If a female, apprehending the purpose of a man to be that of having carnal knowledge of her person, and remaining conscious, does not use all her own powers of resistance and defence, and all her powers of calling others to her aid, and does yield before being overcome by greater force, or by fear, or being surrounded by hostile numbers, a jury may infer that, at some time in the course of the act, it was not against her will. Of course, the phrase, "the utmost resistance," is a relative one; and the resistance may be more violent and prolonged by one woman than another, or in one set of attending physical circumstances than in another. In one case a woman may be surprised at the onset, and her mouth stopped so that she cannot cry out, or her arms pinioned so that she cannot use them, or her body so pressed about and upon that she cannot struggle. But whatever the circumstances may be, there must be the greatest effort of which she is capable therein, to foil the pursuer and preserve the sanctity of her person. This is the extent of her ability.
A 14 year old, living in a man’s house as a servant. One day, while she and her siblings were at the barn, he entered the barn and sent the children home. Upon fastening the barn door, he then called her down, took hold of her and after a struggle threw her down. She commenced to cry, when he said if she would consent he would buy her a new dress and she answered she did not wish a new dress. She tried to get up but he continued to hold her down and threw her clothes up over her head. She said he would get her in the family way and he said he was an old man. That then the offence was committed, she cried out and tried to get away but could not, as he held her down. A case was filed for rape and the man was convicted. On appeal, the General Term of the Supreme Court reversed defendant's conviction for rape and granted a new trial. The case was appealed to the Court of Appeals of New York.
Should a new trial be allowed?
The Court held that the trial court did not lose jurisdiction because one of its members was called from the bench as a witness in the action, but that it was error for him to become a witness. The Court further held that the trial court committed error in refusing to charge the jury that it had to be satisfied from the evidence that the prosecutrix resisted to the extent of her ability. It held that There can be the crime of rape of a female over ten years of age only where the act is against her will. If she is conscious of what is attempted, and has the possession of natural mental and physical powers in usual degree, is not overawed by the number of assailants, nor terrified by threats of death or the like; nor in such place and position as that resistance is less; she must resist until exhausted or overpowered, for a jury to find that it is against her will.