644 CASES OF NULLITY. 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. 646, 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 CASES OF NULLITY. 645 marriage was long delayed in consequence of the hysterical condition of the woman. 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 ber. 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 646 CASES OF SEXUAL IDENTITY. 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 physi cal 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 woman— impotent 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 nian, 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.) RAPE-SOURCES OF MEDICAL EVIDENCE. 647 Ꭱ Ꭺ Ꮲ Ꭼ . CHAPTER LIX. SOURCES OF MEDICAL EVIDENCE.-RAPE ON INFANTS AND CHILDREN.-MARKS OF VIOLENCE.PURULENT DISCHARGES FROM THE VAGINA.—EVIDENCE FROM GONORRHOEA AND SYPHILIS.RAPE ON GIRLS AFTER PUBERTY.-DEFLORATION.—SIGNS OF VIRGINITY. 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 648 RAPE ON INFANTS AND CHILDREN. evidence in cases of rape may be derived from four sources; 1. Marks of violence about the genitals. 2. Marks of violence on the person of the complainant or prisoner. 3. The presence of stains of the spermatic fluid or of blood on the clothes of the complainant or prisoner. 4. The exist ence of gonorrhoea or syphilis in one or both. This evidence will vary according to the age of the female and other circumstances. RAPE ON INFANTS AND CHILDREN. The sexual organs should in these cases present marks of injury if the crime has been completed, and there has been any resistance on the part of the child; for it is impossible to conceive that forcible intercourse should take place without the production of ecchymosis, the effusion of blood, or a laceration of the pudendum. Even without reference to manual violence on the part of the adult assailant, the size of the male organ must generally cause much local injury in the attempt to enter the vagina of a child. If the violation has taken place within two or three days, the appearances presented by the parts may be as follows: 1. Inflammation, with more or less abrasion of the lining membrane. 2. A muco-purulent discharge from the vagina of a ropy consistency, and of a yellowish or greenish-yellow color, staining and stiffening the linen worn by the girl; the mucous membrane of the urethra is inflamed, rendering the discharge of the urine painful 3. In recent cases blood may be oozing from the abraded membrane, or clots of blood may be found deposited in 4. The hymen may be entirely destroyed, or (what is more commonly observed) it may present on careful examination one or more slight lacerations. Owing to the inflamed state of the parts, the proper examination of the hymen is rendered difficult-any attempt to separate the thighs for this purpose causing great pain. For this reason also, the child walks with difficulty, and complains of pain in walking. 5. Lastly, the vagina may be unnaturally dilated. It has been propounded as a serious question whether a rape can be perpetrated on children of tender age by an adult man; and medical witnesses at trials have adopted conflicting opinions. Some are inclined to regard all such charges as unfounded, and to seek for other medical expla nations of the symptoms above described. This practice has been carried of late years to an undue extent, simply because many of these charges have been proved to be false; but common experience, supported as it is by the accurate observations of Casper, shows that there is too frequently a real foundation for the charge in reference to children, and that a girl is not to be discredited merely because of her tender age. This would be conferring impunity on the acts of a vile class of offenders. In all ca-es there should be good medical evidence and a corroboration from circumstances. There is a deplorable vulgar error, causing this crime to be a frequent one. It is this, that gonorrhoea and syphilis in the male are cured by coitus with a female who is a virgin. It need hardly be said that this supposition has no medical basis. In 1884, a case was tried at Liverpool, in which Lowndes gave evidence that in this way a man had inoculated a young girl with syphilis. For the legal establishment of the crime, proof of penetration only is demanded, and a sufficient degree of penetration to constitute rape in law may take place without necessarily rupturing the hymen. There must be medical evidence to show that, in a special case, there was actual penetration-the degree of penetration being quite immaterial. It is true that there could not be a complete introduction of the adult male organ into |