Page:Harvard Law Review Volume 8.djvu/342

326 326 HARVARD LAW REVIEW. women chaste against their will ; but is it not the concern of the public to prevent women losing their chastity against their will? And many cases have occurred where, although we must say the physical connection was consented to, yet there was no consent to become unchaste. One way of securing the result indicated would be to punish the man as a seducer; but this, at common law, would be trenching on the ground of the ecclesiastical courts, and, besides, seduction is generally a much less aggravated offence than the one under discussion. Another way of securing the desired result remains. The seducer has committed a technical battery ; and if we say that the consent of the woman shall not in such a case protect the seducer from prosecution, we may punish him. We have only to say that he has injured the public in spite of the consent; and I, for one, should be inclined to say this as readily in the case of a fraudulent seduction as in the case of an act tending to a breach of the peace. And so in fact the authorities say, although they do not expressly lay down such a reason for their decision. Where a woman's con- sent to connection is obtained by such a misrepresentation as to the nature of the act as, if true, would make it not unchaste, but entirely proper, the seducer may be punished for assault and battery. Thus, one who secures connection with a woman by personating her husband, may be punished for assault and battery.^ And this principle appears to offer the best explanation of the decision in Reg. v. Case,^ where a physician obtained connection under pretence of medical treatment. Thus the public is not with- out remedy in these cases, although the wrongdoer cannot be pun- ished for rape. The Scotch law treats the matter in the same way. The offence is not rape, but " an innominate offence," — that is, a misdemeanor.^ We have seen, then, the impropriety of confusing lack of con- sent with ineffectiveness of consent. If consent exists, we must not refuse to recognize its existence. But in many cases a wrong- doer may not be absolved from guilt, though what he did was done with the consent of the sufferer. If he is charged with that sort 1 Reg. V. Saunders, 8 C. & P. 265. 8 Reg. V. Sweenie, 8 Cox, C. C. 223. This principle would seem not to cover the case of mere assault, without physical contact. The peculiar wrong to be guarded against is not then accomplished, even in part. The English case of Reg. v. Martin, already referred to, was therefore correctly decided. See, however, Hays v. People, i Hill, 351.
 * 4 Cox, C. C 220; Cas. Crim. Law, 435.