Fifteen year old Grace Barton alleges she was raped by a chauffer of Bee Line, Inc. while she was a passenger of the common carrier.
Penal Law, section 2010, subdivision 5: An individual who has sexual intercourse with a female under 18 years of age who is not the individual’s wife that does not amount to first-degree rape is guilty of second-degree rape, even if the female consents. The crime is punishable by imprisonment of not more than 10 years.
Plaintiff is Grace M. Barton, age 15. Plaintiff alleged while a passenger of Defendant Bee Line, Inc., Defendant’s chauffeur raped her. Plaintiff’s guardian ad litem, Frank W. Barton, files lawsuit against Defendant. Chauffeur argues Plaintiff consented. The jury was instructed that even if Plaintiff consented, she was nonetheless entitled to recover. Plaintiff was awarded a $3,000 verdict. The verdict was set aside because (a) if Plaintiff consented, this award was excessive; or alternatively (b) if Plaintiff did not consent this amount was insufficient.
Whether a consenting female under age 18 can bring a cause of action under the Penal Law for sexual intercourse amounting to rape if the female consents and is fully aware of â€œthe nature of her act.â€
The trial court erred by instructing the jury that Plaintiff was entitled to a verdict in her favor if it was found that she consented to the sexual intercourse. The trial court’s decision to set aside the verdict in Plaintiff’s favor due to it being excessive and for reasons under the Civil Practice Act section 549, however, was appropriate. Order affirmed, with costs.
If chauffeur sexually assaulted Plaintiff while a passenger, Defendant would be held liable for breach of duty owed to passenger as a common carrier. This Court takes into account public policy considerations, that the purpose of statute â€œwill not be vindicated by recompensing [a female] for willing participation in that against which the law sought to protect her.&rdquo.