People v. Gibson

• Citation: 134 N.E. 531,232 N.Y. 458
• Parties: PEOPLE v. GIBSON.
• Decision Date: 31 January 1922
• Court: New York Court of Appeals

232 N.Y. 458

134 N.E. 531

PEOPLE

v.GIBSON.

Court of Appeals of New York.

Jan. 31, 1922.

Joseph Gibson was convicted of assault in the third degree, and his conviction affirmed by the Appellate Division (193 App. Div. 897,183 N. Y. Supp. 954), and he appeals.

Affirmed.

Hiscock, C. J., and Crane and Andrews, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, First department.

Frank Wasserman, of New York City, for appellant.

Edward Swann, Dist. Atty., of New York City (Robert S. Johnstone, of New York City, of counsel), for the People.

POUND, J.

Defendant, a man upwards of 80 years of age, was convicted of assault in the third degree. Penal Law (Consol. Laws, c. 40) § 244. The question is whether acts consisting of indecent familiarities, not amounting to sexual intercourse or an attempt to have sexual intercourse, upon the person of a girl in her fifteenth year with her consent, constitute the crime of assault in the third degree. The appeal is on the ground that the trial court, over proper exceptions, erroneously permitted the jury to find that the offense was committed although the consent of the girl was given. The girl testified to an incomplete act of intercourse for money, and with her consent; the defendant denied that he put hands on her. On the evidence it was concededly doubtful that he was physically capable of sexual penetration, and the charge of rape, second degree, was withdrawn from the jury. The jury was instructed that they might convict of the crime of assault in the second degree if sexual intercourse was attempted, or of assault in the third degree if the acts of defendant did not amount to an attempt at such intercourse. This court has never passed directly on the question. In People v. Colletta, 65 App. Div. 570,72 N. Y. Supp. 903, affirmed, 169 N. Y. 609,62 N. E. 1099, the opinion of the Appellate Division discusses it, and states the rule to be that the assent of a child of tender years is a defense to a charge of indecent assault, the same as when the complainant is an adult (People v. Bransby, 32 N. Y. 525), but the rule thus stated had no application to the case before the court, as on the uncontradicted evidence the child resisted and made an outcry.

The English courts held consistently that, when a young girl merely submitted to such familiarities by reason of her ignorance and inexperience, it should not be said that she consented, but that consent in fact was a defense to such an assault. Russell on Crimes (7th Ed.) pp. 950, 951; People v. Bransby, supra, and cases cited. But in the year 1880 Parliament enacted (43 and 44 Vict. c. 45, § 2):

‘It shall be no defense to a charge or indictment for an indecent assault on a young person under the age of thirteen to prove that he or she consented to the act of indecency.’

Since the year 1895 (Penal Law, § 2010, L. 1895, c. 460), one who has sexual intercourse with a female, not his wife, under the age of 18 years with her consent has been guilty of the crime of rape in the second degree. When the age of consent was fixed at 10 years (N. Y. Rev. Stat. [7th Ed.] p. 2475) it was held, in accordance with what is now the overwhelming weight of authority in other jurisdictions (Com. v. Roosnell, 143 Mass. 32, 8 N. E. 747;Ross v. State, 16 Wyo. 285, 297, 93 Pac. 299,94 Pac. 217, and cases cited), that on a charge of assault in the second degree, assault with intent to commit such a rape--

‘the assent of such an infant being void as to the principal crime, is equally so in respect to the incipient advances of the offender. That the infant consented to, or even aided in the prisoner's attempt, cannot, therefore, as in the case of an adult, be alleged in his favor, any more than if he had consummated his purpose.’ Hays v. People, 1 Hill, 351; Singer v. People, 13 Hun, 418, affirmed 75 N. Y. 608.

It is urged, however, that when sexual intercourse is not attempted, to speak of an assault upon a child with her consent is a contradiction in terms; that to hold that a girl may not give her consent to a mere indecent handling is in direct negation of the general rule that such an assault must, from the nature of things, be against her will; that the absence of consent is essential to constitute the crime of indecent assault, except so far as some statute provides that legal consent may not be given or as the child may be so young or immature that consent in form is not consent in fact. People v. Dong Pok Yip, 164 Cal. 143, 127 Pac. 1031.

[1][2] The intention of the law is to protect unmarried girls from carnal copulation, such intercourse being fraught with peril to the morals of the community and to the well-being of the individual. With the age of consent fixed at 18 years, it may not confidently be stated that all girls under that age do not comprehend what they are doing when they consent to intercourse. The law, however, deals with all, and not with individuals. In law, the act of intercourse or the attempt to have intercourse is without their consent, and against their will. The state says that they do not consent, or that their apparent consent shall be disregarded. It offers resistance for them. It deals with the case as rape, not as a...