Odger's English Common Law

INDECENT ASSAULT, ETC. 829
defence to the charge. The prisoner must not be prevented
from denying on his oath that what he did was against her
consent." 1
Lastly, it should be noticed that a boy under fourteen can-
not be convicted of rape, 2 or of an attempt to rape, or of an
assault with intent to commit rape
;
3 for the law presumes that
he is physically incapable of committing the crime ; and this
presumption caunot be rebutted by any evidence that he was
in fact physically capable of committing it. 4 Ho can, how-
ever, be convicted of an indecent assault. 5 A husband
cannot commit this crime upon his wife. But both a boy
under fourteen, and a husband, 7 and even a woman, 8 can be
convicted as principals in the second degree.
Any person, who unlawfully and carnally knows any girl
under the age of thirteen years, is guilty of felony and
liable to be kept in penal servitude for life. Any attempt to
commit this offence is a misdemeanour punishable with
imprisonment with or without hard labour for two years.
On an indictment for this offence the prisoner may be con-
victed of an indecent assault, or of procuring connection by
threats or by false pretences, or of having carnal knowledge
of a girl between thirteen and sixteen years old. 9 The age of
the girl must be strictly proved. 10
If the prisoner is a boy
under sixteen years of age, he can be whipped or sent to
a certified reformatory school. If the prosecutrix is too
young to understand the nature of an oath, she may be
allowed to give unsworn evidence ; but in this case her
evidence must be corroborated in some material particular
implicating the accused. 11 The fact that she consented is no
defence. Any person, whether owner, occupier or in control
of any premises, who allows a girl to be upon such premises
i Per Jelf, J., 72 J. P. at p. 232.
« 1 Hale, 630.
8 R. v. Eldershaw (1828), 3 C. & P. 366 ; B. v. Waite, [1892] 2 Q. B. 600.
* B. v. Philips (1839), 8 C. & P. 736 ; B. v. Jordan (1839), 9 C. & P. 118.
8 Crim. Law Amendt. Act, 1886, s. 9.
6 1 Hale, 629 ; but see B. v. Clarence (1889), 22 Q. B. D. 23.
1 1 Hale, 629, 630 ; B. v. Williams, [1893] 1 Q. B. 320.
» R. v. Ram (1893), 17 Cox, 609, 610, n.
o Crim. Law Amendt. Act, 1885, s. 9.
' R. v. Rogers (1914), 111 L. T. 1115 ; and seepost, p. 1093.
11 Crim. Law Amendt. Act, 1885, s. 4.