The civil law ſeems to ſuppoſe a proſtitute or common harlot incapable of any injuries of this kind[1]: not allowing any puniſhment for violating the chaſtity of her, who hath indeed no chaſtity at all, or at leaſt hath no regard to it. But the law of England does not judge ſo hardly of offenders, as to cut off all opportunity of retreat even from common ſtrumpets, and to treat them as never capable of amendment. It therefore holds it to be felony to force even a concubine or harlot; becauſe the woman may have forſaken that unlawful courſe of life[2]: for, as Bracton well obſerves[3], “licet meretrix fuerit antea, certe tunc temporis non fuit, cum reclamando nequitiae ejus conſentire noluit.”
As to the material facts requiſite to be given in evidence and proved upon an indictment of rape, they are of ſuch a nature, that though neceſſary to be known and ſettled, for the conviction of the guilty and preſervation of the innocent, and therefore are to be found in ſuch criminal treatiſes as diſcourſe of theſe matters in detail, yet they are highly improper to be publicly diſcuſſed, except only in a court of juſtice. I ſhall therefore merely add upon this head a few remarks from ſir Matthew Hale, with regard to the competency and credibility of witneſſes; which may, ſalvo pudore, be conſidered.
And, firſt, the party raviſhed may give evidence upon oath, and is in law a competent witneſs; but the credibility of her teſtimony, and how far forth ſhe is to be believed, muſt be left to the jury upon the circumſtances of fact that concur in that teſtimony. For inſtance: if the witneſs be of good fame; if ſhe preſently diſcovered the offence, and made ſearch for the offender; if the party accuſed fled for it; theſe and the like are concurring circumſtances, which give greater probability to her evidence. But, on the other ſide, if ſhe be of evil fame, and ſtand unſupported by others; if ſhe concealed the injury for any considerable time after ſhe had opportunity to complain; if the
