CONSENT-INDECENT ASSAULT. R. v. WOLLASTON. [26 L. T. (N.s.) 403.] In the English Court for Crown Cases Reserved, April, 1872. A Man Induced two Youths above the age of fourteen to go out with him in the evening to an out of the way place, where they mutually indulged in indecent practices on each other's persons. The youths were willing and assenting parties to what was done. Held, that under these circumstances a conviction for an indecent assault could not be upheld. Case reserved for the opinion of the court by COCKBURN, C. J. Theobald Wollaston was tried before me, at the last assizes for the county of Sussex, on an indictment under the 24th and 25th Victoria,1 for an indecent assault on one William Rickard, with intent to incite the said William Rickard to commit an unnatural crime. There was a similar count for an assault, with the like intent, on one Douglas White. There was also (besides other counts which altogether failed on the evidence), counts for an indecent assault on each of the two parties before named. The facts did not admit of dispute. It appeared that the defendant had induced two youths, William Rickard and Douglas White, by the expectation of pecuniary reward, to go out with him in the evening to an out of the way place, and had, etc. (The facts showing the indecency practiced were then set out). After having passed some time in the gratification of this unnatural propensity, he, without attempting or suggesting anything further, voluntarily left, not having been interrupted or become conscious of being observed. It was plain that the two youths had accompanied the defendant with a full knowledge of what was about to take place - this not being the first time that the defendant had carried on such practices with one of them — and had been perfectly willing and assenting parties to all that had been done. There being thus no evidence to establish the intent necessary to support the counts framed on the statute, the counsel for the prosecution very properly gave up that part of the case, and relied for a conviction on the counts for the indecent assault. But on the part of the defendant it was contended that, as it was admitted that the parties on whom the alleged assault had been made had been consenting to all that had been done to them, that which would otherwise have been an assault became divested of that character; that this was not a mere submission, which, it was true, might not make a touching of the person less an Ch. 100, sec. 62. assault, but an actual consent, knowingly and intentionally given, which was inconsistent with the essential character, at law, of an assault, and that in this respect there could be no difference in point of principle between an assault committed in furtherance of a natural desire, and one committed in furtherance of a lust however unnatural and detestable In support of the general doctrine that when there is consent there can not be an assault in point of law, the case of Reg. v. Martin,1 was referred to. The case appeared to me to be in point, and on the whole I was disposed to think that contention of the defendant's counsel was well founded. But as the point had never been decided in a case like the present, I directed the jury to find the defendant guilty on the counts for indecent assault, reserving for the consideration of this court whether upon the facts of the case those counts could be upheld. Upon this point I now request the opinion of the court. I admitted the defendant to bail to come up for judgment, if required, at the next Sussex assizes. Parry, Serjeant (R. E. Webster with him), for the prisoner. The conviction can not be sustained. This indictment is framed upon the 24th and 25th Victoria,2 which enacts that whosoever shall be guilty of any indecent assault upon any male person shall be guilty of a misdemeanor. There was no evidence to support the finding of a jury on the fifth and sixth counts of the indictment, the counts for an indecent assault. The charge is one at common law, and in substance for a common assault – the offense of an indecent assault being statutable. There is no allegation of ad communii nocumentum and no charge of indecent exposure. [WILLES, J., referred to Reg. v. Watson,3 where an indictment which alleged an exposure of the person to one person only was held bad.] There was nothing of the kind here to constitute an exposure. [KELLY, C. B. The only question is whether this can be called an assault at all?] What was done was done not only with the consent of the youths, but they were willing participators. Of what age were the youths? Above the age of fourteen. He was then stopped by the court. Barrow, for the prosecution. The case of Reg. v. Martin, relied upon at the trial, was no doubt a decision to the effect that an attempt to commit the misdemeanor of having carnal knowledge of a girl between ten and twelve years old is not an assault if the girl assent. But in such a case it is no offense in law on the part of the girl to give her consent. The old cases establish that where two people meet to commit that which is an offense in the eye of the law, consent is immaterial. In such 1 2 Moo. C. C. 123. 2 ch. 100, sec. 62. 32 Cox, C. C. 376. cases the indictment charges that each committed an assault upon the other, and that seems to show that when an indecent assault is charged, to which the patient offers no opposition, his consent goes for nothing, and that the law will not regard it.1 [WILLES, J. In an action for criminal conversation the declaration alleges that the defendant assaulted the wife though she was a consenting party.] An indecent assault is an act to which the law will not permit a party to consent. KELLY, C. B. It is clear that upon the circumstances of the case there is nothing which constitutes an assault in law. If anything is done by one being upon the person of another, to make the act a criminal assault, it must be done without the consent and against the will of the person upon whom it is done. Mere submission is not consent, for there may be submission without consent, and while the feelings are repugnant to the act done. Mere submission is totally different from consent. But in the present case there was actual participation by both parties in the act done, and complete mutuality. We should be overturning all the principles of law to say that in this case there was any assault in law. The cases referred to in the argument of counsel for the prosecution are founded on this, that the law does not recognize consent to commit a felony. In this case there is nothing in the nature of an exposure of the person charged which is within the purview of the law. Anything of the kind in question done between two or more persons would have amounted to an indecent exposure, and consent would have been no defense. Consequently, under the circumstances of this case, the conviction must be quashed. The rest of the court concurring. Conviction quashed. CONSENT-FORCIBLE DEFILEMENT-DISSENT OF WOMAN MUST BE SHOWN. POLLARD V. STATE. [2 Iowa, 567.1 In the Supreme Court of Iowa, 1856. Forcible Defilement - Dissent and Repulsion must be Proved.- On an indictment under a statute providing "that if any person shall take any woman unlawfully and against her will, and by force, menace or duress compel her to be defiled "2 he shall be punished, etc., if the woman consent there is no crime. The defendant is not obliged to show consent; but the State must give evidence of dissent and repulsion. ERROR to the Jones District Court. This is an indictment for forcible defilement under section 2582 of 1 The Case of Lord Audley, 3 Howell's St. Tr. 452. 2 R. C. Iowa, 1851, sec. 2582. the code, containing two counts, the first of which reads as follows: "The grand jurors, duly elected, impaneled, charged, and sworn, within and for the body of said county in the name and by the authority of the State of Iowa, upon their oaths present, that one Charles E. Pollard, late of said county, on the 31st day, of August, 1854, at the county of Jones aforesaid did take one Samanthy Eustatia Hakes, unlawfully and against her will, and by force and menance, and duress, compel her, the said Samanthy Eustatia Hakes, to be defiled; and did then and there lay hold of her, the said Samanthy Eustatia Hakes, and with both his hands held her, the said Samanthy Eustatia Hakes, upon a bed, and did then and there force, ravish, and have carnal knowledge of her, the said Samanathy Eustatia Hakes; and her, the said Samanthy Eustatia Hakes, in manner and form aforesaid, did then and there defile, contrary to the provisions of the code of Iowa, in such case made and provided, and against the peace and dignity of the State of Iowa.". To this indictment, the defendant pleaded not guilty. On the trial, the only witness called by the State, was the said Samnathy Eustatia Hakes, who testified as follows: "That at the time charged, she was about twelve and a half years old; that on the last day of August, 1854, she attended the wedding of her brother, and went home, near evening, with the defendant and his wife, who is her sister; that he lived in Jones county; that at night, she went to bed in the same room with the defendant and his wife; that her bed was about ten or twelve feet from that of the defendant and his wife; that during the night, she was awakened by the defendant, who had got in bed with her, and had his arm on her shoulder, and was in the act of sexual intercourse with her; that she was awakened by the pleasure of sexual enjoyment and suffered no pain; that she told the defendant to go away; that he told her to keep still- he would not hurt her; that was all she said or did; that she did not consent; and that she made no outcry, and made no resistance." When asked the question, whether the defendant used any more force than any man would in having sexual intercourse with his wife, the same witness answered as follows: "That she supposed not; that she could have awakened her sister by calling her; that, on a subsequent occasion, the defendant offered to do the same thing, when she called her sister, and he desisted; that her mother is dead, and her father lives in California; that she did not commence this prosecution, and did not desire it to be commenced, nor did she desire it to be prosecuted now; and that she had been brought to this trial by compulsory process." The defendant offered no evidence. The court, at the request of the State, charged the jury as follows: "1. That if the jury believe, from the evidence, that the prosecuting witness was asleep, when the defendant went to bed to her, and that when she awoke, the defendant was in the very act of having sexual intercourse with her, it is a circumstance to be considered in making up their minds as to whether there was any consent on her part. "2. That no particular amount of force is necessary to make out the offense; if the act was done against the will of the woman, then there was force and duress, in contemplation of law." To these instructions, the defendant excepted, and asked the court to instruct the jury, as follows: "That if the jury believe, from the evidence, that the defendant went to bed with the woman whom he is charged to have defiled, and she said nothing to him, except to go away, and he replied,‘be stillthat he would do her no harm;' and he put his arms around her, and had sexual intercourse with her; and that there were other persons in the same room, whom she might have awoke by simply making a noise, and she made no noise, and no resistance, the defendant is not guilty, and the jury ought to acquit," which instruction the court refused to give, and the defendant excepted. The defendant having been found guilty, moved for a new trial, for the reason that the facts as proved do not constitute the offense charged, which motion was overruled, and the defendant sentenced to imprisonment in the penitentiary for the term of one year, and to pay a fine of two hundred dollars and costs. The giving and refusing the instructions above set forth, and overruling the motion for a new trial, are assigned for error.. Whitaker & Grant, for the plaintiff in error. WOODWARD, J. However reluctant the court may be to express an opinion which permits one who has been guilty of an offense, and has violated all sense of decency, to go free, and that, too, when he may have committed an offense greater in its degree than that with which he is charged, yet it would be a violation of our duty to permit him to be punished for an offense, of which he has not been proved guilty, or to be punished for one offense, because he has been guilty of another. We think the defendant should have had a new trial. The offense charged lies in doing the act "against the will" of the other person, with force, menace, or duress. It is true that no particular amount of force is necessary to constitute the offense, and the section 2582 of the Code was probably intended to cover those cases in which there is no force, except that which is constructive, and in which the act is accomplished principally by menace or duress, acting to subdue the will; but it contemplates, at least, an act against the will. If the will is subdued to submission, by menace or duress, the act is still against the will, in every fair sense, and just such a case is provided for in this section of the code. But, in order that the defendant may be held not guilty, he |