265 N.Y.S. 284 (1933)

The plaintiff was an underage girl who alleged that she was raped by the chauffeur of the defendant, a common carrier.  In his defense, the chauffeur claimed that he had consensual sex with plaintiff.

The trial judge instructed the jury that the plaintiff was entitled to recover damages even if they find that she had consented, although consent might be considered in mitigation of damages.

The issue facing the appellate court was whether the trial court erred by instructing the jury that the plaintiff was entitled to recover damages even if she consented to the sexual intercourse.  The court held that the trial court erred by providing said instruction.

The court reasoned that the society protects underage girls by criminal statues.  According to subdivision 5 of section 2010 of the Penal Law: “A person who perpetrates an act of sexual intercourse with a female, not his wife, under the age of eighteen years, under circumstances not amounting to rape in the first degree, is guilty of rape in the second degree, and punishable with imprisonment for not more than ten years.”  According to the court, it was one thing to say that society will protect itself by punishing those who consort with females under the age of consent; but it is another to hold that, knowing the nature of her act, such female shall be rewarded for her indiscretion.  If it is held that underage females can recover monetary damages for having consensual sex, it can lead to abuse.  “Instead of incapacity to consent being a shield to save, it might be a sword to desecrate.”   Therefore, a female under the age of 18 has no cause of action against a male with whom she has consensual sex, if she knows the nature and quality of her actions.

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