PEOPLE v. ABBOT - 19 Wend. 192, 1838 N.Y. LEXIS 62

Rule:

The prosecutrix is usually the sole witness to the principal facts, and the accused is put to rely for his defense on circumstantial evidence. Any fact tending to the inference that there was not the utmost reluctance and the utmost resistance, is always received. That there was not an immediate disclosure, that there was no outcry, though aid was at hand and that known to the prosecutrix, that there are no indications of violence to the person, are put as among the circumstances of defense; not as conclusive, but as throwing distrust upon the assumption that there was a real absence of assent.

Facts:

Defendant was charged with the crime of raping the prosecutrix. He was also charged with assault with the intent to commit rape. During trial, the defendant offered to prove that the prosecutrix’s character was bad six or seven years previous to the trial. The testimony was excluded by the court. During the cross-examination of the prosecutrix, she was asked whether she had ever had carnal connection with any person other than the defendant previous to her connection with him. The district attorney objected to the question and the court overruled. The defendant was found guilty of assault and battery. Defendant filed exceptions to the decisions of the trial court. 

Issue:

Under the circumstances, could the prosecutrix be asked on her previous connection with other men? 

Answer:

Yes.

Conclusion:

The court found that the question presented to the prosecutrix herself, whether she had not had previous connection with other men, was proper assuming that defendant could be considered on trial either on the charge of rape, or for an assault and battery with intent to commit that crime. The court reasoned that in such a case the material issue was on the willingness or reluctance of the prosecutrix, and it went to her credibility from which the jury was asked to say she did consent. The court further reasoned that the question was very material in examining the probability of assent. The court ordered a retrial of the action by the state against the defendant on counts charging him with the principal crime of rape.