The basis of this action, as the cause of it is stated in the complaint, is “ that the defendant assaulted the plaintiff and attempted, against her will, to have carnal connection with her, and by force and violence, and against her will to ravish her.” This in substance and effect is an allegation that the defendant attempted to commit the crime of rape upon the plaintiff', and for this cause, insult and indignity the suit is brought.
The proof to sustain the action obviously must be of the same nature and degree as if the defendant was on trial upon an indictment for an attempt to commit a rape, and the case at the circuit should be tried upon the same principles. If the defendant had been on trial for such offense, on the criminal side of the court, he would have been entitled to impeach, the general character of the prosecutrix for chastity and truth by general testimony. (1 East C. L. 444. Roscoe Crim. Ev. 95, 862.) As with the crime of rape, the gravamen of the offense consists in the force used to accomplish the criminal purpose, so it is in the civil action. Any evidence, therefore, to repel the allegation of force, to show consent, or that no violence was done or designed to the will of the prosecutrix would be necessarily admissible, as tending to disprove the very body of the crime.
To this end evidence might be given tha(t the prosecutrix had previously had voluntary sexual intercourse with, the defendant. (Rex v. Martin, 6 Carr. & Payne, 544. The People v. Jackson, 3 Parker, 398. Same v. Abbot, 19 Wend. *135192. Rex v. Aspinwall, 2 Starkie's Ev. 700.) The principle upon which such evidence is admissible, is that it is much more improbable, as Judge Cowen says in Abbot’s case, “ that a common prostitute or the prisoner’s concubine would withhold her assent than one less depraved.” Such facts are proper for the consideration of the jury on the ground that they furnish evidence of consent, or evidence from which they may imply consent. Within the same principle every species of evidence showing previous lascivious conduct on the part of the plaintiff in this action in the presence of the defendant, or in her intercourse with him, designed or adapted to incite or invite him to take liberties with her person, or to induce him to believe that such advances on his part would not be unacceptable to her, it seems to me, are cléarly admissible.
The defendant offered to prove that every advance that was made between them of a lascivious or licentious character was made by the plaintiff. The evidence was objected to and excluded, and the defendant excepted. This offer is stated in general terms, but the objection was not put upon that ground, and the evidence was obviously not excluded because the defendant did not propose to prove particular acts of immodest conduct, but because such evidence was not considered admissible in principle; for the defendant’s counsel subsequently made his offers more specific. He made thirteen different offers of evidence tending to the same end—to show lascivious conduct on the part of the plaintiff, and most of them to acts to or with the defendant, or in his presence. Of these thirteen offers or propositions, at least eight of them are to prove the lewd and lascivious conduct of the plaintiff with the defendant, or in his presence.
All of this class of evidence, I think, was admissible within the rule above stated. The facts stated in these offers all tended to prove either that the plaintiff was seeking to induce the defendant to have sexual intercourse *136with her, or was seeking to entrap him into difficulties such as the commencement and pendency of this suit involves. TJpon that assumption, if the latter were her purpose, it is none the less fatal to the action than the former. It takes away the idea that force was necessary, or designed or attempted, to have such intercourse. A woman who leads a man into a trap, or uses meretricious arts with such a design, cannot pretend that there was an attempt to ravish her, or that he attempted such ends by force and against her will and utmost resistance. The offense and the cause of action consists in the attempt to accomplish the end implied by force. It is absurd to impute such design when the conduct of the woman repels all idea of the occasion or necessity for the use of force. The evidence excluded, I think, was admissible as tending to show consent on the part of the plaintiff, and that no undesired force or violence was used or attempted upon her person, and in this view was a complete defense to the cause of action.
The other exceptions, for the exclusion of evidence tending to show improper conduct between the plaintiff and other persons, stand upon different grounds.
According to the case of The People v. Abbot, (ubi sup.) these exceptions are well taken; but the case of The People v. Jackson, (3 Parker, 398,) holds otherwise; which latter case, I think, is generally considered as overruling the case of Abbot on this point, and I think asserts the true rule. The evidence of particular acts of immodesty on the part of the plaintiff or prosecutrix in this class of cases should be limited, I think, to those committed with, or in presence of the defendant, upon the principles above stated.
The motion, I think, should be granted, with costs to abide the event.
J. G. Smith, J. concurred.