Making a Space for Medical Expertise: Medical Knowledge of Sexual Assault and the Construction of Boundaries between Forensic Medicine and the Law in Late Nineteenth-century England

1 Signs of struggle

Because the legal criteria for rape was the carnal knowledge of a woman against her will (i.e. sexual intercourse, penile penetration), many medico-jurisprudential texts emphasized the signs of struggle that would show on the bodies of both the assaulted woman and the accused man. In this we see medicine bringing its expertise to corroborate other non-medical evidence. These signs basically consisted of bruises and scratches on both parties, and both on the upper body and around the genital regions of the woman. Failure to locate such signs was often established as evidence that the woman had not been raped, but had given herself willingly to the accused, although there was slight legal provision in such instances for a woman to proceed with a rape accusation without struggle, as will be discussed below. By asserting opinion on medical evidence within the courtroom, doctors drew circumstantial evidence to another level of expertise in such a way to create boundaries between medical and non-medical knowledge of the body.

An example of this expansion of evidentiary context into the medical sphere can be seen when the nature of a wound was discussed. In medical texts, there was a particular emphasis on the freshness signs in order to establish attack. “If there has been great violence and much resistance, bruises and scratches will be found on the groins, thighs, and knees, and on the arms and chest; the clothes may also have been torn in the struggle.” ¹¹ The freshness of these signs could be used to establish the time of the alleged incident, and correspondence of signs on both parties was thought to be especially useful corroborating evidence. A proper understanding of the “freshness” of a wound was a medical rather than a common sense category, as it relied on a knowledge of typical bruising, bleeding, and healing in a variety of individuals. The rhetorical ploy that doctors could use was that they had this knowledge from their daily experiences, as well as from their specialist training.

These signs of struggle were not assumed in cases of the sexual assault of children. Indeed, John Glaister suggested in 1902 that they would often not be found in such instances, as the child could easily be overcome, and thus no struggle would be necessary. ¹² Alfred Swaine Taylor further noted that if “there are no marks of violence or physical injury about the pudendum of a child, or they had existed and disappeared in the course of time, a medical witness must leave the proof of rape to others. . . . On the other hand, if marks of mechanical violence be present, they must not always be hastily assumed as forming proof of rape. . . .” ¹³ Nevertheless, it was assumed by doctors that any fit adult woman could prevent penetration by fighting off the assailant. It was only under fear for her life, or after drugging or other induced insensibility (such as fainting or suffering an hysterical fit) that a women was considered able to acquiesce and still charge for rape. If she allowed the man to have sex with her, the charge would be commuted to aggravated assault.

The legal issue of sensibility needed to give consent was also an important point that many doctors addressed. The legal notion of a person: someone old enough to make an informed decision, and not acting under duress, nor suffering from a drug or nervously induced stupor, nor insanity, is relevant here. Thus rape during sleep was considered possible under certain conditions: “it is possible that a woman accustomed to sexual intercourse may be violated during sleep.” ¹⁴ Such evidence would be taken into account during the trial where it was deemed relevant, and may be used to argue that the absence of the signs of a struggle did not prove acquiescence.

The effect of medical intervention in a matter that could be established (although perhaps not as accurately in some instances) by non-medical witnesses – such as a struggle – was to make the doctor’s pronouncement necessary to the establishment of the truth beyond reasonable doubt. A doctor could give scientifically-established evidence to suggest that a wound was able to be defined with certainty, or they could also cast doubt over a verdict by giving evidence that challenged a particular narrative of guilt or innocence. By deploying their expertise in the courtroom, doctors effectively introduced an element that could problematize the notion of reasonable doubt until a pronouncement by a suitable expert (a doctor) had cleared the matter up. It was in this way that boundaries between medical and non-medical knowledge were employed by doctors as a useful strategy for the establishment of medical knowledge as an important part of a trial.

2 Signs of rape

In the Victorian period, as now, an assumption of the appearance of the “normal,” or unassaulted, vagina was of great significance. Of course, this appearance changed over the life of a woman, and these details were enumerated within forensic texts, emphasizing individual variation. Evidence of the assaulted vagina was held up against this established “normal” vagina, emphasizing the pathological aspects that could be regarded as proof of rape. Specifically, there was an assumption about the state of the virginal hymen, although other evidence would include blood, stains, and discharges, as well as the color of the labia, and the condition of the vaginal passage (tightness, roughness, sensitivity, etc.). The basis for this claim to knowledge of a normal vagina is in itself peculiar. The rationale behind it was that doctors in their day-to-day activities would have a wide knowledge of the female body, although outside of the specializations of gynecology and obstetrics, it is difficult to see – within the confines of nineteenth-century medical practice – from where this wide experience of vaginas would come. This issue is not raised in the medical literature, but rather this wide experience is assumed to be the province of the medical man.

The hymen: The most important sign that was addressed in relation to alleged rape was the state of the hymen. Although it might seem obvious that the hymen of a virgin would be broken during sexual assault, exactly of what these signs would consist was a matter of intense medical discussion, and was one of the strong cards that could be played by doctors seeking to establish authority over a legal issue. Such discussion broke down the idea that medical knowledge was commonsense knowledge, for the basis for knowledge claims about the hymen was based on many cases of anatomical observation, not upon folk-lore or received wisdom about such matters; what was considered normal in medicine was necessarily different from everyday knowledge, hence privileging forensic claims. For instance, it was established that there were numerous types of “normal” hymen, with differing degrees of perforation. This can be illustrated by Guy and Ferrier’s description of four different forms of hymen:

The hymen is usually found as a semilunar fold, concave before and convex behind, bounding the entrance of the vagina below, and losing itself behind the labia minora in the circumference of the orifice. Another form is that of a circular membrane, perforated in the centre, and coherent by its entire circumference. A third form consists of the same circular membrane, but with a small opening above, corresponding to the meatus urinarius. A fourth, but most unusual, form is that of filaments of mucous membrane uniting the carunculae myrtiformes. ¹⁵

Victorian doctors held that these hymens were all small at birth, but enlarged, especially around the age of puberty, points which would affect how a hymen would react to penetration. Hymens with especially wide perforations, or which had been artificially widened through regular energetic activity (such as horse-riding), accident, or masturbation, or which had been obliterated by menstrual flux or a build up of discharge, were not affected the same way as by sexual assault, and so the expected bleeding or tearing may not be present. A broken hymen would not necessarily prove rape unless other signs of violence corroborated the evidence, as sexual intercourse with consent displayed the same rupturing of the hymen that would be expected in violent attacks. These other signs of violence could include perforation of the vaginal wall and tearing of the fourchette, although these too may be expected in consensual – if rough – intercourse, as many writers pointed out. Furthermore, it was possible to have intercourse with a woman with or against her will without actually rupturing her hymen in some instances, if it was particularly thick or elastic. Other signs such as bruising in conjunction with the signs of hymen-rupture were needed to establish sexual assault: a ruptured hymen indicated nothing in itself except that the woman had been a virgin when she was penetrated. Issues of consent needed to be established in women over the age where legal consent to intercourse could legally be given.

As the hymen was by far the most considered issue in the forensic discussion of sexual assault, it is worth stepping back to critically examine the strategies employed by forensic experts, as the implications of this medical construction of an object (the hymen) illuminate the other topics discussed in this article. The most significant claim that a forensic expert could make was that a bleeding hymen meant nothing in and of itself. This claim was based on specific medical knowledge. The details of the hymen that were explained in different forensic texts problematized the notion that penetrative sex led to a bleeding hymen to the extent where the sign itself could not lead to certainty, or even a situation “beyond reasonable doubt.” That certain non-sexual activities could rupture a girl’s hymen meant that virginity itself could not be reduced to the existence of a hymen. That the hymen might not be ruptured, even under the exertions of the most vigorous penetration, also meant that the simplistic, commonsense understanding of the loss of virginity had to be abandoned for the detailed medical case. The effect of this scientific strategy was to place medicine in a position to go beyond other readings of the body. The body itself was assumed by forensic experts to be a medical issue; the use of sexual parts became a topic of medical knowledge. By reconstructing the nature of the hymen so that a detailed gynecological examination was necessary in order to make any sense of a woman’s charge of rape formulated a situation whereby medical knowledge was held up as an impartial arbiter of all bodily knowledge. In order to deploy this strategy, doctors had to underline the point that sexual assault was a professional issue because only they had the privileged knowledge to be able to read the body properly and in a sophisticated way. In this sense, sexual assault was established as a medical object, and not a legal one, by forensic experts.

Children: The rape of children was a point of special interest in the period being discussed. ¹⁶ It was considered to be more outrageous than the rape of a woman, as the language concerning the innocence of the child abounding in many medical texts illustrates. The apparent commonality of the rape of children was partially the case because of the existence of the idea that the rape of a virgin would cure a man of venereal disease, a point the veracity of which doctors strenuously challenged. Nevertheless, it was not uncommon for doctors to emphasize that there were many miscarriages of justice involving the rape of children, based on the misinterpretation of signs such as a girl’s vaginal discharge (which was thought to mark venereal disease transmitted by an assailant). Furthermore, the issue of statutory rape was also of importance in the Victorian period, with the age of consent being raised to sixteen by the 1885 Law Amendment Act. ¹⁷

One point commonly noted about the rape of children was that they were not always fully penetrated. This was established in Rex v. Russen (1777), and led to a reconception of sexual assault. Slight penetration of the vulva was henceforth considered rape, in adults as well as children. For this reason, a ruptured hymen was not essential to establish rape. Rather a combination of the signs of assault and the evidence that the woman or girl had had sex was strong evidence that the assault had been sexual – a rape, rather than aggravated assault. Such signs included marks from a struggle, and evidence of semen when there was no vaginal evidence.

Following the established medical fact that there is no single perfect hymen present in all individuals, A.S. Taylor reminded the reader “that the hymen is not always present in young children”. ¹⁸ It could be congenitally deficient, or could have disintegrated due to vaginal infection or previous injury. As such, the presence or absence of the hymen, even in a young girl, was not suitable evidence for or against an accusation of rape, just as the signs of struggle may be absent in some circumstances. It should be noted, however, that virginity was still assumed, both in children and in unmarried women, and the lack of a hymen – while medically plausible – was considered an important fact.

In cases where full penetration had been effected, abundant evidence would remain. As Taylor noted: “There could not be a complete introduction of the adult male organ into the vagina of a child without a rupture or laceration of the soft parts.” ¹⁹ Nevertheless, the absence of such laceration would only prove that complete penetration did not take place, and this was not required by law to prove rape. As suggested by Glaister above, violent struggle was not necessary to rape a girl under thirteen. The assumption in the law was that a child would be easily overcome. Other subjective signs of rape included hemorrhaging, which was thought to last longer in children than in adults. ²⁰ The assumption by forensic specialists that there would be significant markers that could point the informed court doctor towards a proper reading of the child’s body should be read in conjunction with the strategy that doctors had privileged ideas about the normal and pathological appearances of the body and its parts throughout all stages of life.

Young (virginal) women: Young women (generally meaning unmarried women) were assumed to be virgins by the medical profession. If a woman’s virginity could not be established, this threw into doubt her credibility in bringing the charge, as she was assumed to be a prostitute, or at least immoral. The best way of establishing that a virgin had been raped was to locate a recently ruptured hymen in conjunction with other signs of physical violence. Even if an intact hymen could not be found, this – as we have seen – did not indicate that the young woman was not a virgin. Some medical texts provided a description of the young woman’s virginal vagina in order to distinguish it from the vagina of a sexually-active woman. This description included details such as “fresh color, firmness and elasticity of the labia, the integrity of the fourchette, the narrow and rugose state of the vagina.” ²¹ The labia were also assumed to be of a lighter color, and not as stretched or protruding as those of an older or more experienced woman. Other signs of virginity were also believed to exist, such as a “plump and elastic” condition of the breasts, with lighter nipples. ²² Indeed, one of the four criteria upon which John Glaister relied to establish a young woman’s virginity was “An underdeveloped condition of the nipples and the absence of darkened areola around them.” ²³

If these signs were not present, they were considered to be indicators of habitual masturbation and/or intercourse, thus suggesting a libidinous character that might undermine an accusation of rape as the young woman’s character was sullied: in the words of Guy and Ferrier, “it is usual, in the case of adult females, to endeavor to rebut the charge of rape by alleging previous unchastity – a question on which the medical examiner may have to express an opinion.” ²⁴ It should also be remembered that all of these signs did not necessarily change through sexual intercourse, consensual or otherwise. “This [rugous] condition of the labia is not always destroyed by repeated intercourse. . . . The fourchette may remain unruptured after repeated intercourse, and even after child-bearing; and the narrow and constricted vagina is not only peculiar to virgins, but may be imitated by the use of astringents.” ²⁵ It took four things – an intact hymen, a normal fourchette, a narrow, rugous vagina, and virginal breasts – to convince one doctor beyond doubt of a young woman’s virginity. ²⁶

As with the other issues that have been discussed, such descriptions of a virginal woman’s breasts and labia effectively took expertise out of the courtroom and into the doctor’s surgery. This medical invasion of the courtroom limited the scope of legal knowledge, the effect of which was the formation of a gap between medical and legal statute through which medical knowledge was portrayed as more realistic and based upon fact rather than on other criteria.

Older (married) women: It was not as easy to ascertain the expected condition of an older woman’s genitalia after she had been raped, as older women were assumed to be married, and were thus not going to have the same vaginas as the younger women discussed above. They were also assumed to be engaged in regular sexual activity, and to have given birth, and thus possess “looser,” more resilient vaginas that were not expected to rip or tear the way that the genitalia of an inexperienced girl was assumed to respond to sexual violence. This condition of older women’s vaginas was one of the reasons that an experienced woman might be raped in her sleep, while such was not possible for a virgin (the pain of defloration was expected to awaken them). Thus other signs of rape needed to be sought in cases involving non-virgins. These signs again included the corroborating evidence of bruising and scratching from a struggle, and perhaps the evidence of especially violent intercourse, such as a perforated vaginal wall. As it was assumed that a fit woman could fight off an attacker, these violent marks had to be extreme enough to corroborate an argument that she had not acquiesced without being put under duress. This fact, when combined with the assumption – expressed by Guy and Ferrier – that “the crime of rape is most frequently committed on the person of a female who has not had sexual intercourse,” ²⁷ suggests that fewer women made charges of sexual assault unless they were particularly violent, or had third-party witness testimony. ²⁸

3 Venereal disease and vaginal discharge

One potential sign of suspected illicit sexual intercourse was the existence of venereal disease. The existence of a venereal problem did not necessarily indicate sexual assault, but could be utilized as a marker of such, either in the form of a vaginal or anal discharge – associated with gonorrhea – or as an ulcer on the sexual parts, which evidenced syphilis in its early stages (although which also signified other venereal complaints). Even more than other topics about which forensic experts claimed specialist knowledge, sexually transmitted diseases were beyond doubt in the province of medical knowledge, as evidenced by the growth of specialist knowledge in this field in the nineteenth century. Too much weight could be put on this kind of evidence, however, which is why it was important that proper medical expertise be sought. For instance, it was quite normal for a woman or girl to have a white vaginal discharge (leucorrhoea), and this in no way proved that the person had been violated, even in a young girl. It could be the result of a simple vaginal infection not associated with sexual activity, or it could suggest that the woman had been touching herself between the legs or had injured herself. Furthermore, it was thought that girls and young women recovering from scarletina would develop a white mucosal vaginal discharge that parents might mistake for gonorrhea, thus bringing about a false accusation that was easily corrected by proper medical expertise. ²⁹ It was sometimes assumed that chancres could appear on the genitalia or anus quite innocently, transmitted through unclean toilet habits or from other infections as well as through vicious means. For instance, William Acton noted that chancres on the anuses of prostitutes did not mean that they had been the recipient of anal sex with an infected party, but rather that infected material could have dribbled back from the woman’s infected vagina and taken root around her anus without there being any sodomy involved. ³⁰ Distinguishing between syphilitic ulcers and others such as cold sores and suchlike was not microbiologically possible for most of the time period addressed in this article.

Much was said about the incidence of vaginal discharges, especially in children. Nevertheless, the status of such discharges was very much in the hands of the doctor, who alone could differentiate between sexual and non-sexual complications. One important test was the time elapsed between the commencement of the discharge and the suspected rape. Gonorrheal discharges required a three-day incubation period, whereas other leucorrhoeal discharges were not so specific. Furthermore, the fact remained that a positive test for gonorrhea (although this was not actually possible prior to 1879, and after that time required significant microbiological skill that many doctors would not possess) did not caeteris paribus mean rape. All it suggested was that the woman had been sexually intimate with an infected party. Other corroborating signs of violence and non-consent were necessary to establish a charge of sexual assault in the mind of the doctor, unless the person so infected was under the age of consent, in which case it was an issue of statutory rape and consent was no longer a relevant issue.

Again, the effect of this medical intervention in the courtroom was to take a problem that was established as relatively unproblematic in the popular imagination, and by rearticulating it through the apparatus of specific medical knowledge, re-construct it as a medical object. Paradoxically, this took a problem, such as the existence of a discharge commonly assumed to be gonorrhea, and introduced doubt as to its link to sexual assault, while at the same time introduced certainty in the form of specific medical opinion. This process of casting doubt over non-medical knowledge that could only be enlightened through scientific knowledge was typical of the process of the introduction of medical knowledge into the courtroom. It always took the form of the rearticulation of an object according to a field-specific logic and series of practices.

4 Sodomy

A subsection of rape included sodomy, although there was much less known about the signs of sodomy in English medical discourse and in English courts. ³¹ Nevertheless, similar ideas about the signs of sodomy emerged as in rape cases. There was an assumption that the normal anus had a specific appearance, one of rough rugae and a tight sphincter ani, and that anal sex would “obliterate” this wrinkled appearance of the anal aperture and the anus would become slack and funnel-shaped. Of course, not all forensic experts agreed about these signs. Indeed, in England there was something of a pride taken in the fact that the specificities of the regularly sodomized anus were little known outside the works of French forensic expert Ambroise Tardieu, who popularized the infundibuliform anus, and German Gerichtesartze, Johann Casper, who established in 1852 that an anus too often sodomized was smooth. ³² In some cases in England, however, deference was passed onto other French venereologists, like the American-born Philippe Ricord, who – according to his English acolyte, William Acton – insisted upon the significance of a “rent or tearing” of the anal perimeter as the only really true sign of sodomy. ³³ This was to be expected even more in cases of sodomitical rape, although many doctors did not believe that someone could be anally raped without facilitating the act, a point which was not unrelated to the fact that in law, both parties were considered to be equally guilty, the assumption being that anyone could stop a penis from entering such a tight hole.

This discussion of the signs of sexual assault and the associated vaginal and anal medical problems illustrates the importance of medical knowledge in establishing a legal fact. Common sense knowledge is not adequate for the correct understanding of many of these issues. Rather, the medical expert providing the interpretation of the evidence is expected to bring something to the trial beyond the levels of competence that might be expected from the police, from lawyers, or from the jury. More than simply introducing medical expertise into the courtroom, the significance of forensic discussions of the medical problems and interpretations of sexual assault was to rearticulate it as a medical object. This constitution of a new object of inquiry backed onto an existing tradition of medical work. It was also informed by established notions of gender and female propriety that pervaded Victorian society – as will be discussed in the penultimate section of this article. The significance of the rearticulation of sexual assault as a medical issue in forensic texts was the formulation of boundaries between two existing bodies of knowledge; in effect a power struggle. Medicine introduced doubt into the courtroom by establishing that all of the signs of rape could be interpreted specifically, and therefore that medical intervention in the legal process was necessary to establish the facts, both legal and medical, with any degree of certainty. This usage of the legal statute that the conviction of a crime needed to be established beyond reasonable doubt meant that medicine could also supply the means for this establishment. By providing the specific skills and knowledge necessary to interpret the body, medicine alone could respond to the doubt introduced into the courtroom by stressing the underdetermination of the evidence by the non-specialist.