Rape (Law) - Encyclopedia

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RAPE (from Lat. rapere, to seize), in law, the crime of having carnal knowledge of a woman by a man, not her husband, forcibly and unlawfully against her will. Under the Mosaic law, rape was punished with death, if the damsel was betrothed to another man, and with a fine of fifty shekels if not so betrothed, while in this case, also, she was to be the wife of the ravisher all the days of his life (Deut. xxii. 25). The Roman civil law punished rape with death and confiscation of goods (Cod. L. IX. tit. 13). In England, under the Saxon law - adopted, probably, from a Teutonic code - death was also the penalty, but under the Normans this was changed to the loss of both eyes and castration; this punishment remained in force until after the time of Bracton (de Corona, f. 147). The statute of Westminster I. (1275) reduced the offence to a trespass, with a penalty of two years' imprisonment and a fine at the king's will. This lenity, it is said, produced terrible consequences, and, accordingly, the statute of Westminster II. (1285) again declared the offence a felony, with, however, benefit of clergy. This was the state of the law until 1575, when the punishment was made more severe by taking away the benefit of clergy. The offence remained capital until the Offences against the Person Act 1861, by which and subsequent amending acts it is now regulated. Thf, present punishment is penal servitude for life or for not less than three years or imprisonment with or without hard labour for not over two years.

The law of England (differing in this respect from the civil law) regards as immaterial whether the woman is chaste or unchaste, married or single, provided the offence has been committed forcibly and without her consent. The offence is complete if consent is extorted by means of threats of death or immediate bodily harm, by fraud or by false pretences or representation, such as the impersonation of a woman's husband (Criminal Law Amendment Act 1885).

Since the passing of the Criminal Law Amendment Act 1885, it is a felony, entailing the same punishment as rape, to have carnal knowledge of a girl under 13 years, whether she consent or not. Between 13 and 16 years of age it is a criminal offence punishable by two years imprisonment, whether consent is given or not, and even if there be solicitation; but if the jury is satisfied that the person charged has reasonable cause to believe the girl to be over 16 years, the accused is entitled to be acquitted. Prosecution must be within three months of the offence. The administration of any drug or matter, with intent, by producing stupor, to facilitate the accomplishment of the crime, is an offence punishable by two years' imprisonment. On indictment for rape there may be an acquittal on the actual charge, but a conviction either of the attempt or of an indecent assault.

In charges of rape, from the nature of the offence, the important witness is the woman, and it is essential, apart from medical evidence (see Medical Jurisprudence), that her story be corroborated by evidence implicating the accused. The following points have, of necessity, to be considered. (I) As to the general credibility of the witness and how far her story is to be believed; evidence, therefore, may be given to show that she is of immoral character. (2) As to whether she has made complaint immediately after the alleged outrage and to whom. (3) As to the place where the outrage was alleged to have been committed and the possibility of her being heard if she cried out.

In the United States, rape is universally treated as .a felony, and the punishment is either death, imprisonment for life, or imprisonment for a number of years, varying in the different states. In the case of offences against young girls, there is a divergence in the various states as to the age of consent, though the trend of legislation has been to raise it. In North and South Carolina, and Georgia, the age of consent is as low as to years, and in Kentucky and Louisiana, 12 years. In nineteen states the age of consent is 14 years. In one (Texas) 15 years. In six, it is 16 years. In Wyoming, New York, Colorado and Kansas it is as high as 18 years.

The essential facts to be proven in order to constitute this crime are the same as in England, but in many of the states the uncorroborated evidence of the woman is sufficient to sustain a conviction. This is so in California, Arizona, Idaho, Missouri, Kentucky, Michigan, Illinois, Oklahoma, &c. [1904; Brenton v. Territory, 78 Pac. Rep. 83]. In New York corroboration is required [Penal Code §283]. In Nebraska also evidence corroborating the prosecutrix is necessary [1907; Burk v. State, 112 N.W. Rep. 573]. In Texas it is no defence for accused to prove that he believed the prosecutrix to be over 15 years of age, the age of consent [1907; Robertson v. State, 102 So. W. Rep. 1130], and the crime is punishable with death [1903; Reyna v. State, 75 So. W. Rep. 25], as also apparently it is in the Indian country [U.S. v. Partello, 48 Fed. R. 670 U.S. Rev. Stats. § 5345], also in Alabama [Criminal Code, § 5444].

In Hawaii there is no age of consent for rape, which is punishable by $1000 fine and imprisonment at hard labour for life; the carnal knowledge of females under io years is punishable with death or imprisonment for life [Rev. L. 1905, §§ 2927, 2928]. In Porto Rico the age of consent is 14 years and the punishment not less than five years [Pen. Code 1902,§2551.


Stephen, Digest of Criminal Law; Russell, On Crimes: Archbold, Criminal Pleading; and for American law, May, The Law of Crimes, and Clark and Marshall, Treatise on the Law of Crimes.

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