R V Francis, 1 QB (Ont), 116 ; R V Barrow, L R 1, ccK, 156 But it is submitted it is now a rape where the woman is asleep, and for that reason does not resiSt See R v Young, 14 Cox The crime of rape is the having connection with a womai forcibly where she neither consents before nor afteR R V Fletck 8 Cox cc, 131 Where the woman is an idiot or lunatic the mere proof of the act of connects will not warrant the case being le/to the Jurt There must be some evidence that it was without her consent hat she was incapable of expressing consent or dissent or from exercising any judgment upon the matter from imbeci ity cf mind or defect of understanding, and if she gave her from animal mstmct or passion it would not be a rape R v Connelly, 26 Q B (Ont), 317 , J ! T her State and C ndition the Prisoner had reason to think that she was consenting, he ought to be acquitted whether in the case of rape or an attempt at rape (76) Z v Barrett, L R 2, ccR, 81 ; see also R v Pressy, W Cox C C 635 The prisoner professed to give medical and surgical advice for The prosecutrix, a girl of nineteen, consulted him with eference to illness from which she was suffering.

He advised.

Surgical operation should he performed, and under pretence t performing it, had carnal connection with the prosecutrix >he submitted to what was done, not with any intention that he have carnal connection with her, but under the belief he was merely treating her medically, and performing a surgical operation, that belief being wilfully and fraudulently induced by the prisoner, and it was held that he was o-uilty of rape.

R v Flattery, L R 2, Q B D, 410 A child under ten years of age, cannot give consent to any nminal intercourse, so as to deprive that intercourse of crim mahty, under the Rev Stat Can, chap 162, s 39; and a person may be convicted of attempting to have carnal knowledge of such child, even though she consents to the act done.

R V Beall, L R ccR, 10 But the consent in such case will render the attempt no assault.