On the other hand, the Superior Court of Pennsylvania has given obiter expression to the view that ‘the gist of adultery is voluntary sexual intercourse’ and that ‘it is impossible for one alone to commit adultery for that requires the cooperation of two persons’. But so far as research has enabled the Court to determine, the question whether a criminal actor may be convicted of adultery or fornication only when the woman has voluntarily consented to the sexual act, has not been directly presented to nor authoritatively determined by the courts of Pennsylvania.
The Court concludes, therefore, that defendant’s conviction of fornication did not necessarily adjudicate it, as a fact, that the female consented to the sexual act and consequently does not, necessarily, contradict the operative facts on which the convictions of felonious assault and rape depended.
Adultery is defined by the Pennsylvania Statute as ‘carnal connection with another person of the opposite se, not his lawful spouse’, upon the part of a married person. A cooperative, unmarried participant cannot be guilty of the crime but is open to prosecution for fornication and, in the case of the male offender, for bastardy, upon conviction whereof he is subject to a sentence that he pay the expenses incurred at the birth of a child begotten by the act and that he give security for its maintenance. The statute proscribes fornication without defining it but the offense, in common acceptance, involves illicit carnal knowledge of a man with a woman, without elements of aggravation such as force constituting common law rape.
Fornication is held to be necessarily involved in rape and the doctrines of merger and bar are applied so as to prevent double-punishment for the rape and the crimes (successive steps constituting ‘ingredient’ offenses) involved in its commission. It forms the body [38 Misc.2d 465] of a number of crimes, differing in the circumstances attending their commission but originally connoted sexual intercourse for hire and, perforce, by mutual consent. Hence, as a general rule, it involves voluntary unlawful sexual intercourse between two persons of the opposite sex thereby importing the consent of both and it has, accordingly, been held that either both parties must be guilty of adultery or fornication or neither can be guilty thereof. But what is sometimes stated as a rule of universal application and is an accurate statement of the law when applied to most cases may not be applicable or correct in particular situations and the great weight of authority now holds that one of the parties may be guilty although the other, for want of true concurrence in the act, may be innocent of fornication or adultery as the case may be.
Thus, although the woman is too drunk to consent, the man may be guilty of adultery.
‘Adultery, as thus defined, does not require that the act shall be voluntary as to each of the parties’. ‘Where both the circumstances of force and consanguinity are present, it is not less incest because the element of rape is added, and it is not less rape because perpetrated upon a relative. ‘In our judgment the better reasoning supports the conclusion that the consent of the female is not necessary to constitute the crime of incest by the male. It is his intent and his act that the law punishes him for’. ‘The male may be convicted of incest even though he accomplished the act without the consent of the female and against her will’.
In summary, the majority of the courts take the position, in effect, that although ‘[A] person who has committed no sex crimes in the eyes of the law cannot, of course, be characterized as an accomplice’ the defendant’s guilt of adultery or fornication is determined by his conduct and the consequences thereof are not avoided by the innocence of his victim
The Pennsylvania courts apply the doctrine of constructive force when mental illness renders the woman incapable of giving rational consent and, perhaps, when she is unconscious through intoxication, drugs or sleep and do not consider the sexual act to have been consensual when the woman is surprised and victimized by a physician who has abused the confidence placed in him. Common law rape, of course, is the antithesis of consensual sexual intercourse.
For the purpose of this decision the Court’s interest in the law of Pennsylvania centers upon the fact that it has not yet there been decided, directly, that sexual assailants cannot be guilty of adultery or fornication, as the case may be, committed against the woman’s will or without her consent.
Under those circumstances it does not appear that defendant’s conviction of fornication by way of his guilty plea is inconsistent with his conviction after trial of the rape and the assault with intent to commit it. There is, consequently, no difficulty in perceiving that the latter crimes would have been felonies if committed in New York and it follows that the District Attorney should be sustained in his effort to protect the women of the community by requesting the penalty that may serve to deter sexual aggression and thus avoid any temptation to the injured female or the male members of her family to take private vengeance.
The information charging the defendant with being a second felony offender is therefore sustained and the application of the defendant to dismiss it is denied with an exception.