Page:Harvard Law Review Volume 8.djvu/337

321 CONSENT IN THE CRIMINAL LAW. 321 rape.^ It is, however, always held in such a case that the defend- ant is guilty of assault and battery ;2 and in at least one well- considered case this is put upon the ground that fraud negatives consent.^ The true explanation of these cases is without doubt one to be discussed later, in considering the effect of consent. A similar question arose under an English statute which made it criminal for the master of a workhouse to dispose of the bodies of deceased inmates for dissection, if relatives required them to be buried. A master of a workhouse by falsely pretending to bury the body of a deceased inmate induced the relatives to refrain from formally requiring burial; and he then sold the body for dissec- tion. It was held that he could not be punished under the statute. Pollock, C. B., truly said that though defendant acted a lie to pre- vent the requirement from being made, that was not the offence with which he was charged.* A seeming consent extorted by force or terror differs from con- sent obtained by fraud. In the latter case the mind is deceived into agreement ; in the former, the body is forced to act without a real agreement of the mind. Force or terror, then, may negative consent; ^ and, similarly, where one is forced to do a criminal act, he may show the coercion as a defence.^ This is, however, con- fined to cases where the force threatened is immediate,^ and is to the person, or at least to property in the personal possession of 1 Cases where consent is lacking must be distinguished. So where one has connec- tion with a woman insensible from intoxication (Reg. v. Champlin, i Den. C. C. 89; Com. V. Burke, 105 Mass. 376), or asleep (Reg. v. Mayers, 12 Cox, C. C. 311), or sub- mitting because of idiocy or ignorance (Reg. v. Fletcher, 8 Cox, C. C. 131 ; Pomeroy V. State, 94 Ind. 96), the act is done without her consent, and is therefore rape. The distinction is well pointed out in Reg. v. Barratt, 12 Cox, C. C. 498 ; L. R. 2 C. C. 8r. 2 Reg. V. .Saunders, 8 C. & P. 265 (personation) ; Rex v. Nichols, Russ. & Ry. 130; Reg. V. Lock, L. R. 2 C. C. 10 (advantage of ignorance) ; Reg. v. Bennett, 4 F. & F. 1 105 (disease). 8 Reg. V. Case, 4 Cox, C. C. 220; Cas. Crim. Law, 435. " What she consented to was something wholly different from that which was done, and therefore that which was done was done without her consent;" per Wilde, C. J. Alderson, B., said: " When a man obtains possession of the person of a woman by fraud, it is against her will;" and Piatt, B., added, "The girl consents to one thing, and the defendant does another." See also Rex v. Rosinski, 1 Moody, 19. 5 Reg. V. Bunce, i F. & F. 523 ; Cas Crim. Law, 651 ; Reg. v. Woodhurst, 12 Cox, C. C. 443 ; Reg. v. Blackham, 2 East, P. C. 711 ; Cas. Crim. Law, 202 ; Taplin's Case, 2 East, P. C. 712. As where one is forced to sell property by threats or violence if he refuses. Rex v. Simons, 2 East, P. C. 712 ; Spencer's Case, ibid. • Rex V. Crutchley, 5 C. & P. 133; Cas. Crim. Law, 367. ' Resp. V. McCarty, 2 Dall. 86 ; Cas. Crim. Law, 364.
 * Reg. V. Feist, D. & B. 570, 3 Laws Cr. Def. 336.