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presence and hearing of the prosecutrix, that it was nature's string wanted
breaking, and asked if he might break it. The mother replied that she did not know
what he meant (as in fact she swore she did not), but that she did. not mind if it
would do her daughter any good. At that moment the prosecutrix, in the prisoner's
presence, had a fit and fainted away. When she came to herself again, the prisoner,
in the prosecutrix's presence and hearing, fraudulently and falsely repeated that
nature's string *412 wanted breaking, and added that if that did not do her good
nothing would, and he again then asked if he might break it. Again the mother said
she did not mind if it would do her daughter, the prosecutrix, any good. On this the
prisoner said to the mother, You stay here, and I'll try. He then went into a small
adjoining room, followed by the prosecutrix, solely in order, as he represented, and
as the prosecutrix and her mother believed, that he might perform the operation he
had advised, and which both the prosecutrix and her mother, on the prisoner's
representation aforesaid, believed would probably effect her cure, and not with any
intention on the part of the prosecutrix that the prisoner should have sexual
connection. In that room the prisoner put the prosecutrix on the floor, and then and
there had carnal sexual connection with her, the prosecutrix making but feeble
resistance, believing (as she swore) that the prisoner was merely treating her
medically, and performing a surgical operation, as he had advised, to cure her of her
illness and fits, and submitting to his treatment solely because she so believed, such
belief having been wilfully and fraudulently induced by the prisoner as aforesaid.
Unless such submission amounted in law to consent, there was no consent to the
prisoner having connection with the prosecutrix.
The question was whether, under these circumstances, the conviction was warranted
in law.
Lockwood , for the prisoner. On the evidence as stated, the prosecutrix submitted, in
such a sense as that her submission was equivalent to consent, to the act of
connection. And, that being so, the act was not rape, even though consent was
obtained by fraud: Reg. v. Barrow . 1 The case differs from Reg. v. Case 2 , where the
prosecutrix did not know the nature of the act done to her. There is no such finding
here; and in the absence of an express finding it cannot be presumed, especially
having regard to the age of the girl.
[ Reg. v. Fletcher 3 and Reg. v. Barratt 4 were also referred to.]
*413
Sir H. Giffard, S.G. ( C. Bowen with him), for the prosecution, was not called upon.
KELLY, C.B.
I think this conviction ought to be affirmed. Mr. Lockwood has ably argued that there
was consent on the part of the prosecutrix, and therefore no rape. But, on the case
as stated, it is plain that the girl only submitted to the plaintiff's touching her
person in consequence of the fraud and false pretences of the prisoner, and
that the only thing she consented to was the performance of a surgical
operation. Up to the time when she and the prisoner went into the room alone,
it is clearly found on the case that the only thing contemplated either by the
girl or her mother was the operation which had been advised; sexual
connection was never thought of by either of them. And after she was in the
room alone with the prisoner, what the case expressly states is that the girl
made but feeble resistance, believing that she was being treated medically,
and that what was taking place was a surgical operation. In other words, she
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