Odger's English Common Law

328 RAPE AND INDECENT ASSAULTS.
On an indictment for rape the prisoner's wife is, even -with-
out his consent, a competent witness for the prosecution as well
as for the defence. 1
If the prosecutrix made a complaint to a third person
shortly after the alleged offence was committed, such person
will be a very important witness for the prosecution. Such
a witness may not only be asked whether a complaint was
made, but also as to the particulars of the complaint ; and
this evidence is admissible, not as evidence of the truth of the
alleged charge, but as corroborating the credibility of the pro-
secutrix, and as enabling the jury to judge for themselves
whether the conduct of the prosecutrix is consistent with her
testimony on oath. If, therefore, the defence suggested in
cross-examination of the prosecutrix is that her whole story is
a fabrication concocted for 'the purpose of blackmail or the
like, the words of her complaint may be given in evidence.
So may they, if she has sworn in chief that she did not consent,
and in cross-examination it is sought to prove that she did
consent, whether it is essential for the prosecution to establish
a want of consent or not. But it is still doubtful whether
the terms of the complaint are admissible if the defence be mis-
taken identity, even though in her complaint she named her
assailant. 2
The fact that the prisoner elects to give evidence, and
swears that the prosecutrix consented to the connection, is
not such an "imputation on her character within the Criminal
Evidence Act, 1898, 3 as will entitle the prosecution to prove
that the prisoner has been previously convicted." 4 " To say
that a man who, in clearing himself, alleges consent on the
part of the prosecutrix brings himself within section 1 of the
Criminal Evidence Act, 1898, is to my mind a total subver-
sion of the principle of the Act. It is otherwise if he goes
out of his way to make an attack upon the prosecutrix,
founded on matters outside the pith and substance of the
charge. The statement that the prosecutrix consented is a
i Crim. Law Amendt. Act, 1885, s. 20, and 61 & 62 Vict. c. 36, s. 4.
» B. v. Lillyman, [1896] 2 Q. B. 167 ; E. v. Osborne, [1905] 1 K. B. 551 ; R. v.
Norcott, [1917] 1 K. B. 317.
a 61 & 62 Vict c. 36, s. 1 (f) (ii.).
* S. v. Sheeam (1908), 72 J. P. 232.