Rape is having carnal knowledge of a woman without her conscious consent, and such consent must not be extorted by violence or threats of violence. The Criminal Law Amendment Act, 1885, provides that a man is guilty of rape if by personating a woman’s husband he succeeds in having connection with her. Previously the point was doubtful. A husband cannot under any circumstances commit rape on his own wife, her consent at marriage being irrevocable; but Mr Justice Stephen is of opinion that under certain circumstances he may be convicted at least of an indecent assault. Nor can a boy under fourteen be guilty of this crime, for in law (whatever be the physical fact) he is absolutely presumed incapable; but both husband and boy may be charged with assisting others in committing it. Rape is a felony punishable with penal servitude for life. To this every one who unlawfully and carnally knows any girl under the age of thirteen years is also liable. The attempt to have unlawful carnal knowledge of any girl under thirteen, and the act or attempt in the case of a girl between thirteen and sixteen (save when the accused reasonably believes her to be over sixteen), or in the case of any female idiot ‘under circumstances which do not amount to rape,’ are misdemeanours, punishable by two years’ imprisonment with hard labour. The merest pene- tration suffices to constitute the crime. As regards evidence in cases of this sort, the most important question will usually be, How far is the supposed injured person to be believed? That depends on many things, of which the chief are (1) her character—for though as a matter of law rape may be committed on a prostitute, since even she cannot be compelled to submit to outrage, yet in fact if the chief witness is shown to be unchaste the charge almost invariably breaks down; (2) the time within which and the person to whom she made the first complaint; (3) any marks of violence on her dress or person, and her agitated or calm demeanour; (4) the scene of the alleged crime, and the probability of strenuous resistance attracting public notice; (5) whether the prisoner fled or not; (6) any marks of violence on his dress or person. (7) If apprehended soon after the alleged act the accused is usually asked to submit to medical examination. Refusal to do so is a strong presumption of at least intercourse. The thing to be guarded against is either a false charge made by a woman to extort money or, on failure of this attempt, persisted in from spiteful motives, or an accusation made by one who after consenting resists too late, or who tries when by any accident the fact of connection becomes known to whitewash her character.
The law which protects women against the class of crime of which rape is the chief has been made much wider of late years, chiefly by the Criminal Law Amendment Act of 1885, which contains provision against various kinds of procuration. As regards the abduction (1) of a woman on account of her fortune; (2) by force with intent to marry; (3) of an unmarried girl under the age of eighteen with intent to have carnal knowledge of her, it need only be remarked that the first two are felonies punishable by fourteen years’ penal servitude, and the third a misdemeanour punishable by two years’ imprisonment with hard labour.
In the United States the crime is everywhere treated as a felony, and punished with imprisonment for life or for a number of years; but the punishment is somewhat different in the different states of the Union. See also ABDUCTION.