## Facts

- Abbot, a married clergyman, was indicted for (1) rape and (2) assault with intent to commit rape based on an accusation by a young woman who had worked and sometimes lived in his household.
- The complainant was essentially the only witness to the principal facts bearing on force and consent.
- The defense sought to cross-examine and offer evidence concerning:
  - The complainant’s prior sexual intercourse with men other than Abbot, including alleged prostitution.
  - Prior voluntary sexual intercourse between the complainant and Abbot, including specific acts.
  - The complainant’s general moral character.
  - The complainant’s general reputation for truth and veracity, without limiting the inquiry to a recent period.
- The trial court restricted or excluded portions of this defense evidence, and excluded testimony from the magistrate who received the initial complaint about statements the complainant allegedly made regarding prior sexual connections with other men.
- The jury acquitted on rape and assault with intent to rape, but convicted Abbot of assault and battery; the Court of General Sessions entered judgment on that verdict.
- The case was reviewed by certiorari to address evidentiary rulings and whether the General Sessions had jurisdiction to try and enter judgment while rape counts remained in the indictment.

## Issues

1. In a rape or attempted-rape prosecution, may the defense cross-examine the complainant about prior sexual intercourse with men other than the defendant, and must she answer?
2. May the defense introduce evidence that the complainant was a “common prostitute” or otherwise had a reputation for promiscuity as bearing on consent?
3. May the defense introduce evidence of prior voluntary sexual intercourse between the complainant and the defendant, including specific prior acts?
4. May the magistrate who received the initial complaint testify about the complainant’s prior statements concerning sexual connections with other men?
5. May the defense impeach the complainant by evidence of general moral character and general character for truth and veracity, and must reputation impeachment be confined to a particular time period?
6. Did the Court of General Sessions have jurisdiction to try the indictment and enter judgment where the indictment still contained rape counts punishable by life imprisonment and no *nolle prosequi* had been entered?

## Decision

- The court held that the complainant could be cross-examined about prior sexual intercourse with men other than the defendant, and she was required to answer.
- The court held that evidence tending to show the complainant was a common prostitute was admissible on the question of consent.
- The court held that evidence of prior voluntary sexual intercourse between the complainant and the defendant, including specific acts, was admissible as bearing on consent.
- The court held that the magistrate could not generally repeat the complainant’s out-of-court statements about prior sexual connections with other men; such testimony was permitted only when used for a recognized impeachment purpose (e.g., prior inconsistent statements).
- The court held that the complainant’s general character for truth and veracity could be impeached, that the inquiry was not limited to a recent time frame, and that general moral character could also be examined.
- The court held that the Court of General Sessions lacked jurisdiction to try the indictment and enter judgment while rape counts remained pending without a *nolle prosequi*; the proceedings were improper despite the conviction being for assault and battery only.
- The court withheld judgment and ordered a new trial, directing that unless the rape counts were abandoned, retrial must occur in a court with jurisdiction over life-imprisonment offenses.

## Legal Principles

- In prosecutions turning on consent where the complainant is the principal witness, cross-examination may include questions about prior sexual intercourse with others, and the witness has no privilege to refuse to answer.
- Evidence of prostitution or promiscuity may be admitted as bearing on the probability of consent (under the common-law approach applied in this case).
- Evidence of prior voluntary sexual relations between complainant and defendant is admissible to show consent, including proof of specific prior acts.
- Out-of-court statements about prior sexual conduct offered through another witness are generally inadmissible hearsay unless offered for a proper impeachment function such as proving a prior inconsistent statement.
- A witness may be impeached by reputation evidence for truth and veracity without a strict limitation to a recent period; general moral character may also be examined where credibility is central.
- A court lacking jurisdiction over a life-imprisonment charge cannot proceed to trial or judgment on an indictment that still contains such counts unless they are formally abandoned (e.g., by *nolle prosequi*), even if the verdict is for a lesser included offense.

## Conclusion

The court ordered a new trial after holding that the defense was entitled to broad inquiry into the complainant’s sexual history and character on consent and credibility, while limiting third-party repetition of her statements to proper impeachment uses, and further holding that the General Sessions could not try or enter judgment on an indictment retaining rape counts punishable by life imprisonment without their formal abandonment.


People v. Abbot, 19 Wend. 192 (N.Y. Sup. Ct. 1838)