Page:Harvard Law Review Volume 12.djvu/473

Rh Last autumn our court had to consider the grounds upon which evidence of fresh complaint by a ravished woman is admitted as part of the government's case in an indictment for rape. All agree that it is an exception to the ordinary rules of evidence to allow a witness to be corroborated by proof that he has said the same thing elsewhere when not under oath, except possibly by way of rebuttal under extraordinary circumstances. But there is the exception, almost as well settled as the rule, and courts and lawyers finding the law to be established proceed to account for it by consulting their wits. We are told that the outrage is so great that there is a natural presumption that a virtuous woman would disclose it at the first suitable opportunity. I confess that I should think this was about the last crime in which such a presumption could be made, and that it was far more likely that a man who had had his pocket picked or who had been the victim of an attempt to murder would speak of it, than that a sensitive woman would disclose such a horror. If we look into history no further than Hale's "Pleas of the Crown," where we first find the doctrine, we get the real reason and the simple truth. In an appeal of rape the first step was for the woman to raise hue and cry. Lord Hale, after stating that fact, goes on to say that upon an indictment for the same offence the woman can testify, and that her testimony will be corroborated if she made fresh complaint and pursued the offender. That is the hue and cry over again. At that time there were few rules of evidence. Later our laws of evidence were systematized and developed. But the authority of Lord Hale has caused his dictum to survive as law in the particular case, while the principle upon which it would have to be justified has been destroyed. The exception in other words is a pure survival, having nothing or very little to back it except that the practice is established.

In a somewhat earlier case I tried to show that the doctrine of trespass ab initio in like manner was the survival in a particular class of cases of a primitive rule of evidence, which established intent by a presumption of law from subsequent conduct, after the rule had gone to pieces and had been forgotten as a whole. Since that decision Professor Ames has made some suggestions which may or may not modify or enlarge the view which I took, but