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:

From2½(!)to12yearsold99
“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) 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.

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.

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 iodide1.65 grms.
Iodine2.54“
Distilled water30c.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]

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.

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 the1. There may not be sufficient
commission of the offence, thepenetration to rupture the hymen,
hymen of the adult virgin mayconsequently there will be
be ruptured, and the fourchetteno hæmorrhage. In other cases
may be lacerated, and the partsthe 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, in2. Same as in the adult, but
passing water, and sometimeslasting 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.

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.

5. Preserve any spots on linen, &c., for future examination.

6. In case of death after violence—

7. Examine spot where the crime is stated to have taken place.

8. Examine person of the accused.

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.