Definition
A term of art in criminal pleading denoting that an act was done without the victim's consent and in direct opposition to their wishes. Historically required as a formal phrase in indictments for robbery and, with important distinctions, in prosecutions for rape.
(1) In robbery: The phrase signals that property was taken by force or intimidation over the active opposition of the person robbed — not merely without consent, but against their expressed or implied resistance. It is a stronger formulation than simple non-consent.
(2) In rape and sexual offenses: The phrase carried distinct and contested meaning. Early common law indictments required the allegation that the act was done "against the will" of the victim. However, the statutory definition introduced by the Statute of Westminster II (13 Edw. I, c. 34) described rape as carnal knowledge of a woman "where she did not consent" — a formulation emphasizing absence of consent rather than active opposition. English courts noted this divergence expressly, and the question of whether "against the will" and "without consent" were legally equivalent — or whether one required proof of active resistance beyond the other — generated significant doctrinal tension.
Common Language
Modern common usage (Wiktionary): "Against one's will" means contrary to a person's wishes or desires; done without consent and over objection.
Historical common usage (Webster's 1913): Consistent with modern usage — against desire, inclination, or choice.
Editorial note: The common phrase "against one's will" tracks the legal meaning reasonably well in casual use, but the legal term carries technical pleading weight that the common phrase does not. In legal contexts, the phrase is not merely descriptive — its presence or absence in a charging document could determine the validity of an indictment or the scope of the offense charged. The gap between "did not consent" and "against the will" is legally significant in ways that ordinary usage would not suggest.
Common Confusion
"Against the will" is frequently treated as synonymous with "without consent," but the two are not identical at common law. Absence of consent is a broader concept — it encompasses situations where a victim was incapacitated, deceived, or simply did not agree. "Against the will" implies active non-acquiescence and was sometimes interpreted to require evidence of resistance. This distinction had real procedural consequences: an indictment using one phrase where the other was technically required could be challenged as defective. Modern criminal codes have largely abandoned "against the will" as a term of art in favor of consent-based frameworks, but the distinction remains important when reading historical indictments, case records, and treatises.
Why It Matters in Research
Researchers working with historical criminal records — particularly indictments, plea rolls, or reported cases from the eighteenth and nineteenth centuries — will encounter "against the will" as a fixed pleading formula rather than a descriptive phrase. Its presence signals a robbery or rape charge; its absence from an expected location may indicate a defective indictment or a different offense category entirely.
The divergence between the common law pleading requirement ("against the will") and the Westminster II statutory formulation ("where she did not consent") is a live doctrinal issue in historical rape law scholarship. Bouvier's entry preserves a crucial note — attributed to Tindal, C.J. and Parke, B. — that England itself operated under the statutory "did not consent" standard rather than the common law "against the will" formula. American jurisdictions did not uniformly follow this path, and colonial and early republic indictments may reflect either tradition depending on which English sources local courts and practitioners followed.
Trap for researchers: Do not assume that an indictment using "against the will" and one using "without her consent" are charging the same offense under identical legal standards. Consult the applicable jurisdiction's case law and pleading guides contemporaneous with the document you are reading. Rapalje & Lawrence's truncated entry ("technical person") reflects the phrase's status as pleading boilerplate — useful confirmation that by the late nineteenth century the phrase was understood primarily as a formal requirement rather than a substantive descriptor.
Historical Dictionary Support
All three source dictionaries treat "against the will" as a technical pleading term rather than a substantive legal concept, which is itself informative. Black's and Bouvier's agree that the phrase was required in robbery indictments, citing Chitty's Criminal Law. Bouvier's goes further and is the most useful of the three, preserving the important distinction between the common law rape pleading standard and the Westminster II statutory standard — a distinction the other dictionaries do not address.
What the historical dictionaries miss: None of the three sources address the American experience in detail, and none flag the resistance requirement debate that developed around "against the will" in rape prosecutions — the question of whether the phrase required proof of physical resistance by the victim. That debate, prominent in nineteenth- and early twentieth-century American appellate cases, is not legible from these entries alone and requires supplementary research in treatises and case reporters.