a

view, most of the courts in which the question has arisen have held that a man is not guilty of rape in having carnal knowledge of woman by falsely personating her husband.560 For the same reason, if a woman consents to intercourse in the belief that an illegal marriage with the man is legal, upon his fraudulent representation to that effect, he is not guilty of rape.561

298. Carnal Knowledge of Children.

It seems that under the old common law it was not regarded as rape to have carnal knowledge of a child, however young, if she consented.562 By an early English statute,

765, 41 Am. Dec. 79; Com. v. Fields, 4 Leigh (Va.) 648; Bloodworth v. State, 6 Baxt. (Tenn.) 614, 32 Am. Rep. 546.

560 Reg. v. Barrow, L. R. 1 C. C. 156, 11 Cox, C. C. 191, Beale's Cas. 455; Reg. v. Barratt, L. R. 2 C. C. 81; Reg. v. Clarke, Dears. C. C. 397; Rex v. Jackson, Russ. & R. 487; Wyatt v. State, 2 Swan (Tenn.) 394; State v. Brooks, 76 N. C. 1. Contra, People v. Metcalf, 1 Whart. C. C. 378; State v. Shepard, 7 Conn. 54; Reg. v. Dee, 15 Cox, C. C. 579, L. R. 14 Ir. 468.

561 State v. Murphy, 6 Ala. 765, 41 Am. Dec. 79. And see Bloodworth v. State, 6 Baxt. (Tenn.) 614, 32 Am. Rep. 546.

562 Reg. v. Read, 1 Den. C. C. 377; Reg. v. Webb,

however, it was made a felony to have carnal knowledge of a child under the age of ten years, whether with or without her consent.563 Similar statutes have been enacted in this country.564 In some states the statute punishes the carnal knowledge of girls of as much as sixteen years of age, or even more, either with or without their consent.565 a few cases it has been held that, even independently of any statute, a child under ten years of age is incapable of consenting to sexual intercourse, and that it is rape at common law for a man to have intercourse with her with her consent. 566

299. The Carnal Knowledge.

In

(a) Penetration.-To

constitute

rape,

2 Car. & K. 937; Reg. v. Martin, 9 Car. & P. 213; Reg. v. Meredith, 8 Car. & P. 589.

563 18 Eliz. c. 7, § 4; 1 Hale, P. C. 628; 1 East. P. C. 436. See Reg. v. Cockburn, 3 Cox, C. C. 543. 564 See Com. v. Roosnell, 143 Mass. 32; Hays v. People, 1 Hill (N. Y.) 351.

565 Farwell v. State, 54 N. J. Law, 416; State v. Wright, 25 Neb. 38. And see State v. Tilman, 30 La. Ann. 1249, 31 Am. Rep. 236; Lawrence v. Com., 30 Grat. (Va.) 845; State v. Hatfield, 75 Iowa, 592; Com. v. Murphy, 165 Mass. 66, 52 Am. St. Rep. 496.

566 See People v. McDonald, 9 Mich. 149.

carnal knowledge is essential. It is necessary, therefore, that there shall be some penetration of the female organ by the male.567 The slightest penetration, however, is sufficient. 568

(b) Emission. In a case decided in England in 1781, emission was held to be necessary, as well as penetration, on the ground that there could not be carnal knowledge without it.569 Prior to this decision, emission was not regarded as necessary,5 570 and it has since been declared unnecessary by statute. In this country some of the courts have fol

567 3 Inst. 60; 1 Hale, P. C. 628; Rex v. Allen, 9 Car. & P. 31; Reg. v. Jordan, 9 Car. & P. 118; Hardtke v. State, 67 Wis. 552; Wesley v. State, 65 Ga. 731.

568 3 Inst. 59; Rex v. Allen, supra; Reg. v. Jordan, supra; Rex v. Russen, 1 East, P. C. 438; Reg. v. Lines, 1 Car. & K. 393; Com. v. Thomas, 1 Va. Cas. 307; Waller v. State, 40 Ala. 325; Stephen v. State, 11 Ga. 225; State v. Hargrave, 65 N. C. 466; People v. Crowley, 102 N. Y. 249 Word v. State, 12 Tex. App. 174. See note, 80 Am. Dec. 362.

569 Hill's Case, 1 East, P. C. 439. And see Rex v. Burrows, Russ. & R. 519.

570 See 1 East. P. C. 436-440.

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lowed the English case above mentioned ;571 but most of them have recognized the earlier doctrine, and have held penetration, without emission, sufficient, or else statutes have been enacted expressly declaring it unnecessary 572

300. Unlawfulness of Intercourse-Husband and Wife.

Since rape is "unlawful" carnal knowledge of a woman, it follows that a man cannot be guilty of this offense by having carnal knowledge of his wife, and it can make no difference that he does so by force and against her will.573 Nor can a man be guilty of an attempt to rape his wife, or of an assault with intent to rape her.574 He may, however, be guilty as a principal in the second

571 State v. Gray, 8 Jones (N. C.) 170; State v. Hargrave, 65 N. C. 466; Williams v. State, 14 Ohio, 222, 45 Am. Dec. 536; Blackburn v. State, 22 Ohio St. 102; Noble v. State, 22 Ohio St. 541.

572 State v. Shields, 45 Conn. 256; Pennsylvania v. Sullivan, Add. (Pa.) 143; Waller v. State, 40 Ala. 325; Comstock v. State, 14 Neb. 205; Osgood v. State, 64 Wis. 472; People v. Crowley, 102 N. Y. 234.

573 1 Hale, P. C. 629.

574 Ante. § § 129, 210.

degree, or as an accessary before the fact, in procuring the rape of his wife by another man, or in aiding or abetting another in committing the offense.575

301. Persons

mitted.

upon whom Rape may be Com

As has just been stated, a man cannot rape his wife, since intercourse between husband and wife is not unlawful. Subject to this qualification, any female may be the subject. of rape.

It is not necessary, as has sometimes been contended, that she shall have reached the age of puberty.576 Nor is it necessary that she shall have been chaste. The fact that she was not chaste may aid, as a matter of evidence, in showing that she consented, but it does not, as a matter of law, prevent the intercourse from being rape, if it was in fact accomplished by force and without her consent. 577

302. Persons Incapable of Committing Rape.

(a) Boys under Fourteen.-In England, at common law, a boy under fourteen years

575 Ante, § 191.

576 1 Hale, P. C. 630; 1 East, P. C. 435.

577 State v. Long. 93 N. C. 542; Higgins v. People, 1 Hun (N. Y.) 307.