Page:Harvard Law Review Volume 8.djvu/336

320 3 2d HARVARD LAW REVIEW. The question whether fraud can negative consent has been much discussed in rape cases. Where connection is secured by person- ating the husband, it is almost everywhere held, properly, that consent exists in fact, and that there is therefore no rape.^ The same thing is held where connection is obtained by some other fraud, yet is consented to,^ or by taking advantage of a woman of weak mind, who consents because of her mental weakness ; ^ consent, however obtained, is inconsistent with the commission of Hawkins, J., in his dissenting opinion : " In my judgment, wilfully to place his diseased person in contact with hers, without her express consent, amounts to an assault. It has been argued that to hold this would be to hold that a man who, suffering from gonor- rhoea, has communion with his wife might be guilty of the crime of rape. I do not think this would be so. Rape consists in a man having sexual intercourse with a woman without her consent ; and the marital privilege being equivalent to consent given once for all at the time of marriage, it follows that the mere act of sexual communion is lawful. But there is a wide difference between a simple act of communion which is lawful, and an act of communion combined with infectious contagion, endangering health and caus- ing harm, which is unlawful. It may be said that, assuming a man to be diseased, still, as he cannot have communion with his wife without contact, the communication of the disease is the result of a lawful act, and therefore cannot be criminal. My reply to this argument is that if a person, having a privilege of which he may avail himself or not, at his will and pleasure, cannot exercise it without at the same time doing something not included in this privilege, and which is unlawful and dangerous to another, he must either forego his privilege, or take the consequences of his unlawful conduct. I may further illustrate my view upon this part of the case by applying, by way of test, to an indictment for assault the old form of civil pleadings. Thus : Indictment for an assault; plea of justification, that the alleged assault was the having sexual commun- ion with the prosecutrix, she being the prisoner's wife ; new assignment, that the as- sault charged was not that charged in the plea, but the unlawful and malicious contact of her person with dangerous and contagious disease. What possible justification could be pleaded or answer given to such new assignment.-"' 1 Reg. V. Barrow, L. R. i C. C. 156; Cas. Crim. Law, 455; Wyatt v. State, 2 Swan, 394; contra, Reg. v. Dee, 15 Cox, C. C. 579, on the ground, as stated by Palles, C. B., that consent must " proceed from the will, not when such will is acting without the control of reason, as in idiocy or drunkenness, but from the will sufficiently enlightened by the intellect to make such consent the act of a reasoning being. . . . Excluding cases in which an outward action apparently, but not in fact, accompanied by mind is acted upon by another, any act done by one under the bona fide belief that it is another act different in its essence is not in law his act ; and that is the present case. The per- son by whom the act was to be performed was part of its essence. The consent of the intellect, the only consent known to the law, was to the act of the husband only." It seems sufficiently obvious that no act of the husband was in question, and that if there was consent to anything, it was to the act offered and done by the defendant. The error arises from a confusion between consent to an act and consent to a crime. The woman does not, it is true, consent to a crime ; but she does consent to the act, and as a result there fs no crime. 2 Don Moran v. People, 25 Mich. 356.
 * Reg. V. Fletcher, 10 Cox, C. C. 248.