Whittaker v. State
| Decision Date | 30 November 1880 |
| Citation | 7 N.W. 431,50 Wis. 518 |
| Parties | WHITTAKER v. THE STATE |
| Court | Wisconsin Supreme Court |
Argued November 15, 1880
ERROR to the Municipal Court of Milwaukee County.
Whittaker having been convicted of rape, brought the judgment here for review on writ of error. The error alleged in the instructions will sufficiently appear from the opinion.
Judgment reversed, and the cause remanded.
James Hickcox and Wm. F. Vilas, for plaintiff in error.
H. W Chynoweth, Assistant Attorney General, for the state.
The circuit court gave the jury the following instructions, which were excepted to:
These instructions, so far as they relate to the consent of the prosecutrix, were clearly erroneous, and were calculated to mislead, and, we think, did mislead, the jury.
This is not a case where the prosecutrix was overcome by threats of personal violence, and paralyzed and rendered helpless and passive by fear, so that her volition could not be exercised either for or against the act of sexual connection. The testimony does not show that the threat of personal violence overpowered her will, or so terrified her as to destroy or suspend, for the time being, all power of mental protest or physical resistance, or that she was so subjugated to the will of the defendant, by fear of death or of great personal injury, that she was incapable of voluntary action. She testified that the threat of using a revolver was conditional upon her attempting again to cry out or give alarm; but her testimony clearly shows that she was not only capable of continuing but did continue resistance, to the utmost extent of her physical ability, to the last, or, if she ceased struggling before the consummation of the act, it was because she thought it unavailing; and that even after the the threat of using a revolver by the defendant, she again attempted to cry out and give alarm, and that the defendant "tried to shut her up." She says:
I mention this evidence to show that this case is not governed by those exceptional, and, I think, questionable authorities, which hold that that consent which is procured by threats and personal violence, to the extent of overpowering the will, is not inconsistent with the crime of rape; as in Roscoe's Crim. Ev., 806, "consent forced by fear," which is defined, "yielding at last to violence;" or as in 1 Russell on Cr., 904, "consent forced by fear of death or duress." Such use of the word "consent" is only excusable in cases where, by fear and terror, the power of volition and physical resistance is wholly lost, as in State v. Ruth, 21 Kansas, 53. The same incautious use of the word is found in Croghan v. The State, 22 Wis. 444; but Mr. Justice COLE defines the sense in which it is so used. "But if the circumstances show that this consent was obtained by the use of force, and the woman's will was overcome by fear of personal injury, then the crime becomes one of a higher degree" (rape). In further explanation and palliation of this use of the word, it has been held that forcible connection with a female who is insane, or an idiot, or intoxicated so as to be insensible, or who is deceived, believing the defendant to be her husband, and in other like cases, where the will of the female does not concur with the act, or oppose it, and does not act at all, and where she has no power of consenting or dissenting, the act is said to be "against her will," and this necessary ingredient of rape is present. 2 Whart. Cr. L., § 1142, and note a; and as in Walter v. People, 50 Barb., 144; People v. Quin, id., 128; and Crosswell v. People, 13 Mich. 427.
In such cases it is consistent to hold that the act is "against the will" only because it was not approved by the will or the will did not concur with the act. In all cases where there is no sensibility or consciousness, or freedom of the will, the act is said to be against the will. It is remarkable that no court has ever been incautious enough to say, even in such cases, that the act is or may be "not against the will," and yet be rape. It may be that, in a similar sense, the word "consent" has sometimes been unguardedly used, in cases where the will has been overcome by fear of personal violence, and has no power of action whatever, and no power to oppose or dissent, as passive consent, and not dissenting as consenting. It is to be regretted that the terms "with her consent" and "with her acquiescence" have ever been held compatible with the crime of rape. In all of the cases in which they have been used, they are as inaccurate as would be the terms "with the will" or "not against the will," which are never used. This misuse of the word in Croghan v. The State, supra, and which was only incidental and not necessary, was afterwards corrected by this court in Fizell v. The State, 25 Wis. 364, in which the terms "against her will" and "without her consent" are used as convertible terms in defining rape of a female over ten years of age; and, still later, in Conners v....
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