Wiki: parish law on rape

: From The present practice of a justice of the peace; and a complete library of parish law, vol 3, pp520-24, 1790.

	Rape.
Rape, what.	RAPE is when a man has carnal knowledge of a woman by force and against her will; and rapere, to ravish, signifies as much as carnaliter cognoscere, and cannot be expresed in legal proceedings by any other words. 2 Inst. 180.
Child under ten years of age.	And by the 18 Eliz. c. 7, If any person shall unlawfull and carnally know, and abuse any woman child, under the age of ten years, whether with her consent or against, he shall be guilty of felony without benefit of clergy.
General observations.	Rape is certainly an atrocious crime, and ought to be punished with death; but it should be remembered, that it is an accusation easily to be made, hard to be proved, and harder to be defended by the party accused, though ever so innocent: therefore a wise jury will be cautious upon trials of offences of this nature, and not be so much transported with indignation at the heinousness of the offence, as to be over hastily carried to the conviction of the person accused, but the confident testimony, sometimes of malicious and false witnesses. 1 H. H. 635, 636.
Ravishing a common woman.	It is not a sufficient excuse in the ravisher, to prove that the woman is a common strumpet; for she is still under the protection of the law, and is not to be forced. 1 Haw. 108.
Consenting at last through fear.	Nor is the offence of a rape mitigated, by shewing that the woman at least yielded to the violence, if such her consent was forces, by fear of death or duress. Id.
Consenting after the fact.	Nor is it any excuse that she consented after the fact. 1 Haw. 108. By the 6 R. 2. c. 6, is it enacted, That when a woman is ravished, who afterwards consents to the ravisher, both the ravisher and ravished shall be disabled to have any inheritance, dower, or joint feoffment; but the next of blood shall enter. And the next of kin to the woman ravished may have an appeal against a ravisher, notwithstanding such consent; and the defendant shall not be received to wage battle.
Of conception in consequence of a rape.	Though it has been said by Dalton, on the authority of Stamford, Britton, and Finch, that if a woman conceives in consequence of the supposed rape, it is then no rape, for a woman cannot conceive unless she consents; Mr. Hawkins thinks this opinion is very questionable, not only because the present violence is no way extenuated by such a subsequent consent, but also because if it were necessary to shew that the woman did not conceive, the offender could not be tried till it might appear whether she did or not; and he expresses his doubts of the philosophy of this notion. Dalt. c. 160. 1 Haw. 108. And L. Hale observes, that this opinion of Dalton seems to be no law. 1 H. H. 731.
What evidence is necessary on an indictment for a rape on an infant.	Sir Matthew Hale says, If a rape be charged to be committed on an infant under twelve years of age, she may be a competent witness, if she has sense and understanding to know the nature and obligation of an oath; and even if she has not, he thinks she ought to be heard without oath, to give the court information; though that alone will not be sufficient to convict the offender. 1 H. H. 634.
Of swearing infants.	And Sir William Blackstone says, It seems now to be settled, that, in such cases, infants of any age are to be heard; and, if they have any idea of an oath, to be also sworn; it being found by experience, that infants of very tender years often give the clearest and truest testimony. But, whether the child be sworn or not, it is to be wished, in order to render her 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. 4 Blackst. 214.
A child cannot be an evidence without oath.	But in the case of Ormychund v. Barker, M. 1744, lord chief-justice Lee said, It had been determined at the Old Bailey, upon mature consideration, that a child should not be admitted as an evidence without oath: and lord chief-baron Parker also said, it was so ruled at Kingston assizes, before lord Raymond, where, upon an indictment for a rape, he refused the evidence of a child without oath. 1 Atk. 21. An infant on an indictment for a rape, cannot be admitted to give evidence, except upon oath. Leach's Cas. in Cr. Law, 114. Poweli's case at the assize for York in 1775. And in that case of K. v. Brazier, it was solemnly determined, that no testimony can be received except upon oath; and an infant under the age of seven years may be sworn, if she appears to understand the nature of an oath. It was as follows:
No testimony can be received but upon oath.	This was a case reserved for the opinion of the twelve judges, by Mr. justice Gould, at the summer assizes for York in 1779, on the trial of an indictment for a rape on the body of an infant under seven years of age. The information of the infant was received in evidence against the prisoner; but, as she had not attained the years of presumed discretion, and did not appear to possess sufficient understanding to be aware of the dangers of perjury, she was not sworn. The prisoner was convicted; but the judgement was respited, on a doubt, Whether evidence, under any circumstances whatever, could be legally admitted in a criminal prosecution, except upon oath? The judges were unanimously of opinion, That no testimony whatever can be legally received except upon oath; and that an infant, though under the age of seven years, may be sworn in a criminal prosection, provided such infant appears, on strict examination by the court, to possess a sufficient knowledge of the nature and consequences of an oath: for there is no precise and fixed rule as the the time within which infants are excluded from giving evidence; 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; but, if they were found incompetent, their testimony cannot be received. Leach's Cas. in Cr. Law, 346.
The woman's oath.	So much respecting infants; and a woman who has been ravished must give evidence on oath, and is in law a competant witness; but the credibility of her testimony, and how far she is to be believed, must be left to the jury, and is more or less credible according to the circumstances of fact which concur in that testimony. 1 H. H. 633.
Circumstances in favour of it.	If the witness be in good fame; if she presently discovered the offence, and made pursuit of the offender; shewed circumstances and signs of the injury, whereof many are of that nature, which one women are the most proper examiners and inspectors; if the place, wherein the fact was done, was remote from people, inhabitants, or passengers; if the offender fled for it: these, and the like, are concurring evidences to give greater probability to her testimony, when proved by others as well as herself. 1 H. H. 633.
Circumstances against it.	But, if she concealed the injury for any considerable time, after she had an opportunity to complain; if the place where the crime was supposed to be committed, were near inhabitants or common recourse or passage of passengers, and she made no outcry when the fact was supposed to be done, when and where it is probably she might be heard by others; or if a many prove himself to be in a different place, or in other company, at teh time she charges him with the fact; or if she is wrong in the description of the place, or swears the fact to be done in a place where it was impossible the man could have access to her at that time, as if the room was locked up, and the key in the custody of another person: these and the like circumstances carry a strong presumption, that her testimony is false or feigned. Id.
Persons aiding principals.	It is said, by Mr. Hawkins, that all who are present and actually assist a man to commit a rape, may be indicted as principal offendered, whether they are men or women. 1 Haw. 108. Hence it appears that a woman may be principal to the ravishment of another.
Accessaries	And lord Hale says, that by the 18 Eliz. c. 7, The principals in rape are ousted of clergy, whether they are principals in the first degree, to wit, he committed the fact; or principals in the second degree; to wit, present, aiding, and abetting; but accessaries before and after have their clergy. 1 H. H. 633.
Punishment by common law.	Rape was felony at common law, for which the offender was to suffer death; but before this act the offence was made less, and the punishement changed, from death the the loss of those members whereby he offended; that is to say, it was changed to castration and the loss of his eyes; unless she that was ravished demanded him for her husband, before judgement, and which was only in the will of the woman, and not of the man; and the said punishement of loss of members continued till the making of the statute of 3 Edw. 1. c. 13. 2 Inst. 180, 181.
Death without benefit of clergy.	By the 3 Ed. 1. c. 13, Rape was made a trespass, subjecting the offender to two years' imprisonment, and a fine at the king's will: it was again made felony by the 13 Ed. 1. c. 34; and finally, by the 18 Eliz. c. 7, was excluded from the benefit of the clergy. And by the 13 R. 2. st. 2. c. 1, No charter of pardon shall be allowed for rape, unless the rape be specified therein.

parish law on rape

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