From William A. Davis, Jr., “The Rape of Tess: Hardy, English Law, and the Case for Sexual Assault.” Nineteenth-Century Literature 52, no. 2 (Sep 1997), 221-231.
English law in the nineteenth century defined rape as “the offence of having unlawful and carnal knowledge of a woman by force, and against her will” (Nevill Geary, The Law of Marriage and Family Relations: A Manual of Practical Law (London: Adam and Charles Black, 1892), p. 480). Mews’s Digest of English Case Law further explains that “to constitute rape, it is not necessary that the connection with the woman should be had against her will; it is sufficient if it is without her consent“‘ (John Mews, ed., The Digest of English Case Law, Containing the Reported Decisions of the Superior Courts: and a Selection from Those of the Irish Courts to the End of I 897, 16 vols. (London: Sweet and Maxwell, 1898), IV, 1,548-49. KSN’s emphasis).
The law specifically addressed several situations in which it might be assumed that a woman had not given or could not give consent. Among these is the situation of a woman who is asleep: “If the woman is asleep when the connection takes place, she is incapable of consent, and although no violence is used, the prisoner may be convicted of rape, if he knew that she was asleep” (The Earl of Halsbury, ct al., eds., The Laws of England: Being a Complete Statement of the Whole Law of England, 31 vols. (London: Butterworth and Co., 1907-17), IX, 612). A review of Victorian case law shows that the courts held firmly to the idea that a sleeping or unconscious woman was incapable of consenting to a sexual relationship. R. v. Ryan (1846), for example, affirmed that “where a girl is in a state of utter unconsciousness, whether occasioned by the act of thee prisoner, or otherwise, a person having connection with her during that time is guilty of a rape” (“R. v. Ryan” (1846), Cox’s Criminal Law Cases, 2 (1848), 115).