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Sexual offences in Canada Bhavnani, Narain G. 1969

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SEXUAL OFFENCES IN CANADA by NARAIN G. BHAVNANI B.A., LL.B., M.A., Bar-at-Law A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS In the Faculty of Law We accept this jthesis as confirming to the re'ijuired standard THE UNIVERSITY OF BRITISH COLUMBIA APRIL, 1969 I n p r e s e n t i n g t h i s t h e s i s In p a r t i a l f u l f i l m e n t of the requirements f o r fin advanced degree at the Univer-s i t y of B r i t i s h Columbia., I agree that the L i b r a r y s h a l l make i t f r e e l y a v a i l a b l e f o r reference and Study. I f u r t h e r agree that permission f o r extensive copying of t h i s t h e s i s f o r s c h o l a r l y purposes may be granted by the Head of my Department or by h i s r e p r e s e n t a t i v e s 0 I t i s understood that copying or p u b l i c a t i o n of t h i s t h e s i s f o r f i n a n c i a l g a i n s h a l l not be allowed without my w r i t t e n permission,, • Nara.in Bho.vna.ni Department of Law The U n i v e r s i t y of B r i t i s h Columbia. Vancouver 8 , Canada Date A p r i l , 1969 What d i r e offence from amorous causes springs' What mighty contests r i s e from t r i v i a l things^ Alexander Pope i i •Abs t r a c t NEED FOR RESEARCH The sex: offences deal very c l o s e l y w i t h personal human l i f e . T heir importance l i e s , not only i n the pro-t e c t i o n they a f f o r d to the person of a v i c t i m , but a l s o i n the part they play i n the maintenance and p r e s e r v a t i o n of p r e v a i l i n g standards of m o r a l i t y and ethics„ Recently, there have been many c r i t i c i s m s as to the extent to which the law enforces moral and e t h i c a l behaviour i n c i t i z e n s , , The d e s i r a b i l i t y of r e g u l a t i n g the p r i v a t e m o r a l i t y of people, by r i g o u r of the sword, has i n v i t e d the constant a t t e n t i o n of many l e g a l s c h o l a r s . The sex offences being connected w i t h the per-sonal l i v e s of c i t i z e n s , the a p p l i c a t i o n of a s t r i c t standard of conduct does, doubtless, invade on the p r i v a t e sphere of conduct - whi l e the s l a c k enforcement of such standard may r e s u l t i n the i n s e c u r i t y of i n d i v i d u a l s a g a i n s t invasions by those seeking to corrupt the moral f i b r e of c i t i z e n s . There i s , thus, a great need to determine i f the present law encroaches, u n j u s t i f i a b l y , upon the p r i v a t e l i v e s of c i t i z e n s , and a l s o to determine i f i t s undue extension be c u r t a i l e d to an extent com-p a t i b l e w i t h the morals of the populace.. SCOPE OF THE STUDY The P o l i c e Crime S t a t i s t i c s complied by the Dominion Bureau of S t a t i s t i c s f o r the year 1 9 6 6 show t h a t of a l l the crimes known or reported to the P o l i c e , 6 5 2 crimes were f o r rape alone. While other sexual crimes during t h i s p eriod numbered 8 , 1 M ) , rape alone c o n s t i t u t e d about 1 3 percent of the t o t a l figure,. This i s a s u b s t a n t i a l number and a. meaningful index that throws l i g h t on the seriousness of the si t u a t i o n , , An exa.mi.nfi.tion of the court cases a l s o i n d i c a t e s that the law re p o r t s are r e p l e t e w i t h cases d e a l i n g w i t h sexual o f f e n c e s 0 The Code contains a number of sexual offences, but the g i s t of a l l of them i s contained i n sec t i o n s 1 3 1 to 1 -^9 that cover a l l heinous offences l i k e rape, buggery, gross indecency, and others. The bulk of law d e a l i n g w i t h a l l aspects of sexual offences i s v a s t , but the fo r m u l a t i o n of main offences and the i n c o n s i s t e n -c i e s underlying such fo r m u l a t i o n s , have been examined here from a j u r i s t i c p o i n t of view. METHODOLOGY A systematic examination of a l l the releva.nt sexual offences has been made along w i t h a h i s t o r i c a l examination of t h e i r development from e a r l y times. A l s o , a comparative examination of the law of Canada and the law of England has been undertaken on a l l mater-i a l p o i n t s . A reading t a r g e t of a l l the important cases d e a l i n g w i t h the subject was made, and a t t a i n e d , during the s e s s i o n . A t t e n t i o n was d i r e c t e d towards c o n s i d e r i n g : i v (a) the proper c r i t e r i o n by which the law should enact and enforce sexual offences? (b) the consistency of the law of sexual o f -fences w i t h some - v a c a n t i a ! and fundamental p r i n c i p l e s of c r i m i n a l law, the nature and scope of j u r i s t i c problems a r i s i n g from enforcement of such offences, and whether the problems can be solved w i t h i n the present framework of such offences? and (c) the manner i n which present law needs to be reformed and reformulated i n the l i g h t of the c r i t e r i o n adopted, and i n the l i g h t of some unacceptable r e s u l t s that a r i s e from i t s present form* CONCLUSION Having examined various t h e o r i e s suggesting d i f f e r e n t c r i t e r i a f o r s o c i a l c o n t r o l of sexual behavi-our, the c r i t e r i o n of 'minimum s t a n d a r d s 9 , c o n s i s t e n t w i t h the fundamental e t h i c a l assumptions of our s o c i e t y , has been adopted. An examination of the present law has been attempted, and various problems a r i s i n g out of i t s language and meaning have been i n q u i r e d i n t o I n some depth, and i n the l i g h t of j u d i c i a l d e c i s i o n s c r i t i c a l l y s c r u t i n i s e d . I n the end, on the r e a l i z a t i o n that the e f f e c t i v e s o l u t i o n of such problems would r e q u i r e l e g i s -l a t i v e a c t i o n , a law reform on no l e s s than 36 points has been suggested„ These suggestions have been con-densed and incorporated i n a suggested d r a f t of the s e c t i o n s 1 3 1 to 1k9 appended to t h i s t h e s i s . Jerome J„ Atrens Fa c u l t y Advisor U n i v e r s i t y of B r i t i s h Columbia A p r i l , I 9 6 9 TABLE OF CONTENTS. A b s t r a c t . . . . . . . . . i i Acknowledgment,................ ...... i x CHAPTER I - JUSTIFICATION FOR SEXUAL OFFENCES I n t r o d u c t i o n D O . . . . 1 The Challenge of Modern T i m e s . . . . . . . . . . . . . . . . . . . . . . ^ The C r i t e r i a • 9 The E x p o s i t i o n of Arguments 1 1 The Assessment-Standard Theory (Refusal) 1 1 The Norm Theory ( P r a c t i c e ) . . . . . . . . 1 5 The Prudence Theory (Expediency) ...20 The Beneficience Theory (Pleasure) ...26 The J u s t i c e Theory (Balance),,. . . 3 2 The Natural Law Theory (Reason) . . . 3 5 The Status Theory (Double Standard ) . . . . . . . . . . . The R e l i g i o u s Theory ( S i n ) . . ... ....^9 ConCl U S i O H g o o > . 0 . . o oe oo oo s o oo . . . . o o f t . . 0 . o o « . . . . o . . . . . . . . 5 2 Recommendations ... 5 5 CHAPTER I I - THE PROHIBITED PASSIONS Many Loves of Many a Kind . . . . . 6 2 The Beauty and the Beast ....64 Without her consent •.••.•...66 TVtI*€?c:l't S OI*-. 6&J'3? © * « • o • • • « o e o 0 0 • o o « © • • • 0 . 0 o o «o • • o "• 8 0 The Husband or the Hoax ................. . . 8 8 The I d l e Hands**.... ........... .'•..•....•..».. 91 Indecent A s s a u l t on Female..,.,,.,,.•..•.,,,,,91 Assaul t • »--»'« • « a 0, . . • . « , 1 • ] • ., • . n •;•••••»• » '•'•, .«96 I nd ec ency.. • o . . » • « • » » • ^ « . • » , \ «L • » ~ •. • v ^  *102 Indecent A s s a u l t on MaT> e. .110 As s a u l t w i t h i n t e n t to commit buggery..^112 I nd ecent .a.ssa:utt .,.,,...,<,., a •••.... .,'. ^ .. • . . I t 4 The D e v i l o r the Drunk.. . » l l 6 The Nature and Q u a l i t y . .•.•••••.•••••»«•• . . . o • • « • « • • . . . 1 . 2 7 I n respect of rape........ 1 2 7 In respect of indecent a s s a u l t . . . . . . . . 1 4 2 A Good Try ».. • . 1 5 1 Attempt to commit rape • . . . . 1 5 1 Attempt to commit indecent a s s a u l t . . . . . . . . . . . 1 5 7 The C h i l d and the Chaser,.... 1 6 3 The Chaste and the Charmer . . . . . 1 7 3 Seduction . 1 7 7 Previous chaste c h a r a c t e r ^ . •««•».« . » • • • • • • • . 1 8 7 Reverse onus c l a u s e . . . . . . « . . . • . • • . . . . . . . . . . . . 1 9 6 Mens reo i n respect of previous chaste chara-c t e r and age of the g i r l . . . . . . . . . . . . . . . . . . . . . 2 0 1 { C h a s t i t y 2 0 2 Chaste character of g i r l under 1 6 . . 2 0 2 Chaste character g e n e r a l l y • • • . 2 0 8 Age.... . . . . . 2 2 0 The Fast and the Feeble.. . . . 2 2 5 The K i t h and the K i n...........................••*...*.238 Concurrence of both p a r t i e s . 2 3 9 Knowledge of r e l a t i o n s h i p . . . . 2 4 1 Fact of r e l a t i o n s h i p . . c * 2 4 3 R e s t r a i n t , duress and f e a r of female .24-5 Blood r e l a t i o n s h i p . . . . . . 2 4 7 The Church and the Charge .*«.:>•«•«,• #« . . 2 4 9 For b e t t e r or f o r worse.. * « . . . . , 2 4 9 A shot-gun wedding. . . . . . 2 6 0 The Age before Beauty...... . , . . 2 6 1 The Law and the L i m i t . . » . . . . . . . . . . * . , • . . . . . . . . . . . . 2 6 6 The V i c e and the V e s s e l . * c . . . • * . • . . • • . . . . . . . . . 2 6 9 The Path of D e t o u r . . , * . * . ' . . . . . » . « • . . . . . . . . . • . • 2 7 1 The Queer ape..............v.,..*........... .271 v i i The gross and the net.»,..........»•••.«••..279 Concurrence of two p e r s o n s , . . . . . . . . . . . . 2 8 0 Gross indecency between male and f e m a l e 2 8 5 The meaning of gross indecency 2 8 6 Attempt to commit gross indecency..... . 2 9 3 The New Amendment . 2 9 4 CHAPTER I I I - THE LAW REFORM Suggestions •••••••••••••«••*299 1 . 2 . Husband-personation.....•..•••»•»•«••. . . 3 0 2 3 . The nature and quality..0.« . . 3 0 3 4 . The aphrod i s l a c s ..«••«.••»..«•....«.... . . 3 0 6 5 . The m a r i t a l rape...................... . . 3 0 7 6 . The penalty f o r rape.••.»..»•••»,»••• • . . 3 1 0 7 . The remote attempt.•• ••••••«•••«. . . 3 1 1 8 . The 9 . The previous chaste c h a r a c t e r . 0 . . . . . . * . . 3 1 3 1 0 . The r e p r e s e n t a t i o n of being o l d e r . . . . . . . 3 1 5 1 1 . The 1 2 . The feminlne blame . . 3 1 8 1 3 . The d u p l i c a t i o n i n offences . . 3 1 9 1 4 . The mistake as to age. .................. . . 3 2 1 1 5 . The 1 6 . The ca p a c i t y of a b o y . o . 0 . . . o . . . . . . . . . . . 3 3 0 1 7 . The d e f i n i t i o n of a d e f e c t i v e v i c t i m . . . . 3 3 1 1 8 , The 1 9 . The 2 0 , The new offence of sexual m o l e s t a t i o n . . . 3 3 7 2 1 . The 2 2 . The incestuous liaison..0....««...«... . . 3 4 2 2 3 . The 2 4 . The 2 5 . The 2 6 . The employer's liability.......«0  . . 3 4 8 2 7 . The captain's t a b l e . . . . . . . . . . . . . . . . . . 3 5 0 2 8 . The agent and the p a t i e n t . . . . . 3 5 0 2 9 . The queer a s s a u l t . . . . . . . . . . . » » o . . . 3 5 2 3 0 . The 3 1 . The 3 2 . The 3 3 . The 3 4 . The 3 5 . Too 3 6 . The time should heal . . 3 5 8 v i i i The Suggested D r a f t . . . . 3 6 0 The Case ©f the Accused . . . . . 3 6 0 The Sexual Behaviour of the Cr i m i n a l Code..., 3 6 1 What i s your v e r d i c t ? 3 6 1 FOOTNOTES 362 BIBLIOGRAPHY • • . 384 i iPPENDIX, , 3 o . s s . e , o * « . < > * ° a . 0 . « o « » o . » o » » e o o . e . e e » o . . . e . 411 VIT/i l x A C K N O W L E D M E N T Many people were involved i n he l p i n g me b r i n g t h i s work i n f i n a l form. At the outset, I record my s i n c e r e acknowledgment to Mr. Jerome Atrens, the Fac u l t y A d v i s o r , f o r h i s guidance and c r i t i c a l p e rusal of the „ f i r s t d r a f t which l e d to r e v i s i o n , and the f i n a l d r a f t of t h i s t h e s i s . I acknowledge ray g r a t i t u d e to Mr. Joseph Smith, A s s o c i a t e P r o f e s s o r , f o r h i s e x c e l l e n t a n a l y s i s of the th e o r i e s of law and f o r h i s fundamental e t h i c a l assump-t i o n s which c o n t r i b u t e d to the development and s e l e c t i o n of the c r i t e r i o n of minimum standards, and f o r h i s oc-c a s i o n a l encouragement. I a l s o acknowledge my g r a t i t u d e to P r o f e s s o r Cha.rles Bourne, f o r h i s general suggestions i n c l u d i n g a c a u t i o n against any ' f i e l d work'? to Mr, Paul A y r i s s , Admlnstrative A s s i s t a n t , f o r p r o v i d i n g a t a b l e and c h a i r * which were s u f f i c i e n t l y uncomfortable to prevent sleep d u r i n g work? to Mr. Thomas Shorthouse, L i b r a r i a n , f o r a l l o w i n g the use of the l i b r a r y books i n my o f f i c e , and to Mrs. M o l l i e Buckingham, L i b r a r y A s s i s t a n t f o r l e t t i n g me keep the books f o r a longer time than usua l . I a l s o acknowledge my grati.tude to my pr o f e s -s i o n a l colleague Miss Janet Venn, f o r t a k i n g pains to remove some of the l i n g u i s t i c o d d i t i e s i n the text? to X Miss V i c t o r i a Lindsay, f o r t r a n s l a t i n g some cases from French to English? to Miss Sharon Sutherland and Mrs. J« McCready, f o r e f f i c i e n t t y p i n g , and to my f r i e n d Mr. Amjad R i z v l , who, while I worked on the s u b j e c t , kept working on me to keep me working on the s u b j e c t . My s i n c e r e g r a t i t u d e i s a l s o due to Walter Gage, President of the U n i v e r s i t y of B r i t i s h Columbia., who a c t i n g on h i s own, provided me w i t h a. bursary f o r a p a r t of the study expenses. U n i v e r s i t y of B r i t i s h Columbia, A p r i l , 1 9 6 9 . SEXUAL OFFENCES IN CANADA Chapter I - J u s t i f i c a t i o n f o r Sexual Offences. We know too l i t t l e , a b o u t the r e l a t i o n s h i p s between s o c i a l c o n t r o l s of sex behaviour and other aspects of human l i v i n g to be a t a l l dogmatic about the r e l a t i v e d e s i r a b i l i t y of t h i s or that kind of l e g i s l a t i o n from the p o i n t of view of the welfare of e i t h e r the I n d i v i d u a l or the S o c i e t y . At the same time, t h i s means that our current moral and l e g a l codes cannot be considered i n any way un-a s s a i l a b l e . On the contrary, they are no more founded upon a s c i e n t i f i c understanding of human behaviour and s o c i a l l i f e than are most followed by the most p r i m i t i v e of human s o c i e t i e s . Our a t t i t u d e s towards sexual be-haviour are based not on science, but upon a t r a d i t i o n a l code of e t h i c s and morals. They are c l e a r l y open to question and des-erve c a r e f u l i n v e s t i g a t i o n . - C l e l l a n S. Ford - * * fSex Offences, an a n t h r o p o l o g i c a l p e r s p e c t i v e 0 , XXV Law and Contemporary Problems, Spring i 9 6 0 , 224. J u s t l f i c a t l o n of sexual offences. I n t r o d u c t i o n 5 The omnipresent process of sex as i t i s woven i n t o the whole texture of our man's or woman's body, i s the p a t t e r n of a l l the process of our l i f e ' Havelock E l l l s - T h e New S p i r i t . Sex i s the most fundamental of a l l human a c t i v i t y on a temporal plane and i n a t o t a l context of human l i f e second only to the e f f o r t s devoted to the D i v i n e . The very c r e a t i o n of l i f e takes place through sex, we are born through i t , and leave behind us our p o s t e r i t y by r e p e a t i n g the c y c l e of l i f e s t a r t e d by u n i t y and harmony of male and female u n i t s of human l i f e . I t i s a l i n k between generations passing f o r ever, from c r a d l e to grave, i n an endless marching cavalcade of e t e r n i t y . In r e l a t i o n to t h i s enveloping phenonmenon, the humans alone have a c e r t a i n freedom denied by nature to other forms of e a r t h l y l i f e . Animals do not exc e r c i s e a conscious s e l f - c o n t r o l i n matters of sex, perhaps not even a conscious choice i n the s e l e c t i o n of mates, or f o l l o w a d e l i b e r a t e decision-making process i n respect of some ha b i t s approximating to monogamy and parentalism. This freedom given to humans, a freedom to a conscious s e l f - c o n t r o l 2 has enabled humans to have i n t e r p r e t a t i o n s and viewpoints of sex and codes of behaviour i n r e l a t i o n to i t . A c c o r d i n g l y , sexual a c t i v i t y which may otherwise be p r o p e r l y defined as 'a norm of behaviour governing mutual r e l a t i o n s between opposite sexes f o r reproduction purposes'"'- f a i l s i n i t s adequacy and comprehensivity when a p p l i e d i n r e l a t i o n to humans, f o r not a l l sexual a c t i v i t y among them in v o l v e s p a r t i c i p a t i o n of opposite sexes, or two human beings f o r that matter, or the union of the organs of reproduction. To comprehend and envelop a l l sexual a c t i v i t y a broad d e f i n i t i o n of sex would be r e q u i r e d , and to adequately describe i t a l l normal, abnormal, deviate and non-deviate a c t i v i t i t e s w i l l have to be i n c l u d e d . I t may be suggested that 'a use and abuse of human g e n i t a l or psuedogenital organs' would be an a l l - i n c l u s i v e d e f i n -i t i o n of the word sex, and i t i s w i t h t h i s d e f i n i t i o n In mind that the subject of sexual offences i n Canada w i l l be d e a l t with i n t h i s paper. Since humans can exe r c i s e a conscious s e l f -c o n t r o l i n r e l a t i o n to sex, and have t h e i r own i n t e r -p r e t a t i o n s , viewpoints and codes of behaviour, and must n e c e s s a r i l y l i v e i n s o c i e t y , the 'norm' plays an a l l important p a r t In respect of the human sex behaviour. This i s a t once a freedom and l i m i t a t i o n . . There i s no norm of sex a p p l i c a b l e to a l l c u l t u r e s and a l l ages at a l l times, as the never-ending d i v e r s i t y of human c u l t u r e s and eras c l e a r l y shows, indeed, i f one were to search f o r a s p e c i f i c norm of sex the only norm he would f i n d 3 as e t e r n a l and u n i v e r s a l would be that there has to be a norm, since no human s o c i e t y , group or c u l t u r e accepts sex i n i t s u n i n h i b i t e d form without r e c o g n i z i n g some n e c e s s i t y of governing and c o n t r o l l i n g i t i n one or other e s t a b l i s h e d channels. 2 What d i f f e r e n t s o c i e t i e s have adopted i s a product of wisdom and chance whose c r e a t i o n and c o n t i n u a t i o n i s determined sometimes by accident and sometimes, by high design. The t r a d i t i o n a l human codes of sex are at one point or another r a t h e r a r b i t r a r y , and where any s o c i e t y ' s code of sex i s claimed to have been derived from Divi n e Commandments, the i n t e r p r e t a t i o n s and sub-practices p u r p o r t i n g to have been made under such Commandments are again i n substance human codes, and once again, a r b i t r a r y a t one or another p o i n t . We are p r e s e n t l y concerned with the Western s o c i e t y and the code of sex that p r e v a i l s t h e r e i n , and l i k e a l l other s o c i e t i e s and c u l t u r e s our code i s l i k e an e d i f i c e of monumental s t r u c t u r e that has stood f o r c e n t u r i e s , I n the c o n s t r u c t i o n of which s e v e r a l minds and hands have played a p a r t , which has been repaired and re-done so many times as to loose i t s o r i g i n a l blue-p r i n t , which i s p a r t l y new and p a r t l y i n r u i n s , which i s painted i n a l l d i f f e r e n t colours and held together by b r i c k s of a l l d i f f e r e n t kinds and shapes. I n the present product h i s t o r y , imagination, r e l i g i o n , c u l t u r e , convenience, expediency, medicine and b i o l o g y have a l l played t h e i r part rendering the whole code an i n t r i c a t e interwoven mixture dominated by antiquated h i s t o r i c a l t r a d i t i o n and u n r e a l i s t i c e c c l e s i a s t i c a l dogma, which has l a t e l y come to be challenged by the r i s i n g forces of the modern times 0 The past few decades have introduced and i n j e c t e d i n the Western c i v i l i z a t i o n new p o i n t s of view which have confounded the confusion, A r e v o l u t i o n of thoughts and ideas, a p r a c t i c a l r e a l i t y a i d i n g and a b e t t i n g the success of such r e v o l u t i o n , the enthusiasm of the compatriots and. the energy of the reb e l s whose youth and s p i r i t i s f a r beyond the c o n t r o l of decadent s o c i a l and moral r e s t r a i n t of the elders have c a l l e d i n question the whole t h i n k i n g and moral or s o c i a l v a l i d i t y of previous t r a d i t i o n s , Against t h i s long h i s t o r i c a l background may be placed i n j u x t a p o s i t i o n the challenge of the modern times, and i n the l i g h t of both a search conducted f o r c r i t e r i a by which standards and values of sexual behaviour be e s t a b l i s h e d i n the s o c i e t y through the agency of law. But before proceeding to the determination of a proper c r i t e r i o n the challenge of modern times may be f u r t h e r elaborated. The Challenge of Modern Times The modern times have seen an unprecedented emancipation of women i n a l l walks of l i f e and more so i n matters r e l a t i n g to sexual behaviour. Western c i v l l i z a t i o n to some extent being a n d r o c e n t r i c , a n o t i o n that a woman i s not supposed to enjoy sex has p e r s i s t e d as a dominant theme of the c u l t u r e , although experience has brought about a renewed t h i n k i n g that e r o t i c experience i s not e x c l u s i v e l y a male phenonmenon, and that nature has provided complimentary and equal b e n e f i t s and p r i v i l -eges i n such matters to both the male and female of her c h i l d r e n . This has created an an x i e t y producing s i t u a -t i o n , s i n c e now the p a r t i c i p a n t s to a marriage must con s i d e r the question of mutual s a t i s f a c t i o n as agai n s t the old idea of s a t i s f a c t i o n only of the husband, and t h i s a n x i e t y on both sides of the bed has promoted an ex e r c i s e of great c a u t i o n before e n t e r i n g i n the yoke of marriage, r e s u l t i n g i n a great deal of p r e - m a r i t a l r e l a t i o n s , On account of the above change of t h i n k i n g , the o l d double standards of conduct have been subject to a process of w i t h e r i n g away. By i t s e l f there i s hardly any argument In favour of such double standards of conduct to l o g i c or common sense, but i n any case, the r i s i n g generations have o f f e r e d a c o r r e c t i v e to t h i s o l d t h i n k i n g and despite heavy burden of t r a d i t i o n s hammered i n t o them by p e r s i s t e n t parents, regard and view, or at l e a s t concede, the r i g h t and p r i v i l e g e of both sexes to equal sharing of the burden and b e n e f i t of t h i s u n i v e r s a l phenonmenon, As the researches of Dr. Kinsey and h i s co-authors, and the researches of Masters and h i s co-authors i n d i c a t e , there appears to be a high percentage of de-v i a t i o n s from the accepted moral standards i n the commun-i t y . D eviations may have a l s o existed, i n old times, but i n modern times i t i s a wholesale d e v i a t i o n from l o n g propagated d o c t r i n e of sexual abstinence t i l l 6 marriage followed by m a r i t a l f i d e l i t y t i l l death. I t has been asserted again and again that anything done i n the realm of sex between w i l l i n g partners should be considered p e r f e c t l y n a t u r a l and normal and t h i s p r o p o s i -t i o n ha.s not only the support of the r i s i n g generations but a l s o the a c t i v e support and encouragement of many able western scholars.' The p s y c h o l o g i c a l i n t e r p r e t a t i o n of sex derived from the w r i t i n g s of Dr. Freud and h i s successors have had profound i n f l u e n c e i n b r i n g i n g the old r e l i g i o u s ideas i n t o question f o r i n the o l d days when the C h r i s t i a n t r a d i t i o n f i r s t came to be c r y s t a l l i z e d , such ideas branding sex as an e s s e n t i a l p a r t of l i f e bearing a s a l u t a r y e f f e c t on the i n d i v i d u a l and h i s p e r s o n a l i t y were not popular. The new i n t e r p r e t a t i o n given to a l l sexual a c t i v i t y has opened a door to an open d i s s e n t to the ideas of o l d and religious-minded parents, and has provided an opposite p o i n t of view c a r r y i n g w i t h i t a l l the s c h o l a r l y support that i s needed to convince the unenlightened populace of the e s s e n t i a l r o l e of sex i n shaping a b e t t e r and h e a l t h i e r s o c i e t y . The b i r t h - c o n t r o l .devices have had a great i n f l u e n c e i n promoting the non-marital r e l a t i o n s and the matter i s too obvious to r e q u i r e any d e t a i l e d d i s c u s -sions but i t may be emphasized that the modern trend towards g r e a t e r p r i v a c y and independence of l i v i n g has f u r t h e r provided an a.tmostphere where the non-marital sexual a c t i v i t y f i n d s an e f f e c t i v e breeding ground. 7 L i f e i n "bigger c i t i e s and p o p u l a t i o n groups goes on an impersonalized b a s i s and men and women pass each other i n unconcerned i n d i f f e r e n c e beyond the pleasures of a passing movement* The ideas and notions of b i g g e r c i t i e s come to be extended,, i n stages, to s m a l l e r segments of populations and the increased incomes r e s u l t i n g i n b e t t e r standards of l i v i n g promote a great deal of segregated l i v i n g , away from f a m i l i e s and t h e i r r e s t r a i n i n g i n f l u -ences. The prevalence of the above trends has u n f o r t u -n a t e l y been beyond the c o n t r o l of the o l d r e l i g i o u s ideas e s s e n t i a l l y on account of the f a c t that the d i v e r -gence of C h r i s t i a n i t y and modern science on many. Issues of contemporary i n t e r e s t s have l e d to the dichotomy of t h i n k i n g c o n t r i b u t i n g to the gradual d e c l i n e of the i n f l u e n c e of C h r i s t i a n i t y . This dichotomy of t h i n k i n g i s attempted to be r e c o n c i l e d by a t h e s i s that a t h i n g may be r i g h t i n f a i t h but not i n t h i s world, or that t h i s world may reward what the l a t e r l i f e may punish. E v e n t u a l l y , any p r o p o s i t i o n must f i n d i t s v a l i d i t y In the r e a l i t y of l i f e , and ideas, g r a n t i n g that they were r i g h t l y c u l t i v a t e d by f a i t h , must f i n d i n l i v i n g experience at l e a s t some working of f a i t h j u s t i f y i n g continuous b e l i e f i n such ide a s . C o n v i c t i o n s , however sound, are d i f f i c u l t to s u s t a i n f o r a prolonged l e n g t h of time when balanced only by a left-handed c r u t c h that bends near the pew and breaks on the sidewalk. 8 Canada has been a l a n d of many sub-cultures and a c e n t r a l p a t t e r n of l i f e has evolved out of amalga-mation of many sub-cultures brought from f o r e i g n l a n d s . The young have been brought up under d i f f e r e n t i n f l u e n c e s and hold d i f f e r e n t opinions consequent to t h e i r upbringing. Thus i n gr e a t e r awareness of t h i s d i f f e r e n c e of upbringing, the d i f f i c u l t y i s o f t e n solved by e s t a b l i s h i n g s o c i a l p a t t e r n s of conduct i n terms of minimum standards of a c c e p t a b i l i t y , beyond which an i n d i v i d u a l i s l e f t f r e e to f o l l o w h i s own ideas of l i f e . I n the realm of sexual behaviour, the high standards of various sub-cultures have come under question and since a l l c u l t u r e s do not e s t a b l i s h uniform patterns of conduct, a f u r t h e r puzzle i s produced as to what standards are i n f a c t the proper s ta nda r d s . The laws of divorce i n Canada have been modified only r e c e n t l y and s u f f i c i e n t time has not elapsed to evaluate the f u l l e f f e c t thereof. Nonetheless t h i s change ha.s i t s e f f e c t on the sexual behaviour of the community and must be considered, i n I t s aspect of con-t r i b u t i n g to the d e c l i n e i n s a n c t i t y of marriage, as one of the important challenges of modern times. R e l y i n g on the a n a l y s i s of Mr. J . C. Smith of Communication Processes and Claims i n respect of communication medial, i t may be said t h a t the i n c r e a s i n g communication f a c i l i t i e s i n modern times have had a. se r i o u s e f f e c t on the f o r m u l a t i o n and interchange of new ideas r e s u l t i n g i n the d e n i a l of the u n i v e r s a l i t y 9 of ideas of the o l d age in. respect of sexual behaviour. The communication process of modern times has brought to l i g h t the ideas and behaviour patterns of other s o c i e -t i e s and w i t h I t a. notion that they enjoy a c e r t a i n freedom of a c t i o n denied always to the younger products of Western c i v i l i z a t i o n . Another aspect i n which the communication f a c i l i t i e s have been r e s p o n s i b l e f o r the changing morals of our times i s i n t h e i r use of sexual connotations added to the messages to render them more eye-catching and acceptable. The whole trend of communi-c a t i o n message i s to pass through a process of encodment to come out i n a form of communication designed to produce a behaviour response which c o n t r i b u t e s , d i r e c t l y or i n d i r e c t l y , to the object of the source from which the message emanated. Since sex connotations have r a t h e r a. p i e r c i n g e f f e c t even on the most b l u n t mind and appeal to the m a j o r i t y of the people i n a community, any message c a r r y i n g w i t h i t acceptable sexual overtones serves the purpose of any advertisement which u s u a l l y i s the produce a. widest impression and prolonged e f f e c t . The open transmittance of such sexual messages or connotations u s u a l l y leaves the a s s o c i a t i o n s of sexual conduct a g i t a -t i n g i n the minds of many who otherwise may perhaps be immune from such a s s o c i a t i o n s . The C r i t e r i a Such then i s the i n f l u e n c e of modern trends, and when regarded i n the l i g h t of c o n f l i c t i n g t h e o r i e s of sexual behaviour embedded In our c i v i l i z a t i o n , produce 10 a great deal of confusion as to the i n d i v i d u a l ' s r o l e i n the matter of sexual behaviour. Since every c u l t u r e evolves i t s own ideas as to what i s u s u a l l y acceptable or not acceptable, and a l s o what i s masculine and what i s feminine, the n o t i o n of t y p i c a l V i c t o r i a n f e m i n i n i t y , r e p r e s e n t i n g a r i f i c l a l i t y , n aivete, angelhood, and s u p e r f i c i a l i t y ? and exaggerated m a s c u l i n i t y , r e p r e s e n t i n g Herculean heroism to do everything from f i g h t i n g the t i g e r s to f i x i n g the t o i l e t s , having come to be contrasted i n modern times w i t h waves of change and transformation, the- c u l t u r e Is p r e s e n t l y i n the process of imbibing new ideas and ev o l v i n g f r e s h r o l e s based on common-sense and a c c e p t a b i l i t y . The s t a n d a r d i z a t i o n of r o l e s have u s u a l l y an e f f e c t on the e t h i c s of the community, and from there on the law, since the law alone possesses the power and p o t e n t i a l i t y to enforce the standard notions by the r i g o u r of the sword. The Goddess of J u s t i c e ( i n the r i g h t of Canada) stands befuddled and confused i n app l y i n g the law en-f o r c i n g sexual behaviour of the community. Her ansul i s r a t h e r unbalanced between m a s c u l i n i t y and f e m i n i n i t y , her b l i n d f o l d has c o n s i s t e n t l y prevented her f o r many years from n o t i c i n g and observing the consequences of i t s mighty sword which has f a l l e n on the heads of many who were entrapped i n camouflaged p i t f a l l s , or those who have not r e a l i z e d how widely embracing have been the overzealous arms of law. Many have c r i t i c i z e d the sharpness of her sword that has no b l u n t s i d e , and f a l l s 11 a l i k e on normal and abnormal, on those that are wicked and those t h a t are mentally i l l or immature. The wounds of her sword have no c u r a t i v e e f f e c t , but only a. d i s a b l i n g one. Many have suggested that instead of i n f l i c t i n g cuts on those mentally c h i l d - l i k e or not f u l l y developed, the sword should give way to a, p s y c h i a t r i s t ' s couch so th a t those who f a l l from the unbalance of the ansul may at l e a s t have a reasonable hope of c o r r i g i b i l i t y . Even her dress, the t r a d i t i o n a l cloak, has been considered out of f a s h i o n , perhaps s l a c k s and a t u r t l e - n e c k sweater would be more becoming i n the present day and age. What then i n the present age,should be the c r i t e r i a by which the c r i m i n a l law should enforce the sexual behaviour of the c i t i z e n s ? The E x p o s i t i o n of Arguments  The Assessment - Standard Theory (Refusal) The arguments that r e s t on the question of the v a l i d standard of assessment of the r i g h t and wrong of any p r a c t i c e may a l l be grouped under t h i s heading. B a s i c a l l y , t h i s theory would cover a l l the arguments to the e f f e c t that the e t h i c a l v a l i d i t y of any r u l e or p r a c t i c e must, n e c e s s a r i l y , be measured by some yard-s t i c k or standard, without which, i t i s not p o s s i b l e to say i f a. c e r t a i n p r a c t i c e i s r i g h t or wrong. This standard, i n r e l a t i o n t o sexual conduct, i s the basic requirement by which the behaviour i s to be judged, e i t h e r as i t i s , or, as i t ought to be. Since no one can e s t a b l i s h and j u s t i f y f u l l y and completely the v a l i d i t y of any p a r t i c u l a r standard, the behaviour cannot r e a l l y i n absence of u n i v e r s a l and e t e r n a l standard, be considered r i g h t or wrong, A c e r t a i n behaviour and p r a c t i c e may be considered r i g h t or wrong depending on what standard the p a r t i e s apply to themselves and si n c e there are so many d i f f e r e n t standards which can be s e l e c t e d , almost any behaviour would be r i g h t or wrong depending on the standard s e l e c t e d . Further, even i n respect of any w e l l - e s t a b l i s h e d or commonplace standard t h a t everyone t a l k s about, one encounters considerable divergence of opinion as to i t s meaning, and i n p a r t i -c u l a r the scope and extent of the exceptions to the r u l e that a p a r t i c u l a r standard i t s e l f p r o v ides, f o r almost every standard provides exceptions to the r u l e while d e a l i n g w i t h human conduct, which i t s e l f i s s u s c e p t i b l e to standards only on the c o n d i t i o n that the standards take i n t o account the m u l t i p l i c i t y of human cause and a c t i o n , p r i n c i p l e s which themselves enumerate v a r i a n t s to a f i x e d formula. Furthermore, even i f a c e r t a i n standard i s s e l e c t e d , the standard r u l e s i t s e l f out i n c e r t a i n contingencies where the very purpose of standard would be defeated by the r i g i d adherence to i t . For in s t a n c e , i f the standard selected i s the "greatest happi-ness of greatest number" and sexual behaviour i s governed i n accordance w i t h t h i s p r i n c i p l e , there w i l l be co n t i n g -encies where the very a p p l i c a t i o n of t h i s standard would r e q u i r e the a p p l i c a t i o n of the contrary p r i n c i p l e s , A r u l e i n favour of monogamy may be defended on the grounds 1 3 t h a t i t produces g r e a t e s t happiness of the greatest number since i t equalizes the p r i v i l e g e s of male and female components i n s o c i e t y , and such p r a c t i c e not only ensures that every male and every female stands an equal chance f r e e of the monopoly by another member of the same sex, economically or p h y s i c a l l y b e t t e r endowed, but a l s o works to a b e t t e r f a m i l y l i f e and hence towards proper r e a r i n g of i n f a n t s and c h i l d r e n . Yet i n a contigency where the m a j o r i t y of male members of a s o c i e t y no longer l i v e as a. consequence of wholesale war, the same standard, would support the d e s i r a b i l i t y of polygamy, i f not permanently, at l e a s t , t i l l the sex-components i n s o c i e t y once again r e g a i n a workable e q u a l i t y i n number. By way of, f u r t h e r i l l u s t r a t i o n s , i f the standard of j u s t i c e i s s e l e c t e d , and i t i s held t h a t marriages should be monogamous on the grounds that j u s t i c e r e q u i r e s that there be no double standards, a mutual and r e c i p r o c a l a d u l t e r y by a married couple should be p e r m i s s i b l e f o r whatever other wrong they may have done, they at l e a s t are not g u i l t y of i n j u s t i c e i n the sense that they do not p r a c t i c e double standards.^ Now the s o c i e t y founded on a. sexual code based on a standard of j u s t i c e r e q u i r i n g monogamous marriages r u l e s out i t s own standard of monogamous marriage i f mutual a d u l t e r y by married couples f l o u r i s h e s t h e r e i n , f o r by d e f i n i t i o n , i t i s not r e a l l y a monogamous marriage where the p a r t i e s c a r r y one poly-sexual r e l a t i o n s . Thus every standard may support d i f f e r e n t sexual p r a c t i c e s c o n s i s t e n t only In form but I n c o n s i s t e n t i n substance. In view of t h i s , the very assessment of the standard becomes d i f f i c u l t , since the v a l i d i t y of the standard can only be e s t a b l i s h e d w i t h reference to the p r a c t i c e f o l l o w i n g i t . The only standard that can be p r o p e r l y assessed i s the multiple-standards standard, f o r then by l o o k i n g at the ways of the s o c i e t y f o l l o w i n g m u l t i p l e -standards standard, one can assess the v a l i d i t y of i t by c o n s i d e r i n g i t s w o r k a b i l i t y i n a given s o c i e t y , and i t s a c c e p t a b i l i t y by reason of i t s harmony w i t h other branches of s o c i e t y , l i k e government, trade, i n d u s t r y and education. In short, since the standards cannot be assessed, i t cannot be s a i d that the p r a c t i c e s under i t are r i g h t or wrong, and hence d e s i r a b l e or under-s i r e a b l e , and t h e r e f o r e the d e s i r a b i l i t y of any p r a c t i c e and adoptation of any standard i s an open-ended question to which almost any standard or any p r a c t i s e would provide on answer. In other words there are no c r i t e r i a of sexual behaviour and none has a unique c l a i m to be adopted. One cannot e a s i l y b r i n g oneself to agree or disagree to t h i s l o g i c a l gobbledygook, since the whole theory i t s e l f does not seek agreement or disagreement, but j u s t a t o t a l j e t t i s o n i n g of whatever p r o v i s i o n s we hove on board the s h i p , on the ground that almost any kind of eatable substance can be harmful to h e a l t h and t h a t almost any kind of raw food can be cooked i n h a l f a dozen d i f f e r e n t ways, c o n s i s t e n t i n appearance but i n c o n s i s t e n t i n t a s t e . Sweet and sour s p a r e r i b s do not l o o k d i f f e r e n t i n appearance but are completely d i s s -i m i l a r In t a s t e , and therefore since no one can say what t a s t e would be harmful to whose h e a l t h , the whole r a t i o n of s p a r e r i b s should be thrown to the sharks. Obviously, n e i t h e r the ship nor the s o c i e t y would go very f a r , although the shark may. Secondly, t h i s theory i s i n a p p r o p r i a t e f o r the purpose of t h i s paper, because the question under c o n s i d e r a t i o n i s not the c r i t e r i a by which the sexual behaviour be c a r r i e d out but the c r i t e r i a by which the c r i m i n a l law should enforce the sexual behaviour. I t i s the scope of law f o r which a c r i t e r i o n has to be found and not f o r the scope of sex i n the l i f e of a person; The Norm Theory ( P r a c t i c e ) The Norm theory Is the theory that the norm i t s e l f Is a standard. In other words r a t h e r than have the norm conform to a standard, I t i s best regarded by I t s e l f a c r i t e r i o n so that the p r e v a i l i n g p r a c t i c e s i n the community are the c r i t e r i a of proper sexual behaviour. One can by a reasonable i n s i g h t a r r i v e at a d e s c r i p t i o n of any p r e v a i l i n g norm i n the community and i n the context of Western s o c i e t y the basic sexual norm i s c l e a r and f a m i l i a r enough. To remove any doubts i n respect thereof s " I t i s that sexual r e l a t i o n s h i p s s h a l l be e x c l u s i v e l y heterosexual, and that no sexual a c t i v i t y s h a l l tafcs place outside monogamous unions which are, i n t e n t i o n a l l y at l e a s t , l i f e l o n g . When death i n t e r r u p t s a marriage the s u r v i v i n g spouse i s permitted to remarry. The married p a i r may not be blood r e l a t i o n s ? 1 p a r e n t - c h i l d and s i b l i n g marriages being com-p l e t e l y r u l e d out, though there have from time to time and place to place been some v a r i a t i o n s of a t t i t u d e s to uncle-neice and f i r s t - c o u s i n marriages, and to marriages between r e l a t i o n s by a f f i n i t y ("in-laws" are r e l a t i o n s by a f f i n -i t y ) . There has a l s o been some v a r i a t i o n s i n the a t t i t u d e adopted to d i v o r c e , though t h i s has always been confined to a narrow range of cases i n which some "ofence", e.g. a d u l t e r y , d e s e r t i o n , has been committed by one or other of the p a r t n e r s . For a r e a l i s t i c p i c t u r e divorce and annulment of marriage have to be considered together. " 5 I t may be a.dded that h i s norm has been widely disregarded i n p r a c t i c e , sometimes challenged i n p r i n c i p i e , and not even followed as an i d e a l . However, v i o l a t l o n i n p r a c t i c e does not take away from the c h a r a c t e r of the norm, anymore than the spread of crime destroys the v a l i d i t y of law, nor the challenge to i t a f f e c t s i t s p o s i t i o n as a norm, f o r the very challenge i s to the norm i t s e l f , and grants that the norm does e x i s t , although wrongly. The f a c t that i t i s not followed i n p r a c t i c e again does not destroy i t s claim to being a norm, the very f a c t that we notice the d e v i a t i o n s i n the f o l l o w i n g of the norm i n d i c a t e s that the norm i s c l e a r i n our mind. The theory that the norm i t s e l f i s a standard when a p p l i e d to the Western s o c i e t y , would mean that the Western sexual norm i s to be regarded as u l t i m a t e . This according to P r o f e s s o r A t k i n s o n , ^ i s not an argu-ment i n favour of t h i s standard, but simply a r e f u s a l to argue the v a l i d i t y of an standard. For to say that the Western sexual norm i s to be regarded as u l t i m a t e would a l s o mean that i t should be considered not open to j u s t i f i c a t i o n , and r e q u i r i n g no j u s t i f i c a t i o n a t a l l . I f moral p r i n c i p l e s can "be s a i d to be r i g h t or wrong i n r e l a t i o n to the basic c r i t e r i a , then the o r i g i n a l moral p r i n c i p l e s which are themselves the c r i t e r i a cannot be said to be r i g h t or wrong. Somewhat s i m i -l a r l y i n mathematics, there have to be f i r s t p r i n c i p l e s on the b a s i s of which a co n c l u s i o n can be a r r i v e d a t , questions as to the very f i r s t p r i n c i p l e s do not end i n e s t a b l i s h i n g the f a l s i t y of mathematical deductions but only i n d i s p l a c i n g the o r i g i n a l premises, the o r i g i n a l standards. Since i t i s p r e c i s e l y i n r e l a t i o n to the Western sexual norm that a conduct may be considered as r i g h t or wrong, I t f o l l o w s that t h i s norm i s the c r i t e r i a which can be adopted by law In enforcement of sexual behaviour, and no question can be r a i s e d as to the v a l i d i t y of such law since i t only enforces a standard which i s not open to question. "The man who refuses to argus oonnot be shown to be arguing badly".? A person whose only j u s t i f i c a -t i o n of h i s conduct i s that i t i s the way he has been brought up to a c t , whose mind does not question the p r i n c i p l e s In accordance w i t h which he has been reared, who s u f f e r s no adverse complexes by t a k i n g a p o s i t i o n i n some cases opposed to j u s t i c e , common sense, e q u a l i t y , or humanity merely on the ground that he knows no other way, labours under a strange arrogance i n c o n s i d e r i n g t h a t the way he has been brought up meets with the best standards of j u s t i c e and s o c i a l w e l f a r e , or at l e a s t 18 t h a t j u s t i o e and s o c i a l "welfare are not to be regarded b e t t e r than the p r i n c i p l e s by which he has been brought up. To any such adherent of the above theory, no argument or j u s t i f i c a t i o n i s r e q u i r e d , and perhaps he would not even consider i t necessary to p a r t i c i p a t e i n the present d i s c u s s i o n , much l e s s c o n t r i b u t e to I t . F u r t h e r , t h i s theory i s not by i t s e l f s u f f i c i e n t to take care of a l l the problems. Granting that the Western sexual norm i s the u l t i m a t e , and r e q u i r e s no j u s t i f i c a t i o n , we are s t i l l l e f t w i t h a question i f the r u l e s and r e g u l a t i o n s e n f o r c i n g t h i s u l t i m a t e standard are i n accordance w i t h the s p i r i t of t h i s standard, and In order to judge t h i s r e s o r t w i l l have to be made to other standards, or sub-norms, of b e n e f i c i e n c e , u t i l i -t a r i a n i s m , j u s t i c e , prudence or reason. Now i f r e s o r t i s made to other standards, which f o r the present pur-poses may be considered as sub-standards, the whole w o r k a b i l i t y of t h i s theory would depend on these sub-standards, and to adopt the sub-standards to work the o r i g i n a l standard i s no b e t t e r than t a k i n g the sub-standards as standards themselves. In other words, i f we r e s o r t to reason or prudence i n enf o r c i n g t h i s stand-ard of Western sexual norm, why not take reason or prudence as the standard by I t s e l f , which would be a f a r l e s s complicated way to judge the conduct and be-haviour. Further, the adherents of t h i s theory sometimes f o r g e t that the o r i g i n a l standard, the Western sexual norm, d i d not a r r i v e out of the blue but was a product 1 9 i t s e l f of many f a c t o r s , and what may now be required as sub-standardsj f o r instance prudence or reason; were i n f a c t the y a r d s t i c k s i n r e l a t i o n to which the norm was e s t a b l i s h e d at some given age and time. The whole theory merely e s t a b l i s h e s a. standard i n nomencla-ture and throws the a p p l i c a t i o n of i t to other standards, and i n t h i s manner escapes the c r i t i c i s m a g a i n s t i t . A l l the brunt i s then borne by other standards, and the f a u l t , i f any, i s a t t r i b u t e d to sub-standards, while the s o c i e t y , s a t i s f i e d w i t h having an unimpeachable standard, never gets at the root of the underlying c o n t r a d i c t i o n s and i n c o n s i s t e n c i e s and c a r r i e s on an ex e r c i s e i n f u t i l i t y by d e a l i n g w i t h c o r r e c t i o n s of purported e v i l s a t the l e v e l of s u b - p r a c t i c e s . I t i s a common experience that many c r i t i c s of the present law of sexual offences h u r l a l l v i t u -p e r a t i o n s a t our men i n Ottawa, such c r i t i c s f a i l to see t h a t i t i s not our men In Ottawa who create the standards d i r e c t l y , i n many instances they only imple-ment or c o d i f y the p r e v a i l i n g consensus of o p i n i o n . An examination of many sexual offences w i l l r e v e a l a mere c o d i f i c a t i o n of the Western sexual norm but the adherents of t h i s theory a t t r i b u t e a l l i n c o n s i s t e n c i e s and c o n t r a d i c t i o n s to the draftsmen or l e g i s l a t o r s i n Ottawa and i n t h i s manner the v i t u p e r a t i o n s are d i r e c t e d at wrong channels. 20 The Prudence Theory (Expediency) M l the arguments of the prudence theory are w e l l known. P r e - m a r i t a l r e l a t i o n s are wrong f o r they would lead to a, g r e a t e r promiscuity i n s o c i e t y , and hence to a. number of unwanted pregnancies, l e a d i n g to unwanted c h i l d r e n and to f u t u r e c i t i z e n s not p r o p e r l y brought-up i n p a r e n t a l l o v e and a f f e c t i o n or guarded i n t h e i r growth w i t h i n the hearth of the home. Venereal diseases may a l s o f l o u r i s h and the f a m i l y l i f e may come to be broken up. Masturbation i s wrong since i t abuses the p r i v i l e g e that would help the establishment of the f a m i l y . Homosexual r e l a t i o n s are wrong because they perpetuate i n the s o c i e t y a c l i m a t e , where the s a t i s f a c t i o n of married l i f e comes to be relegated to the background, and the female species are deprived of t h e i r r o l e , which c o n t r i b u t e s a l o t towards the development and s t a b i l i t y of the s o c i e t y . Gross i n -decency or acts of non-genital s a t i s f a c t i o n are wrong, because they b r i n g to "a c o n s t i t u t i o n a l f i x " a r o l e which p r i m a r i l y develops to a d u l t g e n i t a l s e x u a l i t y and hence c o n t r i b u t e s towards a r r e s t e d development of r e g r e s s i o n , Almost any kind of sexual behaviour can be, by adoption of the standard of prudence be c r i t i -c i z e d as wrong, and t h i s d i f f i c u l t y i s obviated by the proponents of t h i s theory by e s t a b l i s h i n g a general premise that the only s a t i s f y i n g and the prudent r e l a -t i o n s h i p i s one of m a r i t a l f i d e l i t y , and t h e r e f o r e any behaviour not p u r p o r t i n g to be such i s not prudent. I f prudence i s taken i n t h i s meaning, then by i t s e l f i t i s a s s e r t e d j i t can be a proper standard by which the sexual behaviour can be governed. This theory i s open to many o b j e c t i o n s . F i r s t , the very premise i s questionable,, I t i s un-c e r t a i n that the only s a t i s f y i n g sex r e l a t i o n s i n l i f e axe those of m a r i t a l f i d e l i t y , on the contrary, i f i t was i n f a c t so, the other sexual p r a c t i c e s would not have began. Perhaps, one can say, t h a t , although, not the only s a t i s f y i n g , but the only prudent sex r e l a t i o n s , are those of t h i s nature, but again i s anything prudent i n the matters of sex which i s not r e a l l y s a t i s f y i n g ? Since the basic sex demands are u s u a l l y c o n t r o l l e d by f i n d i n g an appropriate o u t l e t i n conformity w i t h the s o c i a l norms and p r a c t i c e s , can i t be s a i d that some-t h i n g Is prudently an o u t l e t when.it i s i n a p p r o p r i a t e , since the very prudence means doing of a t h i n g w i t h c a r e f u l pre-planning? The very idea of c a r e f u l pre-planning i n v o l v e s some s e l e c t i o n of something appro-p r i a t e , but i f a l l c a r e f u l pre-planning i s derived from a basic n o t i o n that m a r i t a l f i d e l i t y i s prudent, i t turns out to be a v i c i o u s c i r c l e where prudence i s the m a r i t a l f i d e l i t y and conduct must be prudent, and prudent conduct i s a conduct l e a d i n g to m a r i t a l f i d e l i t y . Secondly, the s t r e n g t h of the theory comes from the f a c t that some of the consequences of d i s r e g a r d that i t p o i n t s to are g e n e r a l l y speaking, i n c o n t e s t a b l y accepted. The p r e - m a r i t a l r e l a t i o n s l e a d to venereal 22 d i s e a s e s , and i t i s accepted that the venereal diseases, are harmful, a f a c t w i t h which no one would disagree, anymore than one can disagree w i t h the f a c t t h a t un-wanted pregnancies are undesirable. However, the f a c t t h a t venereal diseases are harmful and unwanted pregna-ncies are undesirable i t s e l f a r i s e s from the notions of prudence and expediency and without i t these f a c t s cannot be supported. Since the premise i t s e l f supports the c o n c l u s i o n , any other data e i t h e r f o r or a g a i n s t i s r u l e d out. This i s not to say that the conclusions shown by the prudence theory are not e m p i r i c a l l y v e r i -f i a b l e , they are capable of ascertainment by s c i e n t i f i c data, but the r e s u l t s of s c i e n t i f i c data ( f o r i n s t a n c e , t h a t venereal diseases are harmful), are s a i d to be good or bad by going back to the theory i t s e l f ( f o r Instance, t h a t i t i s not prudent to be a f f l i c t e d by something harmful). T h i r d l y , the prudence theory can be f u r t h e r c r i t i c i z e d on account of i t s weakness that i n the realms i n which i t s arguments can be e m p i r i c a l l y v e r i -f i e d , the v a r i a n t s are too vast to support an i n c o n t e s t -able c o n c l u s i o n . Further, the s c i e n t i f i c i n v e n t ions and t e c h n o l o g i c a l advancement tend to c o n s t a n t l y r u l e out the consequences In view of which a c e r t a i n conduct i s p r e s c r i b e d . The increased e f f e c t i v e n e s s and use of b i r t h c o n t r o l methods can r u l e out a p o s s i b i l i t y of unwanted pregnancy and the whole r u l e that holds that such p r e - m a r i t a l r e l a t i o n i s wrong on account of the 2 3 consequences f a l l s to the ground against an argument tha t "by t a k i n g c e r t a i n p r e c a u t i o n s 9 the v i o l a t i o n of the r u l e would not "be imprudent. In other words, the s t r e n g t h of the prudence theory can be d i s s i p a t e d by the production of a safe c o n t r a c e p t i v e , or by any other means such as mass i n n o c u l a t i o n , and a theory that v a r i e s i n i t s p r a c t i c a l a p p l i c a t i o n depending on how s u c c e s s f u l are the manufacturers of s c i e n t i f i c pro-ducts i s not l i k e l y to be a c r i t e r i o n by which law should enforce the sexual behaviour of the c i t i z e n s , as i t should, a t l e a s t , have some permanency or consistency of a p p l i c a t i o n i n an age where s c i e n t i f i c advancement takes l e a p s , and w i t h i n a. short time renders many things o b s o l e t e . F o u r t h l y , t h i s theory has another s h o r t -coming. I n most cases the theory would provide the answers not to the question of whether a t h i n g i s to be done or not done, but to the question as to how much of a. t h i n g i s to be done or w i t h whom the t h i n g need be done or under what circumstances i t be done. I n the f i e l d of sex, the theory would not s t a t e whether sex should or should not be indulged i n t o , but whether i t may be indulged i n , p a r t i c u l a r l y , i n stated circum-stances. In c o n s i d e r i n g the circumstances, two con-s i d e r a t i o n s would apply. Whether an act i s r i g h t or wrong i n given circumstances would depend on whether the e v a l u a t i o n of the circumstances Is to be made i n terms of prudence i t s e l f , or i n terms of c o n s i d e r a t i o n s 24 other than prudence, l i k e f o r instance u t i l i t a r i a n and r a t i o n a l c o n s i d e r a t i o n s , emotional c o n s i d e r a t i o n s , r e l i g i o u s c o n s i d e r a t i o n s and the like© I f the evalu-a t i o n of the s i t u a t i o n i s to "be made i n terms of pru-dence i t s e l f , the theory i s d e f i c i e n t s i n c e i t would ignore a l l other c o n s i d e r a t i o n s i n a t o t a l b l i n d n e s s . A p r e - m a r i t a l r e l a t i o n would be wrong i n terms of pru-dence but may not be wrong i n terms of emotional or r a t i o n a l c o n s i d e r a t i o n s and to ignore a l l emotional or r a t i o n a l c o n s i d e r a t i o n s would be blindness and impru-dent. I f the e v a l u a t i o n i s to be done i n terms of other c o n s i d e r a t i o n s , then i t may p o s s i b l e to say that an act i s wrong i n terms of the standard of prudence, but r i g h t i n the p r a c t i c a l day to day l i v i n g , and depending on how low on the l a d d e r the t h i n g i s done, almost anything can s u f f e r under the double t r u t h i n the sense of being true i n prudence and f a l s e i n p r a c t i c e . F i n a l l y , the prudence theory would leave one important question unanswered, and that i s as to the o r i g i n of t h i s prudence. Whose prudence would provide the standard, the prudence of the i n d i v i d u a l or the prudence of the s o c i e t y ? I f the prudence of the s o c i e t y , i t would come to be an approximation to the expediency of the s o c i e t y , and to submit to what i s expedient to the s o c i e t y , but i s not expedient to the i n d i v i d u a l , i s to elevate the s o c i e t y to a pedestal of s o c i a l t o t a l i t a r i a n i s m , which may only be a r e v e r s a l to the times that we a l l have fought hard to change. I f the 2 5 prudence of the i n d i v i d u a l may provide the standard, then i t would he the r i g h t of each person to disregard the standard.,' so l o n g as he i s prepared to take the i l l - e f f e c t s of i t , although quite apart from t h i s r i g h t , iniimerable v a r i a n t s w i l l enter the p i c t u r e since what i s prudent f o r one; may be q u i t e the opposite f o r the other« "One man's meat i s another man's p o i s o n . w I n any case such standard i s simply a standard of s e l f -i n t e r e s t . Since a c e r t a i n conduct may lead to a c e r t a i n harm, the way to avoid a harm would be to avoid the conduct a l t o g e t h e r , or to r e s t r i c t i t to some narrow channels where the p o s s i b i l i t y of harm i s e i t h e r t o t a l l y e l i m i n a t e d or g r o s s l y reduced. I n the sphere of sexual conduct, the standard r a t h e r f a i l s , since i n t h i s sphere the s e l f - i n t e r e s t comes to be d i v i d e d i n t o s e l f - i n t e r e s t of prudence and the s e l f - i n t e r e s t of g r a t i f i c a t i o . n o Since the harm i n matters of sexual conduct u s u a l l y i s accompanied w i t h a c e r t a i n amount of s e l f - g r a t i f i c a t i o n , the standard of s e l f - i n t e r e s t only leads to a serious confusion as to where the i n t e r e s t s of an i n d i v i d u a l would l i e i n prudence, on answer to which i s provided by pre-supposing that m a r i t a l f i d e l i t y i s the highest prudence, which as we have seen, revolves a v i c i o u s c i r c l e . Furthermore, the human l i f e i s f u l l of challenges and new a c t i v i -t i e s and r i s k s of change, i t s dynamic nature should not be c u r t a i l e d by p r o v i d i n g s t a t i c spheres, h s o c i e t y i s founded and continued on the very p r i n c i p l e s opposite 26 to adherence only to a narrow s e l f - i n t e r e s t . To avoid a conduct completely on account of a p o s s i b l e harm i s to take the p o s i t i o n that one should not a t a l l r i s k anything i n l i f e 9 and obviously t h i s p o s i t i o n although t h e o r e t i c a l l y secure and safe may yet be i n disharmony w i t h the working forces of l i v i n g . The Beneficence Theory (Pleasure) The U t i l i t a r i a n arguments are very w e l l known and almost every student of jurisprudence knows them w e l l , "Nature has pla.ced mankind under the governance of two sovereign masters p a i n and pleasure. I t i s f o r them alone to p o i n t out what we ought to do, as w e l l as to determine what we s h a l l do. On the one hand the standard of r i g h t and wrong, on the other the chain of causes and e f f e c t s , are fastened to t h e i r Q throne" "The p r i n c i p l e of u t i l i t y recognises t h i s s u b j e c t i o n , and assumes f o r the foundation of that system, the object of which i s to r e a r the f a b r i c of f e l i c i t y by the hands of reason and law"9 "The word u t i l i t y does not c l e a r l y p o i n t to the ideas of pleasure and p a i n as the words happiness and f e l i c i t y do; nor does i t lead us to the c o n s i d e r a t i o n of the number of the i n t e r e s t s affected? to the number, as being the circumstance, which c o n t r i b u t e s , i n the l a r g e s t pro-p o r t i o n , to the formation of the standard here i n question? the standard of r i g h t and wrong, by which alone the p r o p r i e t y . b e t r i e d " ' 1 ' 0 27 "In Bentham's view, man i s pla.ced under the empire of pleasure and of p a i n . Under h i s p r i n c i p l e a l l human a c t i o n i s to be s c r u t i n i z e d against the c r i t e r i o n of i t s tendency to produce pleasure and p a i n and judged by the f i n a l balance i n the pleasure - p a i n l e d g e r , by the f e l i c i f i c c a l c u l u s . Pleasure and p a i n are not here to be understood i n the grossest p h y s i c a l sense, f o r they include emotional enrichments and deprivation.""'-" 1 -The important t h i n g to emphasize at t h i s stage i s that although there may be s e v e r a l c r i t i c i s m s a g a i n s t the u t i l i t a t i a n e t h i c s , we are i n t h i s t h e s i s concerned not as to how the human conduct i s or ought to be governed by the i n d i v i d u a l s themselves, but r a t h e r as to what should be the c r i t e r i a by which law would govern some aspects of i n d i v i d u a l conduct. Indeed, as Graham Hughes suggests."^ Bentham and h i s d i s c i p l e s were not so much concerned i n c r e a t i n g a moral p h i l o -sophy but i n e s t a b l i s h i n g a method of approach by the l e g i s l a t o r s . As a moral philosophy i t may be open to many o b j e c t i o n s , l i k e f o r inst a n c e , pleasure i s not the same t h i n g as good, good has to be an object d i s t i n c t 13 and apart from pleasure, J what i s pleasure to one may a l s o be p a i n to,another, that when we sometimes say an a c t i o n i s r i g h t , we do not thereby mean, that I t w i l l n e c e s s a r i l y produce pleasure, or when we say the a c t i o n i s wrong, we do not n e c e s s a r i l y mean, that i t w i l l not produce an over-balance of pleasure against 28 pain," 1-^ and many such l i k e c r i t i c i s m s . But when t h i s i s taken as a. g u i d e l i n e p r o v i d i n g a c e r t a i n standard that a. l e g i s l a t o r should f o l l o w , most of these c r i t i c i s m s , a t l e a s t , loose most of t h e i r force and st r e n g t h . For i n the s o c i a l context, many things w i t h which the law dea l s , are subject to f a c t u a l i n q u i r y and ascertainment, and c o n s i d e r i n g that the law deals w i t h and can only deal w i t h e x t e r n a l conduct, by way of an o b j e c t i v e t e s t , i t i s not a d i f f i c u l t task to examine what con-sequences are produced and whether those consequences are productive of human happiness or misery and p a i n . There may s t i l l be a d i f f e r e n c e of op i n i o n , as Graham Hughes suggests"^ which according to him i s of two. kinds, one where the d i f f e r e n c e of op i n i o n may e x i s t as to the very p o s s i b i l i t y of the harm as an admitted consequence, and second where the d i f f e r e n c e of op i n i o n a r i s e s as to the degree of harm or help as an admitted consequence. But ,whatever the d i f f e r e n c e , the con-sequence or the degree of e f f e c t s are subject to & reasonable ascertainment by f a c t u a l and e m p i r i c a l evidence, and to some extent the l e g i s l a t o r should a l s o have a margin of exoneration i f he proceeds on a reasoned a n t i c i p a t i o n of consequences while enacting a law, Speaking, t h e r e f o r e , on s t r i c t l y l e g a l i s t i c terms, the c r i t e r i a of pain or pleasure f o r the enact-ment of law i s one that would a t t r a c t the support of a good m a j o r i t y . 29 However, i t i s s t i l l open to many o b j e c t i o n s . F i r s t t h a t the u t a l l t a . r i a n standard of pleasure and p a i n i s e s s e n t i a l l y culture-bound,"*-^ i n t h a t , the ideas of what causes pleasure, and what causes hurt or p a i n , are very c l o s e l y a l i g n e d to the c u l t u r e and environ-ment i n which one i s brought up. The Western nerves may stand something other people may be unable to stand, a l t e r n a t i v e l y there i s much that many other c u l t u r e s may be able to stand that the o c c i d e n t a l s may be shocked a t . Now t h i s may not appear to be a, seriou s o b j e c t i o n c o n s i d e r i n g that the l e g i s l a t o r i n Canada deals only w i t h one c u l t u r e , but on r e f l e c t i o n the problem i s not as simple as i t appears, since there are many a sub-c u l t u r e and subterranean d i v e r s i t y of thought on conduct i n sexual matters and although the c u l t u r e may be s i m i l a r , the r e l i g i o u s thought and opinions are d i f f e r -ent. Our s o c i e t y i n Canada i s to a great extent morally p l u r a l i s t i c and on some important matters d e a l i n g w i t h the matters of sex and marriage, the d i f f e r e n c e of o p i n i o n may n e a r l y tantamount to d i f f e r e n c e between one c u l t u r e and another. The divorce question has taken so lo n g to s e t t l e , and the b i r t h c o n t r o l question may s t i l l take l o n g e r , mainly because of a great p u l l of forces In opposite c e n t r i f u g a l d i r e c t i o n s . Secondly, the ideas of pleasure and p a i n can be rendered obsolete by the new s c i e n t i f i c and medical d i s c o v e r i e s and the u t i l i t a r i a n c r i t e r i o n would s u f f e r the se r i o u s l i m i t a -t i o n s of not being able to provide a, g u i d e l i n e f o r enacting an Utopian code, or a complete system, but only provide a c r i t e r i o n f o r amendments and reform, or p a r t i a l improvement here and there. I n r e l a t i o n to the law of sexual offences, i t would provide a guide-l i n e f o r reform, but would not, on the b a s i s of pleasure and p a i n alone, cure the b a s i c underlying i n c o n s i s -t e n c i e s i n the system, which may r e q u i r e thorough and wholesale a l t e r a t i o n of the basic philosophy that u n d e r l i e s such offences. This o b j e c t i o n i s s t a t e d , however, without d i s r e g a r d i n g the advantages that such a c r i t e r i o n may have i n matters of reforms, s p e c i a l l y i n view of the f a c t that our s o c i e t y i s a complex s o c i a l p a t t e r n , where i n s t i t u t i o n s are so connected w i t h each other, that a wholesale a l t e r a t i o n of any s i n g l e branch of conduct cannot be q u i c k l y made without c a r r y i n g i t s e f f e c t i n a l l i t s r a m i f i c a t i o n s . P r e - m a r i t a l r e l a t i o n s are c l o s e l y connected w i t h the laws governing d i v o r c e , adoption, c h i l d - w e l f a r e , i l l e g i t i m a c y , maintenance, damages, j u v e n i l e delinquency e t c . T h i r d l y , - and t h i s i s the strength and weakness of the theory at the same time - u t i l i t a r i a n i s m w i l l somehow always provide a sub-standard to almost any c r i t e r i o n of s o c i a l l e g -i s l a t i o n and i t i s impossible not to take i n t o account the questions of pleasure and p a i n , happiness or un-happiness, regardless of any standard that law may adopt i n governing any conduct. Even the ardent sup-p o r t e r s of N a t u r a l Law Theory would not deny the imprt-ance of t h i s c o n s i d e r a t i o n , although they may f o l l o w a d i f f e r e n t soale of e v a l u a t i o n of the happiness or p l e a s u r e . This theory provides more, not a c r i t e r i o n , but a manner i n which any c r i t e r i o n may be a p p l i e d i n p r a c t i c e , and i f the u t i l i t a r i a n i s m i s to be considered as p r o v i d i n g g u i d e l i n e s f o r the a p p l i c a t i o n of any c r i t e r i o n i n p r a c t i c e , i t s use and importance i s beyond qu e s t i o n . F o u r t h l y , pleasure and p a i n r u l e - i f only t h i s r u l e i s to be a p p l i e d - i s inadequate f o r there i s a l o t more i n human l i f e and l i b e r t y than simple adherance to the supremacy of pleasure over p a i n . Some of our values are beyond the e f f e c t of t h i s r u l e , and may not be corrupted even by the most tempting and seductive enticements. The proponents of t h i s theory may argue that the sustenance or a f f i r m a t i o n of those values may i t s e l f be a source of pleasure and hence such s u s t e n t a t i o n of values i s motivated by the primacy of pleasure a n t i c i p a t e d , which, i t i s submitted, may be true i n respect of i n d i v i d u a l moral philosophy but not i n respect of the guidance to the l e g i s l a t o r . To i l l u s t r a t e , establishment of m e d i c a l l y inspected b r o t h e l houses w i t h g r a t u i t o u s entry to a l l s i n g l e men, In the country may generate enormous pleasure but would s e r i o u s l y destroy some of our v a l u e s , and to say that some happiness a n t i c i p a t e d due to sustentance of such values may i n the mind of the l e g i s l a t o r by by I t s e l f a good reason f o r not e s t a b l i s h i n g such brothelhouses i s to underrate the Importance of our regard f o r values f o r themselves. 32 However, despite these o b j e c t i o n s t h i s theory i s very Important i n a s s i s t i n g us i n our search f o r c r i t e r i a . For l i m i t e d reform of the law, and f o r p r a c t i c a l a p p l i c a t i o n of almost any other c r i t e r i o n , the standard of u t a l i t a r l a n i s m i s of Indispensable value and a i d , above a l l , I t i s of great value i n con-s i d e r a t i o n of the theory and p r a c t i c e of c o r r e c t i o n s and sentencing. According to Bentham, the law may leave unpunished a wrong i n three s i t u a t i o n s , where the punishment i s i n e f f i c a c i o u s as a d e t e r r e n t , where i t i s u n p r o f i t a b l e , and where i t i s needless. Punish-ment i s u n p r o f i t a b l e where the mischief produced by l e t t i n g a wrong go unpunished, and i t i s needless where the mischief i t prevents can be prevented or f o r e s t a l l e d without i t . 1 ' 7 The J u s t i c e Theory (Balance) The Ideal of J u s t i c e i s symbolized by the a.nsul of the Goddess, which stands equibalanced between the wrongdoer and the wronged. The i d e a l behind the law i s always claimed to be j u s t i c e and purported f a i l u r e to maintain t h i s i d e a l i n a c t u a l p r a c t i c e a f f o r d s a very s o l i d ground of the c r i t i c i s m of the law. Since i t i s u s u a l l y a most talked-about i d e a l , may i t have a claim to be considered, In i t s meaning of f a i r n e s s . and e q u a l i t y , as a c r i t e r i o n we are searching f o r ? There are great p r a c t i c a l d i f f i c u l t i e s i n using t h i s as a c r i t e r i o n , although perhaps as an i d e a l i t may be i n d e f e n s i b l e . F i r s t , the very a p p l i c a t i o n of j u s t i c e b i f u r c a t e s i n two ways, the a r i t h m e t i c a l j u s t i c e and p r o p o r t i o n a l justice.''-^ A r i t h m e t i c a l j u s t i c e would mean J u s t i c e based on the p r i n c i p l e that everyone i s e x a c t l y l i k e everyone else and that each i n d i v i d u a l should count as one u n i t r e g a r d l e s s of any d i f f e r e n c e s . The double standard would under t h i s standard f a l l to the ground, there would be no d i f f e r -ence between a male and a female, but by the same token there would a l s o have to be eliminated a d i f f e r e n c e between Ignorant and wise, old and young, mature and immature, capable or incapable. A person who i s not p h y s i c a l l y capable may yet have to be punished f o r a sexual offence and an Insane or drunk person may have to be treated l i k e any other person, and t r a f f i c o f f i -cers may have to be given t i c k e t s f o r speeding while d r i v i n g p o l i c e cars on duty. This would be i m p r a c t i c a l . The a l t e r n a t i v e i s the p r o p o r t i o n a l j u s t i c e , by which i s meant a p r i n c i p l e whereby everyone i s e x a c t l y l i k e everyone e l s e so long as there i s not some e s s e n t i a l d i f f e r e n c e between them which Is r e l e v a n t to the con-s i d e r a t i o n of j u s t i c e . A female cannot be punished f o r the offence of rope w i t h another female f o r the d i f f e r e n c e between her and a male person i s a r e l e v a n t d i f f e r e n c e to the a p p l i c a t i o n of r u l e of j u s t i c e . S i m i l a r l y , a person under 14 years of age i s incapable under our law of committing some sexual offences and of condoning some other sexual offences, but the d l f -e re nee between a c h i l d find a d u l t Is again a r e l e v a n t d i f f e r e n c e . I t Is p r o p o r t i o n a l j u s t i c e , i n the sense tha t i t i s p r o p o r t i o n a l l y f a i r or equal to them to be tr e a t e d i n t h i s manner, J u s t i c e i n the sense of a r i t h -m e t i c a l j u s t i c e i n i m p r a c t i c a l . Secondly, t h i s a r i t h -m e t i c a l j u s t i c e i s open to another o b j e c t i o n , being t h a t the i d e a l desired by j u s t i c e can be a t t a i n e d by r e s o r t i n g to s e v e r a l a l t e r n a t i v e choices of a c t i o n . A d u l t e r y can be made an offence on the ground that i t i s not f a i r f o r a married spouse to v i o l a t e the e x c l u -siveness of marriage, but the same f a i r n e s s Is achieved by making a d u l t e r y no offence, since to each spouse a s i m i l a r l i b e r t y i s then provided. According to Kant, polygamy i s undesirable because i t v i o l a t e s the essent-i a l e q u a l i t y of man and "woman, according to Atkinson the s i m i l a r o b j e c t i o n would be of no a v a i l i n a s o c i e t y where polygondry i s permitted as w e l l as polygamy.19 A c r i t e r i a that can be s a t i s f i e d by d i a g o n a l l y opposite enactments e q u a l l y w e l l i s not one that i s l i k e l y to provide a p o s i t i v e g u i d e l i n e . A l l that can be said i s that the c r i t e r i o n i s e q u a l l y met w i t h by f o l l o w i n g e i t h e r a p o s i t i v e or negative a c t i o n . T h i r d l y , some-what on the same l i n e s , the requirements of j u s t i c e can be met wit h e i t h e r by l e v e l l i n g up or by l e v e l l i n g down i n the sca l e of the lad d e r . F o u r t h l y , as to p r o p o r t i o n a l j u s t i c e , a f u r t h e r o b j e c t i o n l i e s i n the l o c k of agreement i n respect of the v a l i d i t y of r e l e v a n t d i f f e r e n c e , the opinion can be s e r i o u s l y d i v i d e d as to whether a d i f f e r e n c e e x i s t s , and a l s o to the degree of d i f f e r e n c e . I n the a p p l i c a t i o n of the p r i n c i p l e of j u s t i c e i n i t s p r o p o r t i o n a l meaning, an agreement w i l l have to be reached as to what grounds of d i s c r i m i n a t i o n are v a l i d . F i f t h l y , i n respect of the question as to whether a. ground of d i s c r i m i n a t i o n i s or i s not v a l i d , regard w i l l n e c e s s a r i l y be had to the p r i n c i p l e of j u s t i c e I t s e l f , which i s only begging the question. The Natural Law Theory (Reason) I t i s necessary, on account of the importance of t h i s theory, to r e - s t a t e some basic framework i n which t h i s theory i s supposed to work. Deplumed of a l l the elaborate f o l i a g e of f l o r l d i t y , the theory i t s e l f , as theory, i s very simple.2"*-Law a p p l i e s to a l l the forces of cosmic order and u n i v e r s a l forces that shape and govern the whole super-structure of r e a l i t y , temporal or other-wise, animate or inanimate, m a t e r i a l and s p i r i t u a l . The whole super-structure i s conceived i n reason and works under i t , although on account of the l i m i t e d human f a c u l t i e s we o f t e n get a d i s t o r t e d image of the basic harmony and reason underlying a l l the forces of cosmos. The basic reason behind every cosmic phenonme-non r u l e s out the p o s s i b i l i t y of an a r b i t r a r y w i l l , e i t h e r human or d i v i n e . Further, the reason i s only one and uniform, but i t s f a c e t s are many, depending on the l e v e l of cosmic r e a l i t y a t which t h i s e t e r n a l reason manifests i t s e l f , and b a s i c a l l y , there are four l e v e l s of operation of t h i s reason, g i v i n g I t f o u r d i f f e r e n t forms of man i f e s t a t i o n s , each of which can be c a l l e d law, operating at the given l e v e l . These four kinds of law, or four formal manifestations of reason at four l e v e l s , or i f we p r e f e r , a. f o u r f o l d c l a s s i f i c a t i o n of law or reason, takes the nomenclature of E t e r n a l Law, Natural Law, Divine Law, and Human Law. The E t e r n a l Law i s the reason of God Himself, according to which the whole c r e a t i o n has been ordained and choas changed i n t o Cosmos. This i s beyond human comprehension and i s i n f i n i t e . By i t s e l f i t i s not con t r a r y to any other kind of law, since behind the f o u r f o l d c l a s s i f i c a t i o n , the reason i s only one and uniform. Since the reason i s only one and uniform, the human beings on account of t h e i r l i m i t e d f a c u l t i e s , but on account of t h e i r being s o r t of share-holders i n the e t e r n a l wisdom, p a r t i c i p a t e i n i t only i n r a t h e r a l i m i t e d manner, and to the extent they take p a r t i n t h i s e t e r n a l wisdom and goodness, t h i s wisdom i s r e -f l e c t e d i n them, manifesting i t s e l f i n the i n c l i n a t i o n s t h a t human beings f e e l i n the orde r i n g of t h e i r l i v e s , and t h i s i s what i s c a l l e d the Natural Law. The i n -herent i n c l i n a t i o n s of men to l i v e i n s o c i e t i e s , to beget and b r i n g up c h i l d r e n , to have c e r t a i n governance and o r g a n i z a t i o n w i t h i n the f o l d s of s o c i e t y , e t c . , are a l l a r e f l e c t i o n of d i v i n e wisdom i n men and are the precepts of Natural Law. Natural Law t h e r f o r e i s analogous to n a t u r a l reason. While they govern t h e i r l i v e s w i t h t h i s n a t u r a l reason, they are l i v i n g f u l l 37 n a t u r a l r a t i o n a l l i v e s . The f i r s t p r i n c i p l e of t h i s law i s that good i s to be done and e v i l avoided, but on account of the l i m i t e d f a c i l i t i e s , although the human beings may know the Natural Law and understand the n a t u r a l reason i n i t s general p r i n c i p l e s , I n matters of d e t a i l s they are not so c e r t a i n , and i n r e l a t i o n to a p a r t i c u l a r code of conduct they may be puzzled as to whether the conduct Is r i g h t or wrong. God t h e r e f o r e revealed the Divine Law, (by which St, Thomas means merely the R e v e l a t i o n s , or the Divine S c r i p t u r e s ) by which on a i d by way of a c o r r e c t i v e supplement i s provided to a s s i s t the a p p l i c a t i o n of Natural Law to p a r t i c u l a r s i t u a t i o n s . "The Divine Law, however, i s not a t t a i n a b l e by the mind apart from f a i t h . That i s revealed by God i n a s e r i e s of s p e c i a l a c t s . The Divine Law never c o n t r a d i c t s or n u l l i f i e s the n a t u r a l law but 22 supplements and f u l f i l l s i t . " "In h i s quest f o r a good l i f e , then, the C h r i s t i a n uses h i s reason to d i s -cover what the Natural law r e q u i r e s , l o o k i n g always to the d i v i n e law as a c o r r e c t i v e , as a guide which d i r e c t s him to the proper i n t e r p r e t a t i o n " . ^ 3 Once the man knows what i s to be followed by the a i d of Natural Law and Divi n e Law, he i s aided i n f o l l o w i n g i t p a r t l y on account of h i s own e f f o r t s , p a r t l y on account of the grace s u p p l i e d by the Church by i t s sacraments. But since Natural Law i s produced by unaided reason, i t i s common to a l l men and C h r i s t i a n s as w e l l as pagans 3 8 have the understanding of i t , although may not have the enabling power of grace to f o l l o w i t to the extent i t i s required to be followed i n order to l i v e a. r a t -i o n a l l i f e . Human Law i s a l l the law encoded by s e c u l a r a u t h o r i t i e s , which St. Thomas d i v i d e s i n two c l a s s e s , i u s gentium and i u s c i v i l e . The Human law a p p l i e s to the human beings the p r i n c i p l e s of reason which p r e v a i l throughout the cosmos, only a c e r t a i n standard of conduct i s set by which a, man i n s o c i e t y i s governed i n r e l a t i o n to other beings, and since man i s d i s t i n g u i s h e d from animal by the reason he possesses, " i t i s simply an ordinance of reason f o r common good, made by him who has care of the community, and promulgated". 2^ Now v i r t u e i s pr e s c r i b e d by n a t u r a l law, but the v i r t u o u s a c t s , or p a r t i c u l a r acts of v i r t u e are not n e c e s s a r i l y so, since our n a t u r a l i n c l i n a t i o n s (to a c t according to reason, not emotional or e v i l i n c l i n a t i o n s ) do not f i r s t s l a n t i n that d i r e c t i o n , but on r e f l e c t i o n , by human reason, such a c t s are found to be conductive. "Consequently every human law has j u s t so much of the nature of law, as i s derived from the law of nature. But i f i n any p o i n t i t d e f l e c t s from the law of nature, i t i s no lo n g e r a. law but a p e r v e r s i o n of l a w . " 2 ^ A c c o r d i n g l y , f o r human law to be j u s t and v a l i d , indeed to be law at a l l w i t h i n t h i s d e f i n i t i o n , i t must c o i n c i d e w i t h and harmonize w i t h the n a t u r a l law and pre s o r i b e v i r t u e . Where p a r t i c u l a r a c t s of 39 v i r t u e are d o u b t f u l l y of a nature as to be.conceivably w i t h i n or without the sphere of d i c t a t e s of Natural law9 the a i d and as s i s t a n c e of the Divine Law (R e v e l a t i o i s to be obtained, and the law then promulgated i s proper law. In other words the c r i t e r i o n i s the reason, the d i c t a t e s of Natural Law, aided by Di v i n e Revelations by which the conduct of the populace i s to be governed, Although sometimes d i f f i c u l t to understand, the theory i s a s c h o l a r l y work of monumental super - s t r u c t u r e based on an e p i s t e m o l o g i c a l premise that the reason i t s e l f , q u i t e apart from any e m p i r i c a l l y v e r i f i a b l e sense-experience, i s a. c o n t r i b u t o r y f a c t o r to r e a l knowledge. The more s c h o l a r l y a. theory, the more i t i s s u b j e c t to c r i t i c i s m , and o b j e c t i o n s . The theory of Natu r a l Law has been considered, weighed, c r i t i c i s e d by so many d i f f e r e n t schools of thoughts that one can say very l i t t l e without the r i s k of r e p e t i t i o n . How-ever, a few objec t i o n s may s t i l l be b r i e f l y s t a t e d . F i r s t , the whole theory f o l l o w s a c e r t a i n system of reasoning that may be open to question. I t deals w i t h statements by way of d e f i n i t i o n s and a t h i n g i s sometimes so defined that a. contrary conduct i s morally non-permissible. Now the Human Law i s defined as something which must n e c e s s a r i l y c o i n c i d e w i t h N a t u r a l reason, i f i t does not, such human law i s p e r v e r s i o n . I f i t i s p e r v e r s i o n , i t immediately s t r i k e s us as morally non-permissible, we do not c l e a r l y see sometimes that i t i s a p e r v e r s i o n because the Human Law i s defined i n such a way as to be a. c o i n c i d e n t i a l c o r o l l a r y to n a t u r a l reason. We q u i c k l y t h i n k that such law i s not moral, or r i g h t , although i t i s not r i g h t because i t does not meet wit h i t s own l i m i t e d d e f i n i t i o n . I f a. d i f f e r e n t d e f i n i t i o n i s given to the Human Law, the same t h i n g may come to be qu i t e r i g h t . Unless we read i n the d e f i n i t i o n i t s e l f a per-cept of moral p r i n c i p l e , the c o n t r a r i e t y to d e f i n i t i o n i s not immoral. But the d e f i n i t i o n s of the Natural Law system are not to s t a t e a moral p r i n c i p l e , they purport to de f i n e a c t u a l i t y of the cosmos, and i t i s from t h i s nature of a c t u a l i t y i t s e l f that moral p r i n c i -p l e s are derived, but the d e f i n i t i o n s of a c t u a l i t y of cosmos i n Natural Law system pre-suppose the predominance of good over bad, a moral p r i n c i p l e , which should i n f a c t be deduced only a f t e r the d e f i n i t i o n . At one stage or another, the arguments of Natural Law system come to be question-begging. Secondly, the d e f i n i t i o n s of the system r e f e r to terms and notions, l i k e reason, i n t e l l i g e n c e , harmony, wisdom, e t c . , which themselves are only d e f i n a b l e by reference to analogy of e x p e r i -ences of sense-knowledge and are not a s c e r t a i n a b l e without i t , to leave the meaning and explanation of such terms to knowledge derived from sources other than sense-experience i s to leave the s i t u a t i o n e x a c t l y where i t was before i t was defined,, S t. Thomas i t i s t r u e , proceeds on the basis of c e r t a i n s e l f - e v i d e n t p r o p o s i t i o n s , but derives the support f o r the apparent t r u t h of the p r o p o s i t i o n from the Natural Law i t s e l f , and considers f i r s t p r i n c i p l e s of Natural law as s e l f -e vident. For i n s t a n c e , "good i s to be done and e v i l i s to be avoided", i s not so s e l f - e v i d e n t , unless i t i s agreed that Natural law gives t h i s precept and N a t u r a l Law i s r i g h t . The d e f i n i t i o n of the d e f i n i n g terms i f l e f t open or given i n terms that pre-suppose the existence of the same s e l f - e v i d e n t p r o p o s i t i o n which i s s e l f - e v i d e n t by v i r t u e of the d e f i n i t i o n alone. T h i r d l y , arguments i n favour of N a t u r a l Law system that are based on the f u n c t i o n of human organs and f a c u l t i e s are such that so f a r as they can be sup-ported f a c t u a l l y , they do not n e c e s s a r i l y lend themselves to moral judgments, and so f a r as they lend themselves to moral judgments, are not p u r e l y f a c t u a l . For I n -stance, "human sex organs are meant f o r p r o c r e a t i o n " does not lend i t s e l f to f a c t u a l support, f o r there are many other means f o r which these can be employed to the welfare and happiness of mankind without necessar-i l y or e x c l u s i v e l y f o r p r o c r e a t i o n purposes. Now i f out of t h i s we a r r i v e a t a. moral p r i n c i p l e that i s any use thereof not e s s e n t i a l l y f o r the p r o c r e a t i o n Is a misuse, we are a r r i v i n g at a. moral p r i n c i p l e by moving outside the world, of f a c t s 0 But assuming f o r the sake of argument that h i s p r o p o s i t i o n can be f u l l y w e l l f a c t u a l l y supported, i t does not by i t s e l f e s t a b l i s h t h a t the use thereof i n any other way i s , as a moral 4 2 p r i n c i p l e , wrong. I t may not be a n a t u r a l way to use them s but the m o r a l i t y of the matter comes i n the p i c t u r e only i f the statement i t s e l f i s supposed, to be a moral p r i n c i p l e . I t i s however asserted i n f a c t u a l terms, and purports to support a moral c o n c l u s i o n . F o u r t h l y , so f a r as the f u n c t i o n a l "statements have r e l i g i o u s support which is. attempted to be imported i n such statements by reference to the D i v i n e Law and i n t e r p r e t a t i o n s thereof - the question j u s t i f i c a t i o n comes to be r e l a t e d to the t h e o l o g i c a l and r e l i g i o u s systems, and since f a i t h i s s a i d to be e s s e n t i a l to understanding even the a i d of the Divine Law, a canon of i n t e r p r e t a t i o n i s provided to the Natural Law, and the same canon of i n t e r p r e t a t i o n r e q u i r i n g f a i t h i n the r e l i g i o u s system leads t o no other c o n c l u s i o n than t h a t the statement Is j u s t i f i e d , as a moral p r i n c i p l e , although the whole statement i s asserted to be f u n c t i o n a l . F i f t h l y , since Natural Law i s the g i f t given to a l l humans, i t f o l l o w s that C h r i s t i a n s and pagans have a l l the l i g h t of t h i s reason w i t h i n them, and Natural Law should thereof be f u l l y a c c e s s i b l e to a l l without the a i d of the D i v i n e Law given only to the C h r i s t i a n . " Why would Natural Law provide general p r i n c i p l e s , ' l e a v e the r e g u l a t i o n s to be made i n p r a c t i c a l matters by the a i d of the R e v e l a t i o n s , and then confine the Revelations only to C h r i s t i a n s ? There i s , however, nothing wrong i n h o l d i n g such,a. view provided one concedes that i n such a case the Natural Law i s not an i m p a r t i a l c r i t e r i o n f o r the b e n e f i t of a l l , bat by i t s very nature, i s a c r i t e r i o n only f o r the C h r i s t i a n s . But i f t h i s view i s h e l d , i t would s t r i k e at the very root of the theory of N a t u r a l Law, since the d e f i n i t i o n of i t depends on the working of reason to which the human natures, not C h r i s t i a n natures, are by f a c u l t y i n c l i n e d . S i x t h l y , the theory more or l e s s holds that a moral r u l e i s not a matter of d e c i s i o n , i t i s more a matter of f o l l o w i n g or matter of working out, since i t i s already there present i n the precepts of reasons, but does not deal adequately w i t h the question of enu n c i a t i o n , except by the e f f o r t s of a l e g i s l a t o r . How can i t be s a i d that a moral r u l e i n general form i s present i n reason but s p e c i f i c moral d o c t r i n e s have to be worked out, since the very workingout of a moral r u l e would n e c e s s a r i l y r e q u i r e some consensus of o p i n i o n , which i s as d i f i -c u l t to secure on the s p e c i f i c issues themselves as i t i s to secure on the same issues by reference to the moral r u l e already said to be present i n reason? Even today, s i f t e r the l a t e s t Papal B i l l on b i r t h - c o n t r o l , there i s a disagreement among the members of the Roman C a t h o l i c Clergy as to the morality of the d e c i s i o n . L a s t l y , i f we a l l agree that the Natural Law req u i r e s i n t e r p r e t a t i o n s by the help of the Re v e l a t i o n s , say the Holy B i b l e , i t would mean that on s p e c i f i c Issues the Holy S c r i p t u r e s would govern, and qu i t e apart from the question of d i f f e r e n t i n t e r p r e t a t i o n s that can be placed on the word of The B i b l e , the adoption of t h i s c r i t e r i o n would be no d i f f e r e n t than p e n a l i z i n g everything that Christia-.nlty may consider to be a s i n , and as such would be open to a l l the ob j e c t i o n s that apply to the R e l i g i o u s Theory discussed below. The Status Theory (Double Standard) The Status theory has remained very e f f e c t i v e i n the ages gone by, and i s s t i l l p r a c t i c e d w i t h some considerable e f f e c t i n the present age, openly i n co u n t r i e s l i k e South A f r i c a and many c o u n t r i e s i n the Or i e n t , and s u r r e p t i t i o u s l y i n almost any country of the world, i n c l u d i n g our own. The statement of the theory i s not simple or short, since i t gains i t s sanc-t i o n out of the innermost f e e l i n g s i n us p e r t a i n i n g to our s t a t i o n i n l i f e , our b i r t h , l i n e a g e , p o s i t i o n and l o c a t i o n , things about ourselves that we l i k e and f e e l proud of. The convenience afforded by the com-p r e h e n s i b i l i t y of t h i s theory i s one reason f o r i t s triumph. Almost any d i a g o n a l l y opposite ideas, c u l t u r e s and theses can s e t t l e under i t s s h e l t e r , since the very premise of the theory i s that the d i f f e r e n c e s are important and to be perpetuated. However, the rudiments of i t can be b r i e f l y mentioned i n the f o l -l owing paragraph, l e a v i n g i t to the reader to add the p i c t u r e by some honest questioning w i t h i n himself. The theory holds that there are d i f f e r e n c e s among t h i n g s , and throughout the whole of c r e a t i o n around us there appear very s t r i k i n g s i m i l a r i t i e s and d i s s i m i l a r i t i e s i n l i f e . There are v a r i a t i o n s of 4 5 c o l o u r s , complexions and physiognomical features of people, there are d i v e r s i t i e s i n tongues, languages, manners of expressions, a great immensity of c o n t r a r i e t y r e q u i r i n g but the p r o p r i e t y of d i s t i n c t i o n and d i s c e r n -ment. The c o n t r a d i s t i n c t i o n of kinds and v a r i e t i e s i s not j u s t s u p e r f i c i a l , but a r e f l e c t i o n of innate and i n b o r n uniqueness and o r i g i n a l i t y w i t h which the Creator Himself has chosen to transcent the monotony and uniform-i t y of t y p i c a l i t y . The n i c e t y and s u b t e l y of a shade of d i f f e r e n c e permeates by reason of a nuance, a chasm of s e p a r a t i o n , which God Himself ordained to stand between His s u b j e c t s , a t the same time bestowing upon them the power to ov e r r i d e the heterogenuity and mani-f o l d multiform by reason of common communication. The fine-drawn d i f f e r e n c e s of existence are meant to stay, are meant to be respected, and indeed the l a c k of discernment i s only the f a l l i n g weakness of those who b l i n d f o l d e d pass through t h i s world, n e i t h e r viewing the v a r i e t y nor p e r c e i v i n g the penalty of t r e a t i n g as uniform what i s designed to be v a r i f o r m . To be b l i n d to m u l t i f a r i o u s and variegated assortment i n l i f e Is to miss the very fundamentals of c r e a t i o n , and to maintain i n p e r p e t u i t y the d i f f e r e n c e s between unmatched omnifarious phenonmenon, wi t h a l l the human reason and s t r e n g t h , i s to serve at the gracious a l t a r of r i g h t l i v i n g . A c c o r d i n g l y , we must not only respect the d i f f e r e n c e s i n l i f e but a l s o see that our p o s t e r i t y continues them. A c e r t a i n status has been given to us at b i r t h and the son owes i t to h i s f a t h e r to con-t i n u e i n d e f i n i t e l y the e x i s t i n g s t a t u s of h i s a t b i r t h i n l i f e . Leaving f o r the time being a l l the var i o u s r a m i f i c a t i o n s to which t h i s theory extends, the ap-a r t h e i d , the d i s c r i m i n a t o r y l e g i s l a t i o n , e t c . , the a p p l i c a t i o n of t h i s theory i n matters of sexual conduct would mean that the status of man and woman are d i f f e r -ent s i n c e b i r t h , and the maintenance of t h i s status would i n v o l v e propagation of a double standard, s i n c e the p h y s i c a l and emotional d i f f e r e n c e s between them would r e q u i r e the r e g u l a t i o n of t h e i r conduct by d i s -s i m i l a r r u l e s . I f t h i s c r i t e r i o n i s adopted f o r the determination of law governing sexual conduct, the task would be f a i r l y easy since the law would then concern i t s e l f w i t h c r e a t i n g a climate or atmosphere where the e s s e n t i a l nature of manhood and womanhood may come to be f u l l y and p e r f e c t l y developed i n surroundings o f f e r i n g no d e v i a t i o n s or impediments to the f u l l r e a l i z a t i o n of the r e s p e c t i v e f a c u l t i e s . Somewhat by way of e l a b o r a t i o n , the man would have law more or l e s s guaranteeing the f u l l e s t development of h i s r o l e and f u n c t i o n , as a l o v e r , c o u r t i e r , husband, and f a t h e r , and the woman would f i n d the law a s s u r i n g her of the f u l l e s t p r o t e c t i o n f o r her own r o l e and f u n c t i o n , as 47 a w i f e , mother s object of l o v e , and a centre of home l i f e and th r e s h o l d . The d i f f i c u l t y w i t h t h i s theory i s that taken to i t s l o g i c a l c o n c l u s i o n s , i t would lead to i m p r a c t i c a l t i e s and blockades and may be r i d i c u l o u s i n the l i g h t of modern t h i n k i n g , and taken on i t s face v a l u e , i t s conclusions are not c l e a r and d e f i n i t e , and we would very soon end up i n an empty s i t u a t i o n where the general agreements as to basic e s s e n t i a l s would not be p o s s i b l e . F i r s t , l o g i c a l l y speaking, i f the stat u s at b i r t h i s the only c r i t e r i o n , the changing waves of transformation w i l l simply have to be ignored, so that the improved changes of times i n one generation w i l l have to be reserved only f o r f u t u r e generations, l e a v i n g no b e n e f i t to the s u r v i v i n g era. This may by I t s e l f be s u f f i c i e n t to nip i n the bud many worthy p u r s u i t s i f the b e n e f i t s are going to be delayed t i l l the new generations i s born, which by I t s e l f owes i t to i t s precursors to maintain the status of t h e i r times. Secondly, who can say with any de f i n a t e c e r t a i n t y what r o l e and f u n c t i o n belongs to a man and a woman, since i n most walks of l i f e the areas of d i f f e r e n t i a t i o n s are b l u r r e d w i t h the growing emancipation of women. T h i r d l y , law w i l l have to d i s c r i m i n a t e between d i f f e r e n t c u l t u r e s or sub-cultures and w i l l have to provide f o r o b s t a c l e s , a r t i f i c i a l l e g a l f i c t i o n s , to any tendencies that over-r i d e the e x i s t i n g d i f f e r e n c e s , whether of thought, language, expression, race or r e l i g i o n . This i t s e l f i s 48 open to v a r i o u s o b j e c t i o n s , one that the law i s already f a r too burdened i n c o n s t r u c t i o n of i m p r a c t i c a l and u n s u b s t a n t i a l l e g a l f i c t i o n s of no v a l i d i t y outside law, and the other that mankind has fought hard to provide a meeting ground transcending the s l i g h t d i f -ferences s u p e r f i c i a l l y h i d i n g basic uniformity,, F o u r t h l y , t h i s theory i s one-sided and biased i n emphasizing the d i s s i m i l a r i t i e s i g n o r i n g the basic s i m i l a r i t y i n i t s nature and i n most instances the s i m i l a r i t i e s f a r out-weigh the d i s s i m i l a r i t i e s , /» man and a woman are more s i m i l a r i n being human beings, i n wanting the i d e n t i c a l comforts and enjoyments i n l i f e , and i n companionship of l i f e , and the d i s s i m i l a r i t i e s of sex and reproduction f a c u l t i e s are more i n the nature of complementary and supplementary d i f f e r e n c e s r a t h e r than fundamental v a r i a t i o n s of human persons. F i n a l l y , the a p p l i c a t i o n of theory would r e q u i r e determination of v a r i o u s other matters i n v o l v i n g complex s c i e n t i f i c or e m p i r i c a l i n v e s t i g a t i o n not even worth the cause, and besides, the idea that God Himself ordained that "East i s East and West i s West, and never the twins s h a l l meet t i l l e a r t h and sky stand together before God great Judgment seat," has no s c i e n t i f i c or r e l i g i o u s support of any worth, and i s even negatived by the same poet i n the two l i n e s immediately f o l l o w i n g the above couplet "But there i s n e i t h e r East, nor West, border, breed or b i r t h , when two strong men stand face to face though they come from the ends of the e a r t h . " 4 9 The R e l i g i o u s Theory (Sin) This standard i s very w e l l known. A t h i n g i s wrong "because God's Commandments p r o h i b i t i t , because i t i s cont r a r y to the Holy S c r i p t u r e s , because i t i s a s i n . The law of the State Is under duty to p r o t e c t the s o c i e t y , and to p r o t e c t the s o c i e t y i t must p r o t e c t i t s i n s t i t u t i o n s and i d e a l s , and since the Western s o c i e t y i s e s s e n t i a l l y a C h r i s t i a n s o c i e t y , i t i s not p e r m i s s i b l e f o r the State to promote or even connive at conduct opposed to a s p i r i t of the "Onward C h r i s t i a n S o l d i e r s , marching as to war". The e l a b o r a t i o n of theory i n a l l i t s r a m i f i c a t i o n s should be a simple matter f o r the reader, and we may immediately go i n t o the examination of p o s s i b l e o b j e c t i o n s to " s i n " as a govern-i n g c r i t e r i o n of the law of the country, r e s p e c t i n g at the same time the f e e l i n g s of those of us who hold respect f o r r e l i g i o n and i n the sanctimony of i t s sacraments. The objec t i o n s are to adoption of the standard by the law and not against adoption of r e l i g i o n i n human l i f e or i t s i n f l u e n c e on development and pro-gress of our s o c i e t y . I t i s argued that unless s i n i s the c r i t e r i o n f o r the enforcement of law, the State w i l l have no r i g h t to enforce the p r i v a t e m o r a l i t y , i t i s a con-t r a d i c t i o n i n terms to say that State can enforce the p r i v a t e m o r a l i t y but should not enforce the whole Divine Law from which i t derives i t s s a n c t i o n to brand a t h i n g as moral or immoral. This p o i n t i s r a t h e r c l e a r l y 50 brought out by Lord D e v l i n i n the f o l l o w i n g wordsi "Morals and r e l i g i o n are i n e x t r i c a b l y joined -the moral standards g e n e r a l l y accepted i n Western c i v i l i z a t i o n being those belonging to C h r i s t i a n i t y . Outside Christendom other stand-ards derive from other r e l i g i o n s . None of these moral codes can c l a i m any v a l i d i t y except by v i r t u e of the r e l i g i o n on which i t i s based. Old Testament morals d i f f e r i n some respects from New Testament morals. Even w i t h i n C h r i s t i a n -i t y there are d i f f e r e n c e s . Some hold that c o n t r a c e p t i o n i s an immoral p r a c t i c e and that a man who has c a r n a l knowledge of another woman while h i s wife i s a l i v e i s i n a l l circumstances a f o r n i c a t o r ? o t h e r s 9 i n c l u d i n g most of the English-speaking world, deny both these pro-p o s i t i o n s . Between the great r e l i g i o n s of the world, of which C h r i s t i a n i t y i s only one, there are much wider d i f f e r e n c e s . I t may or may not be r i g h t f o r the State to adopt one of these r e l i g i o n s as the t r u t h , to found i t -s e l f upon i t s d o c t r i n e s and to deny to any of i t s c i t i z e n s the l i b e r t y to p r a c t i s e any other. I f i t does, i t i s l o g i c a l that i t should use the s e c u l a r law whereever i t t h i n k s I t necessary to enforce the d i v i n e . I f i t does not, i t i s 1 i l l o g i c a l that i t should concern i t s e l f . w i t h morals as such. But i f i t leaves matters of r e l i g i o n to p r i v a t e judgment, i t should l o g i c a l l y l eave matters of morals a l s o , A s t a t e which refuses to enforce C h r i s t i a n b e l i e f s has l o s t the r i g h t to enforce C h r i s t i a n m o r a l s " 2 " And the same p o i n t i s r e f e r r e d to by the Wolfenden Committeei "....Unless a d e l i b e r a t e attempt i s to be made by s o c i e t y , a c t i n g through the agency of the law, to equate the spere of crime w i t h that of s i n , there must remain a realm of p r i v a t e mora-l i t y and immorality which i s i n b r i e f and crude terms, not the law's business. To say t h i s i s not to condone or encourage p r i v a t e i m m o r a l i t y . " 2 ? A number of o b j e c t i o n s to t h i s theory may be b r i e f l y mentioned. F i r s t , the Western s o c i e t i e s are e s s e n t i a l l y p l u r a l i s t i c i n t h e i r moral r u l e s and regu-l a t i o n s and w i t h i n one s o c i e t y s e v e r a l d i f f e r e n t r e l i g i o n s f l o u r i s h and are f a i t h f u l l y followed by a number of d i s c i p l e s . Sometimes what i s permitted In one r e l i g i o n may be prohibited In another, Polygamy i s permissible under Muslim and Jewish Law but pro-hi b i t e d i n the Ch r i s t i a n r e l i g i o n . I t i s not a. v a l i d argument to say that Canada, these are not majority religions f o r as thi s country allows f u l l freedom of r e l i g i o n I t i s concievable that any number of c i t i z e n s may choose to follow any r e l i g i o n and convert to lt» To promulgate the rules of one r e l i g i o n i s also at the same time to deny the adherants of that r e l i g i o n the p r i v i l e g e of having the law coinciding with t h e i r r e l i g i o n i n case they choose to follow a d i f f e r e n t r e l i g i o n . I t i s not asserted that polygamy should be allowed In this country, i t i s only suggested that the enforcement of the rules on one r e l i g i o n would e s s e n t i a l l y deprive the c i t i z e n s of t h e i r r i g h t to freedom of r e l i g i o n since the State would v i r t u a l l y be patronizing one r e l i g i o n as o f f i c i a l and relegating the others to a secondary choice. Choice should pro-perly belong to the c i t i z e n s and not to the l e g i s l a t o r s , s p e c i a l l y when there already prevails i n th i s country a number of re l i g i o n s and a number of sects of the same r e l i g i o n . Secondly, this same argument w i l l apply with equal force to the d i f f e r e n t factions of the same r e l i g i o u s persuasion who d i f f e r i n t h e i r interpretations of the fundamental precepts of t h e i r r e l i g i o n . In case of a. divergence of views, which may properly be said to prevail? Thirdly, r e l i g i o n "by i t s e l f i s a matter of choice and i t i s doubtful i f there i s any merit i n the practice of a v i r t u e on account of the mighty arm of low rather than out of voluntary choice of freedom,, Fourthly, r e l i g i o n by i t s e l f i s not sup-posed to provide a c r i t e r i o n to the l e g i s l a t o r , i t i s supposed to provide grace and guidance to l o s t souls whose s p i r i t u a l malady or weakness leads them to a search f o r truth and occupations of the s p i r i t rather than of the f l e s h . F i f t h l y , i n a democratic country l i k e ours, i t would be hard to compose a l e g i s l a t u r e which would conform and adhere only to one r e l i g i o n nor indeed a. w i l l i n g populace of the modern age who could simply acquiesce with obsequious obedience to the enforcements of r e l i g i o n , when the very enforcement of morality apart from r e l i g i o n i t s e l f i s a. subjeot under heavy f i r e . A l l said and done, i t may be added that i n the present age there i s not much l e f t to the defenoe of n s i n ' : as a c r i t e r i o n when thi s standard over the ages gone by has given way to many many other c r i t e r i o n s and has been abandoned i n favour of the supremacy of the p r i n c i p l e of freedom of r e l i g i o n writ large i n our written and unwritten canons of Constitution. Conclusion The above discussion and the comparison of the various theories would show that the difference between them i s not so muoh a matter of substantial disagreement i n r e l a t i o n to the conduct but a disagree-ment as to the standard to be adopted by the law, being higher or lower, comprehensive or e x c l u s i v e , or i n simple language, maximum or minimum, or somewhere in-between. No s i n g l e theory would condone rape as an Innocent conduct, the d i f f e r e n c e s would only l i e as to the standard In r e l a t i o n to which a. conduct may be described as rape or punishment- Imposed therefor.. The d i f f e r e n c e s i n the t h e o r i e s as to va r i o u s stand-ards suggested only show a s l a n t or p a r t i a l i t y towards the s e l e c t i o n of the basic premise, s p e c i a l l y the e t h i c a l premise, the premise as to the nature of e t h i -c a l Judgment. The th e o r i e s more or l e s s t r y to answer t h i s q uestion and depending upon the answer which convinces them, they suggest a standard which according to them supports t h e i r view of the manner i n which the e t h i c a l judgment may v a l i d l y be reached. The nature of e t h i c a l judgment e s s e n t i a l l y means the manner i n which an e t h i c a l language gets i t s meaning. This i s however, a contentious problem of philosophy c l o s e l y connected to the question as to our theory of know-ledge and the manner i n which we acquire i t . No one r e a l l y knows the f i n a l t r u t h as to how we g a i n know-ledge, i f anyone knows i t , we can again question the manner or process by which he i s s a i d to have known i t . Even the well-known statement of Socrates, "I know that I do not know" con be questioned on the b a s i s that h i s premise f o r the a c q u i s i t i o n of knowledge may i t s e l f be i n c o r r e c t and h i s knowledge may only be a. p a r t i a l or incomplete knowledge We are embarking now i n the f i e l d of nocer-t a l n t y , a. stage where i t may be conceded th a t one cannot be a b s o l u t e l y c e r t a i n as to what c r i t e r i o n i s I n f a c t a r i g h t or wrong one, the t h e o r i e s are many and d i v e r g e n t s the opinions, v a s t and variables, but the c e r t a i n t y i s l a c k i n g on account of our basic ignorance of what may p r o p e r l y be considered a proper e t h i c a l premise. I n the modern j u r i s p r u d e n t i a l thought there i s considerable emphasis towards f u r t h e r s t u d i e s i n the nature of language I t s e l f and i t has been suggested th a t " T r a d i t i o n a l l e g a l t h e o r i e s ought to be abandoned and repla.ced by a more' ecumenical approach i n which a m u l t i - l e v e l a n a l y s i s of l e g a l language would play a. prominent p a r t " 2 ^ This i s not, of course, a kind of study that can be h a s t i l y and r e a d i l y made since i t may take considerable time before the p h i l o s o p h i c a l d i f f e r e n c e s , other than those of emphasis, may be l e f t to the philosophers and law encoded on the b a s i s of proper understanding of the nature of language. Mean-w h i l e , however, we have to l i v e i n the s o c i e t y and govern ourselves and the sexual conduct of the c i t i z e n s i n accordance w i t h some acceptable c r i t e r i o n i n the context of our own t r a d i t i o n s and s o c i a l s t r u c t u r e and needs. Rec ommenda.t 1 ons We have seen that many viewpoints i n respect of sexual behaviour are held by v a r i o u s s e c t i o n s of the p u b l i o and d i f f e r e n t t h e o r i e s advanced to support them* I n a country l i k e ours where a l l v a r i o u s p o i n t s of view f i n d a s h e l t e r i n a form of democratic r i g h t s of freedom and s o c i e t y i s morally p l u r a l i s t i c by a l l standards, f o r c i n g upon us a r e a l i z a t i o n of the f a c t t h a t no s i n g l e p o i n t of view may u l t i m a t e l y and abso-l u t e l y be c o r r e c t , "....the unhappy f a c t seems to be t h a t no one r e a l l y knows which leaves the f i e l d wide open f o r contending t h e o r i e s i n the absence of con-quering evidence. Sp e c u l a t i o n seems u n f r u i t f u l ... So l o n g as i t i s recognized that a l l t h e o r i e s are merely t h e o r i e s , anyone i s free to t h i n k what he l i k e s , but a f i r m caveat must be entered a g a i n s t any dogmatic a s s e r t i o n of one p o i n t of vlew".-^ To achieve t h i s the law must enact a. balance between contending opinions i n the community. In s o c i e t i e s that are s i n g u l a r i n t h e i r moral c o n v i c t i o n s and have no p l u r a l i t y of dogma perhaps the law's func-t i o n i s best discharged by r e s o r t i n g to the c o d i f i c a t i o n of e x i s t i n g general consensus of o p i n i o n as to moral conduct. In our s o c i e t y i t i s e s s e n t i a l that law, not being able to do i t without thereby l e n d i n g ascendancy to one or the other p o i n t of view must n e c e s s a r i l y s t r i k e some medium and e s t a b l i s h the only t h i n g pre-s e n t l y required to be e s t a b l i s h e d , which i s a balance. 5 6 Not only would law be j u s t i f i e d i n doing so, but the very existence of law enacting and encoding a balance would be s u f f i c i e n t . j u s t i f i c a t i o n f o r sexual  o f f e n c e s , No s o c i e t y i s prepared to allow sex to take an u n i n h i b i t e d course of conduct without some n e c e s s i t y of governing i t , and the law would only perform i t s own f u n c t i o n i f such balance to be encoded comes through enactment of sexual offences. But such balance should be acceptable to us i n conscience as c a t e g o r i c a l Imperative. I t has to be e t h i c a l l y v a l i d . Since the C r i m i n a l Law of sexual offences i s an encroachment on the i n d i v i d u a l ' s p r i v a c y and autonomy, and may sometimes i n v o l v e crime without v i c t i m s , the sphere of law encroaching on such i n d i v i -dual's p r i v a c y and freedom i s to be c l o s e l y guarded a g a i n s t , ma.de to recede beyond i t s own l i n e of d e m i l i -t a r i z a t i o n , and made to conform to the e t h i c a l l i n e t h a t we may draw to determine the sphere and scope of i t s e t h i c a l l y v a l i d I n t e r f e r e n c e . Since the c r i t e r i o n of such balance should a l s o conform to the p r i n c i p l e s that we consider e s s e n t i a l f o r judging the v a l i d i t y of any e t h i c a l judgment, i t i s recommended that the p r i n c -i p l e s t h a t are recognized as minimum standards f o r judging the v a l i d i t y of any e t h i c a l judgment should a l s o be the t e s t f o r determining what the minimum standards law may p r o p e r l y enforce i n matters of sexual conduct. In other words, the c r i t e r i a by which the 57 c r i m i n a l law should govern the sexual conduct of.the c i t i z e n s are the minimum standards of balance, deter- mined In reference to fundamental e t h i c a l assumptions  of our s o c i e t y . The fundamental e t h i c a l assumptions of our s o c i e t y or the p r i n c i p l e s by which the v a l i d i t y of any e t h i c a l judgement may be judged s are only f i v e i n number and each has i t s j u r a l counterpart. 3 1 P r o f e s s o r J.C. Smith describes them as U n i v e r s a l i t y , Primacy of F a c t s , Moral Autonomy, Consistency, and S o c i a l R e l a t i o n -s h i p . He has himself s u p p l i e d t h e i r j u r a l counter-p a r t s as s P r i n c i p l e U n i v e r s a l i t y Primacy of Fa.cts Moral autonomy Consistency S o c i a l R e l a t i o n s h i p J u r a l Counterparts 1 , E q u a l i t y before the Law 2. Rule of Law 1 . Ordering human beings to one another and to nature i n the l i g h t of true s c i e n t i f i c knowledge 1 . Consent 2. Fundamental Freedoms 1 , Accord w i t h Legal P r i n c i p l e s 1 , L i b e r t y 2, S o c i a l J u s t i c e We would at t h i s p o i n t take a departure and suggest that our c r i t e r i o n by which the Law should enforce the sexual conduct of the c i t i z e n s being that of the minimum standards of balance, the fundamental assumptions are only a c o r o l l a r y or an a i d to deter-minatlon of t h i s minimum standards of balance. Let i t be stated as c l e a r l y as p o s s i b l e that no I n t e n t i o n i s harboured to propound the fundamental e t h i c a l ass-umptions Into the Law of Canada, since to some extent these e t h i c a l assumptions do u n d e r l i e many p r i n c i p l e s of our law and to the extent they do not, or to the extent the Law d e f l e c t s from them, i t should be the task of those b e t t e r equipped to handle a campaign f o r reform. Our purpose i n r e l y i n g upon these fundamental e t h i c a l assumptions i s only to seek an a i d i n the determination of the c r i t e r i o n that we have i n i t s e f f e c t i v e d e l i m i n a t i o n of the sphere and scope of C r i m i n a l Law i n matters r e l a t i n g to the sexual conduct of c i t i z e n s . I t Is only to t h i s l i m i t e d extent t h a t r e l i a n c e i s to be placed by us on these fundamental e t h i c a l assumptions, but a t a l l times we s h a l l use the c r i t e r i o n i n i t s own independent r i g h t . I t i s necessary to c l a r i f y our a t t i t u d e a t t h i s stage, since i t may be misunderstood that the r e l i a n c e i s being placed on the fundamental assumptions themselves as a c r i t e r i o n . As we have seen i n the e a r l i e r d i s c u s s i o n that the very e t h i c a l v a l i d i t y of any e t h i c a l assumptions or assumptions asserted to be e t h i c a l , whether fundamental or not, i s i t s e l f open to question by those who may f o l l o w a d i f f e r e n t e p i s t e m o l o g i c a l premise and since s u f f i c i e n t s t u d i e s have not been undertaken or completed, i n r e l a t i o n to the language-analysis or to the nature 59 of the language and i t s meaning, I t i s necessary to c l e a r the p o i n t that the r e l i a n c e r e s t s on the minimum  standards of balance at a l l times, but the minimum standards of balance must be at l e a s t e t h i c a l l y v a l i d , by reason of t h e i r compliance w i t h fundamental e t h i c a l assumptions, and i t i s w i t h & view to secure compli-ance w i t h fundamental assumptions as a t e s t , t h a t we s h a l l c o n s t a n t l y r e f e r to them, and t h e i r j u r a l counter-p a r t s , as given below. Since we are seeking to use such assumptions i n the above manner i n respect of the law of sexual offences the j u r a l counterparts given above by Mr. J . C. Smith may be too wide and broad f o r our purposes. We need to have j u r a l counterparts i n respect of sexual offences alone, and accondingly attempt to p a r t i c u l -a r i z e the j u r a l counterparts i n the f o l l o w i n g manner, showing a t the same time, the p r a c t i c e counterparts, f u r t h e r p a r t i c u l a r i z i n g the sphere i n which the funda-mental e t h i c a l assumptions would provide the t e s t by which we may judge that the minimum standards of balance are not below the e t h i c a l t e s t of v a l i d i t y ? 60 P r i n c i p l e s J u r a l Counterparts P r a c t i c e Counter-a p p l i c a b l e to sexual parts a p p l i c a b l e to offences sexual Offences U n i v e r s a l i t y E q u a l i t y Primacy of Facts Moral Autonomy P r i v a c y Consent Consistency End of Double Standard except i n matters where the d i f f e r e n c e i s r e l e v a n t to e q u a l i t y i t s e l f . Commensura.tion of senten-ces and p e n a l t i e s w i t h r e a l i t y . P r i v a t e conduct permis-s i b l e w i t h some necessary l i m i t a t i o n s i n view of the Moral Autonomy of another, person. F u l l R e c o d i f i c a t i o n of present a p p l i c a t i o n offences to provide c o n s i s -of general tent system i n i t s e l f and i n r e l a t i o n to the p r i n c i p l e s of C r i m i n a l C r i m i n a l Law. Law to Sex-ual Offences S o c i a l S o c i a l J u s t status of man and R e l a t i o n s h i p s J u s t i c e woman i n sexual a s s o c i -a t i o n context. In the subsequent pages of t h i s t h e s i s an attempt i s made at a through examination of sexual offences p r e s e n t l y on our Statute books and to ascer-t a i n how f a r the present law succeeds i n complying w i t h fundamental e t h i c a l assumptions, j u r a l counter-p a r t s of which are shown above. An i n q u i r y i s under-taken as to how the present law be made to conform to our c r i t e r i o n . So f a r beyond the scope of our c r i -t e r i o n , a la.w reform i s suggested w i t h i n the scope of i t s own j u s t i f i c a t i o n . The r e l a x a t i o n of some harsh r u l e s of law, i t i s hoped, would not only save our 61 Goddess of J u s t i c e from the v i t u p e r a t i o n s most v i l e and s a t i r e most severe s but would a l s o promote a climate of c o n s t r u c t i v e development of p e r s o n a l i t i e s of our young p o s t e r i t y soon to come, l i f t i n g the burden of age-old antiquated and i n d e f e n s i b l e t r a d i t i o n other-wise to weigh without wisdom on t h e i r shoulders, to allow them to l i v e and develop i n t o mature and respon-s i b l e c i t i z e n s i n a. s o c i e t y conforming to the g l o r y of fundamental e t h i c s and p r o v i d i n g maximum freedom i n t h e i r personal l i v e s , so that they can a l s o say, i n true s p i r i t , "0 Canada, g l o r i o u s and f r e e , we stand on guard f o r thee". Sexual Offences In Canada CHAPTER II - The Prohibited Passions ....there r e a l l y Is not sexual a c t i v i t y which a do without at l e a s t the counter to some section Criminal Code ++ much i n the way of person can d e f i n i t e l y p o s s i b i l i t y of running or other of the The P r o h i b i t e d Passions Any person of any age' and of any sex may do what he wishes i n p r i v a t e , provided he does I t alone. A l a n Mewett3 2 Many Loves of Many a Kind Swinburne, In 9Erechthens' ( I 8 7 6 ) , In a spon-taneous overflow of powerful f e e l i n g s , wrote a poe t i c couplet on the marvels of l o v e , expressing "Many loves of many a mood and many a kind, f i l l the l i f e of man and, mould h i s secret mind 9, but not having been acquainted w i t h the p r o v i s i o n s of our C r i m i n a l Code, did not r e a l i z e t h a t many love s may do something f a r more d r a s t i c than Just 'mould h i s secret mind'-, they may even hold h i s whole being i n 'bind' f o r the r e s t of h i s l i f e . Our Code does not allow 'many l o v e s ' , I t only permits one, and that a l s o under a lon g l i s t of pro h i b -i t i o n s o u t l i n e d i n d e t a i l by P r o f e s s o r Mewett . 3 3 Only one c o n d i t i o n , that the p a r t i e s be married to each other, Is not imposed, but short of that a l l sexual a c t i v i t y i s s ubject to many r e s t r a i n t s . However i t Is not the purpose of t h i s t h e s i s to go Into d e t a i l s of what i s or i s not p e r m i s s i b l e , but r a t h e r to deal with some problems of theory and p r a c t i c e a r i s i n g out of the for m u l a t i o n of 6 3 v a r i o u s offences covering most of human sexual a c t i v i t y and to examine the wisdom of such formulations i n the l i g h t of our changing world and times. A sexual crime, l i k e any other crime, u s u a l l y i n v o l v e s two elements. One i s the s u b j e c t i v e element, the mental a t t i t u d e , o f t e n c a l l e d Mens rea or "the g u i l t y mind", i n v o l v i n g the s t a t e of mind of the person a l l e g e d to have committed a crime, and the other i s the o b j e c t i v e element, a. c e r t a i n event or s t a t e of a f f a i r s , which i s forbidden by the law, o f t e n c a l l e d Actus reus and com-p r i s i n g of a l l the elements i n the d e f i n i t i o n of a crime, except those that r e l a t e to the s t a t e of mind of the accused, and made up, not only of the a c t and consequences, but a l s o a l l the surrounding circumstances i n so f a r as they are r e l e v a n t . W e s h a l l , so f a r as p o s s i b l e , examine both these elements i n con j u n c t i o n w i t h the problems a r i s i n g out of the enforcement of sexual offences. The purpose of t h i s Chapter Is not to provide a running commentary on the sexual offences as enacted i n our Code, but to deal c r i t i c a l l y w i t h the j u r i d i c a l problems a r i s i n g thereunder, and to examine the consistency In the law and the v a l i d i t y of I t s sanctions i n the l i g h t of general p r i n c i p l e s . This may r e s u l t i n some omission of d e t a i l e d e x p l a n a t i o n of the offences, on which, however, a number of l e a d i n g text-books on C r i m i n a l Law may provide a supplement. The a t t e n t i o n i s given mostly to the c r i t i c a l examination of some basic questions that have s p e c i a l 6 4 s i g n i f i c a n c e In the law r e l a t i n g to sexual offences, as f o r instance! the questions a r i s i n g out of concepts l i k e consent, fear, nature and quality of a sexual act, prev-ious chaste character, im b e c i l i t y , indecency, or seduc-t i o n , and questions dealing with capacity to commit a crime, capacity to consent to s p e c i f i e d s i t u a t i o n s , or the p o s s i b i l i t y of ce r t a i n defences open to the accused, Some problems a r i s i n g out of the enforcement of the sexual offences are also examined e s s e n t i a l l y from the point of view of substantial j u s t i c e . The, Beauty and the Beast 135» ^ male person commits rape when he has sexual intercourse with a female person who i s not his wife, (a.) without her consent, or (b) with her consent i f the consent ( l ) i s extorted.by threats or fear of bodily harm, • HOC Under th i s heading an attempt i s made to examine the problems a r i s i n g under the offence of rape so f a r as i t i s committed, i n either of the two ways shown i n para-graphs (a.) and (b) above. The old English d e f i n i t i o n of rape i s that given i n the Statute of Westminster, which made rape a felony and provided that i t wa.s where '....a. man so ravish a. married woman, dame or damsel where she neither consented before or a f t e r ' ^ 5 , The law i n our country, however, makes i t c l e a r that the consent or assent of the woman, has to occur before the act and not after§ so 6 5 t h a t consent given a f t e r the event i s not a defence. The consent must he present at the time of, or before, and i n respect o f , such act of sexual i n t e r c o u r s e and t h i s immediately r a i s e s a question as to the nature of consent or more p a r t i c u l a r l y , as to what i s meant by "without her consent", f o r the matter of consent goes to the very foundation of the charge of rape. I t i s the g i s t of the charge and the essence of the defence ° 3 ^ „ This Is a l s o i l l u s t r a t e d i n the case of R v. Zambapys and Mcfc.ay37 where i t was held,that the charges of rape and seduction oontalned i n one count r e l a t i n g to the same act i n respect of the same female person, are i n c o n s i s t e n t to each other s i n c e the act cannot be both w i t h and without the consent of the woman. I t would a l s o appear, that the offence of rape, when committed by accomplishing the r e l a t i o n s without the consent of the female person, i s something q u i t e d i f -ferent, from the offence of rape, when committed by having r e l a t i o n s under extorted consent. In the case of R v.  Roberts (or S t e v e n s o n ) i t was held 9 that where an accused Is charged w i t h two counts of rape, one without consent, and one w i t h consent extorted under t h r e a t s or f e a r of b o d i l y harm, the j u r y cannot render a. v e r d i c t of g u i l t y i n respect of both counts, unless the two counts r e l a t e d to two d i f f e r e n t a c t s . A c c o r d i n g l y , the d i f f e r e n c e between s. 1 3 5(a) and s. 1 3 5(b) i s not j u s t the d i f f e r e n c e of c a t e g o r i z a t i o n , but a d i f f e r e n c e of substance and f o r proper treatment each may be examined s e p a r a t e l y . 66 Without her consent The most obvious case of i n t e r c o u r s e "without her consent" would be a s i t u a t i o n where the female does not consent throughout the proceedings, and her r e s i s t a n c e continues on despite the act of aggressor. An instance of gang rape would provide an i l l u s t r a t i o n , and i n such a s i t u a t i o n , there can be and i s no doubt, that the a.ct i s rape, having been performed without her consent. The d i f f i c u l t y a r i s e s where the female a t f i r s t does not consent but l a t e r changes her mind and consents. S e c t i o n 3 ( 6 ) provides that 'sexual i n t e r c o u r s e i s complete upon p e n e t r a t i o n to even a. s l i g h t e s t degree notwithstanding th a t the seed i s not emitted', and therefore, the sexual i n t e r c o u r s e i n law commences and i s complete immediately on penetration, and consent given a t any time a f t e r the p e n e t r a t i o n would not provide an adequate defence. I t appears that a f t e r such p e n e t r a t i o n the female person may a c t i v e l y p a r t i c i p a t e i n the r e l a t i o n s , but the man would s t i l l be g u i l t y of rape, and the act would be con-sid e r e d as 'without her consent' - unless, of course, her subsequent conduct may give r i s e to an Inference that she had o r i g i n a l l y consented, which w i l l be a d i f f e r e n t i s s u e a l t o g e t h e r . Any consent given before the penetra-t i o n would be a defence, provided i t has not been extorted o r obtained under circumstances mentioned i n s. 135("b). A consent given under inducements, or out of any other c o n s i d e r a t i o n , whether i t be mercy, humanity, enticements, allurements or a t t r a c t i o n , would be a v a l i d defence to a charge of rape. 6 7 Would the r e l a t i o n s c a r r i e d out under circum-stances, where a woman, on account of the ar o u s a l of animal passions, i s unable to r e s i s t the advances be considered as r e l a t i o n s "without her consent"? The question came 39 up i n R v. Landry-^ but the d e c i s i o n was, that i n such a case the r e l a t i o n s are not 'without her consent". How-ever, the case Is not very c l e a r on the p o i n t . The question put by a j u r o r i n t h i s case was ' i f a man without the use of p h y s i c a l f o r c e works on the passions of a g i r l u n t i l such passions overcome the g i r l ' s r e s i s t a n c e and she becomes w i l l i n g f o r sexual i n t e r c o u r s e , would t h i s consent be considered as having been given under f o r c e or as having been given f r e e l y " ^ 0 (emphasis added), to which the t r i a l judge answered f i r s t i n the negative, (I) and then to the e f f e c t that such must be considered to have been given under f o r c e . The a p p e l l a t e court set aside the c o n v i c t i o n both f o r rape and indecent a s s a u l t on the ground, that, 'to f i n d the p r i s o n e r g u i l t y on e i t h e r count of the indictment i n the present case, he must have used some degree of p h y s i c a l f o r c e unaccompanied by consent on the pa r t of the v i c t i m ' ^ . I t appears that i n the ques t i o n of the juror, the words underlined were used i n the sense of force against the w i l l of the female, r a t h e r than i n the sense of p h y s i c a l f o r c e n e c e s s a r i l y involved, even i n k i s s i n g or c a r e s s i n g a w i l l i n g female. This case does decide, that w i l l i n g n e s s by reason of arou s a l of animal passions without the use of force, amounts to 68 consent s u f f i c i e n t to provide a. defence, but does not appear to be an a u t h o r i t y that such consent would be considered to have been given where, the very a r o u s a l of animal passions was caused by p h y s i c a l f o r c e a g a i n s t the w i l l of the female. On the other hand, i n the case o f R v. Dee.2*2 P a l l e s , C. B., i n d i c a t i n g that he was co n s i d e r i n g the question as "one of pure law, unfettered by a u t h o r i t y " , s a i d 'consent i s the a c t of man, i n h i s ch a r a c t e r of a r a t i o n a l and i n t e l l i g e n t being, not i n th a t of an animal. I t must proceed from the w i l l , not when such w i l l i s a c t i n g without the c o n t r o l of reason, as i n I d i o c y and drunkenness, but from the w i l l s u f f i c i -e n t l y enlightened by the i n t e l l e c t to make such consent the a ct of a. reasoning being'.^ 3 i n the same case, May, C. J . s a i d 'now, rape has been defined to be sexual connection w i t h a woman without her consent, or without and th e r e f o r e against her w i l l , i t i s e s s e n t i a l to con-s i d e r what i s meant and intended by consent. Does i t mean an i n t e l l i g e n t , p o s i t i v e concurrence of the w i l l of the woman or i s the negative absence of d i s s e n t s u f f i c i e n t ? ' On the ba s i s of t h i s a u t h o r i t y i t may be s t a t e d that, where the very arousal of the animal passions was caused by fo r c e against the w i l l of the woman, the subsequent w i l l i n g n e s s on her part on account of such arousal, may not a l t e r the nature of such r e l a t i o n s which may be considered 'without her consent". However, i f the o r i -g i n a l lovemaking r e s u l t i n g i n such a r o u s a l was c a r r i e d 69 on w i t h the concurrence of the female, (assuming that no other circumstances v l t i a . t i n g her consent are present) the subsequent w i l l i n g n e s s due to such a r o u s a l would, under the a u t h o r i t y of R v. Landry, provide a. defence of consent. Obviously, such a. consent would hardly be an i n t e l l i g e n t , p o s i t i v e concurrence of the w i l l of the woman w i t h i n the meaning of R v. Dee, but would s u f f i c e as a defence. Somewhat on the same l i n e s , the question may be asked, i f r e l a t i o n s c a r r i e d on w i t h a woman under the i n f l u e n c e of a. l o v e - p o t i o n of some s o r t , administered to her without her knowledge, which has the e f f e c t of arousing her animal passions beyond r e s i s t a n c e , without d e p r i v i n g her of her n a t u r a l f a c u l t i e s or a f f e c t i n g her awareness of things around her, would amount to r e l a t i o n s 'without her consent', L case where such a substance i s forced down her thr o a t by force would c l e a r l y be the case of rape, as much as the arous a l of animal passions by some lovemaking not consented, to i n i t i a l l y , would be. But the a d m i n i s t r a t i o n of such a substance, by some method not employing p h y s i c a l f o r c e , which only r a i s e s her passions without d e p r i v i n g her of reason may be an a c t as innocent (or culpable) as the act of k i s s i n g and ca r e s s i n g e u l minating i n the arous a l of the same pas-sions to a. same degree, since i n e i t h e r case, the purpose and e f f e c t i s to overcome her w i l l to v i r t u e . This case i s d i f f e r e n t from the one where r e l a t i o n s are had w i t h an i n t o x i c a t e d woman, since i n the l a t t e r case, the very 70 c a p a c i t y to consent i s , by reason of such i n t o x i c a t i o n , rendered i n o p e r a t i v e . I f the r e l a t i o n s c a r r i e d out w i t h consent given by reason of animal passions may be innocent, a d i f f e r e n t method employed to a t t a i n the same r e s u l t should not t e c h n i c a l l y make a. d i f f e r e n c e . There appears to be no a u t h o r i t y on t h i s case, and unless the courts go to the extent of d e c l a r i n g that such p a r t i c i p a t i o n was "without her consent", the a c t would perhaps be out-s i d e the ambit of s. 1 3 5 ( a ) , Somewhat on the same l i n e a r i s e s a. question as to whether, i n a s i t u a t i o n where a female, f i r s t consents to such an act, but l a t e r at the l a s t minute changes her mind, and the act i s yet forced upon her, i t could be s a i d t h a t the act was "without her consent". There appear to be no decided cases on t h i s point, and the words i n the s t a t u t e would appear to make such a conduct c u l p a b l e . However, a reasonable i n t e r p r e t a t i o n , i t seems, would be to consider t h i s submission as a consent, f o r to hold otherwise would punish a l l acts where, de s p i t e s u b s t a n t i a l consent, there i s some reluctance or r e s i s t a n c e at the l a s t minute. A l s o , taken.to i t s l o g i c a l c o n c l u s i o n s , the p r o p o s i t i o n would a t t a i n l u d i c r o u s r e s u l t s , since i t can be s a i d that i n view of s e c t i o n 3 ( 6 ) the sexual i n t e r c o u r s e i s complete upon p e n e t r a t i o n , and that tech-n i c a l l y , i n i t s l o g i c a l extreme, consent should be a v a i l -able f o r each act of penetration, and i f there i s a l a c k of consent i n respect of any such a c t , the r e l a t i o n a t t h a t p o i n t of time i s 'without consent'„ This would he absurd, and. the only way to avoid such a b s u r d i t y would be to hold that consent, i n i t s s u b s t a n t i a l form, i s s u f f i -c i e n t to provide the defence, although an intermediate or i n t e r m i t t e n t reluctance may occur. Another case where the r e l a t i o n s are 'without her consent' i s where the female i s incapable, f o r many reasons, of g i v i n g a proper consent, or more p r o p e r l y , as Mr. K. L. Koh po i n t s o u t , ^ 5 e i t h e r her f a c u l t i e s are i n abeyance or are absent. Her f a c u l t i e s are i n abey-ance In sleep, stupor or i n t o x i c a t e d s t a t e , and the f a c u l t i e s are absent when she s u f f e r s a kind of mental defect rendering her incapable by reason of such de f e c t , of g i v i n g proper consent. In respect of want of consent to an a c t done i n sleep, the law has maintained t h i s p r o p o s i t i o n u n h e s i t a t i n g l y , that sexual i n t e r c o u r s e w i t h a s l e e p i n g person i s Intercourse "without her consent'. 4' This p r o p o s i t i o n of law i s c l e a r l y acceptable when one considers the reasons given by Lord P r e s i d e n t M c n e i l l . I n the case of R v. S w e e n l e . i n the words: ....the i n t e r e s t s of s o c i e t y r e q u i r e that such v i g i l a n c e and r i g o u r should be exerted to prevent advantage being taken of the st a t e of p e r i o d i c a l unconsciousness which nature imposes on a l l as a n e c e s s i t y of existence and to which a l l are e n t i t l e d to r e s i g n themselves i n se c u r i t y . 4 8 The d i f f i c u l t y , however, a r i s e s when r e l a t i o n s are c a r r i e d out wit h a. person whose f a c u l t i e s are absent, e i t h e r due to unsoundness of mind or mental d e f e c t i v e n e s s . To some extent a s i m i l a r problem can a r i s e i n respect of 72 a. female person who i s drunk. Where a female person i s not i n t o x i c a t e d to a degree as to render her t o t a l l y incapable of consenting or d i s s e n t i n g , and the e f f e c t of d r i n k i s only to reduce her r e s i s t a n c e to an act to which she might not otherwise consent, a w i l l i n g n e s s to enter i n t o such r e l a t i o n s may be q u i t e compatible w i t h consent. However, where the e f f e c t of d r i n k i s to produce an unbalance of reason, n e i t h e r amounting to a- s t a t e approximating to stupor, nor to a s t a t e where she may j u s t have low r e s i s t a n c e , the case i s s i m i l a r to the case of r e l a t i o n s w i t h persons s u f f e r i n g from unsoundness of mind, and may be considered together w i t h such cases. The case of r e l a t i o n s w i t h a person of unsound mind i s f u l l of co m p l e x i t i e s and i n c o n s i s t e n c i e s . Whether such r e l a t i o n s would be considered ' w i t h 8 or 'without her consent' i s not very c l e a r under the present s t a t e Of our law. O r i g i n a l l y , rape i n England meant sexual r e l a t i o n s 'against her w i l l ' , but there i s a suggestion i n the case of R v. Jones^9 that t h i s r u l e was changed to the r u l e of 'without her consent' i n the case of R v. Fletcher,-' 0 only to provide f o r the case of i d i o t s and imbeciles who were considered Incapable of e x e r c i s i n g any a c t of w i l l . The case of R v. F l e t c h e r I t s e l f was decided under a mistake that the Statute of Westminster-^1-was i n f o r c e , whereas the s t a t u t e had been repealed, but nev-e r t h e l e s s , the p r i n c i p l e l a i d down i n t h i s case was approved 7 3 by the court i n R v. Jones. I t i s d i f f i c u l t to see how the change of the words "against her w i l l 8 to "without her consent" makes any d i f f e r e n c e , as f a r as the imbe-c i l e s are concerned, f o r i f an imbe c i l e cannot e x e r c i s e an a c t of w i l l , s h e would a l s o not be able to e x e r c i s e an act of consent, /md f u r t h e r , although i t i s true that there may be cases where "against her w i l l ' may mean something q u i t e d i f f e r e n t from 'without her consent", yet the many j u d i c i a l d e c i s i o n s seem to coalesce the two notions. Leaving these c o m p l e x i t i e s f o r the time being to focus a t t e n t i o n to the core of the matter, we at once run i n t o another p e r p l e x i t y , i n that, i n the very case of R v, F l e t c h e r , W l l l e s J . , s t a t e d , although by way of o b i t e r d i c t a , ^ 2 that an i d i o t , although incapable of expressing consent or d i s s e n t , may be s a i d to consent i f the response to the sexual a ct Is given under an animal i n s t i n c t . This p r o p o s i t i o n was adopted i n Canada i n the case of R v. Connolly, 5 3 where the court held, r e l y i n g on the a u t h o r i t y of R v. F l e t c h e r , that consent given from mere animal passions or i n s t i n c t , was s u f f i c i -ent defence to a charge of rape, as tijell as to a charge of a s s a u l t w i t h i n t e n t to r a v i s h , and held that, i n case of an i d i o t or l u n a t i c person, sexual i n t e r c o u r s e was a crime, only i f on a c t u a l or l e g a l deduction the connec-t i o n may be sa i d to be without consent. The jury, i n t h i s case, had returned an unusual v e r d i c t , that the female was insane, but had consented, on the ba s i s of which the court 7 4 s e t aside the c o n v i c t i o n f o r reasons mentioned above. At the time of the d e c i s i o n of t h i s case Parliament had not enacted the offence making the mere connection w i t h a l u n a t i c or i d i o t an offence. In a, subsequent case of R v. Dfip.^. P a l l e s , C. B.s l a i d down that consent was the a c t of man, i n h i s c h a r a c t e r of a. r a t i o n a l and i n t e l l i g e n t being, not that of an animal and f u r t h e r s t a t e d ! ' I f e e l that I owe an apology to my hearers i n i n s i s t i n g upon so elementary a p r o p o s i -t i o n , but nothing i s i n my o p i n i o n too elementary to encounter a d o c t r i n e so abborrent to our best f e e l i n g s , and so d i s c r e d i t a b l e to any jurisprudence i n which i t may succeed i n o b t a i n i n g a. place as that which, more than once, was l a i d down i n England, that a consent produced i n an i d i o t by mere animal i n s t i n c t i s s u f f i c i e n t to deprive an a c t of the character of r a p e ' 5 5 The matter was again considered i n Canada i n 1 9 1 3 , when i n the case of R v. Walebek,-^ wh i l e d e a l i n g w i t h a. case of sexual i n t e r c o u r s e w i t h a feeble minded person, Brown, J , summarised the e f f e c t of previous E n g l i s h d e c i s i o n s ! ' . , . . . i f the evidence e s t a b l i s h e s that a g i r l was i n such a c o n d i t i o n of i m b e c i l i t y that the j u r y might reasonably f i n d that she was incapable of g i v i n g her consent, then there i s a case to go to the j u r y and a. v e r d i c t of g u i l t y on t h e i r p a r t w i l l not be d i s t u r b e d ' 5 / An examination of these cases w i l l reveal, that the matter of consent by an imb e c i l e person, i s subject to j u d i c i a l i n t e r p r e t a t i o n as to what may or may not amount to such consent. R e l y i n g on the t e s t given i n the 7 5 case of R v. Walebek, i t may be stated that i f the evidence e s t a b l i s h e s that the woman's i m b e c i l i t y rendered her incapable of g i v i n g her consent, the r e l a t i o n s are 'without her consent', otherwise they are accomplished w i t h her consent, provided f u r t h e r that there are no other circumstances present that may v i t i a t e the consent by reason of operation of s. I35(t>)« P r i o r to t h i s d e c i s i o n , the previous case law had e s t a b l i s h e d an u n s a t i s -f a c t o r y p r o p o s i t i o n that the r e l a t i o n s w i t h an Imbecile, being incapable of expressing consent or d i s s e n t , were 'without her consent' but that such r e l a t i o n s may be considered 'with her consent' I f consent i s given under animal passions or i n s t i n c t s . This d e c i s i o n somewhat improved the s i t u a t i o n by p r o v i d i n g that r e l a t i o n s are 'without her consent' only I f the imbecile i s incapable of g i v i n g her consent, but l e d to an e q u a l l y u n s a t i s -f a c t o r y r e s u l t . An accused Is not l i k e l y to p r e d i c t whether the courts would or would not, l a t e r , c onsider such person an imbecile or not, or, whether, they would, or would not, then consider such imbecile person to be capable o r incapable of g i v i n g consent. As i f the matter was not already complicated, our Code provides another s e c t i o n to confound the con-f u s i o n . S. 140 s t i p u l a t e s that i t i s an offence to have r e l a t i o n s w i t h such an imbecile person, per sea^ i n i t s o r i g i n a l form, t h i s s e c t i o n was f i r s t enacted i n 1886 at the time when the d e c i s i o n i n R v. Connolly had already 7 6 been given, and the decision i t s e l f pointed out that there was no Act of Parliament to make mere connections with an imbecile an offence by I t s e l f , Accordingly, the matter was to f a l l within the rape section, and a person was to be g u i l t y of rape I f i t could be construed that the r e l a t i o n s were without her consent, which would not, however, be the case i f consent was given by animal pas-sions, At the time of the decision of R v„ Walebek, Parliament had already created a separate offence of mere connection with an imbecile person, so that by the authority of R v. Walebek i t would appear, that where an imbecile person was incapable of giving consent, the rel a t i o n s would f a l l under the rape section being 'without her consent", and where the imbecile was capable of giving her consent, the rel a t i o n s would not amount to rape, but would f a l l under section dealing with the offence of mere connection with imbecile person. This was rather an unsatisfactory state of law, since where the imbecile had given consent under animal passions, the question of capacity or incapacity to consent stood up l i k e a. thorn i n the f l e s h and a curious dilemme&resulted. Where an imbecile was considered incapable of giving consent, r e l a t i o n with such person was not rape i f such imbecile gave consent on account of animal passions. Where the imbecile was considered capable of consenting, r e l a t i o n s with her did not amount to rape, but at the same time, i t was by no means ce r t a i n that r e l a t i o n s with her were punishable under the new offence of mere connection with 77 Imbecile persons. This d i f f i c u l t y came to l i g h t when the case of R v. Probe59 was decided i n 19^3° I n t h i s case, the t r i a l judge held, tha.t where a person w i t h i n the " c a r n a l l y knowing i d i o t s 0 s e c t i o n was mentally competent to give a. consent, the accused could not be convicted of that offence. On appeal, the c o n t e n t i o n of the Crown that where the accused knew a person to be w i t h i n that s e c t i o n , and had r e l a t i o n s With such person, he could be found g u i l t y of t h i s offence was f l a t l y r e j e c t e d and the lower court's d e c i s i o n up-h e l d . The d e c i s i o n i s f u r t h e r discussed i n subsequent pages, but i n passing, i t may be mentioned, t h a t a f t e r t h i s d e c i s i o n the i n c a p a c i t y to consent became ah e s s e n t i a l element of t h i s offence as much as f o r rape, l e a d i n g to l u d i c r o u s r e s u l t s , s i n c e , i n a case where r e l a t i o n s were had w i t h such an imbecile person who was incapable of g i v i n g consent, the accused could be charged e i t h e r w i t h rape or w i t h c a r n a l l y knowing i d i o t s , and could stand i n p e r i l of e i t h e r a l i f e imprisonment or of f o u r years gaol sentence. But i f the woman was held to be capable to consent and d i d consent, the accused could not be c o n v i c t e d under the offence of c a r n a l l y knowing i d i o t s , e i t h e r . The accused thus stood i n between l i b e r t y or death, e i t h e r he was not g u i l t y of e i t h e r offence, or was g u i l t y of both? The present s. 140 s t i l l r e t a i n s the clause of 'under circumstances that do not amount to rape', which 78 w i l l imply a. l e g i s l a t i v e r e c o g n i t i o n of the f a c t that such a person w i t h i n s. 140 can consent i n law so as to exonerate her partner of the offence of rape,, But i f such a person can f u l l y and v a l i d l y consent, as the implied r e c o g n i t i o n would e s t a b l i s h , there i s no reason to pro-h i b i t connection w i t h such a. person. The presence of s. 140 p r o h i b i t i n g any r e l a t i o n w i t h such an imbecile person even when she i s i n a p o s i t i o n to e f f e c t i v e l y consent to such r e l a t i o n s i n d i r e c t l y deprives her of the p r i v i l e g e to enter i n t o such r e l a t i o n s . To recognise on the one hand that such a woman can consent, yet to deprive her of the p r i v i l e g e to v o l u n t a r i l y enter i n t o any such r e l a -t i o n , i s r a t h e r a n o t i c e a b l e i n c o n s i s t e n c y of our law, L reform i n law i n t h i s respect i s d e s i r a b l e and i s suggested i n subsequent pages. So f a r we have considered the question of con-sent or l a c k of consent, but have not considered the s i t u a t i o n where on account of some misunderstanding the accused b e l i e v e s that a woman consents to have r e l a t i o n s w i t h him, while In f a c t , the woman in- question does not consent. I t has been held t h a t ; There i s one case where a woman does not consent to the a c t of connection and yet the man may not be q u i l t y of rape, that Is where the r e s i s t a n c e i s so s l i g h t and her behaviour such that the man bona f i d e b e l i e v e d that she was consentingoO I t i s a general p r i n c i p l e of C r i m i n a l Law that Mens Res i s an e s s e n t i a l i n g r e d i e n t of every offence, and t h a t i t Is an e s s e n t i a l c o n s t i t u e n t p a r t of a s t a t u -79 t o r y crime unless excluded e i t h e r e xpressly or by c l e a r and necessary i m p l i c a t i o n . D L A c c o r d i n g l y , t h i s ' g e n e r a l p r i n c i p l e of mens rea a t t a c h i n g to s t a t u t o r y offences would r e q u i r e that where an accused d i d not i n t e n t to have sexual i n t e r c o u r s e without the consent of a woman, he should not be q u i l t y of the offence of rape. Unfortunately, i n t h i s respect, there i s a great p a u c i t y of j u d i c i a l d e c i s i o n s i n respect of the l i a b i l i t y of a sane, normal and balanced person where he mistakenly b e l i e v e s there i s consent when i n a c t u a l f a c t there i s none. The reason f o r t h i s p a u c i t y i s r a t h e r a p r a c t i c a l one. I n any such case, the accused would always defend on the ground that there has been consent, and the j u r y or the judge w i l l have to decide whether there has or has not been consent, and i f the circumstances on the whole i n d i c a t e consent to the judge and j u r y , the accused would be a c q u i t t e d , otherwise c o n v i c t e d . I n many cases of rape the connection i s admitted but the consent Is pleaded, and since the existence of consent i s to be i n f e r r e d from a l l surrounding circumstances, u s u a l l y the presence of circumstances j u s t i f y i n g h i s mistake would be a l s o s u f f i c i e n t to e s t a b l i s h consent before the court r e s u l t i n g i n h i s a c q u i t t a l . I n such cases, the i s s u e as to mistaken consent never comes before the Court, f o r i f the mistake was genuine and bona f i d e , the accused would plead a c t u a l consent and not h i s mistake. The cases i n which such mistaken consent becomes an issue are the 8 0 ones where some other element, l i k e drunkenness or i n s a n -i t y , i s introduced on account of which the a.ccused admits the connection as w e l l as l a c k of consent, but pleads mistake, or l a c k of i n t e n t , or absence of mens rea, on account of such a d d i t i o n a l element. The cases that deal w i t h t h i s aspect of the matter are p r a c t i c a l l y a l l i n v o l -v i n g drunkenness of the a.ccused and the t o p i c i s con-v e n i e n t l y d e a l t w i t h under t h i s heading. Threats or f e a r 1 3 5 * A male person commits rape when he has sexual i n t e r c o u r s e w i t h a female person who i s not h i s w i f e , (a) ... (b) w i t h her consent i f the consent ( i ) i s extorted by t h r e a t s or f e a r of b o d i l y harm, ( i i ) ... ( i l l ) . . . R e l a t i o n s w i t h consent, extorted by threats or f e a r of b o d i l y harm are another kind of rape under s. 1 3 5 ( b ) ( i ) quoted above. I t w i l l be noted that the s e c t i o n does not r e s t r i c t the b o d i l y harm to any p a r t i c u l a r person and i s wide enough to in c l u d e a b o d i l y harm to any person whatsoever. Although one can reasonably argue that I t must r e f e r only to humans, i t does not n e c e s s a r i l y l e a d to a. c o n c l u s i o n that i t i s confined only to the person of the v i c t i m . Any b o d i l y harm, whether to a person or persons i n a. group, whether known or unknown to the v i c t i m , whether i n s t a n t or f u t u r e , c e r t a i n or u n c e r t a i n , would seem to s u f f i c e . 81 The s e c t i o n does not r e q u i r e that the person g i v i n g such th r e a t s should, to the knowledge of the v i c t i m , have the present ca p a c i t y to c a r r y out such threats,, One may however, be able to impprt t h i s r e q u i r e -ment i n the s e c t i o n by i n t e r p r e t i n g the word f e a r as meaning a, genuine f e a r based on reasonable grounds. I f f e a r means a f e a r based on reasonable grounds, or a f e a r reasonable under the circumstances, i t would f o l l o w that the person g i v i n g the threats should give the impression to the v i c t i m that he has the present a b i l i t y to c a r r y out h i s t h r e a t s . Unfortunately, i t i s not so c l e a r i f the word f e a r means the f e a r based on reasonable grounds, or f e a r reasonable under the circumstances. On the co n t r a r y , there i s some a u t h o r i t y supporting the p r o p o s i t i o n that regard i s to be had to the mind of the female person h e r s e l f to a s c e r t a i n i f that p a r t i c u l a r female person had reason to be a f r a i d . I n the case of R v. Jones,^ 2 Ma.cDona.ld, C. J o B, C , said I t i s not enough f o r the woman to say, ' I was a f r a i d of serious b o d i l y harm and therefore consented', she must prove i n evidence that she had d i r e reason to  be a f r a i d and that she took every reasonable precaution to avoid the outrage. In t h i s case she contents h e r s e l f w i t h saying: ' I was a f r a i d he would s t r i k e me' — without even a semblance of evidence other than her a l l e g e d f e a r , to show that she had reason to f e a r v i o l e n c e , or that she took steps to avoid I t . o J {emphas1s added) 82 The passage c l e a r l y enunciates a p r i n c i p l e . I n the context of t h i s passage the words th a t she 'took steps to avoid I t ' i n substance mean the she ' had reason to f e a r v i o l e n c e ' , and the important words are ' she had d i r e reason to be a f r a i d ' . I n other words, i t Is not the f e a r of v i o l e n c e , but a d i r e reason f o r such f e a r i n the mind of the woman, that v i t i a t e s consent. I f we adopt t h i s b a s i s , we at once tr a n s p o r t the question from the o b j e c t i v e to the s u b j e c t i v e t e s t , from the question 'whether there were circumstances causing f e a r ' to the ques t i o n ' whether the p a r t i c u l a r woman had rea.son f o r such f e a r ' . This becomes c l e a r i n the f o l l o w i n g passage of His Lordships She was not an un s o p h i s t i c a t e d g i r l s she was a married woman - young, i t i s t r u e , but w i t h no l i t t l e experience of the ways of the world, as her own conduct d i s c l o s e s . Her f a i l u r e to take obvious o p p o r t u n i t i e s to escape and complain, both before and a f t e r the occurrence of which she com-p l a i n s i s some evidence of her complete presence of mind, and of her astuteness i n l o o k i n g a f t e r herself.°4 I t may be noted that t h i s d e c i s i o n does not t u r n on the question of consent, r a t h e r on the question whether the fea.r the woman complained of was s u f f i c i e n t w i t h i n the meaning of the s e c t i o n to have e x t o r t e d her consent, an answer to which i s given by c o n s i d e r i n g whether the p a r t i c u l a r woman did have a reason to f e a r . Evidence as to her being a s o p h i s t i c a t e d g i r l , or her presence of mind and of her astuteness i n l o o k i n g a f t e r h e r s e l f decided the p o i n t . 8 3 Yet a t the same time the de c i s i o n s e x p l a i n i n g the nature of th r e a t s g e n e r a l l y seem to i n d i c a t e that t h r e a t s should be such as i n f l u e n c e the mind of a reason-able woman. I t i s true that a th r e a t can be so worded t h a t , what appears innocent to a reasonable man may c a r r y a menace to the intended v i c t i m , but, i n such a, case the same t h r e a t p r o p e r l y deciphered i n p l a i n language i n the context of the p a r t i c u l a r c l r c i m s t a n c e s of the intended v i c t i m , should be capable according to the understanding of any r a t i o n a l being, of importing a menace to the intended v i c t i m . A statement which even a f t e r f u l l explan-a t i o n of a l l hidden circumstances f a l l s to convey a menace i s not a t h r e a t . I n d e c i d i n g i f a c e r t a i n statement i s a t h r e a t , the t e s t appears to be an o b j e c t i v e r a t h e r than a s u b j e c t i v e one. The cases d e a l i n g w i t h the offence of e x t o r t i o n a f f o r d a h e l p f u l understanding of the nature of t h r e a t s . Thus i n R v. Boyle and Merchant,^5 a n e x t o r t i o n case, Lord Reading, C, J„, summarised the law as follows? 9 The degree of f e a r or alarm which a. t h r e a t may be c a l c u l a t e d to produce upon the mind of the person on whom i t i s intended to operate may vary i n d i f f e r e n t cases and i n d i f f e r e n t circumstances. L t h r e a t to i n j u r e a. man's property may be more seriou s to him and have a. g r e a t e r e f f e c t upon h i s mind tha a thr e a t of p h y s i c a l v i o l e n c e . When there i s evidence of such a t h r e a t a.s i s c a l c u l a t e d to operate upon the mind of a. person of ordin a r y f i r m mind, and the j u r y have been pr o p e r l y d i r e c t e d , i t i s f o r them to determine whether i n f a c t the conduct of the accused has brought him w i t h i n the s e c t i o n and whether i n the p a r t i c u l a r case the menace was e s t a b l i s h e d . I f the thr e a t i s of such a char a c t e r that i t Is not c a l c u l a t e d to deprive any person of reasonably sound or o r d i n a r i l y f i r m mind of the 'free and vo l u n t a r y a c t i o n of h i s mind, i t woul.d not be a menace w i t h i n the mea.ning of t h i s s e c t i o n ^ 0 " 84 I f i t i s c o r r e c t to sta.te that the f e a r i s to be determined by a. s u b j e c t i v e t e s t a,nd the thr e a t s are to be determined by an o b j e c t i v e t e s t , the clause 9 t h r e a t s or f e a r of b o d i l y harm' i n s 0 135(t>) present some d i f f i -c u l t y of i n t e r p r e t a t i o n . The case of R v. Jones^ 7 presents an example where the o b j e c t i v e t e s t r e l a t i n g to th r e a t s and s u b j e c t i v e t e s t as to f e a r both came to be a p p l i e d to the f a c t s of that case. I n that case a. f a t h e r was held g u i l t y of rape of h i s daughter i n circumstances where he had e s t a b l i s h e d a r e i g n of t e r r o r i n the f a m i l y , and h i s daughter, under i n f l u e n c e of dread and t e r r o r remained passive while he had connections w i t h her. By the o b j e c t i v e t e s t the thr e a t s were reasonably s u f f i c i e n t to f r i g h t e n other members of the f a m i l y and by s u b j e c t i v e t e s t the g i r l had every reason i n her mind to be a f r a i d . However, not a l l cases combine the two elements and the d i f f i c u l t y a r i s e s as to the i n t e r p r e t a t i o n of the clause i n terms of 5 t h r e a t s or f e a r of b o d i l y harm', when one element r e q u i r e s an o b j e c t i v e t e s t and the other element i s to be governed by the s u b j e c t i v e t e s t . I n attempting to i n t e r p r e t t h i s c l a u s e , we run i n t o another complexity. The clause employs the word 'or' i n a wa.y as to leave i t open to question i f t h i s word has been used as d i s j u n c t i v e or c o n j u n c t i v e , and i f the words ' of b o d i l y harm' r e l a t e only to f e a r , or to both t h r e a t s and fear„ I t appears that t h i s clause can be i n t e r p r e t e d i n f i v e d i f f e r e n t ways, as f o l l o w s ; 85 (a.) threats of b o d i l y harm or f e a r of b o d i l y harm (b) t h r e a t s of b o d i l y harm and f e a r of b o d i l y harm (c) /»ny threats or f e a r of b o d i l y harm (d) Any threats and f e a r of b o d i l y harm (e) t h r e a t s causing; f e a r of b o d i l y harm By i t s e l f , any one of the above f i v e i n t e r p r e -t a t i o n s i s p o s s i b l e . However, some a i d to i n t e r p r e t a t i o n may be derived from examination of another s e c t i o n i n the context of sexual offences. S e c t i o n 146, makes i t an offence f o r some s p e c i f i e d person to have r e l a t i o n s on board the v e s s e l w i t h a. female passenger "by thr e a t s or by the ex e r c i s e of h i s a u t h o r i t y " , and punishes such offence w i t h two years imprisonment. I t appears that t h r e a t s i n the rape s e c t i o n must mean th r e a t s of b o d i l y harm, f o r otherwise s e c t i o n 146 would somewhat f u r n i s h an i n c o n s i s t e n c y i n the Code* I f threats i n the rape s e c t i o n mean j u s t t h r e a t s , and thr e a t s i n s. 146 a l s o mean j u s t t h r e a t s , i t would appear that rape on l a n d would be punishable wi t h l i f e imprisonment and rape on board a. v e s s e l only w i t h two years imprisonment, which, to say the lea.st, would be l u d i c r o u s . A c c o r d i n g l y , the th r e a t s i n the rape s e c t i o n followed by the words 'or f e a r of b o d i l y harm' should mean thr e a t s of b o d i l y harm and not j u s t any threats,, Thus, the two i n t e r p r e t a t i o n s given above under (c) and (d) i n v o l v i n g simple th r e a t s alone are not v a l i d . I t a l s o appears that the word 'or' must mean something more than what i t says, f o r other-86 wise i t would be r a t h e r a n extension to apply the words "of b o d i l y harm 0 to t h r e a t s . I f 'or" i s construed as 'and 0, the words 'of b o d i l y harm' would c l e a r l y apply to t h r e a t s , as they should. I t has o c c a s i o n a l l y been found necessary to read the conjunctions 'or' and 'and 0 one f o r the other.68 i n R v. Oakes^1? i t wa.s pointed out that such c o n s t r u c t i o n has g e n e r a l l y been made where i t would produce r e s u l t s more favourable to the su b j e c t . I n R v. Cra.cknell, 70 the A p p e l l a t e Court i n Ontario held that the word 'and' i n s. 19 of the C r i m i n a l Code of Canada, 1927 d e a l i n g w i t h the i n s a n i t y of the a.ccused should be construed a s 'or', so that i t was only necessary f o r the defence to show e i t h e r , that the accused was incapable of a p p r e c i a t i n g the nature and q u a l i t y of h i s act, o r (not and) of knowing that i t was wrong. I t may be stated that the reading of the word 'or' a s 'a.nd' i n the clause i n question would produce r e s u l t s more favourable to the subject and would a l s o l e a d to a. more i n t e l l i g e n t i n t e r p r e t a t i o n r e l a t i n g the thr e a t s to the b o d i l y harm, and on t h i s b a s i s i t i s submitted that the i n t e r p r e t a t i o n given above under (a) may pr o p e r l y be disca r d e d . Between the remaining i n t e r p r e t a t i o n s under (b) and ( e ) , i t i s submitted that 'threats causing b o d i l y harm 0 i s to be pr e f e r r e d to 'threats of b o d i l y harm and f e a r of b o d i l y harm', since there are many s i t u a t i o n s where the th r e a t s may not d i r e c t l y p o i n t to b o d i l y harm but may yet be l i k e l y to produce f e a r of b o d i l y harm. 8 7 Taking an analogy from the e x t o r t i o n cases, i t may be pointed out, as i n the case of R v. C o l l i s t e r and Warhurst . 7 1 t h a t , I f , although there has been no express demand or t h r e a t , the demeanour of accused and. the circumstances of the case are such that an ordinary reasonable man would under-stand that a demand f o r money was being made on him, and that demand has been accompanied by menaces, whether d i r e c t or v e i l e d , so that the balance of an ordinary mind would be l i k e l y to be upset, these two elements of the offence are e s t a b l i s h e d " 72 The two elements mentioned i n the passage r e f e r to demand and menaces, the c o n s t i t u e n t i n g r e d i e n t s of an e x t o r t i o n charge. But what i s s a i d i n respect of menaces applies e q u a l l y w e l l to th r e a t s under s. 1 3 5(b) f o r i f the demeanour of the a.ccused and surrounding circumstances are such as to produce a f e a r of b o d i l y harm, there i s every reason to consider such implied t h r e a t s as e f f e c t u a l as t h r e a t s of b o d i l y harm. A c c o r d i n g l y , i t i s submitted t h a t "threats causing f e a r of b o d i l y harm" i s the best of the above f i v e i n t e r p r e t a t i o n s . Despite t h i s i n t e r p r e t a t i o n , the d i f f i c u l t y pointed out e a r l i e r a r i s i n g out of- thoa.pplica.tion of a s u b j e c t i v e t e s t to determine the c o n s t i t u e n t element of 'f e a r of b o d i l y harm' s t i l l remains. Where a. woman i s not i n f a c t f r i g h t e n e d , i t i s elementary to say that there have been no thr e a t s causing f e a r of b o d i l y harm. But i n a. contrary s i t u a t i o n , that i s where the' woman q u i t e i r r a t i o n a l l y harbours f e a r of b o d i l y harm, i t would be an i n j u s t i c e to have the man convicted i f h i s approaches 88 were not such as would cause f e a r of b o d i l y harm i n the mind of a reasonable woman. I t i s suggested that a reform i n t h i s f i e l d p r o v i d i n g f o r a standard of reasonable grounds i n respect of f e a r and r e s t r i c t i n g the c l a s s of persons to whom b o d i l y harm may be threatened i s d e s i r a b l e and i s recom-mended i n the subsequent pages of t h i s t h e s i s . The Husband or the Hoax 1 3 5 « -A male person commits rape when he has sexual i n t e r c o u r s e w i t h a female person who i s not h i s w i f e , (a.) ..„ (b) w i t h her consent i f the consent ( i ) .,. ( i i ) i s obtained by personating her husband, or ( i l l ) . . . I f the consent i s obtained by personating her husband, the r e l a t i o n s w i t h a. woman amount to rape under our law. In England, from as e a r l y as 1822, i t was held t h a t such r e l a t i o n s c a r r i e d out by reason of such imper-s o n a t i o n d i d not amount to rape,7 3 but i n 1884, i t was decided i n I r e l a n d i n the case of R ?» Dee?^ that such r e l a t i o n s amounted to rape. This d e c i s i o n disregarded a l l the previous E n g l i s h a u t h o r i t y of over a pe r i o d of s i x t y years holding tha.t such r e l a t i o n s did not amount to rape. L a t e r , i n 1885 , the E n g l i s h Pa.rlia.ment by an Act adopted the d e c i s i o n i n the case of R v. Dee and declared that r e l a t i o n s w i t h a woman by personating her husband amounted to rap e . 7 5 i n Canada., the s i t u a t i o n i s covered by s. 1 3 5 ( b ) ( i i ) quoted above. 8 9 The sections ever since i t was f i r s t enacted i n I 8 9 O , punishes a l l r e l a t i o n s by consent obtained by personating the husband, no matter how the personation i s c a r r i e d out. I t does not matter i f i t i s c a r r i e d out by means of p l a s t i c surgery, under the v e i l of darkness, by camouflage at a. masquerade b a l l , on account of a. n a t u r a l resemblance or on account of a, n a t u r a l defect i n the woman preventing her from a s c e r t a i n i n g the i d e n t -i t y of the wrongdoer, So f a r as a search can be made, no Canadian cases under t h i s s e c t i o n have been found and i t appears tha.t no such case, since I 8 9 O , has reached our c o u r t s . (Statement subject to c o r r e c t i o n ) . There i s , however, one d e c i s i o n that i n d i r e c t l y i n t e r p r e t s t h i s clause i n our Code. I n the case of People v. X (sub nom,  C a l i f o r n i a , v. S k i n n e r ) ^ some l i g h t was thrown on the meaning of the words 'personating her husband'. The case arose on an e x t r a d i t i o n a p p l i c a t i o n made by the State of C a l i f o r n i a seeking e x t r a d i t i o n of a person i n Canada, f o r having cohabited i n C a l i f o r n i a under a feigned marriage, which, i n that State amounted to the offence of rape.7 ? Since feigned marriage under the then s. 3 0 9 of Code I 9 0 6 was not at that time an e x t r a d i t a b l e offence, the counsel f o r C a l i f o r n i a , attempted to approximate the offence committed i n C a l i f o r n i a , to the offence of rape i n Canada., then covered under s. 2 9 8 of Code 1 9 0 6 , and at that time an e x t r a d i t a b l e offence. The counsel contended t h a t the p r i s o n e r by such feigned marriage i n C a l i f o r n i a . 9 0 'personated' the husband -within the meaning of s. 2 9 8 of Code I9060 Cayley, C. C. J . , d i d not agree and expressed h i s disagreement, thuss I t h i n k i t i s safe to say that there i s no d e c i s i o n anywhere that a. man who obtains a. woman's consent by means of a feigned marriage i s held to be 'personating' her husband, nor do I t h i n k that the words of sec. 2 9 8 can bear that c o n s t r u c t i o n . The only c o n s t r u c t i o n that the cases support are those i n which a. stranger, personating the woman's husband, obtains the woman's consent.7 8 and l a t e r , i n the f o l l o w i n g manner: ' I judge from t h i s that what 'personating the woman's husband' as i t occurs i n sec. 2 9 8 of the Code means i s inducing a 'married woman' to give consent by person-a t i n g that woman's husband. Counsel have not been able to f i n d any case i n which any d i f f e r e n t meaning has been a.tta.ched to the words, and I must say t h a t , as a matter of c o n s t r u i n g the E n g l i s h langua.ge, the words 'the woman's husband' means the woman's husband and not the fa k e r who pa.sses himself o f f as her husband. ' 7 9 Thus i t was held that one who pa.sses himself o f f a s a. husband to a. s i n g l e woman i s not personating her husband. I n Canada., p r o c u r r l n g a feigned or pretended marriage would be a n offence, but the consummation a s a. r e s u l t of such offence i s not punishable as rape. The offence of feigned marriage i s completed by the marriage ceremony^ 0 and i t appears that any consummation f o l l o w i n g i t would be outside the ambit of the la.w. This sub-section i n the rape s e c t i o n i s r a t h e r r e s t r i c t e d i n that i t a p p l i e s only i n respect of person-a t i o n of a. husband of a. married woman. I t may be b e t t e r 9 1 to widen the scope of t h i s sub-section to cover a l l cases where a. fraud r e l a t e s to the i d e n t i t y of any person i n respect of whom the woman gives her consent, since fraud as to the i d e n t i t y i s a matter p r o p e r l y w i t h i n the scope of the c r i m i n a l law. I f , however, i t i s considered that such matters are of a, nature i n regard to.which a. woman ma.y be expected to exercise her own judgment, then i t would perhaps be b e t t e r . t o e l i m i n a t e the whole sub-section. I t i s suggested that a. reform i n t h i s f i e l d i s d e s i r a b l e and i s recommended i n the f o l l o w i n g pages. The I d l e Hands Indecent A s s a u l t on Female 141.(1). Every one who in d e c e n t l y a s s a u l t s a. female person i s g u i l t y of an i n d i c t a b l e offence and i s l i a b l e to imprisonment f o r f i v e years and to be whipped. S e c t i o n 141 does not r e s t r i c t i t s e l f to a male accused' only, i t a p p l i e s both to a. male and a. female a.ccused. I t i s therefore p o s s i b l e f o r a, female to be convicted of t h i s offence f o r an a s s a u l t on another female person. The one s i n g l e case i n Canada, where such a. c o n v i c t i o n was recorded was overruled on appeal. This was the case of R v. A.B.Ql I n t h i s case the female a.ccused having w r i t t e n a. l e t t e r to another female i n 1 words c r y p t i c a l l y suggestive of romance and c o n t a i n i n g a. request f o r f u r t h e r a s s o c i a t i o n , had an occa.slon three days l a t e r to v i s i t the apartment of the female addressee, where she made an attempt a t g e t t i n g c l o s e to her, but d e s i s t e d on meeting some s l i g h t r e s i s t a n c e . The m a j o r i t y of the Judges ofite Court of Appeal held that the offence of indecent a s s a u l t was committed i f there was an a s s a u l t coupled w i t h indecency, and that i n the circumstances of the case, there was no a.ssa.ult, and the c o n v i c t i o n wa.s not warranted. The s i n g l e d i s s e n t i n g judgment^ 2 was to the e f f e c t that there was i n f a c t an a.ssa.ult, and since the l e t t e r i n d i c a t e d the object of such an a s s a u l t , which wa.s indecency, the offence of indecent a s s a u l t had been committed and the c o n v i c t i o n was j u s t i f i e d . Indecent a.ssa.ult thus i n v o l v e s two elements, one of assa.ult, and the other of indecency. °One always t h i n k s of a.ssault as the g i v i n g of a. blow to somebody, but that i s not necessary. An a.ssa.ult may be c o n s t i t u t e d by a. t h r e a t or a. h o s t i l e act committed towards a. person... a.nd where such h o s t i l e act or t h r e a t has been shown, the element of indecency added to i t would c o n s i t u t e indecent a s s a u l t . The Code does not define indecent a.ssault, but the j u d i c i a l d e c i s i o n s have defined i t as the combination of these two elements. The Code, however, does define a.ssa.ult i n s. 2 3 0 , although i t does not c l e a r l y s t i p u l a t e t h a t the a.ssa.ult part of the indecent a.ssa.ult i s the same as a.ssa.ult defined i n s. 2 3 0 . Yet, i t Is dbvious i n the context of the Code that the a s s a u l t c o n s t i t u t i n g a.n element of indecent a s s a u l t i s the same as defined i n s, 2 3 0 . 9 3 Construed i n t h i s manner, the whole concept of indecent a s s a u l t r a i s e s a. number of problems on account of the i n t e r - c o n n e c t i o n between indecent a s s a u l t and a.ssault as defined i n s, 2 3 0 . Before, however, proceed-in g to an elaborate d i s c u s s i o n of such problems i t i s necessary to emphasize three points where the a.ssault as d e f i n e d i n s. 2 3 0 does not q u i t e c o i n c i d e w i t h the a s s a u l t which c o n s t i t u t e s an element of indecent a s s a u l t . 1 . The d e f i n i t i o n of assa.ult under s. 2 3 0 includes under para, ( a ) , the i n t e n t i o n a l a p p l i c a t i o n of force to the person of the other, d i r e c t l y or I n d i r e c t l y and under pa.ra (b), ma.lii.ng of a. gesture or a c t , i f by such gesture or a c t the offender attempts or threatens to apply f o r c e to the person of another and causes him to b e l i e v e that the offender has lib present a b i l i t y to c a r r y out h i s purpose. The very attempt to apply force to the person of another i s assa.ult i t s e l f , i f the offender thereby ca.uses the other person to b e l i e v e that i t w i l l be p r e s e n t l y a p p l i e d . Consequently, the offence of attempt to commit a.ssault would only stand to be committed when the a s s a u l t expected to be c a r r i e d out f a l l s w i t h i n the meaning of para (a.) of s. 2 3 0 , I t would be d i f f i c u l t , i f not impossible, to conceive of a case of attempt to commit assa.ult w i t h i n the meaning of para, (b) of s, 2 3 0 , since the very attempt to apply such f o r c e , i f c a r r i e d out i n the view or n o t i c e of such other person g i v i n g him the necessary impression of the present a b i l i t y of the offender would amount to a s s a u l t i t s e l f . 94 The a.ssault as defined under para, (a) may pr o p e r l y be considered to be an element i n the offence of indecent a s s a u l t , but so f a r as the offence of indecent a.ssa.ult may be s a i d to be based on a s s a u l t w i t h i n the meaning of para, (b) of s, 2 3 0 , the statement i s open to an o b j e c t i o n that then i t would not be p o s s i b l e to have a n offence of attempt to commit indecent a.ssa.ult. I n other words, the element of a s s a u l t i n indecent a.ssault only c o i n c i d e s w i t h a.ssault as defined i n para (a.) but not a s defined i n para (b) of s. 2 3 0 . 2 . The offence of a s s a u l t under s. 2 3 0 i s committed when such a p p l i c a t i o n of force or such attempt or t h r e a t i s c a r r i e d out without the consent of the other person, or c a r r i e d out wit h h i s consent where such consent wa.s obtained by fra.ud. By way of c o n t r a s t i t may be noted t h a t s. 1 4 1 ( 2 ) which provides that the consent of the female person i s of no a v a i l i f such consent i s given under f a l s e and f r a d u l e n t representations a s to the nature and q u a l i t y of the act presupposes a. d i f f e r e n t kind of fra u d . Fraud, i n general, would v i t i a t e the consent gi v e n f o r the purpose of s. 2 3 0 but fraud that may v i t i a t e consent under s„ 141 ( 2 ) i s a l i m i t e d kind of fraud r e -l a t e d only to the nature and q u a l i t y of the a c t and procurred by means I n v o l v i n g fraudulent representations which should a l s o be f a l s e at the same time. I t i s thus submitted that i n r e l a t i o n to the matter of fraud, the a.ssault a s defined i n s. 2 3 0 i s not i d e n t i c a l to a s s a u l t t h a t i s a. c o n s t i t u e n t element of indecent assa.ult because s. 141 ( 2 ) provides a. f u r t h e r l i m i t a t i o n a p p l i c a b l e to indecent a s s a u l t but not to a s s a u l t under s. 2 3 0 . 3 . ii consent of a. c h i l d under the age of fourteen years where i t has not been obtained by fraud may provide a. defence to a. charge of assa.ult as defined i n s. 2 3 0 . By v i r t u e of s. 1 3 2 , a. consent of a. ch i l d , under the age of fourteen years would not provide a. defence to a charge of indecent a.ssault under s. 141, and a c c o r d i n g l y , i t may be submitted that i n respect of the question of con-sent, the assa.ult as defined i n s. 2 3 0 i s not i d e n t i c a l to the assa.ult forming an element of indecent a s s a u l t . The f i r s t o b j e c t i o n to the f o r m u l a t i o n of the offence of indecent a.ssault would be that the connection of indecent a.ssault w i t h a s s a u l t as defined i n s. 2 3 0 i s j u r i d i c a l l y wrong, f o r the concept of the a s s a u l t i n these two s i t u a t i o n s under s. 141 and s. 2 3 0 i s not i d e n t i c a l . The d i f f e r e n c e , as noted above, i s s i g n i f i -cant and too no t i c e a b l e to be b l u r r e d by the use of s i m i l a r terminology. The second o b j e c t i o n to such f o r m u l a t i o n would be that on account of t h i s d i f f e r e n c e , some p r a c t i c a l problems a r i s e l e a d i n g to some confusion and divergent j u d i c i a l o p i n i o n . These problems are examined at appro-p r i a t e places but the reader i s requested to keep these three p o i n t s of d i f f e r e n c e i n mind. 9 6 I t i s convenient to deal w i t h the offence of indecent a.ssa.ult under the two headings of a.ssault and indecency. A s s a u l t The j u d i c i a l d e c i s i o n s are c l e a r on the p o i n t t h a t i n order to c o n s t i t u t e an indecent a s s a u l t , the a c t must be such that by i t s e l f can be an a s s a u l t i n the  f i r s t p l a c e . Thus i n the case of R v. A. B . ^ the c o n v i c t i o n was quashed on the grounds that there was no a s s a u l t and consequently there could not be an indecent a.ssa.ulto In the case of F a i r c l o u g h v. Whipp D where the f a c t s showed that the accused approached w i t h h i s exposed person to a g i r l of 9 years and asked her to 'touch i t ' which she d i d , the appeal of the Crown again s t a c q u i t t a l by the lower, court was dismissed by the Appel-l a t e Court on the ground that i n t h i s case there was no a.ssa.ult i n v o l v e d , and a c c o r d i n g l y there could not be an indecent a.ssa.ult. I t may be noted that i n the case the question was not that of consent or i n s u f f i c i e n t consent, but r a t h e r i f the act by i t s e l f amounted to one i n v o l v i n g some h o s t i l i t y against the person of another. I n the words of Lord Godda.rd, L. C. J . '....But before we come to the question whether there wa.s an indecent a s s a u l t we must consider whether there was an a s s a u l t , and I cannot hold that an i n v i t a t i o n to somebody to touch the i n v i t o r can amount to an a s s a u l t on the i n v i t e e . I t might be a. very good t h i n g I f Parliament passed an Act p r o v i d i n g that any indecent conduct i n the presence of a c h i l d or i n r e l a t i o n 9 7 to a c h i l d - or i n any form of words the draftsman saw f i t to use - should be punishable, but at present the law has not gone beyond saying that an indecent assa.ult on a. c h i l d i s punishable whether the c h i l d consents or not. I t i s obvious, t h e r e f o r e , that the offence must be one which can  amount to an a s s a u l t i n law", (emphasis added),86 ~ And, once again, i n the case of D. P. P. v. R o g e r s , ^ where the f a c t s showed that a f a t h e r had, ono.no occasion^ put h i s arm around h i s daughter and taken her u p s t a i r s , ex-posed h i s person and asked her to handle i t which she d i d without any r e s i s t a n c e or o b j e c t i o n , and, on another occasion, i n s i m i l a r circumstances succeeded i n t a k i n g the same g i r l u p s t a i r s when she knew the nature of h i s i n t e n t i o n s but n e i t h e r objected nor r e s i s t e d , although she was u n w i l l i n g to accompany him t h e r e , Lord Goddard, L. C, J . d i s m i s s i n g the appeal by the Crown against a c q u i t t a l , helds "Before a man can be found g u i l t y of an indecent a.ssault, i t has to be found that he was g u i l t y of an a.ssault, f o r an indecent assa.ult i s an assa.ult accompanied by i n -decency, and i f one could show here that the respondent had done anything towards h i s c h i l d which by any f a i r use of language could be c a l l e d compulsion, or acted, as I have said i n other cases, i n a. h o s t i l e manner towards her, that i s , w i t h a t h r e a t or a, gesture which could be taken as a. threa.t, or had p u l l e d a r e l u c t a n t c h i l d towards him, that would undoubtedly be an a s s a u l t , and i f i t i s accomplished by an act of indecency, i t would be an indecent a s s a u l t , .,.Here no force was used and nothing was done except what any f a t h e r may do, and however much we may r e g r e t that we cannot punish the respondent f o r doing an act which deserves the r e p r o b a t i o n of every decent man, we f e e l that the j u s t i c e s came to a. r i g h t d e c i s i o n and we r e l u c t a n t l y dismiss t h i s appeal.88 9 8 But s where even a. threat accompanied by some gesture or movement has been ma.de, the act i s an a.ssa.ult even though no a c t u a l contact w i t h the person of another" i s i n v o l v e d . I n R v. R o l f e 8 ? i t was held? An a.ssa.ult may be c o n s t i t u t e d by a. t h r e a t or a. h o s t i l e act committed towards a. person, and i f a man i n d e c e n t l y exposes himself and walks towards a. woman w i t h h i s person exposed and makes an Indecent suggestion to her t h a t , i n the o p i n i o n of t h i s Court, can amount to an a.ssault.9 0 Or, where an a p p l i c a t i o n of f o r c e , however s l i g h t , comes to be used at any stage of the proceedings, even though the o r i g i n a l indecency was unaccompanied by an a c t q u a l i -f y i n g as an a.ssa.ult„ Thus, i n Beal v K e l l e y ^ where the a.ccused took h i s v i c t i m to the woods, exposed h i s person and a.sked. him to handle i t , and on r e f u s a l and expected departure of the v i c t i m , caught him and p u l l e d him towards h i m s e l f , i t was held that there was a.ssa.ult, a h o s t i l e a c t , w i t h every circumstance of indecency, and the case was returned to the lower court w i t h d i r e c t i o n s to c o n v i c t . This p r i n c i p l e that an act must be an a s s a u l t before I t can be an indecent a s s a u l t appears to have been accepted i n Canada. In R« v. Quinton, K e l l o c k , J . , i n d i -cated t h a t 0.., the crime of attempted rape progresses from a s s a u l t through indecent a s s a u l t to the complete c r i m e " . 9 2 In Ga.uthier v. R .^3 t h i s p r i n c i p l e was followed and the court held that a l e s s e r charge of indecent a.ssault was included i n the charge of a s s a u l t w i t h i n t e n t to commit rape, holding by i m p l i c a t i o n that there must be 9 9 an a s s a u l t i n the offence of indecent a s s a u l t . I n an e a r l i e r case of R v. H o r n ^ a. s i m i l a r p r i n c i p l e was a p p l i e d when the court helds ' Indecent a.ssault i s not defined i n the Code, but i t i s l a r g e l y s e l f - e x p l a n a t o r y . The commonest form i s , of course, touching, or attempting to touch, the priva.te p a r t s of another, but the offence i s by no means confined to such cases, One of the ac-cepted d e f i n i t i o n s of a. b a t t e r y ( 1 Hawk. P.C, c. 1 5 , s 0 2) includes "every touching and l y i n g hold (however t r i f l i n g ) of another's person or clo t h e s i n an angry, revengeful, rude, i n s o l e n t or h o s t i l e manner," Any attempted b a t t e r y , w i t h i n  t h i s d e f i n i t i o n , i s an assa.ult, and i t mokes no d i f f e r e n c e that the. circumstances which makes the a s s a u l t indecent i s the very a c t which makes the attempt to touch the person a. rude and i n s o l e n t attempt' 9 5 (emphasis added) We may pause here and consider the problem that now begins to appear* Simply s t a t e d , indecent a s s a u l t must i n v o l v e an a s s a u l t . I f a. t h i n g i s not an a s s a u l t , i t i s not an indecent a s s a u l t . I f an a.ct i s pr o p e r l y an a s s a u l t , the element of indecency added to i t makes i t indecent a s s a u l t . So long as the element of indecency de r i v e s from something other than the a c t of a s s a u l t i t s e l f , i t Is p o s s i b l e to say that i f the a s s a u l t has not been committed ( e i t h e r because there has been no a p p l i c a t i o n or attempted a p p l i c a t i o n of force or because such a p p l i c a t i o n or attempted a p p l i c a t i o n has been con-sented to) there cannot be an indecent a s s a u l t . I f an a d u l t female consents to a. man l y i n g naked on top of her, there i s no indecent a s s a u l t , on account of the f a c t that there i s no a.ssault i n the f i r s t p l a c e , even though i t 1 0 0 may be proved ( i n a, h y p o t h e t i c a l case) that there was indecency. But i n case where a minor female under the a.ge of 14 years consents to a. man l y i n g naked on top of her her consent does .not provide a defence. On s t r i c t t e c h n i c a l reasons her consent should provide a defence, f o r a. c h i l d under the. age of 14 years can consent to an a.ssault under s. 2 3 0 so as to provide a v a l i d defence to such charge? indeed the act otherwise an a s s a u l t i s not an a s s a u l t i f done w i t h her consent, and i n absence of a.ssa.ult there cannot be an indecent a s s a u l t . So long as a. c h i l d under the age of 14 years can consent to an a c t so as to prevent i t from being an a s s a u l t he should a l s o be able to provide a defence to indecent a s s a u l t . /» s i t u a t i o n covered by t h i s example d i d a r i s e i n the case of R v. Beamish^, -where the lower court f o l l o w i n g the conceptual d e f i n i t i o n of indecent a.ssa.ult somewhat on the above l i n e s dismissed the case against the accused on the grounds that there was no a s s a u l t and as such there cannot be an indecent a s s a u l t . The d e c i s i o n of the lower court was overruled on appeal by Nova. S c o t i a Supreme Court, s i t t i n g i n Banco, which held that the evidence i n d i c a t e d t h a t something t h a t was done to the g i r l which without consent would have amounted to an a.ssault, and t h a t which was done to the g i r l would have been a.ssault i f done agai n s t her w i l l , and since her' consent was not a. good defence to the charge of indecent a.ssa.ult, the offence had been committed. I t i s submitted, w i t h respect. 1 0 1 t h a t the d e c i s i o n of the lower court i s r i g h t I n reasoning (assuming that the d e f i n i t i o n of indecent a.ssault as a.ssa.ult coupled w i t h indecency i s a. r i g h t d e f i n i t i o n ) but wrong i n r e s u l t s , while the d e c i s i o n of the Supreme Court i s r i g h t i n r e s u l t s , but does d e f l e c t from the concept of indecent a s s a u l t , as defined. However, i n view of the express words of s. 1 3 2 s t i p u l a t i n g that a consent by a c h i l d under 14 years of age i s not a. defence to a charge of indecent a.ssault, the d e c i s i o n could not have been otherwise, and any s l i g h t d e f l e c t i o n from the conceptual consistency of the offence of indecent a.ssa.ult i n r e l a t i o n to i t s a p p l i c a t i o n to a c h i l d or an a d u l t w i l l have to be accepted. I t may however be argued w i t h some force that the three s e c t i o n s , v i z , s. 1 3 2 , 141 and 2 3 0 are not i n c o n s i s t e n t to each other i f one accepts that s. 1 3 2 a p p l i e s to the offence of indecent a s s a u l t i n i t s e n t i r e t y , i n c l u d i n g both a s s a u l t and Indecency, and that t h i s sec-t i o n by p r o v i d i n g that a c h i l d ' s consent i s not a defence to indecent a s s a u l t a c t u a l l y l i m i t s the c h i l d ' s c a p a c i t y to consent to an a s s a u l t under s. 2 3 0 , so f a r as such a s s a u l t may be indecent. I t i s submitted that t h i s may be a. good argument i f the indecency i s contained i n the very act which c o n s t i t u t e s the a s s a u l t , or i f the a.ssault i t s e l f i s of indecent nature, but where the act c o n s t i t u -t i n g an a.ssault i s not by i t s e l f indecent but i s so 1 0 2 e n t i r e l y on account of circumstances, the c h i l d ' s incapa-c i t y to consent to the a s s a u l t p a r t of the offence s t i l l i n j e c t s a conceptual i n c o n s i s t e n c y i n the d e f i n i t i o n of indecent a s s a u l t . I n subsequent pages i t i s recommended that t h i s offence of indecent a s s a u l t be re-formulated and i n i t s reformulated manner kept divorced from the d e f i n i t i o n of a s s a u l t under s, 2 3 0 , and one of the reasons f o r such recommendation i s the i n c o n s i s t e n c y i n the d e f i n i t i o n a.s shown above. Indecency We have noted that indecency when contained i n the a c t c o n s i t u t i n g an assa.ult would make the act an indecent assault.. But i n many s i t u a t i o n s the a c t con-s t i t u t i n g an a.ssault may by i t s e l f be of an innocent nature or may look l i k e an innocent a c t , but may be i n -decent on account of something outside and q u i t e apart from i t . Holding a. hand of a female person i s not by i t s e l f indecent, and i n the ca.se of R v. Louie Chong ,97 i t was a.rgued s ' ...that there cannot be a. c o n v i c t i o n f o r indecent assa.ult unless the act constitur-t i n g the assa.ult i s i n i t s e l f indecent i n i t s nature. I n t h i s case a l l that was done by the p r i s o n e r was to take hold of the g i r l against her w i l l . I t i s true that he o f f e r e d her money and invited, her to accompany him f o r an immoral purpose? but i t i s contended tha.t t h i s does not import any indecency i n t o the l a y i n g on of a. hand, which c o n s t i t u t e d the assa.ult. ' 9 ° 1 0 3 To which Middleton J . r e p l i e d by holdings ' I t appears to me that an act i t s e l f ambiguous may be i n t e r p r e t e d by surrounding circumstances and by words spoken at the time the act was committed ... I t i s i n each case a question of f a c t whether the t h i n g which was done, i n the circumstances i n which i t was done, was done i n d e c e n t l y . I f i t was, an indecent a.ssa.ult has been committed'99 I t may be noted that His Lordship r e f e r r e d to the circumstances but d i d not s p e c i f i c a l l y r e f e r to the i n t e n t i o n s . This was a stated case where the f a c t s were not i n dispute* The lower court had s t a t e d the f a c t s showing that the accused followed a respectable g i r l , 1 5 years o l d , on her way home at a l a t e hour of the n i g h t , overtook her at a, lonesome spot, s e i z e d hold of her hand ag a i n s t her w i l l and offered her f>5«00 to go w i t h him f o r immoral purposes. The i n t e n t i o n s of the accused were clea.rly immoral and there wa.s hardly any dispute about such i n t e n t i o n s , and perhaps i n view of t h i s i t was not necessary to r e f e r to h i s i n t e n t i o n s . However, i t i s not c l e a r i f the circumstances to which His Lordship r e f e r r e d to included i n t e n t i o n s as w e l l . The f a c t that a. person i s doing something w i t h c e r t a i n i n t e n t i o n s i n h i s mind may In some cases be an important circumstance. His Lordship, i n the concluding paragraph of the judgment, s a i d ; The magistrate has found, and I t h i n k r i g h t l y found, that t h i s man, who took hold of the g i r l and i n v i t e d her to go w i t h him f o r an immoral purpose, d i d i n d e c e n t l y a.ssa.ult her. ( 104 I f the i n v i t a t i o n i s a. m a t e r i a l circumstance, i t can i n the context of the case have two meanings, one th a t the words of the i n v i t a t i o n were indecent, and the other that the i n v i t a t i o n showed a. c e r t a i n i n t e n t i o n which was indecent. I t i s not c l e a r i f i t was the i n -decent words or the indecent i n t e n t i o n as shown by such words that made the act an indecent a s s a u l t . I n subsequent d e c i s i o n s t h i s d e c i s i o n of R v. Louie Chong has been i n t e r p r e t e d i n d i f f e r e n t ways. I n R v. Quinton," 1" 0^ the Supreme Court of Canada, appears to have considered i n t e n t i o n as a m a t e r i a l element of indecency. Mr. J u s t i c e K e l l o c k , while c o n s i d e r i n g i f indecent a s s a u l t was included i n the offence of attempt to commit rape, said? 9 I f common a s s a u l t be an inc l u d e d offence i n a charge of attempted rape a.s held by the Court of Appeal, and there can be no question that such an a s s a u l t would be an act w i t h i n s, 7 2 , then such an a c t , though i n i t s e l f ambiguous, may, i n t e r p r e t e d by the surrounding circumstances i n c l u d i n g words spoken a.t the time, amount to Indecent a s s a u l t s Rex v Louie Chong, (1914) 32 0,L.R. 6 6 , 23 C.C.C, 2 5 0 , 13 Can, Abr. 3 8 7 , I t i s not necessary that the a c t c o n s t i t u t i n g the a.ssault be i n i t s e l f indecent i n i t s nature. I f the a s s a u l t , coupled w i t h the  i n t e n t i o n r e q u i r e d by s. 72, i s of such a.  nature' as to c o n s t i t u t e an attempt w i t h i n  the r'hle as l a i d down i n Rex v. Robinson,  1915 2'K.B. 3 ^ 2 , such a s s a u l t must neces- s a r i l y be indecent? Rex v. Louie Chong, supra.. 1 ~ (emphasis added) And Estey, J . , a f t e r r e f e r r i n g tothe f a c t s of the case of R v. Louie Chong and quoting the passage of Middleton, J to the e f f e c t that an act by i t s e l f ambiguous may be 1 0 5 i n t e r p r e t e d by the surrounding circumstances and by words spoken at the time the act was committed, went on to says His spoken words which were part of h i s conduct evidenced the i n t e n t i o n of the  a.ccused and determined the c r i m i n a l q u a l i t y  of h i s "act, L U J (emphasis" a.ddedX However, i n a subsequent d e c i s i o n of R v,  Resener, "*-0^ the Court of Appeal i n B r i t i s h Columbia, came to deal p a r t i c u l a r l y w i t h the question, i f i n t e n t i o n to a.ct i n d e c e n t l y , was an e s s e n t i a l i n g r e d i e n t of the offence of indecent a.ssault. I n t h i s case the a.ccused put up the defence of drunkenness and the Court, while c o n s i d e r i n g whether such drunkenness r e s u l t i n g i n l a c k of s p e c i f i c i n t e n t to commit indecency could amount to a. defence, held that such a. defence would only be a v a i l -able I f the s p e c i f i c i n t e n t i o n to commit indecency was an e s s e n t i a l i n g r e d i e n t of the offence and f u r t h e r held t h a t such s p e c i f i c i n t e n t i o n was not an e s s e n t i a l i ngred-i e n t of t h i s offence. Mr. J u s t i c e Davey, C. J . B. C. saids The a u t h o r i t i e s d e f i n i n g indecent a.ssault do not suggest that an i n t e n t i o n to do a.n indecent act i s an e s s e n t i a l i n g r e d i e n t of the crime. I t i s the circumstances under which the a s s a u l t i s committed that makes i t indecent. 1-05 and a f t e r r e f e r r i n g to the case of R v. Louie Chong and the same pa.ssa.ge of Middle ton, J , went on to says I observe that Kenny's Out l i n e of C r i m i n a l Law, 1 9 t h ed, para 146, p. 2 0 3 , defines an indecent a.ssault i n a s i m i l a r way, but i n footnote 6 the e d i t o r c i t e s R v. Louie Chong as de c i d i n g t h a t an indecent a s s a u l t i s one which has i n i t an element of indecency, 106 "even merely a. mental one". With deference the learned e d i t o r has m i s i n t e r p r e t e d that a u t h o r i t y . The spoken words form part of the circumstances i n which an act i s done, and i t i s the circumstances as a whole t h a t make an act indecent, not the s t a t e of mind of the a c t o r revealed by h i s wordsl°6 Quite c l e a r l y the d e c i s i o n i n R v. Resener i n d i c a t e s that indecency r e l a t e s to the circumstances and not to the i n t e n t i o n s of the accused, but some may argue that the a u t h o r i t i e s on the ba s i s of which t h i s d e c i s i o n i s given do not themselves support such a. con-c l u s i o n . I t may be argued that i n the case of R v. Louie Chong the d e c i s i o n c l e a r l y r e f e r s to circumstances by reason of which an act may become indecent, and that i t r e f e r s to words spoken at the time a s p a r t of the circum-stances. One may answer t h i s argument by saying that the reason that i n t e n t i o n s were not r e f e r r e d to i n the  Louie Cheng's case was that such i n t e n t i o n s were not i n dispute and that the words to which the d e c i s i o n r e f e r s are mentioned as evidence of the i n t e n t i o n , which c l e a r l y was immoral. I t appears that , the d e c i s i o n i n R v. Resener r e f e r s to the case of R v. Quinton a s a. supporting author-i t y , when t h i s case, i t .may be argued, can be c i t e d a s a u t h o r i t y f o r a contrary p r o p o s i t i o n . When one looks at the passages of Mr. J u s t i c e K e l l o c k and Mr. J u s t i c e Estey, c i t e d above, and places them i n j u x t a p o s i t i o n to the passages of Mr. J u s t i c e Davey, c i t e d above, the co n t r a s t becomes too no t i c e a b l e to be disregarded. The case of R v, L. B . 1 0 7 and Beal v. K e l l e y 1 0 8 may be considered 107 d i s t i n g u i s h a b l e , as- they deal w i t h d i f f e r e n t circum-stances. I n the case of R v. A. B. the ma j o r i t y d e c i s i o n held that there was, i n the circumstances of the case, no a.ssault, and t h e r e f o r e , the c o n v i c t i o n f o r indecent assa.ult was not warranted, while the s i n g l e d i s s e n t was to the e f f e c t t h a t , there was i n f a c t an a s s a u l t , and the l e t t e r w r i t t e n by the accused i n d i c a t e d the purpose of the assa.ult as being indecent. I n the maj o r i t y d e c i s i o n of the case the emphasis was on the question whether the ac t c o n s t i t u t e d an a.ssault, while the d i s s e n t i n g judgment r e l i e d on the accused's l e t t e r which appears to be e v i -dence of the i n t e n t i o n of the accused, r a t h e r than a circumstance of indecency by i t s e l f . I n the case of Beal v. K e l l e y the accused had exposed himself i n the presence of a. boy and asked him to do something to the accused's person and, i n such circumstances, the i n t e n -t i o n s of the a.ccused were clea.rly indecent, and the court's reference to the circumstances of indecency tha.t made the a s s a u l t indecent, was independent of the i n t e n t i o n s , which were c l e a r l y evidenced, and which were c l e a r l y indecent. I t may be argued that t h i s case of Beal v.  K e l l e y would hardly be an a u t h o r i t y f o r the p r o p o s i t i o n tha.t circumstances alone, regardless of l a c k of i n t e n t i o n s , could make an act indecent. On the other hand, the c i t a t i o n by the learned e d i t o r of Kenny's O u t l i n e of C r i m i n a l Law of the case of R v. Louie Chong as an a u t h o r i t y f o r the p r o p o s i t i o n 108 t h a t indecent a s s a u l t i s one where the element of inde-cency may only be a. mental one, i s , as pointed out by Mr. J u s t i c e Davey i n the above passage, a. m i s i n t e r p r e -t a t i o n . The Louie Chong case c l e a r l y s t a t e s that the circumstances i n which a. t h i n g i s done may show that i t wa.s done i n d e c e n t l y , and i s hardly an a u t h o r i t y f o r the p r o p o s i t i o n that an a.ct completely innocent i n outward manifestations becomes an indecent a.ssa.ult i f only the mind of the a.ccused i s a f f e c t e d by c a r n a l d e s i r e s . I t i s submitted, with respect, that both the circumstances and i n t e n t i o n s of the a.ccused should be important elements of the offence of indecent a.ssa.ult, so f a r as the indecency p a r t Is concerned. I f only one of these two elements i s adopted a.s an e s s e n t i a l element of indecency, to the e x c l u s i o n of the other, an i n j u s t i c e i s l i k e l y to r e s u l t i n e i t h e r case. This can be I l l u s -t r a t e d by means of an example of a doctor examining the p r i v a t e p a r ts of a l a d y p a t i e n t who has consented to such examination f o r medical reasons. The act of the doctor i n such examination may not be indecent, nor may there be circumstances that may render such an a c t indecent. The d i f f e r e n c e , however, may l i e i n the i n t e n t i o n s or i n the mind of the doctor who may derive some c a r n a l s a t i s -f a c t i o n out of t h i s purported innocent medical examination.. Can i t be s a i d that i t may amount to indecent a.ssa.ult i f w h i l e engaged i n such an examination, the mind of the doctor i s a f f e c t e d by a c a r n a l a s s o c i a t i o n but h i s conduct i n i t s e x t e r n a l manifestations remains e x a c t l y the same? To say that such conduct amounts to an indecent a s s a u l t would be to take an unreasonable stand to punish a man f o r h i s hidden i n t e n t i o n s not followed by an indecent overt action,, A c c o r d i n g l y , the circumstances that may render an a c t indecent must n e c e s s a r i l y be considered as essen-t i a l elements of indecency.- On the other hand, i f only the circumstances of indecency are considered, regardless of i n t e n t i o n s , s u f f i c i e n t to render an act indecent, i t would amount to condoning any a c t c a r r i e d out w i t h the d i r t i e s t i n t e n t i o n s so lo n g as the act by i t s e l f , and i n given circumstances;, i s not indecent,, This would l e a d to a. strange r e s u l t , f o r then any doctor proceeding w i t h most c a r n a l i n t e n t i o n s to examine h i s p a t i e n t s would be innocent, while a. drunk who appreciates n e i t h e r the circumstances of indecency, nor has an i n t e n t i o n to a c t i n d e c e n t l y , would be g u i l t y . Meed f o r reform On the whole, i t may be submitted, that the law r e l a t i n g to indecent a s s a u l t i s not only co n c e p t u a l l y d e f e c t i v e , but i s a l s o i n c o n s i s t e n t . The j u d i c i a l d e c i -sions themselves are not uniform,, Where an a c t on the face of i t i s qu i t e innocent, the i n t e n t i o n behind i t may s t i l l be indecent, i n which case i t appears that an i n t e n t i o n to act i n d e c e n t l y may not be e n e s s e n t i a l element of the offence. At the same time, as we s h a l l see i n 110 f o l l o w i n g pages, an i n t e n t i o n behind an a c t can make a d i f f e r e n c e as f a r as the nature and q u a l i t y of the a c t ( w i t h i n the meaning of s. 141 (2) ) i s concerned. A medical a c t and a c a r n a l a ct are d i f f e r e n t , although the d i f f e r e n c e would l i e e s s e n t i a l l y i n i n t e n t i o n s r a t h e r than i n an a c t u a l examination i t s e l f . A drunk who has no i n t e n t i o n s to be indecent i s s t i l l g u i l t y , because such an i n t e n t i o n i s not an e s s e n t i a l element of the offence, while a doctor who conducts a. medical examination w i t h an indecent i n t e n t i o n i s not g u i l t y , because the act i t s e l f i s consented to by the p a t i e n t . The d i r t y i n t e n t i o n s of a. doctor which have not been consented to s t i l l l eave him innocent, while the l a c k of indecent i n t e n t i o n i n a. drunk may not s u f f i c e to hold him innocent. A reform i n t h i s f i e l d i s d e s i r a b l e , and, as i n d i c a t e d e a r l i e r , i t i s recommended i n subsequent pa.ges that t h i s whole offence be re-formulated. Indecent a.ssault on male 148o Every male person who a s s a u l t s another person w i t h i n t e n t to commit buggery or who ind e c e n t l y a s s a u l t s another male person i s g u i l t y of an i n d i c t a b l e offence and i s l i a b l e to imprisonment f o r ten years and to be whipped. The offence of indecent a.ssa.ult on a male, contained i n the above-noted s. 148 of the Code appears to have been w e l l c o d i f i e d , i n as much as i t has avoided the omissions or a d d i t i o n s that give r i s e to d i f f i c u l t i e s I l l i n a p p l i c a t i o n I n the f o l l o w i n g r e s p e c t s , t h i s s e c t i o n i s an improvment on the corresponding s„ 141 which deals w i t h indecent a.ssa.ult on females. 1. This s e c t i o n c l e a r l y provides t h a t a s s a u l t w i t h i n t e n t to "buggery i s an offence under s. 148 a,nd i s punishable w i t h the same penalty. A confusion a.s to whether a s s a u l t w i t h an i n t e n t to commit buggery i s an attempt to commit buggery or indecent a.ssa.ult i s thus avoided, as the s e c t i o n provides a. s i m i l a r penalty i n respect of t h i s offence and indecent a.ssa.ult. 2 . I n respect of f r a u d , the a s s a u l t p a r t of inde-cent a.ssa.ult under s. 148 i s i d e n t i c a l to the a.ssa.ult under s. 2 3 0 , which s t i p u l a t e s that the a c t s p e c i f i e d t h e r e i n i s an a s s a u l t when committed "without the consent of another person o r w i t h h i s consent where i t i s obtained by f r a u d " . On account of the f a c t , tha.t s, 148 does not c o n t a i n a proviso s i m i l a r to s. 141 ( 2 ) , i n v a l i d a t i n g consent obtained by f a l s e and fraudulent representations as to the nature and q u a l i t y of the a.ct, i t appears, that a fraud that i s s u f f i c i e n t to v i t i a t e consent to an a c t otherwise an a.ssault under s. 2 3 0 , would a l s o be s u f f i -c i e n t to v i t i a t e consent to an a c t otherwise an indecent a s s a u l t . The l e g i s l a t i v e consistency i n respect of the v i t i a t i n g f a c t o r of fraud maintained i n s. 148 i n the same terms a.s maintained i n s. 2 3 0 i s d e s i r a b l e f o r the purpose of the uniform, a p p l i c a t i o n of the concepts of c r i m i n a l la.w. 112 3 . The words "another person" i n the f i r s t part of s. 148 dealing with a.ssault with intent to commit buggery c l e a r l y includes both male and female persons. This wider application of the offence i s desirable, f o r i t i s possible that a. male person may assault even a. female person with a. view to commit th i s crime, and the wider application given to this section serves the i n -terests of comprehensibillty. Assa.ult with intent to commit buggery Although an improvement i n the above respects, s. 148 yet introduces a. complication. I f assault with intent to commit buggery i s an offence under th i s section, when can attempt to commit buggery be punished under s. 406? Section 406 i s a. section providing penalties i n respect of an attempt to commit offences under the Code "except where otherwise expressly provided by law' The only case where an offence to commit buggery does not, by I t s e l f , involve a.ssault with intent to commit buggery, would be, where a. person over the age of 14 years consents to the conduct of the accused moti-vated towards that d i r e c t i o n , so that one can say, that there i s no assault on account of the consent. Hence, the act of the a.ccused i s properly punishable as an at-tempt to commit buggery under the general s. 406. In a l l other ca.ses the act of the accused would probably be considered an a.ssault with intent to commit buggery 1 1 3 punishable under s. 1 4 8 . I t may be noted that such a c t , i f punished under s. 406 , i s punishable w i t h seven years imprisonment, and i f punished under s. 1 4 8 , i s punishable w i t h ten years imprisonment. Although t h i s manner of c o n s t r u i n g the s e c t i o n i s reasonable, and perhaps de-s i r a b l e where the v i c t i m i s an a d u l t , a complexity a r i s e s where the v i c t i m i s a c h i l d under 14 years of age. In respect of any such c h i l d , s. 1 3 2 operates to bar h i s consent to an a.ssault w i t h i n t e n t to commit buggery. Where an a.ccused attempts to commit buggery i n respect of any such c h i l d , and h i s attempt i n v o l v e s any kind of a p p l i c a t i o n or attempted a p p l i c a t i o n of force to the person of the c h i l d , t h i s would f a l l w i t h i n s. 148 r a t h e r than s. 4 0 6 . By an a p p l i c a t i o n of force to the person of the c h i l d , the a s s a u l t does take p l a c e , and on account of the i n t e n t i o n of the accused becomes a s s a u l t w i t h i n t e n t to commit buggery. This would l e a d to a strange r e s u l t . The offence of a s s a u l t w i t h i n t e n t to commit buggery i n v o l v e s i n i t s e x t e r n a l manifestations only an a s s a u l t . Thus a. c h i l d , who can consent to an a s s a u l t (so as to provide a, defence) under s. 2 3 0 , cannot consent to the sa.me conduct (so as to provide a. defence), where an accused cherishes a hidden i n t e n t i o n to commit buggery, of which, the c h i l d may be e n t i r e l y ignorant. In the f i n a l a n a l y s i s , where the e x t e r n a l a p p l i c a t i o n of force or touching i s apparentely innocent, such an offence would r e q u i r e t h a t the accused be punished by reason o f . h i s i n t e n t i o n s , even though such i n t e n t i o n s are not followed by a m a n i f e s t l y indecent a c t . 114 Applying the same example to an a d u l t person, i t may be said that where an a d u l t , consenting to an apparently innocent a c t , does so i n ignorance of the f a c t tha.t the accused cherishes some hidden i n t e n t to commit buggery, i t i s strange that such consent given i n ignorance of the hidden i n t e n t should operate to excuse the crime,, C l e a r l y , i f an a d u l t consents, there has been no a s s a u l t , and the offence i s not committed, although the accused may be considered g u i l t y of attempt to com-mit buggery? t h i s i s a. l e s s e r offence, i n terms of puni-shment. In the i n t e r e s t of securing a u n i f o r m i t y of s i t u a t i o n covered by the above offence w i t h the p o s s i b l e s i t u a t i o n where a.ssault may be c a r r i e d out wi t h i n t e n -t i o n to commit rape, i t i s recommended i n the subsequent pages of t h i s t h e s i s that both these s i t u a t i o n s be c o d i -f i e d , by l e g i s l a t i v e a c t i o n , as attempts to commit bug-gery or rape, a.s the case may be. Indecent a s s a u l t I f the i n t e n t i o n to commit the indecent element of the a c t , or the s p e c i f i c i n t e n t to commit indecency i s not an e s s e n t i a l i n g r e d i e n t of the offence of indecent a s s a u l t , as held by R v. Resener. the t a k i n g of indecency only to the circumstances may occasion serious i n j u s t i c e at times. In Russia, i t i s a. s o c i a l custom 1 1 5 t h a t men k i s s other men on the cheeks when b i d d i n g f a r e -w e l l before a. lo n g journey, or perhaps on other s o c i a l o ccasions. In Greece, there i s a custom that young men put t h e i r arms around each other while standing on the sidewalk, or c a r r y i n g on a conversation i n a c o l l e c t i v e rendezvous. In Canada, men u s u a l l y do not touch other men, and such a c t i o n s axe therefore given homosexual connotations. Would i t be j u s t to c o n v i c t a. person i n Canada., who being ignorant of the given s o c i a l norm i n the Canadian context (circumstances that render the act as indecent) proceeded to express an innocent a f f e c t i o n i n accordance w i t h the old customs tha.t he may not have f o r g o t t e n . On the a u t h o r i t y of the Resener case, the l a c k of i n t e n t to the indecent element should not a v a i l , s i n c e indecency i s r e f e r r a b l e to circumstances alone. The above s i t u a t i o n can be avoided by arguing that I t may not amount to a s s a u l t i n the f i r s t p l a c e , on account of the consent. But assuming that the other person i s a c h i l d under fourteen years, I t may s t i l l be avoided by arguing that the person's o l d habi t s or ignorance of the Canadian customs i s a circumstance from which the decency or indecency can be determined. Although i t may be a good argument, the l o g i c i s somewha.t involved? the knowledge or l a c k of c e r t a i n s o c i a l customs i s r e l e -vant to the i n t e n t , and i s not so much the matter of a.ctus reus as of the mind. 116 In other respects., the problems a r i s i n g under the offence of indecent a.ssault on the female are a l s o l i k e l y to a r i s e i n respect of the offence of indecent a s s a u l t on the male, except that i n matters of fraud, indecent a.ssault on the male i s subject to the same p r i n c i p l e s as would apply to a s s a u l t under s. 2 3 0 . I n l i n e w i t h the recommendations concerning the offence of indecent a s s a u l t on the female, f u r t h e r recommendations are ma.de i n subsequent pages to the e f f e c t t h a t the present offence of indecent a s s a u l t on the male be reformulated. The D e v i l or the Drunk " I t sometimes happens that a man, who i s under the i n f l u e n c e of i n t o x i c a n t s , w i l l commit crimes that he would not have otherwise thought of committing 8 I n some j u r i s d i c t i o n s a vo l u n t a r y drunkenness i s no defence on account of the f a c t that i t i s considered q u i t e proper to f o l l o w the r u l e , 8 L e t those that commit crimes when drunk, be punished when s o b e r 8 I n our j u r i s d i c t i o n , drunkenness has succeeded as an excuse f o r crime, although the p r e c i s e extent to which I t may be a v a i l a b l e a.s a defence i s u n c e r t a i n . However, as pointed out by P r o f e s s o r W i l l i a m s , there i s no s p e c i a l law on the subject of drunkenness as an excuse f o r crime,"'-!2 a n (3 the r u l e s a p p l i c a b l e to a defence of drunkenness are f o r the most part ordinary r u l e s of c r i m i n a l law. 1 1 7 P u t t i n g forward a, defence of drunkenness amou-nts t o , a s s e r t i n g a mistake i n the mind of the accused negating mens rea.. As noted e a r l i e r " 1 - 1 ^ i t i s a. p r i n c i p l e of c r i m i n a l law that the mens rea i s a. c o n s t i t u e n t p a r t of every, offence i n c l u d i n g s t a t u t o r y offences (unless c l e a r l y excluded),and that i t c o n s i s t s of i n t e n t i o n and re c k l e s s n e s s . I n t e n t i o n , as much as re c k l e s s n e s s , may r e l a t e e i t h e r to consequences or to circumstances. I n -t e n t i o n as to consequences, g e n e r a l l y speaking, i s a. f o r s e e a b i l i t y t h a t a consequence may r e s u l t , coupled w i t h a d e s i r e that i t may r e s u l t or f o r s e e a . b i l i t y that a con-sequence i s s u b s t a n t i a l l y c e r t a i n to r e s u l t , and i n t e n -t i o n as to circumstances, may mean, e i t h e r knowledge, or hope, that circumstances e x i s t . S i m i l a r l y , r e c k l e s s -ness as to consequences, means a. f o r s e e a . b i l i t y of a p r o b a b i l i t y that w i l l occur, without' e i t h e r a. d e s i r e or f o r s e e a b i l i t y that i t i s s u b s t a n t i a l l y c e r t a i n to r e s u l t , and recklessness as to circumstances, c o n s i s t s of j u s t a. r e a l i s a t i o n that the circumstances may e x i s t , even without knowledge or hope that they d o . H ^ I t w i l l thus be noted that drunkenness, wi t h i t s usual e f f e c t on the mind, may help the accused by showing that he did not have mentally a s t a t e of mind, that i s r e q u i r e d to make him g u i l t y of the crime. " I f crime r e q u i r e s i n t e n t i o n ; drunkenness may help to show that there was no d e s i r e of the consequences, i f i t r e q u i r e s r e c k l e s s n e s s , drunk-enness may help to show that there was no f o r e s i g h t ; 118 drunkenness may a l s o help negative knowledge or e s t a b l i s h mistake 0 -5 Drunkenness thus, i s only c i r c u m s t a n t i a l evidence that a. mistake was ma.de. The c l a s s i c case on the subject of drunkenness 11 7 i s s a i d to be the case of D. P. P. v. Beard ' where Lord Birkenhead s a i d : The evidence of drunkenness which renders the accused incapable of forming the s p e c i f i c i n t e n t e s s e n t i a l to c o n s t i t u t e the crime should be taken i n t o c o n s i d e r a t i o n w i t h the other f a c t s proved i n order to determine whether or not he had t h i s intent.^° and again: My Lords, drunkenness i n t h i s case could be no defence unless i t could be e s t a b l i s h e d that Beard at the time of committing the rape was so drunk that he was incapable of forming the i n t e n t to commit i t , which was not i n f a c t , and m a n i f e s t l y , having regard to the evidence, could not be cont e n d e d .H 9 The subsequent d e c i s i o n s have shown a. marked divergence of opi n i o n on t h i s subject of drunkenness as a defence, s p e c i a l l y i n respect of sexual offences. The d i f f i c u l t y i s p a r t l y caused by the use of the words s p e c i f i c Intent i n the above case, and, i n p a r t i c u l a r , r e f e r r i n g to the law of rape. This s p e c i f i c i n t e n t i o n as ag a i n s t the general i n t e n t i o n has caused a. great deal of confusion. But i n f a c t , the basic question i s very simple. Since rape i s an act of sexual i n t e r c o u r s e a g a i n s t the w i l l of a. female, a. d i s t i n c t i o n can be drawn between i n t e n t to have sexual i n t e r c o u r s e and i n t e n t to have sexual i n t e r c o u r s e against the w i l l of the female. I f 1 1 9 t h i s d i s t i n c t i o n i s v a l i d , a question would a r i s e i n respect of general i n t e n t and s p e c i f i c i n t e n t . Due to drunkenness, an accused, having general i n t e n t to have r e l a t i o n s , may mistake consent where there i s none, and c a r r y on the a c t w i t h general i n t e n t to have r e l a t i o n s but not w i t h s p e c i f i c i n t e n t to have such without her consent. Does the offence of rape r e q u i r e such s p e c i f i c i n t e n t or can i t be commit-ted when there i s only general i n t e n t , the term "without h e r consent" being, r e f e r r a b l e only to actus reus and being e x c l u s i v e l y an o b j e c t i v e c r i t e r i o n operating without regard to the g u i l t y mind? I n Australia., i n the case of E v. Brouke.^Q Madden, C. J . , was of the op i n i o n that mens rea., i n the sense of s p e c i f i c i n t e n t , was not req u i r e d i n the offence of rape and thats I n every i n s t a n c e , the l e a d i n g element i s the want of consent and i f a man does the act b e l i e v i n g he had the woman's consent whereas i n f a c t he had not, he does the a c t at h i s p e r i l . 1 2 1 But i n a l a t e r case of R v„ Hornbuckle-122 the court disregarded t h i s case and d i s t i n g u i s h e d between general and s p e c i f i c i n t e n t . Ma.cParian, J„, r u l e d ! ...a s p e c i f i c i n t e n t i o n to commit rope, i s i n my op i n i o n , on e s s e n t i a l element or i n g r e d i e n t of the crime,„..within the meaning of the House of Lords i n Beard's case. I t seems to me to f o l l o w , prima, f a c i e at l e a s t , that i f there were evidence of drunkenness a t the ma t e r i a l time which rendered the p r i s o n e r incapable of forming.the i n t e n t i o n . e s s e n t i a l to the crime charged, (here an attempt to commit rape), the j u r y should have been d i r e c t e d to take that evidence i n t o considera-t i o n w i t h the other evidence i n order to det-ermine whether or not the p r i s o n e r hod that i n t e n t . 1 2 3 120 The courts i n Canada a.re a l s o d i v i d e d on t h i s q u e s tion of the e f f e c t of drunkenness i n respect of the offence of rape. The question of general and s p e c i f i c i n t e n t r e c e i v e d the a t t e n t i o n of the Supreme Court of Canada i n the case of E v. George,! 2^ a robbery ca.se, where a. d i s t i n c t i o n was drawn between general and s p e c i f i i n t e n t i o n i n the f o l l o w i n g words of Fauteaux, J . , 9 In c o n s i d e r i n g the question of mens rea, a. d i s t i n c t i o n i s to be made between ( i ) i n t e n t i o n as a p p l i e d to acts considered i n r e l a t i o n to t h e i r purposes and ( i i ) i n t e n t l o as a p p l i e d to acts considered apart from t h e i r purposes. A general i n t e n t a t t e n d i n g the commission of an act I s , i n some ca.ses, the only i n t e n t r e q u i r e d to c o n s t i t u t e the crime w h i l e , i n others there must be, i n a d d i t i o n to that general i n t e n t , a s p e c i f i c i n t e n t a t t e n d i n g the purpose f o r the com-mission of the act9''-2-? The highest a u t h o r i t y i n Canada, having s e t t l e d t h i s question, there i s now, no doubt, as to the d i s t i n c -t i o n of general and s p e c i f i c i n t e n t i o n being a. v a l i d d i s t i n c t i o n but i n r e l a t i o n to the sexual offences the c r i t e r i o n f o r such d i s t i n c t i o n i s not very c l e a r . Even i n respect of rape, the Ontario and B r i t i s h Columbia courts d e c i s i o n s are at variance as to whether s p e c i f i c i n t e n t i s or i s not an e s s e n t i a l element of crime of rape. I t appears that the absence of s p e c i f i c i n t e n t , l e t us say on account of drunkenness, would provide a defence only i f the s p e c i f i c i n t e n t i s an e s s e n t i a l i element of the offence. I n R. v. George, s p e c i f i c i n t e n t wa.s held to be an e s s e n t i a l element of the crime 121 of robbery but not of the crime of common a.ssa.ult, and a c c o r d i n g l y the drunkenness of the accused provided a. defence to the charge of robbery but not that of a s s a u l t . I n R v. Vandervoort,"*-27 iiylesworth, J..A., r e l y i n g on the a u t h o r i t y of R v. Hornbuckle and R v. George, appeared f u l l y s a t i s f i e d that " I t i s c l e a r that one of the essen-t i a l elements demanding proof i n a charge of rape i s a s p e c i f i c i n t e n t by the accused to have i n t e r c o u r s e without the woman's consent". In R v. B o u c h e r , S h e p p a r d J . A. he l d "Hence, rape i s not one of those offences r e q u i r i n g a. s p e c i f i c i n t e n t . S p e c i f i c i n t e n t a r i s e s when the accused i s charged w i t h an offence having as a c o n s t i t u e n t hereof an i n t e n t beyond that i n t e n t to be presumed from what the accused d i d . ...But i n the ca.se a t bar, the i n t e n t to rape i s presumed from what the accused did and hence there i s no s p e c i f i c i n t e n t to be proved beyond that i n t e n t i m p l i e d from the act itself,«129 and Wilson, J . A,, t a k i n g the sa.me view, held "With respect, the e r r o r i n a s s i g n i n g rape to the category of cases i n which the two i n t e n t s are involved - general and s p e c i f i c - seems to me to a r i s e from the assumption t h a t , because more must be proved i n rape than simple v i o l e n c e , more than one i n t e n t i s i n v o l v e d . I t h i n k only one i n t e n t i s i n v o l v e d , the i n t e n t to enforce c o i t i o n " .^O But how i s "the i n t e n t to rape", i n the words of Sheppard, J . A, and 'the i n t e n t to enforce c o i t i o n " , i n the words of Wilson, J , A. d i f f e r e n t from what i s 122 described as "the i n t e n t to have sexual i n t e r c o u r s e without the woman0s consent, 0 i n the words of Alesworth, J , A. (empha.sis added where shown). To rape means to have sexual r e l a t i o n s without consent? to enforce c o i t i o n means to do i t without consent? as much as without the woman's consent means what i t p l a i n l y says, Sheppard, J . A, i - n the Boucher case held that the evidence does not e s t a b l i s h t h a t the a.ccused were incapable of forming the i n t e n t to commit rape? no accused gave evidence of i n c a p a c i t y from drunkenness. But assuming that there was such evidence, would the evidence be d i f f e r e n t from the evidence showing th a t there was no i n t e n t i o n to have sexual i n t e r c o u r s e without her consent? As an e x p o s i t i o n of a p o i n t of law, the two cases appear to be using s u b s t a n t i a l l y the same argument, but using d i f f e r e n t language, and a r r i v i n g at opposite conclusions, so f a r as the question of s p e c i f i c i n t e n t being an e s s e n t i a l element of rape i s concerned, Wilson, J * A., i n Boucher°s case i n comparing the case at bar w i t h the George case, goes on to say ' I f a. man who has been proved to have raped a woman can escape by sa.ying he wa.s so drunk he did not know she objected to being raped, the r e s u l t i s as wrong as i t would be i n the George case i f the accused had been ex-cused because he s a i d he was so drunk he d i d not know tha.t h i s v i c t i m objected to being bea.ten'.^-^l With respect, the s i t u a t i o n i s m a t e r i a l l y d i f f e r e n t . Being beaten i s 1 2 3 not the same t h i n g as being a. p a r t i c i p a n t to a sexual in t e r c o u r s e s and i t i s a matter g e n e r a l l y acceptable th a t no normal or sane person would consent to being beaten but many a normal and sane woman may consent to a sexual i n t e r c o u r s e . The concept of consent i n the two s i t u a t i o n s i s not the same, An a.ccused i s more l i k e l y to make a mistake i n respect of a. woman's consent to sexual i n t e r c o u r s e than i n respect of a person's w i l l i n g -ness to be beateno Further the dicta, of Sheppard, J . As The s e c t i o n provides i n express words that the a ct 'without her consent' i s rape. Those express words preclude the court implying a pr o v i s o to the e f f e c t t h a t , although the act be done without consent, nevertheless, i t i s not rape i f i t i s done i n the drunken fantasy. 1 3 2 does not, w i t h respect, f o l l o w the e s t a b l i s h e d a u t h o r i t i e s to the e f f e c t that a s e c t i o n c r e a t i n g an offence ought not to be construed as excluding mens rea unless P a r l i a -ment, ha.s by express language or necessary i m p l i c a t i o n , 133 d i s c l o s e d such an i n t e n t i o n . J The case of R v. La.due"*--^  i s a most unusual one. I n that case the accused was charged w i t h the offence of i n t e r f e r i n g w i t h a dead body of a woman, contrary to s. 167 (b) of the Code.^35 He was shown to have copulated or attempted to copulate w i t h a woman who was dead, but the accused claimed that he acted under the impression th a t the woman was a l i v e but i n t o x i c a t e d . There was considerable evidence i n the case showing that the a.ccused was i n t o x i c a t e d to a. degree that he may not have r e a l i z e d 124 t h a t the woman was dead. I n the context of the p a r t i c u l a r f a c t s of t h i s case, Mr. J u s t i c e Davey, J . A, d i d not con-s i d e r t h i s to be a good defence. His Lordship i n d i c a t e d that the a.ccused had not suggested that on account of drunkenness he ha.d mistaken consent when there wa.s no consent, but only t h a t , on account of such drunkenness, he considered the woman to be a l i v e , and on the ba.sis of h i s own st o r y was, i f the woman was a l i v e , committing rape. 'An i n t e n t i o n to commit a crime, although not the p r e c i s e crime charged, w i l l provide the necessary mens rea.,*,,'' D ° Having thus a p p l i e d the theory of the l e s s e r degree crime"^? to the determination of the question of mens rea, His Lordship f u r t h e r held, that as a matter of i n t e r p r e t a t i o n , he did not consider 'knowledge that the body i s dead to be a. s p e c i f i c i n g r e d i e n t of the offence charged a g a i n s t s. 1 6 7 ( b ) . A l l that i s req u i r e d i s mens rea i n the widest sense."'-38 j n the case of R v. McLeod,' 1-39 the accused wa.s a c q u i t t e d on the charge of a s s a u l t i n g a. p o l i c e o f f i c e r i n the course of h i s duty on the ground that the accused d i d not have knowledge t h a t the v i c t i m was a p o l i c e o f f i c e r . This case was d i s t i n g u i s h e d i n R v. Ladue onr-the ba.sis t h a t , i n the  McLeod case knowledge that the v i c t i m was a. peace o f f i c e r and engaged i n the execution of h i s duty was a. s p e c i f i c i n g r e d i e n t of the offence, u n l i k e a case i n v o l v i n g an offence under s. I 6 7 (b) where, as a matter of i n t e r p r e -t a t i o n , knowledge that the body wa.s dea.d was not a s p e c i f i c 1 2 5 i n g r e d i e n t of the offence. His Lordship thus combined the l e s s e r degree crime theory and the s p e c i f i c i n t e n t theory to holds The nature of the offence under s. 1 6 7 (b) and the language would seem to r e q u i r e knowledge that the body i s dea.d a.s a. s p e c i -f i c i n g r e d i e n t of an offence under that s e c t i o n s because i n most cases that f a c t would be c l e a r s and proof of a. d e l i b e r a t e act improperly or i n d e c e n t l y i n t e r f e r i n g w i t h a. body that was, i n f a c t , dead would be s u f f i c i e n t proof of a, c r i m i n a l i n t e n t i o n or mens rea* I t would be only i n the most exceptional case where the offender might ha.ve any doubt whether a. body wa.s quick or dead, and i n such a case he might defend himself by showing that he d i d not know the body was dead and that according to h i s understanding he was a c t i n g l a w f u l l y and in n o c e n t l y . This Is what the a p p e l l a n t cannot show i n t h i s case because i f the woman wa.s a l i v e he was raping h e r . ^ 0 I t would thus appear that where s p e c i f i c know-ledge i s not an e s s e n t i a l i n g r e d i e n t of the offence, drunkenness may s t i l l provide a defence i f the conduct of the a.ccused, assuming h i s knowledge was c o r r e c t , would be innocent and l a w f u l . In the e a r l i e r cases discussed above, i t appears that the p r i n c i p l e adopted was that drunkenness may not be a. defence i f the s p e c i -f i c i n t e n t i o n to commit the crime i n question was not an e s s e n t i a l i n g r e d i e n t of the crime. But i n the Ladue  case the p r i n c i p l e has been somewhat extended to provide, t h a t even i n such a case, where the s p e c i f i c knowledge i s not r e q u i r e d as an e s s e n t i a l i n g r e d i e n t of the offence, drunkenness may provide a defence i f the conduct other-wise would be p e r f e c t l y l a w f u l . 126 Can a person who has r e l a t i o n s w i t h an i n t o x i -cated female and t h i n k s s say on account of h i s own drunk-enness, that the female i s dead, r a i s e a defence to the charge of sexual i n t e r c o u r s e "without her consent' on the ground that he thought he was only committing an offence under s„ 167 (b)? He cannot i n any case be con-v i c t e d of t h i s offence under s. 16? (b) since the body was not, i n f a c t , dead. Since he presumed the body to be dead, he never worried about consent, since none was r e q u i r e d , nor according to him p o s s i b l e . Can i t be f u r t h e r pleaded, on the a u t h o r i t y of the Vandervoort case t h a t s p e c i f i c i n t e n t to have r e l a t i o n s without her consent was absent, since according to the accused the matter was past consent*!? No a u t h o r i t y on t h i s p o i n t Can be found but i t may w e l l be that such a. defence may absolve the accused of the crime of rape. I t w i l l be r e c a l l e d that i n the case of 141 R v. Resener ' i t was held , that s p e c i f i c i n t e n t to a c t i n d e c e n t l y was not an e s s e n t i a l i n g r e d i e n t of the offence of indecent a.ssault, and that indecency r e l a t e d to the circumstances r a t h e r than to the mind of the accused. I n the case of R v. George the d e c i s i o n seems to i n d i c a t e that s p e c i f i c i n t e n t to commit a.ssault i s not an e s s e n t i a l i n g r e d i e n t of the offence of a s s a u l t , t h i s being the offence of general i n t e n t . L i k e w i s e , the case of R v. Boucher, f o l l o w i n g R v. George, appears to hold t h a t l a c k of s p e c i f i c i n t e n t to commit assa.ult due to 1 2 7 drunkenness cannot be a v a l i d defence to a charge of a s s a u l t . I t would thus appear that drunkenness can never be a defence to a charge of indecent a s s a u l t , which i s composed of two elements: a.ssault and indecency; on the b a s i s of the a u t h o r i t y , drunkenness cannot be a defence to e i t h e r of the two. The Nature and the Q u a l i t y I n respect of rape, 1 3 5 ° & male person commits rape when he has sexual i n t e r c o u r s e w i t h a. female per-son who i s not h i s w i f e , ( cJ ) o o o o (b) w i t h her consent i f the consent ( X ) O • O O ( i i i ) i s obtained by f a l s e and fraudu-l e n t r epresentations as- to the nature and the q u a l i t y of the a c t . S e c t i o n 1 3 5 (t>) ( i i i ) , quoted above, provides th a t i t i s rape i f the consent to r e l a t i o n s has been obtained by f a l s e and fraudulent r e p r e s e n t a t i o n s as to the nature and q u a l i t y of the a c t . The key words i n the S e c t i o n are those underlined, f o r i t has now been c l e a r l y h e l d that the representations must be to the nature and q u a l i t y of the a c t , and no other. Representations forming p a r t of the inducements whereby the female i s persuaded to consent to such r e l a t i o n s have been held to be out-1 h o s i d e the scope of t h i s offence. I n R v. -Arnold, on 128 a. charge of rape, the accused pleaded t h a t he had o f f e r e d a job to a woman and i n d i c a t e d that extra, remuneration would be paid on the side i f she from time to time had r e l a t i o n s w i t h him, a r e p r e s e n t a t i o n that wa.s to some degree f a l s e . A d i r e c t i o n by the t r i a l judge to the j u r y to the e f f e c t 'And consent, i f i t be a consent, given by the woman, must be obtained without t h r e a t s , induce-ments or anything of the kind, and must be f r e e l y and v o l u n t a r i l y given by the woman' was held to be a mis-d i r e c t i o n and the consent given under inducements was held to be a v a l i d consent. I n view of the f a c t that r e p r e s e n t a t i o n s must r e l a t e only to the nature and q u a l i t y of the a c t , a. small problem that appears on account of the use of the word 'and', i n d i c a t i n g that such repre-s e n t a t i o n s must be both f a l s e as w e l l as fra u d u l e n t , r a t h e r pales i n i n s i g n i f i c a n c e , f o r i f the represent-a t i o n i s f a l s e as to the nature and q u a l i t y of the a c t , and advanced w i t h a view to o b t a i n consent to sexual i n t e r c o u r s e they must n e c e s s a r i l y be fr a u d u l e n t . A re p r e s e n t a t i o n to the e f f e c t that a man i s s i n g l e when i n f a c t he i s married, i f f a l s e , i s not n e c e s s a r i l y f r a u d u l e n t , since he may have a. number of reasons f o r conceali n g the f a c t of marriage, but t h i s i s not a, repre-s e n t a t i o n as to the nature and q u a l i t y of the a c t advanced w i t h a view to ob t a i n consent. 1 2 9 The e a r l i e s t case on the p o i n t seems to "be. that 143 of R_v»_Stant°n«' J where the complainant went to a medical p r a c t i t i o n e r f o r medical examination f o r some i l l n e s s and he, under r e p r e s e n t a t i o n tha.t he was going to give her some i n j e c t i o n , proceeded to have sexual r e l a t i o n s instead., Coleridge J , , on t r i a l , d i r e c t e d the j u r y to the e f f e c t that i f the p r i s o n e r did not intend to use f o r c e , he should be a c q u i t t e d on the charge of a.ssault w i t h i n t e n t to rape. S i x years l a t e r , i n R v. Case,"*-^ a s i m i l a r type of case i n v o l v i n g a. g i r l of 14 years seeking cure f o r suppressed menstruation, w i t h x^ hom the p r i s o n e r , a. medical man, proceeded to have sexual i n t e r c o u r s e on her second v i s i t , Wilde C, J3 came to the opposite c o n c l u s i o n and thought there was no consent. He drei'i a. d i s t i n c t i o n and i n ' words that have almost become c l a s s i c i n the law of sexual offences and have been quoted s e v e r a l times, s a i d , ' o 0 n S h e submits under a. misrepresentation that i t was some a c t necessary and proper f o r her cure? she made ho r e s i s t a n c e to an act which she supposed to be qu i t e d i f f e r -ent from what i t wa.s: what she -consented to was something wholly d i f f e r e n t from tha.t which was done, and the r e f o r e that which was done, was done without her con-sent " 1 ^ 5 The g i r l being a g i r l of fourteen, there was some rea.son to suppose that i n those days, she may have been unaware of the nature of the a c t . But would i t have made a d i f f e r e n c e i f the g i r l had understood the nature of the act? I n the case of 3. v. F l a t t e r y , 1 3 0 2 7 years l a t e r , a s i m i l a r question ca.me up f o r d e c i s i o n w i t h t h i s d i f f e r e n c e , that i n t h i s case the male person was not a. medical man, but a quack, who made representa.-t i o n s both to the nether and "daughter, and p