6. Defilement of Minors

de la Società est qu'aucun crime ne reste pas impuni, son plus grand intcret, en cette occasion est de se montrer indulgente, et de ne pas sacrifier et une vengeance tardive l'honneur d'ime famille entière'. It is surely carrying indulgence beyond its fair limits, when the prohibition of nefarious attempts and the protection of the interests of persons so exposed to them are sacrificed to the considerations of a spurious delicacy” .

But in defence of a similar exemption in the Italian Code of 1889 the Ministerial Report stated as follows:

“E' giusto ed equo non tener separate, per effetto del procedimento penale, due persone fra le quali si frapponeva dapprima il delitto, ma che poi si sono congiunte con uno dei vincoli piu' sacri; ed e' d'altronde prudente agevolare, con la concessione dell'impunità, la piu' grande riparazione che l'uomo possa dure alla donna da lui disonorata” .

On the other hand, as Maino observes, the subsequent consent to the marriage may veil, in regard to the victim, be considered as a form of implied condonation351 .

Our law, as we have seen, in case of marriage between the offender and the girl abducted by him, makes the taking of proceedings contingent on the complaint of the party whose consent would, according to civil law, be required for the marriage.

“Whosoever by lewd acts defiles a minor of either sex, shall, on conviction, be liable to hard labour for a term not exceeding two years, with or without solitary confinement”352 .

The substantive part of this provision is identical with the first part of art. 335 of the Italian Code of 1889, from which it was obviously derived. It deals with those lustful acts not consisting in carnal knowledge or attempted carnal knowledge with violence, whether actual or constructive, committed on the person or in the presence of an individual, whether male or female, and capable of defiling such individual.

351 Op. cit. art. 352, para. 1530 352 Section 217(l)

The first ingredient of the crime imprecisely, the age of the victim who must be below eighteen (18) years.

The second ingredient, which represents the material element of the crime, consists in the lewd acts. From the official and authentic explanations given in the elaboration of the model, it is evident that the expression “lewd acts” (atti di libidine) in the model was designedly used to make it clear that mere words, or any picture, book or representation, though obscene, or other indecent facts which affect only the moral sense, do not constitute the crime in question. It is required that the defilement be by lewd acts353 .

The lewd act constituting this crime must be committed either on the person of the minor, or even simply in his presence. To take a different view would be to ignore the obvious spirit of the law in creating the crime, that is the desire to protect youth from the pernicious effects of moral defilement and, therefore, also from all those acts which, though they take place without physical contacts, are nevertheless inherently intended to defile. Apart from this, the letter itself of the law speaks of lewd acts, without any distinction. Finally, the construction which we have given is explicitly supported by the observations made in the official reports on the draft of the model above quoted.

A carnal connection, even if natural, had with a minor, without violence actual or constructive, would undoubtedly constitute this crime. Some writers propounded the contrary view on the ground that such a connection is a perfectly physiological act and, therefore, not a lewd act as required by the law. But apart from the fact that one may doubt how far in cases of persons up to say sixteen years a carnal connection can be said to be a physiological act, it is arbitrary to add any qualification to the expression ‘lewd acts’ used by the law, in the sense of restricting it to morbid or pathological processes: whereas its natural meaning is inclusive of all acts directed to the indulgence of the sexual appetite. Moreover, it cannot be conceived that the legislature, which intended to safeguard the ingenuity of young persons from falling victim to the libidinous desires of others, could possibly have intended to withdraw its protection against that act which precisely represents the most frequent and most

353 Vide Relazione Ministeriale sul progetto 1887, n. CXXVIII; Relazione della Comm. della Camera dei Deputati sul progetto 1887, n. CXOIX

complete expression of such desires. The law assumes generally that persons under eighteen years are, in any case, incapable of validly consenting to a carnal connection which, in adults, would not, if normal and voluntary (saving the case of adultery), constitute any offence.

Besides carnal connection, other lewd acts also of lesser gravity perpetrated on the person or in the presence of a minor would constitute the crime, provided they are calculated to defile the minor by exciting sexual passion or desire.

It need hardly be said that although the law speaks of lewd acts (plural), it must not be imagined that one single act, if calculated to defile, will not be sufficient. The plural is used by the law merely to denote the species and not the number of acts. It would be absurd to hold that the defilement should be unpunished only because it has been caused by one single act (presumably grave) rather than by more acts. It may, at most, be a question of degree for purposes of punishment354 .

The third ingredient of the crime is the defilement. In the reports above quoted on the draft Italian Code, it was made clear that there must be effectual defilement of the minor.

Hence the question arises whether the crime can take place where the lewd acts are committed on a person or in the presence of a person being, of course, in either case, under-age who is already defiled. Concerning this question there has been considerable controversy amongst text-writers and divergence in judicial practice. It was more than once held by Continental Courts that, if the minor is already defiled, he cannot be the object of the crime under reference. But as against this view, other judgements and authorities point out that there can be degrees of defilement and that it would be but an improvident law that which left unpunished the act of a person “che si adoperasse a sospingere sulla via della corruzione, fino al piu' sconfinato libertinaggio, un impubere che già vi fosse iniziato”355 .

Between the two extreme doctrines, the one that excludes the crime whenever the minor is already defiled, and the other that admits such crime irrespective of the previous defilement, Maino himself suggests a middle course. “It is an inquiry”, he

354 Confer Law Reports, Vol. XXI, Part IV, p. 3 355 Confer Maino, op. cit., art. 335, p. 189, para. 1476

says, “which has to be made in each case by those who have to judge; and, notwithstanding the difficulties and uncertainties inseparable from such an inquiry, we hold that this is the most correct solution, having regard to the spirit and the letter of the law, thereby avoiding the two extreme views, the one which makes the crime subsist whatever the previous defilement of the minor, and the other which excludes the crime whenever the victim is not new to sexual practices, without caring to ascertain whether his defilement is yet capable of being aggravated by fresh acts, thus leaving exposed easy prey to the lust of others mere children fallen, often without fault of their own, on the road of vice, but who might yet be reclaimed if others did not take the advantage of their inexperience or foolishness to complete their ruin”356 .

This reasoning is, no doubt, appealing. But our Courts, probably considering the extreme difficulty, if not absolute impossibility, of deciding in any case that a minor is so utterly lost as to be beyond hope, have consistently inclined to the doctrine that previous defilement, whatever its degree, does not exclude the crime357 .

For the subsistence of the crime, it is not necessary that the defilement shall be immediate. The very young age of the person with whom the lewd acts have been committed does not rule out the crime, if the remembrance of such acts is calculated to cause the defilement. Indeed, according to our law, if the victim is under twelve years of age, that is a reason for aggravating the crime.

As to the intentional clement of the crime, no specific intent to defile is necessary. The defilement, whether intended or not, must be considered as a necessary consequence of the lewd acts themselves, leaving it in every case to those who are to judge to determine whether they were calculated to defile. If the acts are inherently capable of this effect, it is impossible to maintain that the agent who willed the acts did not also will and intend the consequences inherent in their nature.

356 Op. cit., ibid. 357 Vide e.g., Criminal Appeal, The Police vs Schembri, 11/10/48