Boyles v. Blankenhorn

Kellogg, J.: The complaint alleged in substance that the infant plaintiff was an unmarried woman of the age of sixteen years on the 15th day of December, 1913, and that on the 2d day of July, 1913, the defendant with force and violence forcibly made an indecent assault upon her, and forcibly debauched and ravished and carnally knew her, whereby she became pregnant and sick with child. She proved her age as alleged, that the defendant debauched her and made her sick with child; she swore the defendant had intercourse with her against her will and with force. Reversal of the judgment is now sought on the ground that she did not use resistance enough to show that the act was accomplished by force. If she had been of full age there might be some question whether the resistance shown was enough to establish that rape was committed upon her. Under section 2010 of the Penal Law a man who has sexual intercourse with a female who is under the age of eighteen years and not his wife, is guilty of the crime of rape. This statute is based upon the theory that a girl under eighteen years of age is incapable of consenting to the act. The same may be said of the statute defining abduction (Penal Law, § 10) which makes it criminal to use such a girl for the purpose of sexual intercourse “or, without the consent of her father, mother, guardian or other person having legal charge of her person, for the purpose of marriage.” [390] In Dean v. Raplee (145 N. Y. 319, 326) the court, referring to a similar statute, says: “ That act ehminated 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.” In speaking of the provision of the Labor Law which prohibits the employment of children under fourteen years of age, in Marino v. Lehmaier (173 N. Y. 530, 534; approved in Koester v. Rochester Candy Works, 194 id. 92, 95) the court says: “We think it is very evident that these reasons induced the Legislature to establish definitely an age limit under which children shall not be employed in factories; and, to our minds, the statute in effect, declares that a child under the age specified presumably does not possess the judgment, discretion, care and caution necessary for the engagement in such a dangerous vocation, and is, therefore, not, as a matter of law, chargeable with contributory negligence or with having assumed the risks of the employment in such occupation.” The defendant committed rape upon the plaintiff, and she is entitled to recover damages on account of the injuries she has sustained by his criminal act. The mere fact that she attempted to prove force and resistance does not affect the validity of the verdict. The fact that the case was tried on too favorable a theory, so far as the defendant is concerned, cannot benefit him here. Perhaps the evidence did not show such a resistance as would be required of a woman of mature age to establish the crime of rape upon her. The jury has found that plaintiff did not consent and that the violation of her person was illegal. The verdict is well sustained by the evidence. I favor an affirmance. All concurred, except Howard, J., dissenting in opinion, in which Smith, P. J., concurred.