CHAPTER VI.

MEDICO-LEGAL QUESTIONS, RELATING TO VIOLATION OF

WOMEN.

ACCORDING to the law of this country, the slightest penetration is sufficient to constitute a rape; and the crime may be committed on an infant of the tenderest years without destroying the marks of virginity. 9 Geo. IV.

This was decided by a consultation of the judges in the case of Rex v. Russen. See Russell on Crimes, Chitty's Medical Jurisprudence, vol. i. 1834.

The legal definition of rape, is the carnal knowledge of a woman by force, and against her will. The carnal knowledge of a child, under ten years of age, with or without her consent, is considered rape.

Again; "a common whore may be ravished against her will, and it is a felony to do it." Howell's State Trials, vol. ii.

A husband may be executed for a rape on his wife, by holding her while another violates her. Thus, in 1637, Lord Audley, Earl of Castlehaven, was tried for a rape upon his own wife, for having held her by force, whilst his servant forcibly, and against her will, had carnal knowledge of her; and he was executed for it.

It was formerly required, that the woman or child should complain while the injuries were recent; and Blackstone observes, "that the jury will rarely give credit to a stale complaint."

Modern magistrates also look with great suspicion on all charges of rape, unless made in a day or two after its alleged

Occurrence.

No charge is more easily made than rape, or rebutted with more difficulty.

The law is perfectly just, that the slightest penetration constitutes the crime of rape, though the hymen and other reputed

signs of virginity are present afterwards, because the woman may be impregnated, and she, or a child before the age of puberty, may be affected with syphilis or gonorrhoea. It is a great error to urge, that an adult cannot violate a child of seven or ten years of age, on the grounds that he could not possibly effect penetration, from the disproportion of the penis and vagina in such cases; but the male may communicate a most loathsome disease, and for the reasons stated above, is most properly held guilty of rape. Nevertheless, a surgeon held the contrary in the newspapers, that a man, ordered for execution, ought to have a respite, and on application to the Secretary of State this was granted, and the culprit was transported for life. In my opinion he ought to have been hanged, according to his sentence, and this was the opinion of the judge who tried him. Comment on the newspaper correspondence is unnecessary-it showed the grossest ignorance.

In a preceding section I have stated the law upon this subject; and it now remains to consider the questions which may be submitted to medical jurists for their decision. These are as follow:-1. Are there certain signs of defloration? 2. Can we distinguish between forcible violence against the consent of the accuser, and whether the signs of violence be not attributable to the introduction of other extraneous bodies into 'the external sexual organs? 3. And whether a woman can be violated without her knowledge? And 4, whether pregnancy can follow violation, or is a proof of acquiescence on the part of the woman?

1. Are there certain signs of defloration? To determine this question, we must decide whether there are certain signs of virginity. We have to refer to anatomical and obstetric works, for a description of the external genitals in a virginal state, to enable us to form a correct decision upon this question. The external genital organs are those connected with the subject; and a description of them is necessary.

In virgins, the external labia are thick, firm, elastic, and internally of a vermillion or rosaceous colour, their edges in apposition, so as to close completely the orifice of the vulva. They are soft, pale, and separated in women accustomed to venereal enjoyment, or subject to leucorrhoea, or who have

practised masturbation. But these characters are not to be depended on, as women of strong constitutions may have the signs of virginity; and virgins the latter signs from leucorrhoea, or fluor albus. In fact, no positive conclusion can be deduced from the state of the external or internal labia. The same must be said of the frænum labiorum; it may or may not be ruptured during coition, and every obstetrician of ordinary experience, can attest its perfect condition during parturition. Besides, it may be ruptured by falls, external injuries, or by the passage of solid morbid growths. The orifice of the vagina is usually narrow, but it may be relaxed by leucorrhoea, or may be larger in a virgin than in a woman who has been violated. In some women it is particularly closed by the hymen, a membrane long held as the surest sign of virginity, which, in fact, is no proof at all.

It is now universally known, that a great variety of causes besides coition, may destroy this membrane; as sudden exertion of the lower extremities, leucorrhoea, masturbation, the introduction of the finger and other matters into the vagina, a frequent practice with lascivious women, excoriation, confined menstrual fluid, and various morbid growths, both solid and fluid. It would be difficult, if not impossible, to decide whether the vagina had been dilated by the penis or by some other substance. The hymen does not always exist, even in infants, and does not entirely close the vagina at puberty, so that the introduction of the penis may be effected, if not disproportionate. (Teichmeyer, Brendel, Severin, Pineau, &c.) Indeed women have been in labour, and the hymen perfect. (Mauriceau, Ruysch, Pare, Meckel, Walter, Baudelocque, Smellie, Carpuron, Nagele, &c.) It is, therefore no infallible sign of virginity, nor is its absence alone a positive proof of defloration.

The carunculæ myrtiformes were long considered as the remains of the hymen, but this is denied by Hamilton, Conquest, and Velpeau. They have been seen in infants and virgins, and are no proof of defloration, because, like the rugæ of the vagina, they are only effaced by repeated coition. Dr. Beck admits, that many of the above signs are equivocal, but if taken in connexion with one another, he thinks it cannot be possible that all mentioned in the chaste state, can be

absent without a strong suspicion against the female. I cannot assent to this conclusion, as I think experience has proved that all the physical signs of virginity are equivocal, and all may be absent from causes already enumerated, without room for a full-grounded suspicion against the female. From my own observation, and the result of my researches, I can arrive but at one conclusion, that there are no positive signs of virginity, and consequently those of defloration are extremely uncertain; and this, I find, is also the opinion of the faculty of Leipsic, of Metzer, and of Morgagni. The presence of the reputed signs of virginity affords no decisive proof of chastity, and their absence no decisive proof of incontinence. If all the reputed signs described above exist, the female feels offended at the examination, or rather displays evidence of shame; if her morals, age, and education have been good, then there are strong grounds for supposing her in possession of her chastity; and if all the contrary signs exist with a suspected reputation, and an equivocal virtue, then there is reason to pronounce a contrary opinion.

It is necessary to recollect the habit of body and age of the patient, as signs of virginity are most perfect between puberty and the twenty-fifth year, after which period they become more equivocal.

When defloration of any young female has recently taken place, the signs are very evident. The laceration of the hymen (if it exist), the presence of its remains covered with clotted blood, the contusions of the labia majora and minora, of the clitoris, and carunculæ myrtiformes, the redness and tumefaction, or laceration of all the external genitals, leave no room to doubt. But almost all these marks will generally disappear in three or four days. They disappear almost instantaneously in chlorotic and leucorrhoeal females. (Briand, Manuel de Medicine Legale.)

Second question-Can we distinguish between defloration, the result of voluntary carnal commerce, or that which has been effected by violence, or by the introduction of foreign bodies into the vagina?

It is extremely difficult to determine this question in a positive manner. Many medical jurists are of opinion, that

contusions, lacerations, inflammation of the vulva, thighs, arms, breasts, and other parts of the body, prove that violence had been used, and that the female did not consent. But it is to be recollected, that many women will not consent without some force, and also that injuries of the genital organs may follow a first congress, when the sexual organs are disproportionate.

Every person knows, says a French jurist, that at the epoch of puberty, young girls of an erotic temperament, employ foreign bodies for the gratification of their desires, and may cause laceration or contusion of the external genitals; and who does not know, that these excesses have brought on delirium, and who is ignorant of the deplorable effects of onanism? (Briand.) Again, women have injured the sexual organs for the purpose of accusing an innocent man of rape. (Foderè.)

In all cases of defloration we must consider the age, strength, and state of mind of both parties. When this crime is perpetrated on children of a tender age, the disproportion of the organs will be followed by the marks of injury already enumerated. On the other hand, a strong woman may accuse a delicate or old man, or boy, or one who is impotent. It is held by most jurists, that it is almost impossible, at all events exceedingly doubtful, that one man can violate a strong adult female. (Mahon, Farr, Foderè, Capuron, Beck, Briand, Thomson, &c.) The exceptions to this rule are, when the woman labours under insensibility from violence, syncope, or fainting, narcotics, intoxication, and, according to the faculty of Leipsic, when she sleeps profoundly. The anecdote of Queen Elizabeth and the sword scabbard, is often brought forward to prove, that the power of resistance, on the part of the female, is almost always effectual in preventing the perpetration of rape by one man. The following question was put to the medical faculty of Leipsic, "whether a single man could ravish a woman?" The reply contained the following words, "Feminae cuilibet facilius est, si velit, penis immissionem recusare, vel cum multis modis impedire, quàm viro eidem invitæ planè intrudere."

Notwithstanding this view of the subject, it may be often