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*410 The Queen v Flattery Crown Case Reserved 3 February 1877 (1877) 2 Q.B.D. 410 Kelly , C.B. , Mellor , Denman and Field , JJ. , Huddleston , B. 1877 Feb. 3 RapeConsentSubmissionCarnal connection under Pretence of Surgical Operation. The prisoner professed to give medical and surgical advice for money. The prosecutrix, a girl of nineteen, consulted him with respect to illness from which she was suffering. He advised that a surgical operation should be performed, and under pretence of performing it, had carnal connection with the prosecutrix. She submitted to what was done, not with any intention that he should have sexual connection with her, but under the belief that he was merely treating her medically and performing a surgical operation, that belief being wilfully and fraudulently induced by the prisoner: , that the prisoner was guilty of rape. Reg. v. Barrow (Law Rep. 1 C. C. 156) questioned. CASE stated by Hawkins, J. The prisoner, John Flattery, was indicted for a rape upon Lavinia Thompson at Halifax, in the county of York, on the 4th of November, 1876. He was tried at the Winter Assizes at *411 Leeds, in December, 1876, and was convicted, but the learned judge postponed judgment until the next assizes, in order to obtain the opinion of the Court upon the following case: Lavinia Thompson, the prosecutrix, is nineteen years of age, and she is the daughter of, and lives with, Thomas and Hannah Thompson, who are labouring people in the neighbourhood of Halifax. On and for some time previous to the 4th of November last she was in ill-health and subject to fits. On the 4th of November, 1876 (being market-day at Halifax), with a view to obtain medical and surgical advice and relief, she went with her mother to Halifax to consult the prisoner, who kept an open stall in the market, at which he professed, for money consideration, to give medical and surgical advice. They went together to the prisoner's stall, and there saw him, and in the presence and hearing of the prosecutrix, her mother told the prisoner her condition as aforesaid, and that she was subject to fits, and consulted him as to a remedy. The prisoner expressed a desire to examine the prosecutrix with a view to giving the advice sought, and requested the prosecutrix and her mother to follow him to the Peacock Inn, which was close by, for that purpose, and they did so. At the Peacock Inn the prisoner put several questions to her mother touching the condition of the prosecutrix, and made some examination of her person. Having done this, the prisoner, not believing that the advice he was about to give would be of any service to prosecutrix, not intending nor with any view to perform a medical or surgical operation, but solely with a view to gratify his lust, and have that carnal sexual knowledge of her person which he afterwards had, as after stated, fraudulently and knowing that he was speaking falsely, told the mother, in the

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presence and hearing of the prosecutrix, that it was nature's string wanted breaking, and asked if he might break it. The mother replied that she did not know what he meant (as in fact she swore she did not), but that she did. not mind if it would do her daughter any good. At that moment the prosecutrix, in the prisoner's presence, had a fit and fainted away. When she came to herself again, the prisoner, in the prosecutrix's presence and hearing, fraudulently and falsely repeated that nature's string *412 wanted breaking, and added that if that did not do her good nothing would, and he again then asked if he might break it. Again the mother said she did not mind if it would do her daughter, the prosecutrix, any good. On this the prisoner said to the mother, You stay here, and I'll try. He then went into a small adjoining room, followed by the prosecutrix, solely in order, as he represented, and as the prosecutrix and her mother believed, that he might perform the operation he had advised, and which both the prosecutrix and her mother, on the prisoner's representation aforesaid, believed would probably effect her cure, and not with any intention on the part of the prosecutrix that the prisoner should have sexual connection. In that room the prisoner put the prosecutrix on the floor, and then and there had carnal sexual connection with her, the prosecutrix making but feeble resistance, believing (as she swore) that the prisoner was merely treating her medically, and performing a surgical operation, as he had advised, to cure her of her illness and fits, and submitting to his treatment solely because she so believed, such belief having been wilfully and fraudulently induced by the prisoner as aforesaid. Unless such submission amounted in law to consent, there was no consent to the prisoner having connection with the prosecutrix. The question was whether, under these circumstances, the conviction was warranted in law. Lockwood , for the prisoner. On the evidence as stated, the prosecutrix submitted, in such a sense as that her submission was equivalent to consent, to the act of connection. And, that being so, the act was not rape, even though consent was obtained by fraud: Reg. v. Barrow . 1 The case differs from Reg. v. Case 2 , where the prosecutrix did not know the nature of the act done to her. There is no such finding here; and in the absence of an express finding it cannot be presumed, especially having regard to the age of the girl. [ Reg. v. Fletcher 3 and Reg. v. Barratt 4 were also referred to.] *413 Sir H. Giffard, S.G. ( C. Bowen with him), for the prosecution, was not called upon. KELLY, C.B. I think this conviction ought to be affirmed. Mr. Lockwood has ably argued that there was consent on the part of the prosecutrix, and therefore no rape. But, on the case as stated, it is plain that the girl only submitted to the plaintiff's touching her person in consequence of the fraud and false pretences of the prisoner, and that the only thing she consented to was the performance of a surgical operation. Up to the time when she and the prisoner went into the room alone, it is clearly found on the case that the only thing contemplated either by the girl or her mother was the operation which had been advised; sexual connection was never thought of by either of them. And after she was in the room alone with the prisoner, what the case expressly states is that the girl made but feeble resistance, believing that she was being treated medically, and that what was taking place was a surgical operation. In other words, she

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submitted to a surgical operation and nothing else. It is said, however, that, having regard to the age of she prosecutrix, she must have known the nature of sexual connection. I know no ground in law for such a proposition. And, even if she had such knowledge, she might suppose that penetration was being effected with the hand or with an instrument. The case is therefore not within the authority of those cases which have decided, decisions which I regret, that where a man by fraud induces a woman to submit to sexual connection, it is not rape. MELLOR, J. I am of the same opinion. In the statute 13 Edw. 1, c. 34 , rape is defined to be, if a man ravish a married woman, maid, or other woman, when she neither assented before nor after. It is said that submission is equivalent to consent, and that here there was submission. But submission to what? Not to carnal connection. The case is exactly within the words of Wilde, C.J., in Reg. v. Case 5 : She consented to one thing, he did another materially different, on which she had been prevented by his fraud from exercising her judgment and will. I *414 agree with the Chief Baron's regret at the decision in Reg. v. Barrow . 6 If the point there decided should arise again before me, I should take such a course as that the matter might be reconsidered. DENMAN, J. I am of the same opinion. I can see nothing in the case amounting to consent, either in fact or in law, to the act of carnal connection. I think the definition or rape in the statute cited may be accepted, subject to one qualification. There may be cases where a woman does not consent in fact, but in which her conduct is such that the man reasonably believes she does. I agree in wishing that the point decided in Reg. v. Barrow 7 should be reconsidered. FIELD, J. I am of the same opinion. The question is one of consent, or not consent; but the consent must be to sexual connection. There was here no such consent. As to Reg. v. Barrow 8 , the question there was different; but I also should hesitate to apply that case. HUDDLESTON, B. I am of the same opinion. The question is whether the prosecutrix consented that the prisoner should have connection with her. This she did not. Therefore the case is different from Reg. v. Barrow 9 , where the woman permitted the intercourse, though under a mistake fraudulently induced as to the person. But I too should like to have the point decided in that case reconsidered. Conviction affirmed. ____________________________________________________________________ 0 1 2 3 4 5 6 1. 2. 3. 4. 5. 6. 7. Law Rep. 1 C. C. 156 . 1 Den. Cr. C. 580; 19 L. J. (M.C.) 174 . Bell Cr. C. 63; 28 L. J. (M.C.) 85 . Law Rep. 2 C. C. 81 . 1 Den. Cr. C. at p. 582 . Law Rep. 1 C. C. 156 . Law Rep. 1 C. C. 156 .

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8. Law Rep. 1 C. C. 156 . 9. Law Rep. 1 C. C. 156 .