INDECENT ASSAULT UPON CHILDREN.

BY

W. TRAVIS GIBB, B.S., M.D.

Definition. According to the English and American Criminal Codes, indecent assault is ordinarily defined as the mere touching, by a man, of the genital organs, breasts, or legs of any female not his wife, without her consent, even though the parts are covered with clothes. In the French and most of the German codes the offense is designated as "unchaste conduct.” Should the female be under the age of legal consent, the act, even with her consent, would constitute the crime of indecent assault upon a child.

Legal Aspect. There is little or nothing in the medico-legal literature pertaining directly to the crime of indecent assault upon children, except as embraced under the heading of ordinary indecent assault upon a female. Reese, in his Medical Jurisprudence, states that as this crime is usually committed in secret and without witnesses, the law reecives the evidence of a single person, the complainant or prosecutrix, as sufficient to establish the charge. In the State of New York a law has been recently passed which permits the testimony of a child, even though she is too young to understand the nature of an oath, to be submitted to the jury for what such an appearance is worth without the formality of administering the oath. As false accusations are exceedingly common, medical evidence becomes of the greatest importance as corroborative proof, and it is therefore exceedingly important that the physician examining the child should be particularly careful in making his examination and framing his report, for it is frequently upon his testimony that the prosecution depends, especially if there have been no witnesses to the assault, and the victim is too young to give competent testimony.

According to most penal codes, the consent of a child, even though she is under the legal age for consent to sexual intercourse, to the commission of an act of indecent assault is considered a sufficient defense to the charge; but in the State of New York the accused man may be prosecuted, even though the child has given her consent, under Section 289 of the Penal Code, which states that:

"A person who

"1. Willfully causes or permits the life or limb of any child actually

or apparently under the age of sixteen years to be endangered, or its health to be injured, or its morals to become depraved;

"2. Willfully causes or permits a child to be placed in such a situation or engage in such an occupation that its life or limb is endangered, or its health is likely to be impaired, is guilty of a misdemeanor."

While the term "indecent assault upon a child" usually implies the indecent act of an adult male toward a female under the age of consent, it is equally applicable to the indecent assault of an adult female upon a male child, or of an adult female upon a female child, or of an adult male upon a male child. These latter varieties of indecent assault are not as common as the first, but it is undeniably true that they occur much more frequently than is generally supposed, although but few of the cases are brought to public notice, owing to the difficulty of proving the charge, which, from the peculiar nature of the offense and the lack of physical evidence upon the victim, would require strong corroborative testimony in order to secure a conviction. This corroboration would necessarily be lacking, for if the accused is in full possession of his or her senses, a third party would not likely be permitted to witness the assault. Authentic instances of indecent assault of adult females upon male children are comparatively rare in the literature upon the subject, because their actions toward the child, even though they might arouse the suspicions of a witness, could be easily and satisfactorily explained. Krafft-Ebing (Psychopathia Sexualis, p. 377) mentions the case of a married woman, thirty years of age, who enticed a boy of five, by means of money and sweetmeats, committed an indecent assault upon him by lustfully handling his genitals, causing him to handle hers, and then endeavored to cause him to have intercourse with her.

Women suffering from nymphomania or some other variety of sexual perversion, or merely for the purpose of revenge, have been known to make an indecent assault upon the sexual organs of a male or female child and produce such an amount of damage that the cases have been brought to the notice of the criminal authorities. There are a number of recorded cases where an adult female, with the design to so enlarge the genital organs of a child as to fit her for sexual intercourse with men, introduces her fingers, candles, round pieces of wood or stone into the child's vagina. In the observance of the Phallic worship of ancient Egypt, stones shaped like the adult male genital organ were forced into the vagina of children in order to prepare them for sexual intercourse. The practice of thus injuring children is common in southern countries, and mothers themselves will frequently inflict these injuries upon their own children for the purpose of selling them into prostitution, very young children being particularly desirable for sexual intercourse, especially by old men. Casper mentions the case of a girl ten years of age, whose vagina had been dilated in this way by her mother, who first used her fingers as dilators and then forced a long smooth stone into the vagina. Ogston refers to this iniquitous practice in Edinburgh, and describes the peculiar funnel-like dilatation, which is likened to the mechanical enlargement mentioned by Tardieu and other writers, and found in passive pæderasts.

In Taylor's Medical Jurisprudence is mentioned the case of a man who committed a rape upon a child, who admitted that he had first used a stick to enlarge the vaginal orifice. Several years ago, in New York

city, two boys attempted to commit a rape upon a girl nine years of age, and finding her vagina too small, forced sticks into it in order to enlarge it.

Penalty. In this country, in most of the States in which the crime of indecent assault is recognized as a separate offense it is considered a misdemeanor. In New York, according to the new penal code, it is classed as an assault in the third degree. In some States, notably Louisiana and Mississippi, no such offense is recognized under the specific term of "indecent assault," such an assault being considered an assault with the intent to commit rape. In the States where the crime is classed as a misdemeanor, the average penalty is one year in the penitentiary. Sometimes a fine, or both a fine and imprisonment, are imposed. In New York the penalty is one year in prison or a fine of five hundred dollars, or both. In the States where the crime is considered a felony, the penalty is greater and the confinement is in state-prison, notably California, two and a half years in state-prison; Illinois, one to fourteen years; Michigan, not more than ten years, or a fine not exceeding one thousand dollars, or both. No difference is made in the penalty whether the victim of the assault is an adult or a child. (See Rape, etc., vol. ii.)

Age of Consent.-While the age of consent of females has no bearing upon the penalty for the crime of indecent assault, and according to the common law the consent of a child of tender years is considered a sufficient defense for the crime, it is of great importance in determining the age under which a child must be in order that the person accused of the crime of indecent assault may be prosecuted for endangering the morals of the victim. In the majority of States a child is considered capable of giving consent at the age of fourteen years. In Alabama and Mississippi the age of consent is ten years; in Louisiana and Texas it is twelve; in Iowa it is thirteen; in Nebraska it is fifteen; in New York and Pennsylvania it is sixteen; and in Kansas and Wyoming it is eighteen.

Undoubtedly the largest proportion of cases of indecent assault upon children occur among the older girls, but in most of these cases the child's consent has been obtained, and the assaults are but seldom reported to the criminal authorities, as but little or no physical injury is done these girls by an indecent assault alone, and there has been no witness. When the children are very young, the perpetrators of the assault are either insane or intoxicated, and the physical injury is much greater than in the first class of cases, and they are consequently more likely to be brought to public notice.

Varieties of Indecent Assault.-A common form of indecent assault upon children is where an adult male or female permits or compels a child of either sex to perform an act of manustupration upon him or her. Numerous instances of this variety of assault have been brought to my notice as examining physician of the New York Society for the Prevention of Cruelty to Children, but as there is usually no corroborative testimony and no physical evidences upon the child, the cases seldom find their way into court. No injury except a moral one has been done the child, and unless the crime has been witnessed by some third person, the evidence of the victim, who is often too young to testify, is not sufficient to secure a conviction. If the child is old enough to give com

petent testimony, he or she will often try to shield the accused, especially if the act was done with the subject's full consent.

"The annals of legal medicine distinguish as the equivalents of the impossible physiological sexual act, exhibition of the genital organs, lustful handling of the genital organs of children, inducing them to perform manustupration of the seducer and performing masturbation and flagellation of the victim. In this stage the intellect may be sufficiently intact to allow avoidance of publicity and discovery, while the moral sense is too far gone to consider the moral significance of the act and resistance of the impulse." (Psychopathia Sexualis, p. 40.)

Another variety of indecent assault which has frequently been brought to my notice in the examination of children is where a man, for the gratification of a perverted sexual appetite, applies his mouth and tongue to the external genital organs of a female child. This act, designated by the term "cunnilingus," while it is, strictly speaking, an indecent assault, is classed under the "crimes against nature," and is punished by a longer term of imprisonment. A remarkable instance of this species of moral depravity was the case of Mamie Prosser, a welldeveloped child of eleven years, whom I examined for the Children's Society in September, 1892. She was a typical example of a New York street urchin, dirty and uncared for. Three men and two boys attempted, with her consent and for the payment of five cents, to have sexual intercourse with her, but failed, as her vagina was too small. The child stated that two of the men, finding they were unable to effect sexual intercourse, applied their mouths to her vulva. The men admitted that they had done so. All five pleaded guilty to the charge of abduction and were sentenced to state-prison.

Another case in point was that of the manager of a "female baseball team," a man fifty years of age, who was convicted after a long trial of the crime of abduction. The child, the so-called "mascot" of his base-ball team, an extremely pretty, well-developed girl fifteen years of age, was examined in July, 1892. She admitted that numerous acts of sexual intercourse had occurred between her and the accused, with her full consent, however. On the witness-stand she stated that the accused man, before he was able to have sexual intercourse with her, had compelled her to perform masturbation upon him upon numerous occasions, and that he had frequently performed the act upon her. He was tried upon the charges of rape and abduction, and convicted upon the latter. The charge of indecent assault was not pressed, as there was no evidence to corroborate that of the child.

The Accused. In my experience, criminal assaults upon children are usually perpetrated by men who are insane, old men beyond the age of virility, men under the influence of liquor, and those suffering from some form of perversion of the sexual instinct which may be akin to insanity. In southern countries, where children are frequently employed for sexual intercourse by men, the indecent assaults upon their genitals are made for the purpose of first enlarging these organs. Other varieties of indecent assaults, including cunnilingus and manustupration, are usually perpetrated by sexual perverts. Those developing senile dementia due to brain atrophy and psychical degeneration first exhibit a sexual perversion by lascivious speech and gestures in the presence of females; then they devote their attention to children, because of the

better facilities for secret gratification, but more especially because of their knowledge of their own deficiency in sexual power which would keep them from approaching adults. This perversion of the sexual impulses in very old men may be explained by reason of their defective sexual powers and greatly diminished moral sense. Other motives impelling an adult to make an indecent assault upon a child may be jealousy or a desire on the part of the perpetrator to obtain revenge upon the parents or friends of the child for some real or supposed injury.

The usual defense advanced by the accused perpetrator of an indecent assault is an alibi, which, if sustained, is necessarily a complete defense. He may also attempt to prove that the offense was committed with the child's full consent by showing that the assault occurred in a place where the child had but to make an outcry to have obtained assistance. The accused frequently claims that the child solicited the assault, but even had she done so, he can be held and prosecuted (in the State of New York) under Section 289 of the penal code. Another line of defense offered by the defendant is that he placed his hands under the girl's clothes at her request in order to arrange some article of her dress that had become loosened, and that it was not his intention to violate chastity. The absence of any corroborative testimony or marks of violence upon the child, especially if the accused can prove a uniformly good character, would undoubtedly cause him to be given the benefit of a reasonable doubt if tried.

False Accusations.-False accusations of indecent assault upon children have been brought against men, sometimes intentionally and at times unintentionally. Intentional false accusations are usually brought for the purpose of revenge, and in such cases the child will have been taught the story she repeats. Cases are recorded where the parties interested in procuring the accusation have so irritated the genitals of the child as to make them appear as if an assault had actually taken place. Such cases rarely go so far as a trial in a criminal court, as their real merits are easily discovered if the child is made to tell her story while apart from her friends or those particularly interested in making the accusation.

What was apparently an instance of an unintentional false accusation of indecent assault was brought to my notice in a case where a man was accused of placing his hands under the clothes and upon the person of a child three years of age. The complainant was an old woman who lived in a house adjoining that of the accused, her windows being on a level with his, but situated on the opposite side of a fifteen-foot courtyard. She testified that she had seen the accused place his hands under the child's clothing on several occasions as he and the child were standing at the window of his apartment. The offense appeared so plain to her that she made complaint, and the man was arrested. I examined the child, but could find no evidences of injury. On the trial the accused man stated that he had merely buttoned the child's drawers, which had become loosened. There was no corroboration of the complainant's testimony, and the child was too young to testify. The man produced witnesses to vouch for his good character, and he was acquitted.

Severity of the Assaults.-Indecent assault upon children varies in the severity of its effects from the merest physical contact of the hands of the assailant upon the genital organs or breasts of the child, leaving