has not had connection with other men (o); but if she does answer and replies in the negative, the accused is then at liberty to call persons to contradict her (p). And he is also allowed, with the view of impugning her credibility, to produce proof that he had himself had connection with her before the alleged rape (9), or that her character for chastity or decency is notoriously bad (r).
[Moreover, if the rape be charged to be 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 was thought by Sir M. Hale that she ought to be heard without oath, to give the court information (s): 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 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 that, on the other hand, there is no determinate age at which the oath of a child ought either to be admitted or rejected (t). Yet where the evidence of children is admitted, it is much to be wished, in order to render their evidence credible, that there should be some concurrent testimony of time, place and circumstances;-in order to make out the fact, and that the conviction should not be grounded singly on the unsupported accusation of an infant under years of discretion. For in this, as in other cases, a witness may be
(0) R. v. Hodgson, R. & R. C. C. (7) R. v. Martin, 6 Car. & P. 562. 211.
(r) Stark. Ev. 1269, 1270. (P) R. v. Robins, 2 Mood. & R. 1 Hale, P. C. 634. 512; R. t. Barker, 3 Car. & P. 589; (t) See R. v. Brasier, 1 Leach, sce Roscoe's Evidence in Criminal C. L. 237. Cases, 6th ed. p. 810.