Correspondence
| Published date | 01 April 1952 |
| Date | 01 April 1952 |
| DOI | 10.1177/0032258X5202500213 |
| Subject Matter | Correspondence |
OFFENCES
AND
CASE
LAW
141
who is tempted and induced to have carnal knowledge of a girl who
misrepresents herself to be over sixteen, and appears to be so, has no
possible answer if he is charged with indecent assault and not with the
full offence."
It
was accordingly held that the appellant was rightly convicted on
his own confession, since the defence of reasonable belief rendered
available by the proviso to section 2of the Criminal
Law
Amendment
Act, 1922, to a man of twenty-three years of age and under was
not
open
on a charge of indecent assault on a girl under the age of sixteen,
but
only on charges of offences with such girls covered by section
2,
even
though the only indecent assault charged was in fact the act of carnal
knowledge.
In
R.
v. Maugham (1934),24 Cr.App.R. 130, the Court of Criminal
Appeal followed its previous decision in R. v. Forde (supra), that, on a
charge of indecent assault on a girl under sixteen areasonable and
bona fide belief that she was over sixteen is
not
available, the court
saying-"
It
was hoped at the time
that
judgment
"(R. v . Forde)" was
delivered that the legislature would take notice of the apparent absurdity
resulting from this state of legislation, and
that
it would be amended.
That
course has
not
been taken, and we can see no reason for adopting
any different view in this case from
that
then adopted."
The
appellant in R. v. Donovan (1934), 98 J.P. 409, was convicted
at Quarter Sessions of indecent assault and common assault, the facts
being that the assault alleged was a beating of a girl with a cane
under
circumstances of indecency with the object of gratifying
the
perverse
sexual lust of the man charged, and the medical evidence was that there
were seven or eight red marks on the girl's body which indicated
that
she had suffered a fairly severe beating.
The
defence was
that
the girl had consented to everything
that
had
been done by the defendant, and on appeal it was said
that
the
rule as
to the burden of proof and the proper direction to the
jury
on it had
already been established in R. v.
May
(1912),77 J.P. 31,
that
in cases
of assault, whether indecent or not, where the question of consent
arises,
if
the
facts proved in evidence are such
that
the
jury
can reason-
ably find consent, there ought to be a direction by the judge on
that
question, both as to the onus of negativing consent being on the prose-
.cution, and as to the evidence in the particular case bearing on the
question.
It
was pointed out
that
the question of consent arises only in
cases which group themselves into limited classes,
and
that
one class
of case where consent can be of importance is
that
of indecent acts or
acts of unwarranted familiarity, for there are, as the
judgment
pointed
out, acts of familiarity or affection which, done with consent, are
innocent and lawful,
but
which, done against the will or the wish of the
party touched, would be assaults.
It
was also said
that
it was never
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