666 MEDICO-LEGAL RELATIONS OF THE SUBJECT. hand, two women became mothers as late in life as at 51, four at 52, and one mother was registered as having given birth to a child in the 57th year of her age. We cannot, therefore, pretend to fix the age beyond which pregnancy may not occur. Questions of this kind have an important bearing on the subject of legitimacy; and unless the law looks to something more than ordinary professional experience in such matters, the decisions of courts must be inequitable. It two cases, however, it appears to have been assumed that a woman could not bear a child after the age of 53. These were the decision of the Master of the Rolls in Price . Bousted, and more recently the decision was followed by Kindersley, V. C., in Haynes v. Haynes (Feb. 1866). The petition in this case involved the question whether a single lady, aged 53 in Dec. 1865, could be considered as past childbearing, and it was decided in favor of this assumption. These decisions are not reconcilable with the cases given above. Stolz refers to three cases of married women bearing childten at the ages of 45, 48, and 51 respectively. In two of these cases the preg nancy was mistaken for dropsy and treated as such. (Ann. d'Hyg., 1873, t. 2, p. 151.) Causes of Sterility. The causes of sterility in the female are very numerous. Some of them depend upon peculiarities of constitution, the sexual organs being well formed and developed; others upon latent changes or congenital defects in the womb and its appendages, only dis coverable by an examination after death. Sterility rarely becomes a medical question in contested cases of legitimacy; for a claim on the part of a person to be the offspring of a particular woman, unless she were in collusion with the claimant, could only be made after her death; and if not disproved by medical evidence, showing that the woman could not have borne children, it would in general be easily set aside by circumstances. It may be most important to prove that a woman was in such a bodily condition that she never could have conceived or borne a child. If the womb, ovaries, or other parts were congenitally defective or absent, or if there were external sexual malformation, accompanied by occlusion or obliteration of the vagina, a medical witness could have no difficulty in saying that the woman must have been sterile. (Med. Times and Gaz., 1858, i. p. 96.) A mere occlusion of the vagina, removable by operation, does not necessarily indicate sterility, for the internal parts may be healthy and sound. Medico-legal Relations of the Subject. Divorce.-Sexual malformation, involving impotency or sterility, constitutes one of the canonical impediments to marriage, and if matrimony be contracted by a party laboring under such malformation, the contract is voidable. The impediment constituting impotency may arise either from malformation, from that which the law calls frigidity of constitution, or any physical cause of whatever nature which may render intercourse impossible. When the physical defect is not apparent, or when it is alleged to be irremediable, a continued cohabitation of three years is required before a suit can be entertained (Ayliff's "Parergon"); but according to Oughton-" hæc triennalis expectatio non est necessaria ubi statim possit constare de impotentiâ coeundi." A suit for a sentence of nullity may be promoted by either party, and the medical proof required to found a sentence must be such as to satisfy the court that the incapacity pleaded was in existence at the time of the marriage, and that it still remained without remedy. There should be no delay in instituting the suit, and there should be proof that the impediment was not known to the complaining party at the time of the contract. A longer delay in making the complaint is allowed to a female, without prejudicing her case, than to a male, by reason of the modesty of her sex. In a suit which came before the Ecclesiastical Courts in 1845 a singular question arose whether, when there was a capacity for sexual intercourse on the part of a woman, with a certainty that from physical defect it could never be prolific, this was sufficient to entitle the husband to a divorce. On the part of the woman it was insisted that, in order to entitle a party to a sentence of divorce, there must be an utter impossibility of sexual intercourse. The case, it was argued, was one of mere sterility, which was no ground for a sentence. Lushington, in pronouncing sentence, said that mere incapability of conception is not a sufficient ground whereon to found a decree of nullity. The only question is, whether a female is or is not capable of sexual intercourse; or, if at present incapacitated, whether that incapacity admits of removal. A power of sexual intercourse is necessary to constitute legally the marriage-bond, and this intercourse must be ordinary and complete, not partial and imperfect; yet it would not be proper to say that every degree of imperfection would deprive it of its natural character. If it be so imperfect as to be scarcely natural, it is, legally speaking, no intercourse at all. As to conception, there is no doubt that the malformation is incurable. If there was a reasonable probability that the female could be made capable of natural coitus the marriage could not be pronounced void; if she could not be made capable of more than an incipient, imperfect, and unnatural coitus, then it would be void. It appears that, in order to justify a decree of divorce on the ground of impotency or sterility the impediment to intercourse or procreation should be established by good medical evidence, and it must be apparent and irremediable; it must also have existed before the marriage of the parties, and have been entirely unknown to the person suing for the divorce; if it has supervened after the marriage, this is no ground for a suit. (See, however, p. 669, post.) The nature of the impediment is to be determined by private medical opinions or affidavits based on an examination of both parties. Such an examination must be voluntary on the part of the man or the woman. The judge of the court cannot order it against the wish of the party. All that he can do is to decide in the absence of evidence of the kind, and this may be adverse to the party refusing. In the case of Hewitt v. Perry (Divorce Ct., July, 1873), a suit for nullity, Hannen, J., gave his decision in favor of the husband and against the wife. She refused to submit to an examination, and abstained from presenting herself as a witness in the case. The case was remarkable in other respects. The evidence of the husband was to the effect that there had been more than three years' cohabitation, but no consummation of the marriage. There was no structural impediment in the way of consummation in the wife's person; but whenever an attempt at intercourse was made it brought on an attack of hysteria, and this rendered it practically impossible. A decree nisi for annulling the marriage was granted to the husband; but the judge at the same time observed that such a decree could only be granted on the ground that there was a physical difficulty. Thus it must not be merely a wilful refusal on the part of the wife. This alone would not justify legal interference; it must be shown, as in this case, that injury may be done to health by inducing an attack of hysteria or other disorder. Oldham has informed the author that several cases of this kind have come before him. It may be regarded as incapacity, not from structural defect, but from a general disturbance to the system induced by the attempts at intercourse. In one instance that came under the editor's notice consummation of the 668 the woman. CASES OF NULLITY. marriage was long delayed in consequence of the hysterical condition of The difficulty was at length overcome by the administration of ether vapor. She recovered consciousness during the act of coitus, and there was no subsequent difficulty in intercourse. St. Clair Gray pointed out another condition in a woman which may prevent consummation of a marriage and give rise to a suit of nullity. This has been called Vaginismus. In this disease there is a peculiarly sensitive state of the parts, whereby, "from excessive nervous irritability of the vagina," any attempt at sexual intercourse, or even any pressure made in the vicinity, causes intolerable pain to the woman. He describes three cases which have fallen under his notice. In one, a woman, æt. 38, had been married thirteen years, but, in consequence of the intolerable pain produced, her husband had not been able to have intercourse with her. An examination showed that the hymen was persistent, but the parts were so highly sensitive that a touch with the finger only produced great suffering. Nine years passed without any change in her condition. In two other cases of married women there was a similar state of the parts, the hymen being also persistent in both. One had been married four, and the other seven years, and they had no children. The hymen was destroyed by operation; the sensibility of the parts disappeared; and one gave birth to four, and the other to three, children. (Glasgow Med. Jour.. May, 1873.) It is clear, therefore, that vaginismus would be no legal ground for divorce according to the law of England, because the defect is remediable--a fact proved by the two cases described. In the three cases the women labored under no physical malformation. They were in every respect healthy and well-formed. There is one remarkable circumstance with respect to these suits of nullity; namely, that, in nearly all of them, the suit is by the woman against the man; although there is no reason whatever to suppose that impotency and sexual malformation are more common in males than malformation and sterility in females. We rarely hear of a husband instituting a suit of divorce on the ground of sterility (incapacity of procreation) in the wife; it is, in most instances, the wife that promotes the suit on the ground of impotency or incapacity of intercourse in the husband. The difficulty of establishing incapacity in the female, and the facility of proving impotency from physical causes in the male, may probably account for this difference, Suits of this kind are sometimes instituted many months and years after the union of the persons; but it is probable that the desire for separation in such cases often depends on some cause which the law would not recognize as sufficient of itself, while it would admit a plea of impotency. The French law applies the principle of condonation to such cases, so that no suit for nullity of marriage can be entertained, if cohabitation has continued for six months after the discovery of the personal defect. The laws of England and France differ in reference to personal defects. Impotency or incapacity of intercourse in a woman is, in England, a sufficient ground for annulling the contract; but not so in France. Tardieu states that the law has not placed impotency in the female among the causes for nullity of marriage. (Ann. d'Hyg., 1872, t. 2, pp. 153, 155.) Braxton Hicks (Lancet, 1885, ii. p. 198) gives interesting cases of successful suits for nullity: one on account of the frigidity of the wife; and another on account of the incompetence of the husband, he having lived with his wife for two years without once attempting intercourse. He also relates an unusual case of post-nuptial insanity supervening on the CASES OF SEXUAL IDENTITY. 669 wedding night from sexual difficulties on both sides. The woman recovered and bore several children to her husband. The validity of a marriage cannot be disputed, on the ground of physical incapacity, after the death of one of the parties. The incapacity does not render a marriage void, but only voidable. It is a matter purely of personal complaint or grievance. Third parties cannot be admitted to institute a suit of nullity after the death of husband or wife. In an administration suit, July, 1868, the plaintiff claimed as the lawful husband of the intestate. The defendants, who were her next of kin, alleged that the plaintiff was not her lawful husband, on the ground of physical incapacity, and that the marriage had never been consummated. Wilde, J., delivered judgment against the defendants, saying that the suit of nullity was a personal one, and as this had not been instituted during the life of the woman, the validity of the marriage could not now be contested. In treating of sexual identity, Tardieu remarks that marriage implies the lawful union of a man and woman; that such a contract cannot be entered into except between persons who are of different sexes. When the sex is disputed, the doubt can be removed only by an anatomical and physiological examination of the person. The intervention of a medical expert is indispensable in such a case and the object of such intervention is perfectly defined. The problem for solution may be stated in these simple terms: Is the person married as a woman-a malformed womanimpotent and incapable of sexual intercourse? In this case, according to the strict interpretation of the law of France, there is no ground for nullity of marriage. Is the person a malformed man, presenting some doubtful appearance of the female sex? In this case there has been no legal marriage. It is null ab initio. Assuming that there are no beings entirely deprived of sex, there may be cases, although rare, in which a mixture of the organs of the two sexes may be found in the same person. Such a being is incapable of entering into the marriage contract, since, whatever may be the sex of the person with whom the contract is made, there must be identity of sex and therefore nullity of marriage. Insanity, if existent at the date of marriage, is a ground for instituting a suit of nullity. (Hunter v. Hunter, otherwise Edney.) When not clearly developed on the day of marriage, the suit will fail. (Durham v. Durham, otherwise Milner, Prob. Ct., Feb. 1885; Cannon v. Cannon, otherwise Smalley, Prob. Ct., March, 1885.) 670 RAPE-SOURCES OF MEDICAL EVIDENCE. RAPE. CHAPTER LIX. SOURCES OF MEDICAL EVIDENCE.-RAPE ON INFANTS AND CHILDREN.-MARKS OF VIOLENCE.- RAPE is defined in law to be the carnal knowledge of a woman by force and against her will. Medical evidence is commonly required to support a charge of rape, but it is seldom more than corroborative; the facts are, in general, sufficiently apparent from the statement of the prosecutrix. There is, however, one case in which medical evidence is of some importance-namely, when a false accusation is made. In some instances, as in respect to rape on infants and children, the charge may be founded on mistake; but in others there is little doubt that it is often wilfully and designedly made for motives into which it is here unnecessary to inquire. Amos remarked that for one real rape tried on the circuits, there were on the average twelve pretended cases; and common experience bears out this statement. In some few instances these false charges are at once set aside by medical evidence; in others, medical men may be sometimes the dupes of designing persons; but in the majority, the falsehood of the charge is proved by inconsistencies in the statement of the prosecutrix herself. In Scotland, where there is a public prosecutor, and a careful preliminary inquiry, false charges of rape are said to be exceedingly rare. The consent of the girl does not excuse or alter the nature of the crime when she is under thirteen years of age, since consent at this period of life is invalid; and the carnal knowledge of such a girl is rape in law, and is a felony by the 48 and 49 Vict., c. 69. An attempt at carnal knowledge is a misdemeanor. Even the solicitation of the act on the part of a child does not excuse it. A man who carnally knows, or attempts to know, any girl above the age of thirteen and under the age of sixteen years, even if she consents, is guilty of a misdemeanor. The duty of a medical witness on these occasions is very simple; and perhaps this will be best understood by considering the subject in relation to females at different ages. On being called to examine a person on whom a rape is alleged to have been committed, the first circumstance which a practitioner should notice is the precise time and date at which he is summoned, taking an early opportunity of comparing his watch with some neighboring clock. This may appear a trivial matter, and one wholly irrelevant to the duties of a medical practitioner; but it is to be observed that the time at which a surgeon is required to examine a woman may form a material part of the subsequent inquiry. It will be highly important to the defence of a person accused if it can be proved that the female did not take the earliest opportunity to complain; and it may be also the means of defeating an alibi falsely set up for the defence. Medical H |