III. Criminal Intent

The point is discussed by some writers whether an unnatural carnal connection would satisfy this requirement. Carrara, whose opinion is approved by Maino, replies in the negative, because, as Maino says:

“Non può ravvisarsi il reato la violazione di un diritto in un fatto al quale lo stesso coniuge offeso non avrebbe diritto”329 .

But although a carnal connection is thus necessary, it must not be thought that this must in every case be proved by direct positive evidence. To have so required would have been tantamount to making a prosecution for the crime impossible. For one thing Section 221 lays down that in all crimes under Title VII to constitute which there must be a carnal connection, the crime is deemed complete by the commencement of the connection, and it is not necessary to prove any further act. In English law also section 63 of the Offence Against the Person Act, 1861, provides that:

"Whereupon the trial for any offence punishable under the Act, it may be necessary to prove carnal knowledge, it shall not be necessary to prove the actual emission of seed in order to constitute carnal knowledge, but the carnal knowledge shall be deemed complete upon proof of penetration only."

But apart from this, all authorities are unanimous that, in respect of the crime of adultery, the proof of the requisite carnal connection may be drawn by way of an inference from the surrounding circumstances of the case. It is not necessary to detect the crime "in flagrante", while the offenders are "in ipsis rebus venereis" nor is it necessary that the offenders be caught "solus et sola, nudus et nuda, in eodem lecto". The proof is sufficiently established by circumstantial evidence, provided it is strong and consistent so that it can found that logical inference and moral certainty that are required330 .

III. Criminal Intent

The third essential condition of the crime of adultery generally is the criminal intention: “sine dolo malo adulterium non committitur” . This element is negatived in the case of violence: a married woman who is compelled by violence to yield her body to the

329 Contra Pessina, op. cit., Vol. II, P. 310; Imnallomeni, Cod. Pen. Italo Illus. Vol. III, p. 110 330 Confer Criminal Appeal, Police vs. Borg Testaferrata, 22/1/45