Dean v. Raplee

This action was brought to recover damages for an assault by the defendant upon the plaintiff committed in such manner and under such circumstances as to constitute the offense of rape. It was alleged that in the month of March, 1886, and at different times during the following year, the defendant assaulted the plaintiff, and by force and threats of personal violence compelled the plaintiff to have sexual intercourse with him, without her consent and against her will. It appeared that in the month of April, 1885, when the plaintiff was but fourteen years of age, the defendant, who then had no children," took the plaintiff, who was an orphan, without father or mother,- to his house, under an arrangement' with her and some of her relatives that he would board, clothe and educate her; that she should become a member of his family, performing such duties and receiving such care and attention as a girl of her age would be entitled to receive from parents in the same condition in life. The arrangement, as testified to, would j ustify expectations and hopes on the part of the plaintiff to becoming the heir of defendant’s property, and it appears that he was a man of considerable means.

The relations which the parties occupied to each other were not those of master and servant, but rather that of parent and child. The plaintiff was subject to such anthority on the part of the defendant, and was accustomed to render such obedience to his commands as is common and usual where that relation exists. The first assault, it is claimed, was committed about a year after the parties entered into these relations. The fact itself, and all the attending circumstances, depend mainly, if not entirely, upon the testimony of the plaintiff. Her evidence is that she was sent to the horse barn to look for eggs, and shortly after she got there and commenced the search for eggs the defendant appeared in the barn and told her to go up into the loft and look there, which order she obeyed. After being there about five minutes and not finding any eggs, she started to go down, but seeing the defendant coming up the stairs she stepped back, waiting for him to come up until he reached thé landing. He then inquired if she had found any eggs, and she replied that she had not. He then said that she had better put on her spectacles, and, stepping up to her put his arm around her, his hand under her chin, and, after kissing

A motion for a non-suit and for a dismissal of the complaint was denied and the case was submitted to the jury and a verdict found for the plaintiff. The general term has affirmed the judgment.

The learned trial judge charged the jury that the plaintiff in order to maintain the action must satisfy them, from all the proofs, that if the defendant had criminal connection with her, that it was accomplished with the intent on his part to effect his purpose in defiance of all resistance, and that it took place without her con

There are cases that seem to bold that a civil action of this kind based upon a charge such as is set forth in the complaint in this action may be maintained upon evidence such as might not besufficient to warrant a conviction upon a criminal charge of rape. Some of these cases are referred to in the opinion of the learned judge in the court below, but it is unnecessary to comment upon them since we are of the opinion that the judgment in this case must be upheld, if at all, upon the view of the law given by the trial judge to the jury. Moreover, we think that this is the correct rule. The principle was necessarily involved in the case of Young v. Johnson, 46 Hun, 164 ; 11 St. Rep. 590 , which was affirmed in this court, 123 N. Y. 226 ; 33 St. Rep. 486 , The point was not discussed in the opinion when that case was here, but the decision covered the question.

Assuming this to be a correct statement of the law applicable to cases of this character, the question now arises whether there was in this case any evidence to submit to the jury. It is not often that such an assault is or can be described by a female with that complete fullness of detail with respect to every word spoken or every fact and circumstance that may enter into the questions of consent or resistance. When the proof is given, as it sometimes is in general terms, the jury must still be satisfied that there was no consent, and that resistance was made to the extent of the woman’s ability. What that ability was must in many cases depend not only upon her strength and power to defend herself or make herself heard, but also upon the element of fear when it exists. The age, strength and physical appearance of the parties, with the manner in which they testify, are elements of some importance which the jury may consider with all the other facts. The relation which the parties bear to each other, as in this case, may also be considered. Where on one side we find extreme youth, inexperience and dependence united with the principle of fear and obedience, and on the other, mature age, great physical power and dominating influence and control' over the movements and will of another, the question of content and resistance must be determined with reference-to these conditions.

When such a case arises who is to determine when, as in this case, the girl, in stating the occurrence, states that she did not consent and did resist to the best of her ability, whether she tells the truth or not? Can this court, after the jury have accepted the plaintiff’s version of the transaction and the general term has approved the verdict, say, as matter of law, that there was no evidence for the consideration of the jury? This, I think, would be to transcend the limits of our jurisdiction as a court of law, without power to review disputed facts. Whatever we might think of this case, if we had the power to determine the facts, I think we cannot say, as matter of law, that it was.impossible for the jury to take the view of the case that they did.

This court said, in the case of People v. Connor, 126 N. Y. 278 ; 37 St. Rep. 23 : “ When an assault is committed by the sudden

If we should attempt to determine the facts in the case ourselves, it seems to me that we would be obliged to admit, as a first step, that there was some evidence on the part of the plaintiff for our consideration, though we might not be inclined to believe it. But the plaintiff’s credibility was for the jury. If she told the truth there was evidence upon which to base the verdict.

We would have very much less hesitation in affirming this-judgment but for the fact that there appears in the record two letters written by the plaintiff about a month after thedate of the first assault to a female friend, who produced them at the trial. It is impossible to read these gossiping letters, written from the defendant’s house, without being impressed with the fact that this girl had then been corrupted, whether by the defendant or by some other evil influence, it is impossible to say. The defendant’s plan of defense necessarily precluded him from giving any light on that point. On the stand he denied the charge in general and in every particular, and hence he had to satisfy the jury that-the plaintiff’s story in regard to these several outrages upon her person, in which time, place and circumstances were given, were, after all, nothing-but pure invention, and that her testimony from beginning to end did not contain even a single element of truth. If it was our duty to try the facts and declare where the truth lay, instead of reviewing the questions of law, we might hesitate before accepting either version of the case. On the plaintiff’s evidence she never made on her part the slightest advances that would indicate consent. The case, as it stands, resolves itself into a question of resistance on her part to the best of her ability, and that, we think,, was, under the peculiar circumstances of the case, for the jury.

Since the amendment of the Penal Code (§ 278) by eh. 693 of , the Laws of 1887, the acts charged against the defendant, when committed upon a female under sixteen years of age, would amount to rape; and while the present case must stand upon the law as it existed when the alleged assaults were made, yet the reasons which induced the legislature to change the law cannot be ignored in our review of the case. That act eliminated the question of consent or resistance from the case of an assault upon a female under that age on the trial of a criminal charge. The amendment was evidently based upon the principle that consent or non-resistance on the part of a girl of that age was not to be understood in the same way as in the case of like acts committed upon a woman of more mature years. The jury could have taken the same view of this case. The circumstances of the various-assaults extending over the period of a year, and the failure of the girl .to make any disclosures for so long a time, tended to cast.

Andrews, Oh. J., Finch and Gray, JJ., concur; Peckham and Bartlett, JJ., dissent on the ground that there was not sufficient evidence in regard to the girl’s resistance to go to the jury; Haight, J., not sitting.

Judgment affirmed.