Odger's English Common Law

Chapter VII.
BAPE AND INDECENT ASSAULTS.
Any person who has carnal knowledge of a woman without
her consent is guilty of the felony of rape, and liable on con-
viction to be sent to penal servitude for life. 1 The crime is
not triable at Quarter Sessions.
The act must take place without the consent of the prose-
cutrix, e.g., by force 2 or by drugging her. If, however, the
act took place with her oonsent, it -will still be rape provided
such consent was obtained by the accused either putting her
in fear of bodily harm or practising some fraud upon her ; for
in such case her consent to the act cannot be called a real con-
sent. For example, if a man has intercourse with a woman by
pretending that he is performing a medical operation upon
her, 3 or if a man induces a married woman to permit him to
have connection with her by personating her husband, he is
guilty of rape. 4
The act is clearly committed without the consent of the
woman if she be asleep 5
or insensibly drunk. 6
Although
having carnal knowledge of a girl under the age of sixteen is
a misdemeanour whether she consent or not, a person who has
such carnal knowledge without her consent can also be
convicted of rape.
The slightest penetration is sufficient to complete the
offence. 7
If this be not proved, the jury may find the
prisoner guilty of an attempt to commit rape, or of an offence
i 24 & 25 Vict. c. 100, s. 48. See indictment, No. 26, in the Appendix.
2 B. v. Jones (1861), 4 L. T. (0. S.) 154.
8 B. v. Flattery (1877), 2 Q. B. D. 410.
* 48 & 49 Vict. c. 69, s. 4.
6 B. v. Young (1878), 14 Cox, 114.
6 B. v. Camplin (1846), 1 Cox, 220.
' 24 & 25 Vict. c. 100, s. 63 ; and see R. v. Hughes (1841), 2 Moo. C. C. 190 : v 9 '
C. & P. 752.