Commonwealth v. Rhodes

CAVANAUGH, Judge,

dissenting:

Despite the fact that appellant has not argued at trial, in his post-trial motions, or on appeal, that the rape of this eight year old victim was consensual, the majority has concluded that the act was not a forcible rape and has overturned the trial court’s conviction.1

The evidence was that appellant, age twenty, was a neighbor of the victim, that he encountered her in a playground and led her to an “old house”, then to a room upstairs and there “told” her what to do. Her description is set forth in the excerpt of the testimony in the majority opinion. We note that when appellant “touched” the victim, she related “I told him to stop.”

The necessary implication of the majority’s decision is that this eight year old child engaged in an act of consensual intercourse with appellant. I cannot agree. There is a serious question that an eight year old child is capable of consenting to sexual intercourse.2 Common sense and human experience compel us to the conclusion that a child of such tender years should not be expected to know the nature and implications of human sexual intercourse. Since the statute excludes from the consensual defense a victim who is “so mentally deranged or deficient that such person *281is incapable of consent” 3, how much more so should it be interpreted to protect a child who by reason of her infancy may not be said to have developed a cognition of the nature of an act of adult sexuality.

Likewise, viewing this episode from the standpoint of forcible compulsion or the threat of forcible compulsion that would prevent resistance by a person of reasonable resolution,4 it is equally clear that the rape conviction should stand. The force or threat of force necessary to support a rape conviction need only be such as to establish a lack of consent, and it is a relative concept depending upon the particular circumstances.5 Commonwealth v. Rough, 275 Pa.Super. 50, 418 A.2d 605 (1979); Commonwealth v. Irvin, 260 Pa.Super. 122, 393 A.2d 1042 (1978).

In Commonwealth v. Brown, 290 Pa.Super. 448, 434 A.2d 838 (1981), we recognized that what could be read as consent on the part of a twenty nine year old rape victim was more properly seen as a recount of the desperate stratagems of a lone female in peril. How much less should we, on appellate review, be willing to set aside the factfinder’s resolution and find that the illicit commands of this twenty year old appellant in an isolated and abandoned room were anything less than an imperative which gave the child victim no alternative but submission to appellant’s corrupt scheme.

In Commonwealth v. Cyaus, 88 Pa.Super. 227 (1926), the court reviewed the conviction of appellant on charges of assault and battery with intent to ravish. The court stated:

*282The first contention, as we understand it, is that the evidence does not establish that the assault and battery-charged was committed upon the girl “with intent, forcibly and against her will, to have unlawful carnal knowledge” of her, as provided in section 93 of the Crimes Act of 1860, under which the indictment was drawn and which reads as follows: “Section 93. If any person shall be guilty of committing an assault and battery upon a female, with intent, forcibly and against her will, to have unlawful carnal knowledge of such female, every such person shall be guilty of a misdemeanor, and on conviction, be sentenced, etc.” It seems clear that the offense denounced by this section of the Act is assault and battery committed with the specific intent to accomplish the purpose forcibly and against the victim’s will; and that consensual sexual intercourse with a female of any age is not within its terms (Commonwealth v. Miller, 80 Pa.Superior Ct. 309). The uncontradicted evidence in the case is that the victim of the alleged assault was a female child under five years of age at the time of its commission. In view of the extreme youth of the child alone the jury was warranted in finding that she was incapable of consenting to sexual intercourse and that the touching of her body by the defendant with intent to carnally know her was against her will. The child testified that the defendant “laid me on the floor and he done dirty things to me”; that he hurt her between her legs; “with between his legs.” This testimony was sufficient, if credited by the jury, to establish not only that the defendant committed an assault and battery on the child but also that his intention was to have unlawful carnal knowledge of her by force. Where, as here, the female is not only so young that she is incapable of consenting to sexual intercourse, but cannot even entertain a thought upon that subject, a jury is warranted in finding an intent to have carnal knowledge of the child forcibly whenever the evidence warrants a finding that the defendant laid his hands upon her with an intent to carnally know her. It *283follows that the evidence was sufficient, if believed, to establish all the elements of the offense charged.

In Commonwealth v. Stephens, 143 Pa.Super. 394, 17 A.2d 919 (1941), the court recounted the historical development of the law on rape, especially the element of force.

[I]n Reg. v. Dee, supra, 15 Cox C.C. 579, at page 585, the court said: “Rape may be defined as sexual connection with a woman forcibly and without her will: (Reg. v. Fletcher, 8 Cox C.C. 134.) It is plain, however, ‘forcibly’ does not mean violently, but with that description of force which must be exercised in order to accomplish the act for there is no doubt that unlawful connéction with a woman in a state of unconsciousness, produced by profound sleep, stupor, or otherwise, if the man knows that the woman is in such a state, amounts to rape.” “It is settled by a chain of adjudication, too long and unbroken to be now shaken, that force is a necessary ingredient in the crime of rape. — Bishop on Crim.Law, § 411. The only relaxation of this rule is, that this force may be constructive. Under this relaxation, it has been held that where the female was an idiot, or had been rendered insensible by the use of drugs or intoxicating drinks, and, in one case, where she was under the age of ten years, she was incapable of consenting, and the law implied force. — Rex [Reg.] v. Ryan, 2 Cox’s C.C. 115; Commonwealth v. Fields, 4 Leigh, Va., 648; State v. Shepard, 7 Conn. 54; Regina v. Camplin, 1 Car. & Kir. 746; Bishop’s Cr.Law, § 343”. Lewis v. State, 30 Ala. 54, at page 56, 68 Am. D .c. 113.

Commonwealth v. Stephens, supra, 143 Pa.Superior Ct. at 349, 17 A.2d at 921. (Emphasis added).

In the case at bar, the victim clearly did not consent to have sexual relations with the appellant. In addition, it is my belief that although the victim here was eight and the victim in Commonwealth v. Cyaus, 88 Pa.Super. 227 (1926), was five at the time of the offense, Cyaus is apposite to this case. Where the victim is so young as to be incapable of consenting to an act of sexual intercourse, and particu*284larly here, where the twenty year old appellant is a neighbor whom the eight year old victim knows by name, force may be imputed to his acts.

Finding no merit to appellant’s contentions on appeal, I would affirm the judgment of sentence.

. The credibility argument made by appellant’s counsel dealt only with the child victim’s description of the precise location of the rape and the defendant’s denial and the absence of dirt on his clothes.

. At Common Law, a child under the age of seven was conclusively presumed to have no capacity to commit a crime, and, therefore, cannot be either a principal or accomplice or an accessory thereto. A child under seven lacked the capacity to commit an assault and battery and likewise lacked the capacity to consent to its commission upon her. Commonwealth v. Bowes, 166 Pa.Super. 625, 74 A.2d 795 (1950).

. 18 Pa.C.S. § 3121(4).

. 18 Pa.C.S. § 3121(1) (2).

. "[C]onsent is an act of free will. It is not the absence of resistance in the face of actual or threatened force inducing a woman to submit to a carnal act”; active opposition is not a prerequisite to finding lack of consent. Commonwealth v. Hayden, 224 Pa.Super. 354, 356-57, 307 A.2d 389, 390 (1973). See Commonwealth v. Moskorison, 170 Pa.Super. 332, 85 A.2d 644 (1952). Commonwealth v. Rough, 275 Pa.Super. 50, 56, 418 A.2d 605, 608 (1979). See also Commonwealth v. Claypool, 317 Pa.Super. 320, 327 n. 7, 464 A.2d 341, 344 n. 7 (1983), Commonwealth v. Fortune, 305 Pa.Super. 441, 447, 451 A.2d 729, 730 (1982).