State v. White
| Decision Date | 08 November 1890 |
| Citation | 25 P. 33,44 Kan. 514 |
| Parties | THE STATE OF KANSAS v. CHARLES W. WHITE |
| Court | Kansas Supreme Court |
Appeal from Norton District Court.
The opinion states the material facts. From a conviction at the May term, 1890, the defendant White appeals.
Judgment reversed and cause remanded for a new trial.
Ernest W. Norlin, and Louis K. Pratt, for appellant.
L. B Kellogg, attorney general, and L. H. Thompson, county attorney, for The State.
OPINION
This is an appeal from a judgment rendered in the district court of Norton county, sentencing the defendant, Charles W. White, to imprisonment in the penitentiary for a period of five years for the commission of an alleged rape "by carnally and unlawfully knowing" Lottie Linden, in violation of the provisions of § 31 of the act relating to crimes and punishments as amended in 1887. (Laws of 1887, chapter 150, § 1; Gen. Stat. of 1889, P 2152.) This section reads as follows:
This section of the statute is now precisely the same as it was prior to the amendment in 1887, except that where the word "eighteen" now occurs in the amended section the word "ten" occurred in the original section, and between the words "female" and "under" in the amended section the word "child" occurred in the original section. It is unquestionably true that in 1887, and before and since, our laws relating to illicit intercourse between the sexes and for the punishment thereof, and for the protection of boys and girls and others, and of society generally, greatly needed and still need amendment; but the amendment that was in fact made in 1887 may be subject to considerable criticism. It denominates certain conduct rape which is not in fact rape, and could not in the nature of things be such unless the meaning of the word "rape" should be greatly changed. It attempts to accomplish a thing by the use of indirect language which might be much better accomplished by the use of direct language. It inflicts a punishment for mere fornication of vastly greater severity than was ever before inflicted for such a wrong, and much greater than the punishment imposed for the greater wrong of adultery or of sexual intercourse coupled with seduction where the female is over eighteen years of age. In attempting to provide for the protection of girls, it wholly overlooks the protection of boys. It overlooks the fact that some girls under the age of eighteen years are incorrigibly wicked and depraved, even common prostitutes. It overlooks the fact that girls generally, whether good or bad, have intelligence and the capacity to think, to will and to act, long before they arrive at the age of eighteen years. It in effect presupposes that boys of the same age with girls, or even much younger than girls, are vastly their superiors in mental capacity and in the power to exercise volition. It recognizes a greater difference between the sexes and a greater superiority on the part of the males over the females than has ever before been promulgated or admitted or believed by any person or set of persons, although it has generally been maintained that there always have been sufficient differences existing between the sexes to justify all the great differences in the powers, privileges, disabilities and immunities which by virtue of the laws have heretofore existed between the sexes.
The defendant in the present case was a boy nineteen years of age, and the female with whom he had the sexual intercourse was a girl sixteen years of age. Each lacked just two years of having arrived at the age of majority. Their sexual intercourse with each other was had at divers times from April 15, 1889, up to May 25, 1889. Also, from the record brought to this court, it would seem that the girl had also had improper relations with other male persons besides the defendant. On February 12, 1890, the girl gave birth to a child, of which she testified that the defendant was the father. It also seems that with regard to the intercourse between these parties, no conjugal right was violated, no force or fraud or seduction or promise of marriage has been imputed; they were not of kin to each other; both willingly participated in the wrongful acts; both in fact consented, and each had ample capacity to know what he or she was doing, and to consent; and none of the improper acts committed by them, whether of sexual intercourse or otherwise, were committed in public, or in the presence of others. Indeed, except for the foregoing statute, their acts would constitute nothing more than pure and simple fornication.
It is claimed on the part of the defendant that the foregoing statute either can have no application to this case, or, so far as it does apply to this case, it is unconstitutional and void for the reason that it conflicts with § 9 of the bill of rights, because it inflicts cruel and unusual punishment; and is in conflict with the spirit of the bill of rights generally; and is in violation of common sense, common reason, and common justice; and the following authorities are cited in support of this claim: Anderson v. City of Wellington, 40 Kan. 173; 3 Am. & Eng. Encyc. of Law, 674, note 3, and cases there cited; Potter's Dwarris on Stat., 76, 77, 78. It is claimed that the legislature cannot convert pure and simple fornication into rape, or provide a punishment for the same as though it were rape.
The statutes of this state relating to illicit intercourse between the sexes, when such statutes are compared with each other, are peculiar. Under them, sexual intercourse between unmarried persons where no extraneous facts exist to magnify the wrong, is never as to the female an offense, and is never as to the male an offense unless the female is under 18 years of age. And where the intercourse is procured under a promise of marriage it is never an offense with regard to the female, and is only an offense with regard to the male where the female is under 21 years of age, and it is not then an offense with regard to the male unless the female is either under 18 years of age or is both under the age of 21 years and of good repute. (Gen. Stat. of 1889, PP 2152, 2157.) And even where conjugal rights are violated, as in adultery, or where the sexual intercourse is coupled with acts of an openly lewd, lascivious or indecent character, the acts of the parties constitute only a comparatively insignificant case of misdemeanor. The statute on the subject reads as follows:
(Act relating to crimes and punishments, § 232; Gen. Stat. of 1889, P 2369.)
Now why should adultery, where conjugal rights are violated, and where the parties are of mature age, be only a trivial misdemeanor, while fornication pure and simple between boys and girls should be a high crime and a felony as to the boy? Lord Macaulay, in his History of England, (vol. 1, ch. 2,) in speaking of the Puritans, who were generally the most austerely moral and religious people that ever existed, while they were in power in the time of Cromwell, says:
In this state, instead of making the...
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