OFFENCES AGAINST CHASTITY
RAPE
According to the Statute 24 and 25 Vict. c. 100, sec. 48, rape in
England is defined as the “carnal knowledge of a woman against her
will.” In Scotland rape is held to be “the carnal knowledge of a woman
forcibly, and against her will, or of a girl below twelve years of age,
whether by force or not” (Hume, i. 303). An Act passed in 1885 (48 and
49 Vict. c. 69) has materially affected the law on this subject as
regards the age of females. To constitute the offence of rape, there
must be _penetration_, but proof of the actual emission of semen is
not now necessary. Before the Statute 9 Geo. IV. c. 31, sec. 18, it
was also necessary to prove emission, which might be proved either
positively by the evidence of the woman that she felt it, or it might
be presumed from circumstances; as, for instance, that the defendant,
after connection with the prosecutrix, arose from her voluntarily
without being interrupted in the act. The slightest penetration of the
male organ within the vulva will be sufficient, and the hymen need not
be ruptured (R. _v._ Russen, 1 East P.C. 438, 439). The resistance of
the woman must be to the utmost of her power. If, however, the woman
yield through fear or duress, it is still rape; but of course much
will depend upon the previous character of the woman, and her conduct
subsequent to the alleged outrage. The party ravished is a competent
witness to prove this and every other part of the case; but the
credibility of her testimony must be left to the jury. The defendant
may produce evidence of the woman‘s notoriously bad character for want
of chastity or common decency, or that she had before been connected
with the prisoner himself; but he cannot give evidence of any other
particular facts to impeach her chastity (R. _v._ Hodgson, R. & R.
211). She may be asked if she has had connection with other men, but
she need not answer (R. _v._ Cockcroft, 11 Cox, 410, per Willis, J.).
If she deny connection with the men named to her, they cannot be called
to contradict her (R. _v._ Holmes, L.R. 1 C.C.R. 334).
A rape, according to Scottish law, may be committed on a common
strumpet; and in England the law goes even further, and admits the
possibility of rape on the concubine of the ravisher (1 Hale, 729),
“although such circumstances should certainly operate strongly with
the jury as to the probability of the fact that connection was had
with a woman against her will.” A husband may be guilty of rape on his
wife if he hold her while another violates her, as in the case of the
Earl of Castlehaven, tried in 1637. Carnal knowledge of a woman by
fraud, which induces her to suppose it is her husband, now constitutes
a rape by the 48 and 49 Vict c. 69, which enacts that “whereas doubts
have been entertained whether a man who induces a married woman to
permit him to have connection with her by personating her husband, is
or is not guilty of rape, it is hereby enacted and declared that every
such offender shall be deemed to be guilty of rape.” It has also been
decided that if a man get into bed with a woman while she is asleep,
and he know she is asleep, and he have connection with her while in
that state, he is guilty of rape (R. _v._ Mayers, 12 Cox, 311, per
Lush, J.). The offence of rape is not triable at quarter sessions.
Upon an indictment for rape, there must be some evidence that the act
was without the consent of the woman, even when she is an idiot. In
such a case, where there was no appearance of force having been used to
the woman, and the only evidence of the connection was the prisoner‘s
own admission, coupled with the statement that it was done with her
consent, the Court held that there was no evidence for the jury (R.
_v._ Fletcher, L.R. 1 C.C.R. 39).
In another case, where the prisoner was caught in the act by the father
of an idiot girl, the learned judge told the jury that if the prisoner
had connection with the prosecutrix by force, and if she was in such
an idiotic state that she did not know what the prisoner was doing,
and if the prisoner was aware of her being in that state, they might
find him guilty of rape; but if, from animal instinct, she yielded to
the prisoner without resistance, or if the prisoner, from her state
and condition, had reason to believe she was consenting, they ought to
acquit him. The jury found that he was guilty of an attempt at rape (R.
_v._ Barrat, L.R. 2 C.C. 81).
Where the prosecutrix, an apparent idiot, proved that the prisoner had
had connection with her, but it appeared from her examination that
though she knew he was doing wrong, she made no resistance, and the
prisoner, on being apprehended and charged with committing a rape upon
the prosecutrix “against her will,” said “Yes, I did, and I‘m very
sorry for it,” it was held that there was evidence to go to the jury of
a rape (R. _v._ Pressy, 10 Cox, 635).
In Scotland, in the case of Hugh M‘Namara (H.C. July 24, 1848, Ark.
521), where the woman was only one degree removed from idiocy, it was
laid down that “if she had shown any physical resistance, to however
small an extent, the offence would be complete, in consequence of her
inability to give a mental consent.”
In future cases the above decisions will probably be set aside in the
light of the present enactment.
In the case also of a quack doctor, who, under the pretext of
performing a surgical operation on a young girl of nineteen years of
age, had connection with her, she at the time resisting, but believing
that she was undergoing an operation, it was held, on appeal, that he
was guilty of the crime of rape, and the former conviction confirmed
(R. _v._ Hattery, C.C.).
In England, and in Ireland, and also in Scotland, unlawfully and
carnally knowing a girl under thirteen years of age constitutes
a felony--the attempt in the former countries constitutes a
misdemeanour; in Scotland, a “crime and offence.” The child may be a
witness if she understands the nature of an oath or understands the
duty of speaking the truth, but her evidence must be corroborated
by some other material evidence in support thereof, implicating the
accused. The carnal knowledge of a girl above thirteen and under
sixteen, or of any female idiot or imbecile woman or girl, under
circumstances which do not amount to rape, but which prove that the
offender knew at the time of the commission of the offence that the
woman or girl was an idiot or imbecile, constitutes a misdemeanour.
Above sixteen consent does away with the crime; and it shall be a
sufficient defence for the accused to show that he had reasonable cause
to believe that the girl was of or above the age of sixteen years. This
defence does not apply to female idiots or imbeciles.
A boy under the age of fourteen was formerly in England presumed by law
incapable of committing a rape (R. _v._ Groombridge, 7 C. & P. 582);
but in Scotland there was no such provision, and a boy thirteen and a
half years of age was committed for rape (Rob. Fulton, jun., Ayr, Sept.
20, 1841).
The recent Act before quoted provides that, instead of imprisonment,
the offender, if _under_ sixteen, may be whipped and sent to a
reformatory school for not less than two or more than five years.
Evidently age cannot now be pleaded as an incapability.
The crime of rape appears to be most frequently perpetrated against
children, probably due to the popular idea that an attack of gonorrhœa
may be cured by connection being had with a virgin or healthy female.
The following Table from Casper gives the result of his examination of
one hundred and thirty-six cases of rape:
From 2½(!) to 12 years old 99
“ 12 “ 14 “ 20
“ 15 “ 18 “ 8
“ 19 “ 25 “ 7
47 “ 1
68 “ 1
---
136
In examination of a case of alleged rape, several points of interest
will have to be considered, which, for the sake of convenience, will be
placed in a tabular form:
1. _An examination of the parts of generation._
(_a_) Inflammatory redness and abrasion of the parts.
(_b_) A muco-purulent secretion.
(_c_) Hæmorrhage or dried blood about the genital organs.
(_d_) Destruction of the hymen.
(_e_) Dilatation of the vagina.
(_f_) General signs of rape.
2. _An examination of the body and limbs of the female._
3. _Examination of the linen worn by the female and the male for_
(_a_) Marks of semen.
(_b_) Marks of blood.
(_c_) Marks of other discharges, gonorrhœa, &c.
1. =An Examination of the Parts of Generation.=
(_a_) More or less inflammatory _redness_ and _abrasion_ of the mucous
membrane lining the parts, which is never absent in children, and
may last for some weeks. “In adults, virgins up to the time of the
commission of the crime, this appearance is either not found at all or
only faint traces of it. In those previously deflowered it is never
observed.” In the case of young children the genitals may be so injured
as to cause death in a few hours. The parts may therefore present all
varieties of injury, from slight bruising and redness to the most
fearful lacerations.
_Caution._--Inflammatory irritation due to catarrh
_may_ occur, and be apt to mislead.
(_b_) A _muco-purulent secretion_, from the mucous membrane lining the
vagina, of a greenish-yellow colour, more or less viscid, and soiling
the linen of the girl. This secretion, in colour and consistence,
cannot be distinguished from that the result of gonorrhœa. The usual
period of incubation of gonorrhœa is from three to eight days; among
young girls, however, this period may be shortened. The incubatory
stage of soft chancre is from three to five days (Diday); that of
hard chancre somewhat longer, varying from fifteen to twenty days.
Enlargement of the inguinal glands and the persistence of the discharge
after the use of simple treatment will tend greatly to confirm the
suspicion of venereal disease. The genital organs of the male may have
to be examined as to the presence of gonorrhœa or syphilis. Syringing
the urethra may remove for a time the gonorrhœal discharge; care must
therefore be taken in forming an opinion.
_Caution._--Unhealthy children, and those recovering
from some debilitating diseases--fever, &c.,--may suffer
from purulent discharges from the vagina. Small ulcers
may also be present, and may be mistaken for syphilitic
ulceration Infantile leucorrhœa is not uncommon.
(Percival‘s _Medical Ethics_.)
(_c_) _Hæmorrhage or Dried Blood about the Genital Organs._--(1)
Frequently absent in young children. (2) Always found in adults,
virgins at the time the rape was committed, when the vessels of the
hymen are ruptured.
(_d_) _Destruction of the Hymen._--Most frequently, and especially in
young girls, one or more _lacerations_ of the hymen may be seen. These
lacerations must be looked for within five or six days of the alleged
rape, as they soon heal up, and then no certain opinion can be given
as to the date of their infliction. They may also be produced by any
foreign body to substantiate a charge of rape.
(_e_) _Dilatation of the Vagina._--This condition may be produced by
the passage of hard bodies in order to substantiate a false charge of
rape. Casper once examined a girl, only ten years of age, whose mother
had gradually dilated her vagina with her fingers, in order to fit her
for sexual intercourse with men.
(_f_) _General Signs of Rape._--To the above are added certain general
signs, as a _difficulty in walking_, attended with an involuntary
separation of the thighs, common to both children and adults; _pain is
also not infrequently present in passing water_, and when _the bowels
are relieved_. In determining the truthfulness of the statements made
as to an alleged rape, the character of the woman, and the obvious
inconsistencies of her statements must be taken into consideration.
Moreover, if, in addition to the injuries found on the external
genitals, spermatozoa be detected in the vagina, a presumption in
favour of the injuries being due to sexual intercourse will be clearly
made out, but the presence of spermatozoa in the vagina of a woman
is no evidence of rape. Care, however, must be taken not to confound
with spermatozoa an animalcule--_Trichomonas vaginæ_--described by M.
Donné as being sometimes found in the vaginal mucus. The head of the
animalcule is larger than that of a spermatozoon, and is surrounded by
a row of cilia.
[Illustration:
Fig. 19.--Hymen of child of four years--annular type. The illustration
also shows the prominence of the urinary portion of the genitals.
(Glaister.)]
In the case of young children, the anxiety on the part of the parents
of the child to push the charge, and the story of the child and
that of the parent heard apart, may assist in guiding the opinion.
The lesson-like way in which the child tells her story, even to the
minutest details, is always suspicious. The proof of a previous
defloration negatives the pretended loss of virginity at the time of
the commission of the deed for which the accused is being tried. In
most cases, it is best to let the patient tell her own tale, and then
cross-examine. An injudicious question may put her on her guard.
=2. Examination of the Limbs and Body of the Female for Bruises,
&c.=--Little value is to be placed on injuries said to be inflicted
on the person of a female the result of a struggle, as these may be
produced by the woman on herself in order to substantiate her story. In
children, for obvious reasons, they do not occur.
[Illustration: Fig. 20.--Virgin hymen, with central slit.
(Glaister.)]
=3. Examination of the Linen.=--In all cases a careful examination
of the body linen of both parties should be made. With regard to the
position of the stains on the chemise of the woman, M. Devergie insists
that the stains on the front of the chemise are seminal, those on the
back are due to blood. This distinction is too arbitrary to meet all
the facts of these cases, for the position of the spots necessarily
depends on the respective positions of the parties at the moment of
ejaculation; and, moreover, the woman is more likely to wipe the parts
with the front than the back of her chemise. Mistakes may arise from--
1. The garments being intentionally soiled with blood. This is not
infrequently done in cases of false accusations.
2. The menstrual discharge may be readily mistaken for that due to
violence, as the two kinds of blood cannot be distinguished.
3. The red juice of fruits and grease spots have been mistaken for
marks of blood and seminal stains on linen.
The identification of blood-stains is not difficult when the stain
occurs on pieces of white linen; but when, as it not infrequently
happens, they have to be detected on the coarse, dirty, often stinking
linen of the poor, the task becomes somewhat more difficult. The same
may be said with regard to seminal spots. As a means of diagnosis in
stains due to semen, the appearance and smell of the stains are of no
assistance whatever. The microscope will alone give any trustworthy
evidence as to the nature of the stain; and even here a caution must be
added--for the fact is beyond doubt that the semen even of a healthy
young man varies much, and is scarcely ever twice alike, so that the
absence of spermatozoa is no proof that the spot is not seminal in its
origin.
The following are the tests used for the detection of semen:
1. _Characteristic smell when the spot is
moistened._--This test is of no use, for the reasons
before stated.
2. _Appearance when held to the light._--As uncertain
as the preceding.
3. _Doubtful spots upon cotton or linen_--not upon
_wool_, which usually contains sulphur--should be
cut out and moistened with a few drops of oxide of lead,
dissolved in liquor potassæ, and then dried at a temperature
of 68° F. The stain in a few minutes becomes of a dirty
yellow or sulphur-yellow colour. This change in colour
proves that the mark _is not_ a seminal stain. Semen
does not contain albumen. This test only shows that the
stain is not caused by albuminous compounds, which contain
sulphur; but it does not follow therefore that the spot must
be seminal, for marks made by gum, dextrine, and some other
substances of a like nature are not changed in colour.
4. _The Microscope._--This is by far the most reliable
test, but care is required in its manipulation.
(_a_) The cloth must not be rubbed between the fingers,
as the spermatozoa may be damaged by the operation.
(_b_) The suspicious spot on the linen should be
carefully cut out and placed in a clean watch-glass or small
porcelain vessel, and then moistened with a small quantity
of distilled water. The cloth may be gently moved about in
the water with a glass rod, and gentle pressure made so as
to thoroughly wet the cloth, which, in most cases, will be
accomplished in about a quarter of an hour. A single drop
should now, by gentle pressure with the fingers, be squeezed
on to a clean slide, and then placed under the microscope.
(_c_) Another method may be adopted. First determine
the side of the cloth on which the stain is present, and
cut out the stain, leaving a small strip of cloth attached
to the main portion. Place the end of the strip in a little
water in a watch-glass, so that the water by capillary
attraction may permeate the entire stain. With a thin-bladed
knife gently remove the moistened stain and place it on a
microscopic slide, and examine as before.
_Fixing and Staining._--A drop of the watery extract of
the stain may be placed on a microscope slide and allowed to
dry in the air, covered to protect it from dust, and then
fixed by heating the slide over a spirit or Bunsen flame or
by the use of absolute alcohol. When fixed, the preparation
can be stained with eosin and methylene blue, methylene
violet, or other nuclear dye. The film may also be fixed and
stained with Leishman‘s solution in one procedure, or fixed
by heat first and then stained with Leishman. The procedure
is the same as for blood, viz. to cover the film with a
few drops of Leishman‘s stain, let stand for two or three
minutes, then add a few drops of distilled water, in two
or three minutes wash in distilled water, dry with filter
paper, and examine with the oil immersion. The preparation
may be mounted in Canada balsam and preserved for further
reference. The head of the spermatazoon takes the nuclear
dyes in ordinary use. The spermatazoa are best found in
the centre of the stain. If the stain be small the watery
extract may be centrifuged.
_Florence‘s Reaction._--A useful chemical reaction has
been introduced by Dr. Florence of Lyons. It depends upon
the reaction between a concentrated solution of iodine in
potassium iodide and human semen. A watery extract of the
stain is made, and a drop placed on a microscope slide, by
Potassium iodide 1.65 grms.
Iodine 2.54 “
Distilled water 30 c.c.
The drops are covered with a cover glass and examined; where
the two drops unite, a precipitate is formed which consists
of brown crystals, very similar to hæmin crystals. If there
be sufficient material the precipitate may be obtained
in a test tube. This test is extremely delicate, and is
analogous in value to the guaiacum reaction for blood. A
positive reaction does not absolutely prove that the stain
is seminal, but a negative reaction proves that it is not.
Dr. Florence holds the reaction is specific for human semen,
as he has failed to obtain it with the seminal fluid of any
other animal, or other fluids or tissues. He considers it
due to the presence of an alkaloidal body in human semen,
which he calls virispermin.
The crystals are said by Dr. Max Richter to form on the
addition of the iodine solution to decomposition products of
lecithin.
The author has found this reaction extremely delicate, even
with minute traces. The crystals form rapidly and are easily
recognisable. They, however, are evanescent and disappear on
standing, so that they cannot be preserved as microscopic
specimens.
_The biological test._--This is carried out in the same
way as the biological test for blood. Dr. C. G. Farnum, who
proposed this test, uses semen or testicular emulsion for
antigen, injecting 5 to 10 c.c. into the peritoneal cavity
of a rabbit at intervals of from two to six days, on five
or eight occasions. The antiserum is diluted from twelve
to eighteen times with normal saline, and the semen four
to twenty-five times. Human antiserum gives a precipitin
reaction with the watery extract of human seminal stain, but
not with testicular emulsions of the bull, dog, or goat, or
with human blood serum.[14]
[14] _Journ. Amer. Med. Assoc._, 1901, p. 1721.
=Can a Rape be committed by one man on a healthy, vigorous woman?=--The
answer to the question will, to a great extent, depend on the relative
strength of the conflicting parties. Every case of rape has to be
judged on its own merits. In any case, the medical jurist has simply
to state, from the examination of the parties, that sexual intercourse
has taken place, leaving the jury to decide whether a rape or not has
been perpetrated. A case is mentioned by Casper where a healthy, strong
adult of twenty-five years old was violated by a single man.
=Can a Woman be Violated during Sleep?=--By this is intended natural
healthy sleep, and not that induced by narcotics. In natural sleep,
rape is scarcely possible in a virgin, especially if the hymen be found
recently ruptured, though it _may_ be possible in a woman accustomed to
sexual intercourse.
[Illustration: Fig. 21.--Photo-micrograph of human spermatozoa, × 1000.
(R. J. M. Buchanan.)]
=Can a Woman become Pregnant by an act of Rape?=--The answer to this
question is most decidedly in the affirmative. It is not necessary for
a woman to experience any sexual pleasure during connection in order
that she may conceive. A woman may become pregnant if fresh semen be
injected into the vagina with a glass syringe.
=Signs of Rape in the Dead.=--In the case of a woman found dead, the
question may arise as to her having been violated prior to death.
The reply to the question is by no means easy. Severe injury to the
genitals is a presumption in favour of rape, but cases are by no means
rare in which men failing to accomplish coïtus have injured the parts
with their fingers. The presence of spermatozoa in the vaginal mucus is
good evidence of a recent coïtus, but is no direct evidence of a rape.
Collateral evidence will in most cases decide the point.
Physical Signs of Rape in Adult and in Child
----------------------------------+----------------------------------
In the Adult. | In the Child.
----------------------------------+----------------------------------
1. If examined soon after the | 1. There may not be sufficient
commission of the offence, the | penetration to rupture the hymen,
hymen of the adult virgin may | consequently there will be
be ruptured, and the fourchette | no hæmorrhage. In other cases
may be lacerated, and the parts | the external organs will be
covered with blood. | bruised, and in many cases
| severely lacerated, the
| lacerations depending on the
| amount of penetration and force
| used.
|
2. Difficulty in walking, in | 2. Same as in the adult, but
passing water, and sometimes | lasting for a longer time--from
when the bowels are relieved. | eight to fourteen days.
These signs in the adult pass |
off in a day or two. |
|
3. Injuries on the person abused,| 3. For obvious reasons these
such as scratches and ecchymoses,| do not occur on children.
may be present as the result of a|
struggle. These may be |
self-inflicted. |
----------------------------------+----------------------------------
Directions as to manner of making a Medico-Legal Examination in a Case
of Alleged Rape.
1. Be careful to note everything, for it is in such cases as the one
under discussion where apparently unimportant signs may become of the
greatest moment.
2. Give the female no time for preparation, but make your visit, and
at once proceed to an examination. The visit to be of any practical
service should not be delayed beyond the third or fourth day after the
alleged offence, “by which time the lacerations will have healed, the
cicatrices disappeared, and the torn hymen be in such a state as to
make it difficult to say whether it had been divided recently or at
an earlier period.” But remember that you _are not justified in using
force_; and in this, as in cases of suspected pregnancy, if you examine
a woman against her will you render yourself liable for an action for
assault, and may have to pay heavily for your enthusiasm.
(_a_) Note time of a visit.
(_b_) Note time of alleged offence. _Why?_ May
prove the accused party innocent by an _alibi_.
(_c_) Avoid leading questions.
3. Age, strength, and condition of the health of the complainant.
Examine the wounds asserted to have been inflicted, and see if they
correspond with the history given of their infliction.
4. Examine organs of generation.
(_a_) Any recent signs of violence--blood, abrasions,
ulcerations, &c.
(_b_) Condition of hymen, and of the _carunculæ
myrtiformes_.
(_c_) Was the woman menstruating at the time? Signs
modified or obliterated by menstruation.
5. Preserve any spots on linen, &c., for future examination.
6. In case of death after violence--
(_a_) Examine mouth for foreign bodies, &c.
(_b_) Fractures or bruises on the body.
7. Examine spot where the crime is stated to have taken place.
8. Examine person of the accused.
(_a_) Muscular development and strength.
(_b_) Any abrasion about the penis, size of penis,
rupture of the frænum, &c.
(_c_) On linen, blood-stains, seminal spots, &c.
(_d_) Marks on his body, scratches, &c., as evidence
of resistance.
_N.B._--The lapse of a few days may be sufficient to
remove all traces of the violence done to the parts; and
in most cases days, weeks, and even months may elapse
before an examination is made of the alleged victim.
VIRGINITY
[Illustration: Fig. 22.--Deflorated hymen, after parturition, in adult
woman.
(Glaister.)]
There is no one sign which may be considered as an absolute test for
virginity. The presence or absence of the hymen is of no probative
value one way or the other. Its very existence has been denied by Paré,
Buffon, and others. It may be absent as the result of disease, or as
the result of a surgical operation to allow of the free discharge of
the menstrual flow. Its presence is no bar to conception; and cases
are on record where it has been found necessary to incise it, to
allow of the passage of the fœtus into the world. In fact, women who
have been prostitutes for years have possessed to the last uninjured
hymens. The changes in the breasts which proceed from impregnation do
not occur where only defloration has taken place. The rugose condition
of the vagina is only affected by the first birth, and not by sexual
intercourse.
What has been said of the above signs as tests for virginity may be
said of a host of others which from time to time have, with varying
success, been advanced as aids to the diagnosis. Casper, however,
considers “that where a forensic physician FINDS A HYMEN STILL
PRESERVED, EVEN ITS EDGES NOT BEING TORN, AND ALONG WITH IT--in young
persons--A VIRGIN CONDITION OF THE BREASTS AND EXTERNAL GENITALS, HE
IS THEN JUSTIFIED IN GIVING A POSITIVE OPINION AS TO THE EXISTENCE OF
VIRGINITY, and _vice versa_.”