Offences and Case Law
| Author | A Borough |
| Date | 01 April 1950 |
| Published date | 01 April 1950 |
| DOI | 10.1177/0032258X5002300209 |
| Subject Matter | Article |
Offences and Case
Law
By
ABOROUGH
CHIEF
CLERK
V.-RAPE
RAPE is a felony at common law,
but
the
punishment is statutory.
It
is
not
triable at quarter sessions.
Rape is defined at common law as:
(a)
the
unlawful carnal knowledge of a woman, without
her
consent, by force, fear or fraud.
The
punishment for rape is contained in Section 48 of the Offences
Against the Person Act, 1861, which states that:
"Whosoever
shall be
convicted of the crime of rape shall be guilty of felony, and being
convicted thereof shall be liable to be kept in penal servitude for
life"
(penal servitude is now replaced by imprisonment by section 2of the
Criminal Justice Act, 1948, which abolishes penal servitude).
In R. v. Phillips (1839), 8 C. &P.
736;
and R. v. Jordan (1840)
9 C. &P, IIS, it was decided
that
in charges of rape and assaults
with intent to commit rape, the law presumes
that
there is wanting
in a person under fourteen the physical ability necessary to enable
him to commit the offence, and that evidence is not admissible against
him to show
that
in fact he has attained the full state of puberty, and
was capable of committing the crime. A boy under fourteen may
however, be a principal in the second degree, and a woman may also
be convicted as a principal in the second degree (R. v.
Ram
(1893)
17 Cox 609). Ahusband may be a principal in the second degree if
he is present aiding and abetting another to commit a rape upon her.
However, as a general proposition it might naturally and correctly be
stated that a
man
cannot be guilty of a rape upon his wife,
but
that
is
certainly not, without qualification, or in all circumstances, an
accurate statement of the law, as the recent case of R. v. Clarke (1949)
2
All
E.R 448 (reported at page 256 of Vol.
XXII,
NO.4 of THE
POLICE
JOURNAL)
has shown.
In
this case the first count of an indictment
charged ahusband with a rape on his wife. Husband and wife, had,
in effect, been separated by an order of the magistrates on the ground
of the husband's persistent cruelty, previous to the alleged rape, and
the order was to the effect that the wife was no longer bound to cohabit
with the husband.
The
trial judge at the assizes explained that the
position was that the wife, by process of law, namely, by marriage,
had given consent to the husband to exercise the marital right during
such times as the ordinary relations created by the marriage contract
subsisted between them,
but
by a further process of law, namely, the
justices' separation order, her consent to marital intercourse was
130
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