II. The Violence

complete or consummated. Here also the rule laid down by Section 221 applies, namely, that the crime is deemed to be complete by “commencement of the connection without the necessity of proving any further acts. Also in English law, whenever it may be necessary to prove carnal knowledge for the purpose of any offence punishable under the Offences Against the Persons Act, 1861, it is not necessary to prove the actual emission of seed in order to constitute a carnal knowledge, but the carnal knowledge is deemed complete upon proof of penetration only: and the slightest penetration is sufficient to prove the rupture of or injury to the hymen is unnecessary.

The carnal knowledge may consist in an unnatural connection.

II. The Violence

This is the characteristic decent of the crime of rape and serves to distinguish it from other crimes such as the one under Section 220. It is an element which is of the essence of the crime and not merely an aggravation of it. And such violence it is taught must be exercised on the very person of the patient: “oportet quod viclentia sit facta personae” . A man therefore, who forces the door of a house or of a room to gain access to a woman will not be guilty of this crime of rape if the woman voluntarily yields herself to him: “si quis frangaret ostium demus vel thalami, et violenter ingrediretur et non violenter orgnesecret non diceretur ccmnississe in coitu violcntiam, sed violenter tantum ingressum fuisse”341 .

The law does not specify what the violence must consist in. Nor could it. The whole point is to determine in each particular case whether the carnal knowledge took place against the will of the victim and notwithstanding such resistance as he or she could, having regard to his or her physical strength and energy, offer: All the rest boils down to an appreciation of the circumstances of fact according to the common experience of life. any attempt to determine “a priori” the intensity, the character and the degree of violence required would have been in vain and dangerous, they depending so much on the character and personal circumstances of the victim of the crime:

341 Confer Chaveau et Helie, op. cit., Vol. II, p. 183. n. 1380

“Seconde l'età, le stato della salute e delle forze ed il temperamento della vittima, può avvenire che raggiungono l'intento dei mazzi che considerati in se stessi, nella generalità di casi, dovrebbe ritenersi inefficaci, e che riescano frustranei mezzi ed apparati per se stessi, nella generalità dei casi, idonei”342 . But cur law, like other laws, has created certain presumptions with regard to this element of violence. Section 215 lays down that unlawful carnal knowledge shall be presumed to be accompanied with violence:

(a) when it is committed on any person under twelve years of age

(b) when the person abused was unable to offer resistance owing to physical or mental infirmity or for any other cause independent of the act of the offender, or in consequence of any fraudulent device used by the Offender.

Constructive violence is thus inferred in the first place from the young age of the victim. Children so young and necessarily so inexperienced are conclusively presumed incapable of consenting to the act or of fully understanding the nature of the act or of offering any resistance. Violence is then presumed in all cases in which the victim was, from infirmity of the body or mind or from any other cause independent of the act of the offender, unable to offer resistance to submit in consequence of any fraudulent device practiced by the offender.

As regards incapacity to resist from mental infirmity, it was held that it is not necessary to prove that the victim was totally insane: it is sufficient if, owing to mental infirmity the victim was in the impossibility of understanding the material and moral gravity of the act343 . With regard to incapacity arising from ether causes independent of the act of the offender, this includes the case in which the victim was in a state of insensibility from liquor, having been made drunk by the prisoner (though the liquor was given only for the purpose of exciting her); or the case in which the victim was asleep344 . Instances of fraudulent devices used by the offender to commit the crime would be by personating the husband, or by ether false pretences. Thus, in England, where the prosecutrix a girl of nineteen years, consulted the prisoner, a quack doctor, with respect to illness from which she suffered and he advised a surgical operation, and

342 Maino, op. cit., art. 331, para. 1463 343 Confer. Maino, loc. cit., para. 1467 344 Archbold, op. cit., p. 1043; Maino, ibid

under pretence of performing it, had connection with her, she submitted to what was d* ne net with any intention that he should have connection with her, but under the belief that he was merely performing a surgical operation, that belief being wilfully and fraudulently induced by the prisoner, it was held that the prisoner was guilty of rape345 .

New, according to cur law, the victim of the crime of rape can be any person, whether a female or a male. It has already been said that the carnal knowledge may consist in an unnatural carnal connection: provided in all cases that the carnal knowledge is had with violence.

Several questions are discussed by text-writers in this connection. For instance, what if the victim was a common prostitute, or of a notoriously bad character for want of chastity or common decency. It was held in England that it is no excuse that the woman ravished was a common strumpet, or a concubine of the ravisher. Continental doctrine is also similar:

“Noi opiniamo”, thus say Chaveau et Helie,

“che la debcscia anche abituale della donna non é un ostacelo all'esistenza del crimine perchè la sua vita dissoluta non basterebbe a legittimare alcun attentato sulla sua persona; essa non ha alient alienata la libertà di disporre di se stessa, e la legge che punisce le violenze estende la sua prctenzi.ne su tutti”346 .

The circumstances, however, that the woman was a prostitute or the mistress of the defendant or of bad moral character, should operate strongly with the jury as to the probability of the fact that connection was had with the woman against her consent347 .

Again, can the crime be committed by a husband on his wife. In -English law it is a general propositi n that a husband cannot be guilty of rape upon his wife; but, Archbold says, it would seem that the proposition does not necessarily extend to every possible case. In Regina vs N.N.348 , our Criminal Court (Sir Arthur Micallef) held that the crime of rape can subsist where a husband has unnatural carnal Connection with his wife, with violence:

345 Confer Archbold, p. cit., p. 1045 346 Op. cit., para. 1581 347 Archbold, p. 1046; Harris, cp. cit., p. 209 348 26/8/1854