RAPE AS A LEGITIMATE MEDICAL EVENT FROM 1800-1910

by

KATHERINE ELIZABETH SCHAUB

Submitted in partial fulfillment of the requirements for the degree of Master of Arts

Thesis Advisor: Jonathan Sadowsky Thesis Committee: Jonathan Sadowsky, Renée Sentilles and Kenneth Ledford

Department of History

CASE WESTERN RESERVE UNIVERSITY

August, 2013

CASE WESTERN RESERVE UNIVERSITY SCHOOL OF GRADUATE STUDIES

We hereby approve the thesis of Katherine Elizabeth Schaub, Candidate for the Master of Arts Degree.

Jonathan Sadowsky (chair of the committee) Renée Sentilles Kenneth Ledford

March 29, 2013

*we also certify that approval has been obtained for any proprietary material contained therein.

Table of Contents

Abstract 1

Introduction 2

Physicians as Witnesses 4

Investigations of Women’s Bodies 6

The Technology of Rape Detection 18

Hysterical Accusations 23

Investigations of Men’s Bodies 29

An Unfortunate Reputation 31

Sick Rapists 34

The Cure for Rape 40

Rape Victims 44

Conclusion 57

Bibliography 60

List of Figures Figure 1 20 Figure 2 20 Figure 3 21

Legitimate Rape as a Medical Event Abstract by KATHERINE ELIZABETH SCHAUB

During the nineteenth century, physicians began to include rape amongst the bodily events that fell under their purview. Doctors were primarily involved in searching for forensic evidence of rape, as well as theorizing about biological causes of raping and medical interventions for rapists. Physicians were embedded in a culture which treated reports of rape with great suspicion, and the accounts of doctors often lent a note of medical authority to certain myths about rape, such as the prevalence of false reports as well as whether or not rape could lead to pregnancy. Despite being a phenomenon that is intimately associated with the body, physicians were unable to fully claim rape as a part of their professional domain.

The writings of physicians during this period show how challenges from the legal profession frequently undermined doctors' own attempts to establish themselves as authorities on rape, as well as the roots of certain elements of rape culture. This paper examines physicians’ role in investigating the bodies of women, their attempts to claim authority in legal settings, their identification of rapists as disordered, and the experiences of victims themselves with the medicalization of rape.

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Introduction

Recently there has been a notable increase in reports on the issue of rape in response to comments made by various Republican legislators who have repeated certain longstanding myths about rape.1 For all the gains women have made in public life, the threat of sexual violence still shapes women’s lives. There is no shortage of advice for women telling them where to go and when to go there, what they must not wear, or do, or say. Supposedly, these sorts of precautions will keep a woman from being raped. Comments suggesting that women routinely lie about having been raped, that it’s not really rape unless the woman has fought tooth and nail, or that rape is anything other than a horrible violation are met with derision, but still manage to find voice. As an event intimately connected with bodies, rape has also been a topic of investigation by physicians.

This paper is primarily a medical history, chronicling how professional medicine has interacted with the phenomenon of rape between 1800 and 1910. During this time physicians were chiefly concerned with the search for verifiable evidence, though during the

1880s and 1890s they also began to view the act of raping itself as a symptom of illness.

Physicians’ attitudes towards victims of rape remained remarkably consistent, despite the changes in the medical profession, and developments in medical knowledge that occurred over this period. The concept of rape as a traumatic event did not begin to form until the early twentieth century. In some respects little has changed. The ideas that false reports are

1 Charles Jaco, August 19th 2012 “Jaco Report: Full Interview with Todd Aiken,” Fox 2 News St. Louis. http://fox2now.com/2012/08/19/the-jaco-report-august-19-2012/ Accessed April 2nd 2013; Gregory J. Krieg and Chris Good, “Murdock Rape Comment Puts GOP on Defense,” ABC News Website October 24th 2012 http://abcnews.go.com/Politics/OTUS/richard-mourdock-rape- comment-puts-romney-defense/story?id=17552263#.UVt-br88gVs Accessed April 2nd 2013; Piers Morgen, “Interview with Rick Santorum on January 20th 2012,” CNN Transcript available at http://transcripts.cnn.com/TRANSCRIPTS/1201/20/pmt.01.html Accessed April 2nd 2013

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common, that rape is an act of lust, and the desire to explain rape as having been provoked by some characteristic or action of the victim have had remarkable persistence, despite repeated condemnation.2 The physicians quoted here were very much a product of their time, and while their views were not unique, these individuals did occupy a unique position of power. Rape is a crime committed upon bodies, usually by bodies, placing it within the realm of what could be considered medical, particularly as doctors became the legal and cultural authorities on matters concerning the body. During the period examined here, challenges to the medicalization of rape largely came from jurists, who had long claimed the right to exercise authority over rape as a legal matter. In this paper I will show how medical professionals tried to establish themselves as authorities on rape, and that this attempt at exerting professional power, while not without effect, was largely unsuccessful.

Additionally, the attitudes and activities of physicians during this period illuminate some of the roots of modern rape culture.3 I begin with an examination of physicians’ role in the legal system as expert witnesses and forensic examiners, then the medicalization of rapists, who were considered to suffer from some sort of disease or defect. Finally, I conclude with victims themselves. I leave this group for last because attention to the needs of rape victims is a relatively recent development. It was not until the middle part of the twentieth century that women’s rights groups began to make serious improvements to the care of rape victims in medical settings.

2Nick Baumann, “The Ken Buck Rape Case,” Mother Jones, October 26th 2010. http://www.motherjones.com/politics/2010/10/ken-buck-rape-case Accessed April 2nd 2013 Mac McClelland, “The New York Times Rape-Friendly Reporting” March 9th 2011, Mother Jones http://www.motherjones.com/rights-stuff/2011/03/new-york-times-texas-rape Accessed April 2nd, 2013 3 Emilie Buchwald, Transforming a Rape Culture, (Minneapolis: Milkweed Editions, 1993). 3

Physicians as Witnesses

Physicians were not the first individuals who possessed the authority to examine the bodies of rape victims. Midwives provided testimony in court on the bodies they had inspected, though their authority in the courtroom diminished as their authority in the birthing chamber did. Martha Ballard, a New England midwife provided testimony in a charge of rape brought against Joseph North, a judge and respected member of the community, by Rebecca Foster. In this instance Mrs. Ballard does not appear to have physically examined Mrs. Foster, but stated in her deposition that Foster had mentioned

“abuses” to her which may have led to a pregnancy.4 The defense claimed that Mrs. Foster was of “notoriously” bad character, a tactic common in rape trials all the way through to the present day. The examination of women by midwives for signs of resistance was entirely in keeping with both their legal and medical authority of to examine the bodies of citizens, especially women and girls, as well as the higher standard of resistance rape victims were expected to show compared to victims of other sorts of crimes.5 The authority of midwives was not a phenomenon limited to the United States. For centuries across much of Europe, midwives were the traditional legal authorities on the bodies of women, and sometimes men.6 Midwives did not lose their legal authority all at once, and in many places continued to practice medicine, even as male physicians began to usurp their place at the side of laboring

4 Laurel Thatcher Ulrich, A Midwife's Tale: The life of Martha Ballard, based on her diary, 1785-1812. (New York: Vintage Books, 1991). 103-133 5 Jennifer Temkin, “Women, Rape and Law Reform,” in RAPE: An Historical and Social Enquiry, eds. Sylvana Tomaselli and Roy Porter (Oxford: Basil Blackwell, 1986). 16-40. The authority of midwives varied over time and place. There are accounts of medieval midwives examining the bodies of men in connection with accusations of impotence. See Bullough, Vern. Handbook of Medieval Sexuality. New York. [u.a.]: Garland. 6 Erwin H. Ackernecht, 1976. Midwives as experts in court. Bulletin of the New York Academy of Medicine 52 (10): 1224-1228 4

women. For example, midwives continued to provide testimony as expert witnesses in

Mexico as late as the 1850s.7 The decline of midwifery was only one of the dramatic changes in the practice of Professional medicine in the United States between 1800 and 1910.

Licensure requirements which had begun to appear in some states at the beginning of the nineteenth century were rescinded between the 1830s and the 1850s.8 Irregulars (including homeopaths) comprised a substantial part of the group of people self-identifying as doctors, and there was little uniformity in medical education before the 1870s.9 Although physicians’ ability to provide effective therapeutic interventions was looked upon with skepticism, this century saw the rise and fall of medical jurisprudence as a significantly influential specialty.10

A physician’s role in cases of rape was primarily to search for clues that would corroborate a woman’s story, and they presented themselves as being able to provide evidence that was more objective than the victim was assumed to be. Sir Matthew Hale’s well-known statement, “Rape is an accusation easy to be made and hard to be proved, and harder to be defended by the party accused, tho’ never so innocent,” was taken to heart.11

Doctors saw their role as providing crucial evidence that could establish objective truths about what had happened to a particular body. Theodric Beck and William Dunlop quoted

Hale in their 1825 edition of Elements of Medical Jurisprudence to emphasize how important

7 Lee M. Penyak, 2002. Midwives and legal medicine in méxico, 1740-1846. Journal of Hispanic Higher Education 1 (3) (July 01): 251-66. 8 Starr, Paul. The Social Transformation of American Medicine, (New York: Basic Books, 1982). 58 9 Ibid 112-113 10 James C. Mohr, Doctors and the Law: Medical Jurisprudence in Nineteenth-Century America (New York: Oxford University Press, 1993). 11 Sir Matthew Hale quoted in Mack, Kathy. "Continuing barriers to women's credibility: a feminist perspective on the proof process." In Criminal Law Forum, vol. 4, no. 2, pp. 327-353. Springer Netherlands, 1993.

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medical professionals were to the investigatory process.12 Physicians evaluated several different types of signs in their search for physical evidence including marks of violence on the body of the woman, the condition of the vulva and vagina, and especially the state of the hymen. Physicians were also charged with examining stains, a task well suited to the microscope, an increasingly important piece of technology in medical science.

Investigations of Women’s Bodies

Physicians who set out to evaluate a woman who had made a charge of rape looked for the absence of the signs of virginity. Proof that sexual intercourse had occurred was one component of a three-part definition of rape under the English common law, the other two necessary components being force and lack of consent.13 The old law, “emission on the part of the attacker” also had to be proved, but this standard was widely criticized by physicians

“who argued penetration alone should be enough to convict.”14 Physicians considered evidence of force and proof of intercourse the easiest of these to establish. The clearest indication of intercourse was the absence of the hymen. The exhaustive attention paid to the condition of this particular membrane comprised a substantial part of the lurid and graphic level of scrutiny applied to the bodies of rape victims. This type of detailed language about women’s bodies would normally be considered taboo, but, “the law chiefly sanctioned public speech about women’s bodies within masculine medical discourse…” and “…even medicalized courtroom accounts of women’s bodies retained the ability to shock.”15

Physicians’ writings on what could be indicated by the condition of the hymen, and whether

12 Theodric Romeyn Beck, and William Dunlop. Elements of Medical Jurisprudence. Vol. 1. (London: John Anderson, Medical Bookseller., 1825) 60. 13 Cyril J. Smith, "History of rape and rape laws." Women Law. J. 60 (1974): 188-198. 191 14 Mohr, Doctors and the Law, 72. 15 Shani D’Cruze. Crimes of Outrage: Sex, violence and Victorian Working Women (DeKalb: Northern Illinois University Press, 1998), 141 6

or not this membrane existed provide an excellent example of how dependent physicians were on the case study, and the limitations of that knowledge. In one account from 1816, a woman giving birth had to have her hymen punctured by a physician in order to deliver the child.16 Anecdotes of women whose hymens were still present at the time of childbirth were collected and repeated. For example in William Guy’s 1861 edition of Principles of Forensic

Medicine he informs his readers “Ambrose Paré, Ruisch, Capuron, and Baudelocque give cases of mothers in whom the membrane was either ruptured by the child, or purposely divided by the knife.”17 One doctor even claimed to have seen a woman “in whom the hymen was preserved circular and tense after the birth of a foetus of five months, enveloped in all its membranes.”18

While physicians acknowledged the dubiousness on making a judgment of virginity from the hymen alone, they still considered it to be an important sign. The Becks’ Elements of

Medical Jurisprudence (1825) concludes, “The general sense of the profession is now decidedly in favor of its [the hymen’s] existence.” However, they also argue, “It may be wanting from original malconformation, or it may be destroyed by disease or some other cause, and yet the female be pure.”19

(emphasis original) Instructions for interpreting the condition of the hymen were common in texts on forensic medicine, but the hymen was not the only ambiguous physical sign. The

Becks also referred to “the narrowness of the vagina,” “certain fleshy tubercles,” “the red and turbid appearance of the labia and nymphæ, and the rupture of the fourchette.”20

However, the authors acknowledged that for each of these possible clues, “that although

16 Georges-Edouard Male, An Epitome of Juridical or Forensic Medicine for the use of Medical Men, Coroners and Barristers. (London: T. and G. Underwood, 1816) 130. 17 William Augustus. Guy, Principles of forensic medicine. (London: H. Renshaw, Strand 1861) 36. 18 Ibid. 19 T.R. Beck, Elements of medical jurisprudence (London: J. Anderson, 1825). 52 20 T.R. Beck and John Beck, Elements of medical jurisprudence, 1860, 193-195 7

they may be present notwithstanding the unchastity of the female, yet their absence is proof against her.”21 Elements of Medical Jurisprudence was a popular title, and suggests that Beck’s views were influential not just in the United States, but also across Europe. Beck was an alienist (precursors of psychiatrists) as well as a medico-legal expert and by the time of his death, five American, four English, and a German edition had been published since the first edition in 1823. After his death new editions of the book continued to appear- including one in Sweden.22

Another physician who wrote on medico-legal issues, William Guy (Principles of

Forensic Medicine 1861) advised physicians, “The physical signs of rape consists in marks of violence on the organs of generation, proportioned to the force employed, the resistance offered, and the relative disproportion of the parts.”23 The requirement that a woman had resisted to the utmost meant that the absence of injuries as would be sustained in a violent struggle would cast doubt upon her claim to have been raped. Severe injuries to the genitals were expected and, “If the injury be recent, the parts will be found lacerated, abraded, and covered with blood; if of some standing, there will be signs of recent inflammation, with increased heat and swelling of the genitals, and profuse mucous discharge, at first tinged with blood.”24 Guy also included the rupture of the hymen as another important sign advising his readers, “If the sufferer has not previously had sexual intercourse, there may be, in addition to marks of injury on the labia, rupture of the hymen and fourchette.” Guy held up these signs in contrast to “fallacious” signs as “the intact condition of the hymen, or its recent rupture, … the fresh colour, firmness, and elasticity of the labia, the entire state of the

21 Ibid. 195 22 Benjamin Lee, "Kelly, HA, and Burrage, WL American Medical Biographies. 1320 pp." (1920): 87- 88. 23 William Augustus Guy, Principles of forensic medicine, 1861, 37 24 Ibid. 8

fourchette, the narrowness and rugose state of the vagina, and a plump and elastic condition of the breasts.”25 Here, the condition of the hymen is listed as both potentially informative as well as misleading. Guy’s Principles of Forensic Medicine became a “standard work” but even though he was “often consulted in medico-legal cases, Guy would never give evidence publicly, partly from over-sensitiveness and partly because he distrusted juries.”26

The condition of the hymen attracted such speculation from physicians, even though “Some distinguished physiologists have denied its existence altogether, or in the cases where it is found, consider it a non-natural or morbid occurrence. Among these, may be enumerated, Ambrose Paré", Palfyn, Pinaeus, Columbus, Dionis, and Buffon.” 27

The Becks’ manual pointed out that the 16th century anatomist, Fallopius who went on to lend his name to Fallopian tubes, did not find the hymen in “more than three females out of thousands whom he dissected.” Despite the doubters, there were numerous others who claimed that the membrane did exist, and was indeed a sign of virginity, “Gavard, who appears to have dissected a great number of subjects at the Hôpital de la Saltpetriére, and also at the dissecting room of Desault, states that he constantly found this membrane in the foetus, and in children newly born. 28 William Guy provided an extremely detailed description of the membrane in question, noting three possible different forms. He made use of specialized terminology, and his attention to detail suggests that the ability to observe and interpret this body part was the province of physicians alone. He began with “the most usual

25 Ibid. 36 26 G. T. Bettany, ‘Guy, William Augustus (bap. 1810, d. 1885)’, rev. Richard Hankins, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, May 2009 [http://www.oxforddnb.com/view/article/11801, accessed 27 Jan 2013] 27 Theodric Romeyn Beck, and John Brodhead Beck. Elements of medical jurisprudence, 1860. 189. This account is also found in earlier editions, see pg. 51 of the 1825 edition (Ambrose Pare is subsequently quoted in their 1861 edition telling the story of the hymen so thick, it only ruptured during childbirth) 28 Ibid. 9

form... a semilunar fold, concave before and convex behind, bounding the entrance of the vagina below, the extremities losing themselves behind the labia minora in the circumference of the aperture of the vagina.” However, there were other possibilities such as “a circular membrane, perforated in the centre, and adhering by its entire circumference to the opening of the vagina with the exception of a small opening above, corresponding to the meatus urinarius,” and “the most unusual form …filaments of mucous membrane uniting the carunculae myrtiformes.”29

Given that there was some dispute and disagreement about whether this membrane existed, and that the presence or absence of the hymen did not necessarily indicate a rape and should be considered along with other elements of a physical exam, one might expect courtroom discussions of this particular physical sign to be considered safely within the domain of expert witnesses, but this was not so. In a case from 1897 a woman named only as “a female witness” examined a child who had been raped. She “testified that she thought she knew what the hymen was and that, if it was what she thought it to be, it was not there.”30 The defense objected that the witness “was not competent to testify in relation to a matter of this kind; that it was a matter connected with the anatomy of a human being and that, to be competent, a witness should possess the same intelligence and knowledge that a physician or professor of anatomy does.”31 The judge overruled the objection, and his decision was upheld by the Supreme Court of California which stated,

“certainly… it can not be necessary that a witness should be a physician or a skilled physiologist in order to be competent to testify as to the existence or non-existence of any

29 William Augustus Guy, Principles of forensic medicine, 1861, 35. 30 “Miscellany: Non-Expert Can Testify as to Existence of Hymen,” J Am Med Assoc. 1897;XXVIII(6):284-286., 285 31 Ibid. 10

part of the human body, when the matter can be determined by ocular inspection.”32 Even though this “female witness” did not apparently have any sort of medical credential, her word was considered sufficient evidence alone, and the rejection of physicians’ special claim to knowledge of the body is striking. It is notable that expert testimony on this question is not considered necessary because the legal stakes surrounding the presence or absence of the hymen were quite high; convictions for rape could be overturned upon the discovery of an apparently intact hymen.

A thirteen-year-old girl in Texas who had been sent to live with an unmarried man,

Draper, by her aunt “when she was about four years old,” testified “that for four years he had had sexual relations with her, and that she knew he penetrated her because it hurt her.”33 Despite her clear declaration that she had been raped, “on the other hand, three physicians examined her, and found her hymen intact, and no evidence of her being penetrated by the male organ, or otherwise.” They then went on to testify “The only variation in their evidence was that one of them thought the parts looked a little flabbier than naturally, which might have resulted from other causes than copulation, and another of them thought there was more elasticity about the hymen and adjacent parts than usual, though he did not know that he would have noticed it if he had not been examining the prosecutrix with reference to this case.”34 The testimony provided by physicians in this instance demonstrates the degree to which they were confident in their ability to accurately judge whether or not a woman had ever had intercourse by the appearance of her genitals.

32 Ibid. 33 “Medicolegal: Suggests Case of Fetichism,” J Am Med Assoc. 1900;XXXV(12):771-772., 771. 34 Ibid. 11

The claim was not that she had been recently raped, so they were not looking for lacerations or bruising.

The testimony of these physicians undermined her claim of rape, “Now, the testimony of the physicians, the court thinks, showed her testimony false as to the penetration at least. True, it says, rape could be committed without rupture of the hymen by merely introducing the male organ between the labia, but this was not the testimony.”

The court also found it “unreasonable to believe that the accused had been endeavoring during four years to penetrate her parts, without success, and without leaving any manifestations of his attempts.” However, the court did acknowledge that improper sexual conduct may have occurred, speculating that Draper “may have been afflicted with that form of sexual disease known as fetichism, where the victim, laboring under venereal excitement, simply desires to gratify his lust by contact of his genital organs with any part of the body of a woman.”35 The standard for what counted as rape varied, with some jurisdictions requiring vaginal penetration and others merely contact. In this instance the girl’s testimony was completely subverted by the testimony of physicians, but this is less an indication of physicians’ power within the legal system relative to jurists than it is their privileged voice relative to the voices of women and girls who pressed charges of rape.

Whether or not pregnancy could result from rape was another issue that one might expect to have been securely controlled by physicians, but even this was not always safely within the walls of professional authority. In the 1904 case of State vs. Carpenter, the

Supreme Court of Iowa dealt directly with the issue of whether or not pregnancy could follow rape. This case is interesting for multiple reasons. Firstly, the defense sought a

35 Ibid. 772 12

continuance; arguing the woman’s pregnancy would “appeal to a jury, and tend to enlist their sympathies.” The court ruled that since a living child born of a rape would be “quite as potent in this respect,” it was correct for the lower court to have overruled the motion, noting “the condition of the woman might well have been good ground for proceeding with the trial at that particular time. The dangers incident to childbirth may well be taken into account when such applications as this are made.” The point the defense sought to make was “the improbability of the witness conceiving at the time she claimed she was ravished. This was based on the theory that her last menstrual period had so far passed that conception was improbable, and on the further thought that conception at such a time was the more improbable on the state’s theory of ravishment.” Here the defense is invoking two contradictory arguments, that a pregnant woman is more sympathetic as a rape victim, but also that because she is pregnant she is less likely to have been raped. The court ruled, “that it can not say, as a matter of law, that conception could not occur under such circumstances. This whole matter was for the jury.”36

Unlike the condition of a body part, whether or not conception is possible if a woman has been raped is hardly something that laypeople could be expected to observe in their day-to-day life. The question of whether or not pregnancy could follow rape had been a topic of debate for some time. Dr. Samuel Farr (Elements of Medical Jurisprudence

1814) noted that if a woman who brought a charge of rape was pregnant, it was

“necessary to enquire how far her lust was excited, or if she experienced any enjoyment.

For without an excitation of lust, or the enjoyment of pleasure in the venereal act, no

36 Medicolegal: Pregnancy in Rape Case and Improbability of Conception J Am Med Assoc. 1904;XLII(17):1099-1100. 1099

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conception can probably take place.”37 Even in 1814, however, he says that “if an absolute rape were to be perpetrated, it is not likely she would become pregnant” rather than declaring pregnancy following rape absolutely and completely impossible.38 E.S.F. Arnold of Yonkers was an outlier when he argued in an 1863 issue of the American Medical

Times that “it is ‘as impossible for a woman to conceive while under the influence of terror, shock, and nervous exhaustion, as it would be for a man to perform the act of intercourse while prostrated by similar agencies.’”39 Since physicians believed that emotional shock could cause miscarriage it was not “reasonable to suppose, that while terror, or strong and painful emotions, especially those of a sudden character, will affect the uterus so powerfully as to cause it to lose its contents, that it can be independent of them during coitus; that it shall, in fact, be independent of them at one moment only to become peculiarly sensitive to them from that time forward?” Dr. Arnold then hypothesized that it could be possible that even “a woman of virtuous impulses may be so overcome by passion excited in resisting a sudden assault that a vigorous opposition may subside into passive submission, and that impregnation may result, but then she becomes a consenting party in the eye of the law.” He also noted that a woman may only claim to have resisted to the utmost out of a sense of shame. His conclusion was that “The older writers, then, may not be so far wrong after all, when they assert that pregnancy shows consent (at least where no other means than actual exertion of strength to accomplish the

37 Samuel Farr, Elements of Medical Jurisprudence or a Succinct and Compendious Description of Such Tokens in the Human Body as are requisite to determine the Judgment of a Coroner, and Courts of Law, in cases of Divorce, Rape, Murder, &c. to which are added, Directions for Preserving the Public Health. (Lodon: J. Callow, Medical Bookseller, 1814) 42-43 38 Ibid. 43 39 Quoted in the American Journal of the Medical Sciences. 45(89):261-262, “Case of Rape During Sleep,” 262. 14

act are used), that is, such consent as would reduce the crime from that of rape in law to a mere assault.”40

Conversely, Dr. William Guy concluded in his 1861 text that it was extremely unlikely that pregnancy “should be prevented by the repugnance which a female feels to the party offering her violence.”41 William Guy argued more strongly for this in the 1875 edition of Principles of Forensic Medicine, on the basis that pregnancy could result from sexual intercourse with a sleeping woman. “Hence, the venereal orgasm is not a sine quâ non: it may also follow a first intercourse with consent. It is therefore, in the highest degree improbable that an event which may follow an act unconsciously performed, and in spite of the pain of a first intercourse, should be prevented even by the most passionate repugnance.”42 In 1884, Dr. Charles Meymont Tidy writing medico-legal advice told his readers decisively “Impregnation is independent of volition on the part of those having connection. The fact that pregnancy may follow rape is beyond all question.”43 Gilbert

Holland Stewart wrote in Legal Medicine, published in 1910, “It was formerly supposed that if pregnancy followed the alleged rape it proved that the woman must have consented to the sexual intercourse. This theory has, however, been exploded, and it is now admitted that if the organs of the female are in proper condition, impregnation may follow from a forcible, as well as an acquiescent, sexual intercourse. “44

There are two medical myths that perpetuate this idea that a “real rape” doesn’t result in pregnancy. The first is the theory that the female orgasm is necessary for

40 Ibid. 41 William Augustus Guy, Principles of forensic medicine, 1861, 45. 42 William Augustus Guy, David Ferrier, and John Phillips. Principles of forensic medicine. (London: Henry Renshaw, 1875), 57-58 43 Charles Meymott Tidy, Legal Medicine (New York: William Wood & Co., 1884), 131. 44 Gilbert Holland Stewart, Legal Medicine (Indianapolis: Bobbs-Merrill), 146 15

conception.45 The second is the belief that emotional horror or disgust can cause miscarriage, which if it can, would surely also prevent conception. The myth that women cannot be impregnated through rape still lingers, even as we recognize rapes committed explicitly for the purpose of impregnating women.46 As with the question of whether or not physicians alone could interpret the condition of the hymen, the court decided to disregard whatever scientific medical knowledge existed at the time, and left the question of whether or not conception is possible after rape to the jury. Doing so rebutted physicians’ claim to serve as exclusive experts on factual questions about bodily functions.

The presence of venereal disease was another possible indication as to whether or not a woman had been raped. Guy recommended in1861 that an examination should made be as soon as possible “after the alleged violence” so that the results could be compared with an examination made at a later date. “If on an examination at a later period the disease should be found present, it would prove the female unchaste if the disease were absent in the accused, but would form a strong corroboration of the charge if present.”47 Henry Cadwalader Chapman reaffirmed this principle in 1896, “In all alleged cases of rape it is important to determine whether the accused be affected with gonorrhoea or syphilis, since if the child be so diseased there would be strong proof of the guilt of the accused.”48 Particularly in children who were considered too young to provide consent, the presence of venereal disease was cause for alarm; one Chicago

45 Mary E. Fissell, Vernacular Bodies: the Politics of Reproduction in early modern England, (Oxford: Oxford University Press, 2004) 46 John Eligon, and Michael Schwirtz. 2012. Todd Akin provokes ire with 'legitimate rape' comment. The New York Times, August 19, 2012, 2012, sec Politics 47 William Augustus Guy, Principles of forensic medicine, 1861) 43. 48 Henry Cadwalader Chapman, A Manual of Medical Jurisprudence and Toxicology. (Philadelphia: WB Saunders, 1896), 100. 16

physician described his distress at the shockingly high prevalence of venereal disease in children,

“It is astonishing what a large number of cases of alleged assault on little girls there are. These cases rarely come to trial. I have been surprised at the large number of cases of gonorrhea among such little girls. As city physician I learned of one source of gonorrheal infection, i.e., the practice of men ‘playing’ with the genitals of little girls, though not committing rape. This happens even in children so young that they do not know what is being done to them. I have had many cases to show that little boys go through the motions of copulating with the assistance of an older female. I recall a string of little girls coming to my clinic suffering from gonorrhea.”49

Another doctor, however, was keen to cling onto the idea that gonorrhea could be spread through poor sanitation, saying “It is trying to our credulity to find a

4-year-old daughter and a 35-year-old father having gonorrhea at the same time with no other source of infection to the daughter other than the father, and yet I have observed this in a family of educated and refined people.” He was relieved to “hear restated that it is possible to contract the disease in a water-closet.”50 This particular quote illustrates one reason why it was so difficult to secure rape convictions. Deviant behavior was incompatible with the very notion of “refined” people with the result, that men of a certain social standing enjoyed tremendous benefit of the doubt when accused of sexual misconduct on top of the assumption that the testimony of women and children already counted for less. The theory that “educated and refined” men don’t commit rape was so strong that it clouded supposedly objective, scientific

49 Abraham L. Wolbarst, M.D., J Am Med Assoc. 1901;XXXVII(13):827-830. “Gonorrhea in Boys” 830. 50 Ibid. 17

judgment, even when the strongest evidence available at the time was brought to bear.51

The Technology of Rape Detection

Physicians made use of what technology was available to them in their search for authoritative proof of rape. Microscopy became a much-valued technique for evaluating stains by the 1860s and since then has remained a staple of scientific investigations of rape. One such piece of evidence was the presence of spermatozoa on the woman’s clothing. In regards to the trial of a dentist accused of rape, the evidence relied upon “was the fact that the hymen had been recently torn from its attachments, leaving a wound which bled during the examination made for the purpose of justice.”52 The presence of a wound and the determination that the woman had been a virgin would be advantageous to the prosecution’s case, although in this instance the dentist was acquitted. The British Medical Journal was alarmed at how close a call this seemed to be, and declared “We wish, however, seeing the very serious bearing which this evidence has had, to raise the question, whether the fact of recent coitus can be inferred from anything short of the presence of spermatozoa?”53

The ability to detect microscopic evidence would provide something more concrete for judges and juries than witnesses’ accounts of the crime, or the woman’s own testimony, the latter being considered particularly unreliable. The search for forensic

51 Elaine S. Abelson, “The Invention of Kleptomania,” in Women and Health in America, ed. Judith Walzer Leavitt (Madison Wis: University of Wisconsin Press 1999), 390-404. Elaine S. Abelson’s essay shows how the deviant behavior of middle and upper-class women was defined as a medical problem in order to explain how supposedly refined people could engage in anti-social behavior. In this case, however, it was simply easier to say that such men simply did not rape. No further explanation was necessary. 52 “The Week, July 20th 1867.” BMJ 2, no. 342 (1867): 44–48. 48 53 Ibid. 18

evidence that could provide physical proof was of great interest to both doctors and jurists.

Dr. Beale advised physicians that, “You will sometimes be called upon to examine stains upon linen, or the vaginal mucus, in cases of suspected rape. Such an investigation must be undertaken with the greatest care; and you must not express a positive opinion if you have the slightest doubt as to the nature of the bodies in question; neither should you draw a conclusion from the presence of one body like a spermatozoon, nor from supposed fragments of their bodies.”54 Even with the benefit of microscopes, “fragments of cotton or linen sometimes assume forms very like those of spermatozoa. The mucus in which they are suspected to be present may be remoistened with distilled water, without the forms being destroyed.”55 Beale emphasized that physicians must be particularly cautious about false positives, mindful of the potential impact of such evidence. The competent forensic physician would have needed to have substantial practical laboratory experience in order to find this microscopic evidence at a time when their skills were notoriously variable.56

Guy’s Principles of Forensic Medicine included illustrations to aid doctors looking at evidence with a microscope.57 Figures one and two show what physicians were supposed to look for when examining fragments of cloth under the microscope in an effort to detect the presence of sperm.

54 Lionel Beale, “A Course of Lectures on Urine, Urinary Deposits, and Calculi.” BMJ s4-1, no. 202 (1860): 869–871. 55 Ibid. 56 Orpheus Everts, “’Expert Testimony and Medical Witnesses’ Read before the Section on Medical Jurisprudence at the Thirty-ninth Annual Meeting of the American Medical Association, at Cincinnati, May 9, 1888.” (1888;XI(25): 873-876 57 Guy, Principles of Forensic Medicine, 1861. 19

Figure 1 Figure 2

Blood was also considered an important piece of physical evidence that could support a woman’s story. However, blood that might be the result of a violent struggle had to be carefully distinguished from menstrual blood, as the latter might be used to make a false accusation. Analyzing stains was a highly skilled business, and required significant laboratory experience. The Becks’ Manual provided detailed laboratory procedures. The specificity of the instructions provided stands out compared to the guidance on what signs to look for on a woman’s body. Physicians who wrote on medical jurisprudence assumed that their audience would already know the basics of how to perform a pelvic exam, but the process of evaluating stains under a microscope would not have been a part of most physicians’ medical training. Beck advised, “Semen forms, when dry on linen, irregular spots of a light yellow or grayish color; but so indistinct, that frequently it is necessary to hold them between the eye and the light to discover their presence. On pressing them with the fingers, the linen appears as if starched. When dry, they are inodorous; but as soon as they are moistened the spermatic odor is given out.” There were additional methods to make evidence more easily observable, “If the linen be gently heated, they assume a yellow-fawn color, and this, indeed, will indicate spots, which otherwise would pass unnoticed. This property is important in distinguishing the discharge. And it is also found, if the linen be left for some time in distilled water, that the above result will 20

not be reproduced on heating it. The semen has become mixed with the water—and no change of color is occasioned.” Beck goes on to note that if the stain is thoroughly soaked, and the fluid left to evaporate, the precipitate has a particular chemical composition, “a semi-transparent residue, resembling gum Arabic, and of a light-fawn color. This again is decomposable in distilled water, if the mixture be shaken, into two parts; one soluble, but the other glutinous, insoluble in water, but soluble in potash. The soluble portion yields a white flocculent precipitate with alcohol, chlorine, acetate of lead, or corrosive sublimate. Pure nitric acid gives it a slight yellowish tint, but does not render it turbid.”58

While physicians could perhaps rightly claim to be experts on examining people’s bodies, that so much detailed instruction in evaluating physical evidence was necessary suggests that physicians were perhaps less secure about examining evidence other than the condition of body parts. Chapman’s A Manual of Medical

Jurisprudence and Toxicology (1896) went into greater detail on preparing samples to examined with a microscope, again, with the assumption that physicians would need detailed instruction. He specifically offers “A convenient method of obtaining the spermatozoa for microscopic examination is to cut out a piece of the material stained with the seminal discharge and place it in a watchglass containing distilled water.

After the material has been thoroughly soaked, a drop of the liquid should then be transferred to a glass slide, and the latter placed on the stage of the microscope.” He also suggested particular slide preparations depending on the material being evaluated, “In case of examining the hair of the female, to which the spermatozoa

58 Theodric Romeyn Beck, and John Brodhead Beck. Elements of medical jurisprudence, 1860, 209-210 21

cling with great tenacity, the hair should be moistened with a drop of weak ammonia and examined with the microscope after the liquid has evaporated.” Like Guy,

Chapman also offers an illustration of spermatozoa to assist investigators.59

.

Figure 3

However, even the evidence most removed from the testimony of a woman remained ambiguous. Dr. Francis Anthony admitted, “The failure to find spermatozoa does not show positively that the stain is not seminal. The fact may be simply that they are not found while still present; moreover, Caspar insists on temporary absence, variation in quantity, and even existence of spermatozoa in the same individual under varying influence, particularly venereal excess.”60 Of course, if the accused was neither particularly old nor young, then the physician would have to blame his own lack of skill for the failure to obtain clear proof.

Another trend in medical history also on display in this instance was the diminishing worth of patient histories and the elevation of diagnostic techniques that relied on physician expertise alone. Increasing importance was ascribed to laboratory

59 Henry Cadwalader Chapman, A Manual of medical jurisprudence and toxicology. (WB Saunders, 1896), 101-102. 60 Francis W. Anthony, “Rape” Boston Med Surg J 1895; 132:56-59 January 17, 1895 22

findings and medical technology over the course of the century.61 Although signs observable and measurable by physicians were considered more desirable for all sorts of medical conditions, in this case, the importance of verifying women’s reports of rape was also fed by the assumption that women were not credible witnesses.

Hysterical Accusations

Most of the aforementioned signs could be considered evidence of intercourse, but not necessarily that it had been nonconsensual. Moreover, physicians were preoccupied with the necessity of revealing false rape accusations, which they believed to be far more common than the actual incidence of rape. Physicians considered the issue of consent difficult to establish, since rape was frequently a crime with no witnesses. However, if a woman was known to have participated in consensual sex outside of matrimony, this could establish her poor character, making her account less credible. Male noted in 1816 that, “In cases of pretended rape, the proof generally rests more on circumstantial than medical evidence, as the person bringing the charge must be of a bad, abandoned character.62 Even though bad character largely (if not exclusively) referred to sexual activity, Male admitted, “it is, however, a felony to force a harlot.”63 Chapman’s Manual of Medical Jurisprudence and Toxicology (1896) similarly admitted that “even if the character of the woman was notoriously bad, yet, if it was in evidence that such a woman, a prostitute, for example, had been forced against her will,

61 Stanley Joel Reiser, Medicine and the Reign of Technology, (Cambridge: Cambridge University Press, 1981); Joel D. Howell, Technology in the Hospital: transforming patient care in the early 20th century. (Baltimore: Hopkins Univ. Pr. 1996). 62 Georges-Edouard Male, An Epitome of Juridical or Forensic Medicine. 1816. 132 63 Ibid. 23

the act would be a rape. But, under such circumstances, it must be admitted that on account of the bad character of the woman the evidence would have to be very strong to convict.”64

Even if intercourse could be proved, the suspicion that a woman had secretly desired the encounter was a major obstacle for those who sought justice in the legal system.

Physicians found it perfectly plausible that women would injure themselves to create the illusion that they had been raped. Male cautions doctors that “there are instances of accusations of this kind being brought by women, who, to give the appearance of violence having been committed, have used acrid and stimulating substances to produce inflammation: this, however, can seldom deceive a medical man, as the enlarged state of the vagina will sufficiently develop the character of the complainant.”65

The issue of false reports was addressed by others writing on the subject of forensics.

Beck and Beck presented several detailed descriptions of false reports from various places in their 1860 edition of Elements of Medical Jurisprudence. In a French case “a female at Martigues, in 1808, accused eight or ten of the principal persons in the place, of having violated her granddaughter, aged about nine years and a half, at an inn. She laid her complaint before the justice, (juge de paix;) but stated that she would withdraw it, provided the accused would accommodate the matter with her.” The woman had a witness, “a daughter of the innkeeper, aged sixteen, and an idiot.” An examination was ordered “in the presence of the judge; and suspicion was immediately excited, from the delay used in admitting the visitors. On examining the parts, he found the hymen untouched, and the vagina extremely narrow.

Around the pudenda, however, a red circle, about the size of a crown, was observed, which appeared to have been induced recently.” The woman’s report that her granddaughter had

64 Henry Cadwalader Chapman, A Manual of medical jurisprudence and toxicology, 1896, 98 65 Georges-Edouard Male, An Epitome of Juridical or Forensic Medicine. 1816. 132. 24

been raped was found to be false, and “the consequence was, that the accuser was put in prison, and finally ordered out of the city.” Another instance of a false report came from

Wales. “A child of about eight years of age, of low connections and mendacious habits, was induced to prefer against a respectable minister of religion an accusation of an attempt to violate her person.” The girl “became the subject of ulcerations of the pudendum, in consequence of the imputed assault.” The minister was sent to prison on the basis of her accusation, “The grand jury ignored the bill on the ground that the prisoner had proved himself free from the disease which he had been accused of communicating, and also from other and conclusive moral and circumstantial evidence. The ulcerations on the child's pudendum were proved not to have been derived from a venereal source.” In this instance medical evidence (failure to find venereal disease on the minister) was ignored by the jury. A further false accusation can be found in the Becks’ footnotes, where they reported “yet another instance of a false rape accusation…from Warrington.” In this case the woman

“complained of severe pain in various parts of her body, but excused herself, on account of exhaustion, from an examination. Two men were arrested on suspicion, and on being confronted, she immediately identified one as the violator, and he was sent to jail.” The woman was, however, eventually examined where upon “the injury on the body was found to be slight, while on the inner surface of the pudenda, were simply two slight wounds, such as might have been inflicted by the fingernail. The investigation ended in proving her, on her own confession, to be an imposter who pretended these injuries, and also admirably imitated the paroxysms of hysteria, for the sake of exciting charity. She was tried and punished as an imposter.”66

66 Theodric Romeyn Beck, and John Brodhead Beck. Elements of medical jurisprudence, 1860. 205-207 25

The preoccupation with false reports reflects the idea that women were more likely to lie about rape than victims of other crimes. One physician claimed in court “medical authorities place the proportion of true to false charges of rape as one true charge to twelve false ones.”67 A textbook published in 1903 declared that obtaining medical evidence was especially crucial “as probably nine-tenths of the accusations of rape are false.”68 One possible explanation given at the end of the century for why women were supposedly so likely to falsely allege a rape was that rape accusations were a symptom of hysteria. Hysterics were thought to “frequently make charges of immoral conduct against boy men and women, often with a desire of securing notoriety, often as Spitzka (“Manual of Insanity”) remarks, with the object of indicating their own desires, and equally often from a voluptuous enjoyment of the suffering caused by the accusation.”69 Beck and Beck also noted that

“False accusations are frequently made for the gratification of malice and revenge. The

Scriptures, and the records of courts in all countries, bear testimony to this. In this point of view, the medical jurist may often aid.”70

Cases of hysterical or false accusation were often reprinted from various journals, and held up as cautionary tales showing the necessity and importance for an impartial examination by a physician, lest the reputation of an innocent man suffer. In one such report from the Journal of the American Medical Association, a case recorded by Dr. Auguste

Toulmouche, a French physician, was reprinted for the benefit of an American audience. Dr.

Toulmouche described “the case of a young girl given to devotional exercises and much

67 “Medicolegal: Proper and Improper Expert Evidence in Rape Case.” J Am Med Assoc.. 1900;XXXV(22):1429-1430. 1430. In this instance the court held that this claim was “incompetent and improper.” 68 Chapman, Manual of Medical Jurisprudence and Toxicology, 1896, 97. 69 “Hysteric Accusations and Hypnotism” J Am Med Assoc. 1897;XXIX(20):1023-1024. 1024. 70 Theodric Romeyn Beck, and John Brodhead Beck. Elements of medical jurisprudence. 1860, 212. 26

inclined to flagellation and asceticism. She one day cut herself six hundred times on various parts of the body, with scissors. She asserted these wounds were made by a man who tried to outrage her.” However, the girl “finally confessed that the injuries were self-inflicted.”

Another physician reported the case of “an 18 year old girl who accused the vicar of the parish of having raped her. She stated that one day, while she was praying in the church, the vicar shut all the doors and requested her to go with him into the sacristy. There (she claims) he made obscene proposals to her and, as she indignantly refused, he pointed a dagger at her, she fainted, and during the faint he (she alleged) violated her.” However, during the trial it was determined that a medical examination was necessary, and it was so “ordered (by the court) which revealed that she was still a virgin.”71

The case report of another French doctor, Auguste Ambroise Tardieu, described

“the case of an inmate of a Gascony convent who claimed to have been made the victim of all sorts of outrages therein. Her father, with full faith in what she said, denounced the alleged criminals. Finding, however, that his daughter’s story was untrue, he took his life.”72

A further incident reported by Tardieu describes the shocking case in which “a girl charged two young men with having violated her and introduced into her rectum and vagina, stones, splinters and iron, which had to be extracted with great pain. She had convulsive seizures, followed by paralysis. The two men were convicted and had been

71 “Hysteric Accusations and Hypnotism” J Am Med Assoc. 1897;XXIX(20):1023-1024. 1024.. Although this would seem to confirm some sort of medical authority, the examination was ordered by the court, and so is more likely an example of the subordination of medical professionals to juridical authority. 72 Ibid. Dr. Tardieu was a leading expert of child abuse, see Jean Labbé, “Ambroise Tardieu: The man and his work on child maltreatment a century before Kempe,” Child Abuse & Neglect, Volume 29, Issue 4, April 2005, 311–324.

27

imprisoned for more than a year when the false nature of the accusation was discovered.”73

Physicians’ obsession with the supposed likelihood that any given woman’s report of rape was a fabrication remained remarkably consistent over the nineteenth century- in part because particular stories about women who had made hysterical accusations were repeated and reprinted for decades after the original incident.74

Physicians who believed false accusations were a symptom of mental illness did not believe that hysterics ought to be held legally responsible for these false charges, since such accusations were a symptom of the illness of hysteria. An 1897 issue of JAMA concluded,

“In all accusations by neurotics, this delusional factor must be taken into account legally, both for the benefit of the individual and of society.”75 Feminine gender performance and mental illness became more closely associated with one another during the nineteenth century, and hysteria, in particular, became a catchall diagnosis to explain a variety of physical disorders and undesirable behavior. Freud and his followers interpreted women’s complaints of sexual violence as fantasies, rather than accounts of true events, as in the case of Dora.76

73 Ibid. 1024 74 One questions whether some of these incidents had even occurred in the first place. This practice, also probably served to reinforce background assumptions about women’s nature that shaped the scientific knowledge being created by physicians. For more on this phenomenon see Helen Longino, Science as Social Knowledge (Princeton: Princeton University Press, 1990). 75 “Hysteric Accusations and Hypnotism” J Am Med Assoc. 1897;XXIX(20):1023-1024. 1024. 76 Andrew T. Scull, Hysteria: the disturbing history. (Oxford: Oxford University Press, 2011) 149-151. Showalter, Elaine. The female malady: women, madness, and English culture, 1830-1980. (New York, N.Y., U.S.A.: Penguin Books, 1987). 158-160 Dora was a young woman who was harassed and abused by an associate of her father. Rather than taking her report as true, it was interpreted as a fantasy that expressed her unconscious sexual desires. 28

Investigating Men’s Bodies

While women’s bodies received a greater part of attention from physicians searching for proof of rape, men’s bodies were also subject to medical investigation.

Doctors would look for stains or marks of violence on the bodies of men, and they were also sometimes called upon to establish whether or not a man possessed the capacity for rape, though there was a great deal more reluctance to subject the bodies of men and boys to the same level of public scrutiny as girls’ and women’s.

In a Virginia case in which a boy was charged with rape, the question was raised as to whether or not the state should set an age of puberty, prior to which an individual could not be charged with rape, or whether the capacity for rape should be evaluated on a case- by-case basis. The court decided that “it is itself not aware of any climatic influence on the people of the State, by reason of their locality or difference in their habits or condition, that calls for a modification of the unwritten laws of the State as to the age of puberty, even if it were satisfied that it had the power to make it.” The determination of a legal age of puberty for boys was further complicated by “The inconvenience, if not absolute inability, of obtaining evidence of the puberty of a boy under the age of 14 and his capacity to commit the crime of rape, except by the exposure of this person, either voluntary or compulsory and the questionable right of the commonwealth to obtain it by compulsion, the court adds, do not invite a modification of the arbitrary rule of the common law.” In addition, the court felt that it was inappropriate due to the “discussion of indecent things which must attend its introduction before the jury.”77 It’s arguable that subjecting the body of any citizen, particularly a minor, to public and embarrassing

77 JAMA. 1899;XXXII(7):385-394. “Miscellany: Legal Age of Puberty” 391 29

scrutiny by the state is an overreach- but women and girls were subject to such treatment as a matter of course, with no objections being raised to the propriety of the practice.

This is not the only example of the courts claiming that they held the authority to determine when an individual possessed the capacity to commit rape. The Supreme Court of Wisconsin decided “that that the word ‘man’ means a male person who has arrived at the age of puberty, or is capable of committing rape, and is not limited to a male person over the age of 21 years.”78 In this instance the court actually established that the ability to commit rape confers manhood. The Supreme Court of Florida overturned the conviction of a boy for rape on the basis that, “the rule of the common law is that a boy under the age of 14 years is conclusively presumed to be incapable of committing the crime of rape; and this rule it holds, is still in force in the state of Florida.”79 The ruling went on to point out “all the American courts, without exception it says, admit that, at common law as administered in England, a boy under 14 years old could not commit the crime of rape, not because he had not then arrived at the age of discretion to discern right from wrong, but because he was deemed to be physically incapable of committing the particular crime of rape.”80 The court did acknowledge, however, that while there were a number of courts that had decided to set aside the common-law standard where there was sufficient proof, it was not for the courts, but for the legislature to do so.81

78 “Medicolegal: A ‘Man’ in Legal Definition.” J Am Med Assoc.. 1900;XXXIV(25):1618-1619. 1618 79 “Medicolegal: Rape by Boy Under Fourteen Years of Age” J Am Med Assoc. 1900;XXXV(16):1044- 1045 . 1045 80 Ibid. 81 Ibid. 30

An Unfortunate Reputation

A substantial part of why physicians had such difficulty claiming influence in the courts was the inconsistency in their knowledge and training. Numerous physicians and judges bemoaned the varying level of proficiency on the part of medical witnesses, lauding those who provided knowledgeable testimony while confessing that there were a great many practitioners who were unskilled and incompetent. Judge W.S. Kerr summed up the promise and peril of calling upon physicians to provide expert testimony in 1895, “Medical witnesses have been extravagantly eulogized and unmeasurably condemned by courts and law writers. They merit both the eulogium and the condemnation.”82 Physicians in the courtroom justified their presence by claiming to represent the best available medical knowledge. However, since each side calls upon its own witnesses, physicians ran the risk of being viewed as hired guns. The ambivalence of jurists to the intrusion of physicians into the courtroom was neatly summed up by Kerr, “When they traffic in their evidence and appear as hired advocates the condemnation is just; when they appear as members of a great and enlightened profession, to aid in the administration of the law, and testify conscientiously, no tribute is undeserved.”83

Despite nearly a century of creating a science of forensics, and developing guidelines for practitioners that would allow them to determine from the condition of a body what had happened to that body, doctors remained frustrated at how easily their knowledge was dismissed. Dr. Orpheus Everts who addressed the American Medical

Association meeting at Cincinnati in 1888, lamented, “English judges have never held

82 W.S. Kerr, “The Rights and Duties of Medical Witnesses” J Am Med Assoc. 1895;XXIV(2):47-52. (read before the Mississippi Valley Medical Association 11/21/1894) 83 Ibid. 31

medical experts, especially in cases of insanity, in high estimation; while in this country the fact is patent to all interested observes, that the testimony of medical experts exercises but little influence in determining verdicts, when not in harmony with popular sentiments, or notions, respecting the merits of any given case.”84

Besides the internal arguments about how to evaluate rape evidence, another significant problem with calling upon doctors as expert witnesses was that medical training and licensure was not standardized in the U.S. until the 1920s.85 The unreliable education of physicians was known within the profession to be a liability. Dr. Everts questioned “are all persons engaged in the practice of medicine, and popularly recognized as ‘doctors’ informed by such principles as do pertain to the so- called ‘medical sciences?” The lack of a “recognized standard of educational attainment pre-requisite to either the title or the privileges of a doctor of medicine in this country” a was a particular problem as far as medical jurisprudence was concerned as “the common law admits them all to testify as experts—subject only to the test of cross-examination, as to qualifications, by attorneys who may, or may not, be capable of exposing false pretensions.”86 The inequality in expertise of those calling themselves physicians, as well as the admission “that in no department of medical teaching in the United States has there been such shortcoming as in that of medical jurisprudence and toxicology” led to an unfortunate reputation. “The result

84 Orpheus Everts, M.D, “Expert Testimony and Medical Witnesses” J Am Med Assoc. 1888;XI(25): 873-876. 873 85 Kenneth M. Ludmerer, Time to heal: American Medical Education From the Turn of the Century to the Era of Managed Care. (New York: Oxford University Press, USA, 1999), 3-4. 86 Everts, 1888, 874. 32

has been that physicians have not infrequently brought discredit to themselves and to their profession by signal and conspicuous failures, when called to occupy the witness’ stand.”87

These harsh words reveal at least partially why doctors had so much trouble asserting themselves as authorities on rape. Medicine was a young profession (particularly compared to law) and a proliferation of individuals calling themselves “Doctor,” practicing medicine, and claiming to be experts on medical matters without the knowledge to back up those claims, damaged the credibility of the profession as a whole. In some cases the courts declared that physicians were not necessary at all. In one case, a defendant who had been convicted of “having committed rape on the body of a child 6 years of age” appealed the decision on the basis that there had been no physician present at the trial. “The

Supreme Court of California says that no physician was in attendance at the trial appeared to be due to the fact that no subpena (sic.) was served on one.” The conviction was upheld, since if the defendant had wanted a physician, he should have said so. “Not having done this, he had nothing, the court holds, of which to complain.”88 Here the court finds that the absence of medical testimony is not necessary for this question. In another instance several years later this point was made more explicit. “The Supreme Court of

Oklahoma holds, in Harbon vs. Territory, that a medical examination of the prosecutrix is not indispensable to warrant a conviction for the crime of rape.”89 Despite the depth of detail physicians used to describe the body and their use of microscopic evidence, their position and status within the legal system was dubious. Nonetheless, some familiarity

87 “Book Reviews: Textbook of Medical Jurisprudence and Toxicology. By John J. Reese, third edition 1891” J Am Med Assoc. 1891;XVII(10):386. 88 “Medicolegal: No Physician in Attendance at the Trial of Rape Case.” J Am Med Assoc. 1901;XXXVII(18):1204-1205. 89 “Medicolegal: Medical Examination Not Indispensable in Rape Case.” J Am Med Assoc.. 1905;XLIV(19):1560-1561. 1560 33

with the legal aspect of rape was a common enough expectation for physicians by 1908, that on the Vermont Medical Board Exam the fourth question in the section on legal medicine was “What constitutes rape?”90

Sick Rapists

One of the ways in which physicians are said to exercise authority is by determining who is permitted access to the “sick role.” In early professional conversations about rape, it is clear that physicians see men who rape as being more properly described as sick than women who have been raped. The four classic components of the sick role are, “the exemption from normal social role responsibilities,” “that the sick person cannot be expected…to get well by an act of will,” the “obligation to want to ‘get well,’” and to

“cooperate” {italics in original} with the physician “in the process of trying to get well.”91

Although this model does not map perfectly to rapists, Talcott Parsons’ second point, that the sick person is afflicted with something beyond their control was a particularly important aspect of how nineteenth-century doctors viewed rapists. The attitude that

“Rape is frequently caused by diseased sexual passions” placed the rapist in the sick-role, and consequently not fully responsible for his actions.92 Rape was not the only crime thought to be a sign of a disease, and was often listed along with others believed to spring from the same defect. The ideas of physicians regarding the connection between

“aberrations and perversions of a sexual character” and criminality periodically found their way into the Journal of the American Medical Association. Dr. G. Frank Lydston argued, “Rapes and various crimes of a bestial character may be due to inherent perversion or actual

90 “Medical Education and State Boards of Registration” J Am Med Assoc. 1908;L(11):908-909. 909. 91 Talcott Parsons, The Social System (Glencoe: Free Press, 1951) 436-437. 92 J.H. McCassy, M.A., M.D., “How to Limit the Over-Production of Defectives and Criminals,” JAMA. 1898;XXXI(23):1343-1347. 1346. 34

insanity.” He also pointed out that even “many cases of murder from alleged jealousy are due to sexual insanity.” While Lydston characterized this problem as “inherent perversion or actual insanity” which would seem to imply that this is a trait in an individual that cannot be helped, some doctors did point to the importance of a moral upbringing. In an article on mental disorders in children, Dr. Harriet C.B. Alexander contended that criminal acts including rape and arson result from deficits in impulse control that are the result of poor moral education.93

The question of sterilization for criminal behavior was raised at a meeting of The

Medical Society of the State of Tennessee, where Dr. F.L. Sim promoted “asexualization” as a medical intervention which would “save society from all criminals.” Colonel Holt of the Memphis bar agreed, “This is a living and real question, and one which must be solved by the medical profession rather than the legal profession.” Indeed, Col. Holt was very enthusiastic about the idea that perhaps the medical system could do better in handling the problem of criminal behavior, saying “The actions of the human mind are as regular in their operations as any of the laws of nature. Scientific men are beginning to consider crime due to a mental aberration or to an abnormal mind. The legal profession can never handle a question of that sort.”94

This claim that since “the laws of nature” governed behavior it was best left to scientific medicine is an example of medicalization, “a problem is defined in medical

93 G. Frank Lydston, M.D., “Materialism Versus Sentiment in the Study of the Causes and Correction of Crime”” J Am Med Assoc.. 1890;XV(13):455-460. 459. Harriet C.B. Alexander, A.B., M.D., “Insanity in Children,” J Am Med Assoc.. 1893;XXI(15):511- 519 94 “Society Proceedings, The Medical Society of the State of Tennessee 4/10-11/1984, Asexualization for the Prevention of Crime and the Curtailment of the Propagation of Criminals” J Am Med Assoc.. 1894;XXII(20):751-754. 753 35

terms, described using medical language, understood through the adoption of a medical framework, or ‘treated’ with a medical intervention.”95 Though the professional authority of physicians is an important component of medicalization, it would be erroneous to conclude that physicians are able to simply decree what shall and shall not be considered medical. As Peter Conrad points out, “Far from medical imperialism, medicalization is a form of collective action.” This process involves not just physicians, but also patient advocates, and the activities of organizations both within and adjacent to the medical profession.96 While both rapists and the raped have been subject to medicalization, rapists were more clearly seen as suffering from an illness in the context of nineteenth-century medical practice. Especially relevant to the medicalization of rapists, was a standard of masculinity that disdained, rather than praised, uncontrolled sexuality. The prevailing view is well expressed by J.H. Kellogg, “Restraint, self-control, and moderation in the exercise of the sexual instinct, are in the highest degree beneficial to man, as well as to woman, and are necessary for his highest development.”97

Heather Munro Prescott points out that this view of rapists as suffering from a character disorder “had the unintended consequence of reframing rape as a crime in which women played a role in their own victimization by tempting men who were

95 Peter Conrad, The Medicalization of Society: On the Transformation of Human Conditions into Treatable Disorders. (Baltimore: Johns Hopkins University Press, 2007) 5. 96 Conrad, 9. The concept of medicalization first gained significant recognition in the 1960s and 70s in the works of Irving Zola, Ivan Illich and Thomas Szasz. In their respective work, medicalization is a largely negative process imposed upon the public by physicians. I have chosen to reference Conrad largely because he takes a more nuanced view; medicalization is a collaborative process and physicians are not necessarily the group most disposed to turn any given phenomenon into a medical event. 97 J.H. Kellogg, Plain Facts for Old and Young (1877; rt. New York: Amos Press, 1974), 137-211. As cited in “Sex and the Single Boy: Ideals of Manliness and Sexuality in Victorian Literature for Boys” 36

unable to control their sexual impulses.”98 Additionally, physicians “categorized sexual assault as a private tragedy affecting individual women,” localizing the blame for rape at the level of the victim or perpetrator rather than addressing the broader social context within which rape occurs.99 Moreover, the identification of rapists as being sick or disordered emphasized the idea that rapists are a group of sinister outsiders, when in fact, a substantial majority of rapes are committed by men who were known to the victim.100

Physicians who wrote in the 1890s point us to an important source for the particular rape myth that a woman who was raped must have done something to provoke her attacker. Although these physicians are probably themselves repeating thoughts already present in the culture, by lending their credentialed voices to the discussion this idea was elevated from mere supposition to a scientific fact. Despite the claim that raping was a pathology afflicting the perpetrator- there was little success in treating it.

While the idea that rapists were sick people enjoyed popularity, there were dissenting voices. Notes from the meeting of the Medical Society of Tennessee reveal what physicians said to one another about this issue. Dr. Lindsley claimed that “Questions such as these depend more on medical men than on any other persons,” but another physician,

Dr. Neil “regarded the subject as not in the province of medicine” thinking it better left to the courts or legislature.101 There was a spirited professional debate over the extent to which biology was responsible for criminal behavior and what role physicians ought to play in

98 Heather Munro Prescott, The Morning After: A History of Emergency Contraception in the United States (New Brunswick: Rutgers University Press, 2011), 26. 99 Ibid. 57 100 Ronet Bachman, Violence against women: A national crime victimization survey report. US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, 1994. 101 “Society Proceedings: The Medical Society of the State of Tennessee 4/10-11/1984, Asexualization for the Prevention of Crime and the Curtailment of the Propagation of Criminals” J Am. Med. Assoc., 1894;XXII(20):751-754. 753 37

addressing crime as a disease.102 The question of criminality and heredity also got caught up with, and was integral to the practices of, eugenics programs that disproportionately targeted African Americans. Joanna Bourke’s book, Rape: A History from 1860 to the Present, discusses the ways in which race and class played a key role in developing the identity of the sick rapist. African American men were stereotyped as “bestial degenerates.”103 Physicians were essential in creating this identity, as they were perfectly placed to invoke or create biological and psychological theories to explain why some men raped. The racial dimension of these ideas was particularly pronounced in the United States, where there was a panic over the supposed epidemic of African American men raping white women.

Dr. F.E. Daniel, a Confederate veteran who was very active in professional medical societies lamented “One has only to look over the current literature of the day, North and

South, for assurance that the black people are rapidly coming to the front as criminals.” He was particularly distressed at the specific problem of the “frequency of the crime of rape perpetrated upon the white female is becoming paralyzing to the country, and yet provisions of our law making such attacks felony punishable with death, coupled with the

102 Robert Boal, M.D., “Emasculation and Ovariotomy as a Peanalty for Crime and the Reformation of Criminals,” J Am. Med. Assoc., 1894;XXIII(11):429-432. 432. 103 Bourke, Joana Rape: A History from 1860 to the Present (London: Virago Press, 2007) 102. Although rape is very much connected to the history of racial violence in the United States, a full treatment of this phenomenon is beyond the scope of this paper, the focus of which is on shifts within the medical profession. For further reading on rape and lynching please see the following works: Gail Bederman, Manliness and Civilization (Chicago: University of Chicago Press, 1995). Saidiya V Hartman, Scenes of subjection: Terror, Slavery and Self-Making in Nineteenth-Century America (New York: Oxford University Press, 1997). Ida B. Wells, Southern Horrors and Other Writings: The Anti-lynching Campaign of Ida B. Wells (Boston: Bedord Books, 1997). Glenda Elizabeth Gilmore, Gender and Jim Crow: Women and the Politics of Supremacy in North Carolina, 1896-1920 (Chapel Hill: University of North Carolina Press, 1996). Joel Williamson, A Rage for Order: Black/White Relations in the American South Since Emancipation (New York: Oxford University Press, 1986).

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terrors of the mob, have not only failed to check but have actually permitted an increase of the crime.”104 Theories that the commission of sex crimes was related to a disordered sexuality led physicians to promote castration as an alternative to the death penalty in rape cases, arguing simultaneously that castration would be less barbaric than execution, more effective as a deterrent and more likely to cure the offender of their disorder.

Castration as a penalty for rape was promoted especially in the United States, where there was a great deal of anxiety over a fictional epidemic of the rape of white women by black men. Daniel characterizes medically supervised castration as an act of desperate communities, “The people of Texas are as loyal and law-abiding as are to be found anywhere; but when they realize that the methods of dealing with the rapist and the murderer and the double crime, rape and murder (and that, too, most frequently, of tender young children), are not effectual to put a stop to it, even when the law is swiftly executed, but, on the contrary, that an execution, even in the horrid form of the stake, actually appears to incite others to the crime, it simply drives them to madness.” Daniel was mystified that even though “The horrible execution of Henry Smith at Paris must have been known to every negro in Texas, but it did not deter another negro from a committing a similar outrage a short time after at Tyler, and he met a similar fate. Nor have the several prompt hangings for rape been attended with more salutary results.” All of this was made the more urgent by the declaration that “Rape is notoriously on the increase, not only in Texas but in other states, and lynch law is brought into execution.”105

104 F.E. Daniel, M.D., “A Plea for Reform in Criminal Jurisprudence,” JAMA. 1896;XXVII(21):1085-1090. 1087. 105 Ibid. 39

Dr. Daniel has become notorious for his views, and Bourke also uses his words in her own discussion of the racial fears that became a part of the cultural specter of “the rapist.”106 The apparent failure of capital punishment as a deterrent, and chaotic mob violence in response to accusations of rape are both presented by Daniel as problems that the medical intervention of castration would solve. The interest of physicians in social engineering through medicine in the United States was strongly linked to racism. Note how in the following passage the race of the hypothetical rapist is made abundantly clear.

“If the law provided sterilization for all such rascals, the colored man would soon know that rape is a crime of no small magnitude, even with his own color. Then too, it would place an object lesson, a prideless and demure eunuch, within every negro community in the Southern States.”107

The promotion of “emasculation” for Black men was all the more horrifying for the obvious racism, but this notion that castration could cure rape (or other criminal behavior) was not limited to this group.

The Cure for Rape

The promotion of castration as a treatment for rape was an especially blatant example of using medicine to police proscribed sexual behavior.108 Promoters of castration were keen however, to present it as a scientific treatment to address the physiologic basis of criminal behavior, not as a simple retributive punishment. Nonetheless, they also invoked castration as a terrifying threat, philosophizing about the deterrent effects of creating a new class of eunuchs. Dr. W.A. Hammond claimed “removing the testicles changes a man’s

106 Joanna Bourke describes Dr. Daniel as an “unabashed” racist. Bourke, Joanna. 2007. Rape: a History from 1860 to the Present. London: Virago. 159. 107 “Society Proceedings: The Medical Society of the State of Tennessee 4/10-11/1984, Asexualization for the Prevention of Crime and the Curtailment of the Propagation of Criminals” J Am. Med. Assoc., 1894;XXII(20):751-754. 753. 108 Although F.E. Daniel uses the word “eunuch” to describe castrated males, physicians who promoted castration as a medical treatment for anti-social behavior were referring to the removal of the testicles only. 40

entire character, making him more feminine, preserving potential social usefulness while still inflicting upon the offender sufficient punishment.”109 Interestingly, Hammond was less enthusiastic about removing the ovaries of female criminals since “Women have become so accustomed to the removal of the ovaries, and these organs are so much less essential to womanhood than the testicles are to manhood, that it might be necessary to substitute imprisonment for life in their case.”110 Besides curing rapists, Dr. Boal argued, “The greater portion of the crimes characteristic of the criminal and vicious classes of society, may be traced directly and indirectly to the influence of this uncontrolled and dominating sexual love.”111 Not just rape, but also “homicides, suicides, defalcations and embezzlements may be ascribed either directly to sexual love or to the influence associated with it.” Boal was so confident in this association that he claimed “when we hear of the cashier of a bank absconding with its funds, or a trusted clerk robbing his employer and betraying his confidence, almost the first comment heard is, ‘Oh, there is a woman in the case.’”112

Despite the enthusiasm for castration from some quarters, there was also skepticism from physicians that this sort of surgical intervention would do much to affect a person’s behavior. Dr. William Hammond, who had previously been a supporter of castration, pointed out that “years ago the Missouri law called for castration as the punishment of rape in certain cases, and yet efforts and rape had been committed by persons who had been

109 “Castration Recommended as a Substitute for Capital Punishment,” J Am Med Assoc. 1892;XVIII(16):499-500. 110 Ibid. 111 Dr. Boal was a well-regarded physician, who over the course of his long career (b. 1806 d. 1903) had been active in politics as well as medicine as an enthusiastic supporter of Abraham Lincoln, with whom he corresponded. He was active in professional organizations, and served a term as president of the Illinois State Medical Association and two terms as a state senator. Newton Bateman, Paul Selby, and Theodore G. Risley. Historical Encyclopedia of Illinois,. Vol. 2. Brookhaven Press, 1911. 483-484 112 Robert Boal, “Emasculation and Ovariotomy as a Peanalty for Crime and the Reformation of Criminals,” J Am Med Assoc. 1894;XXIII(11):429-432. 430. 41

castrated for this very crime.”113 Dr. Hammond went on to cite “several cases that had some to his knowledge in which the sexual desire did not seem to materially, if at all, decreased by castration.”114 Another physician, A.C. Corr mentioned Boal specifically when he expressed his doubts that castration would have much impact on criminality saying, “I have quoted these “Considerations” because they embody an idea that is held by many both in the medical and legal professions. I think the idea is untenable as a whole.”115 Dr. N.S. Davis of

Chicago said, “I have seen nothing in my observations in human society to make me believe that human depravity is greatly ruled by simply the sexual organs in either sex. That they are capable of exerting a predominating influence in individual cases is as much and probably a great deal more owing to bad training, bad education, bad surroundings than to any inherent vice in these organs, is undoubtedly true but whether they have any more tendency to produce crime than a man’s stomach I very much doubt.”116 The American Journal of Nursing also considered the question of castrating rapists, but reported bluntly “The operation while it absolution prevents procreation does not destroy sexual desire, nor the ability for coition.”117 The same journal also complained, “Sentences from the bench for rape are little

113 J Am Med Assoc. 1887;IX(21):660-669. Society Proceedings of the Medical Society of Virginia- held in Richmond 10/18-21/1887 “Castration Not the Cure for Venereal Desire,” 661. Orciectomy, the removal of the testicles, does not always make it impossible to have an erection, see Luca Incrocci, Wim C.J. Hop, Arendjan Wijnmaalen, A. Koos Sob, “Treatment Outcome, Body Image, and Sexual Functioning after Orchiectomy and radiotherapy for Stage I-II testicular seminoma,” International Journal of Radiation Oncology*Biology*Physics, 53, no. 5, (2002): 1165-1173. 114 J Am Med Assoc. 1887;IX(21):660-669. Society Proceedings of the Medical Society of Virginia- held in Richmond 10/18-21/1887 “Castration Not the Cure for Venereal Desire,” 661. 115 Ibid. Dr. A.C. Corr is an interesting character in his own right, he married while in medical school and his wife, Lucinda--formerly a teacher, attended the Women’s Hospital and Medical College of Chicago from which she “graduated with valedictorian honors.” Corr was known as being a supporter of equal rights for women and in general very liberal minded. Charles A. Walker, ed. History of Macoupin County, Illinois: Biographical and Pictorial. Vol. 2. Brookhaven Press, 1911. 116 A.C. Corr, “A Medical Aspect of Crime” J Am Med Assoc. 1896;XXVII(15):786-788. 788. 117 “Notes from the Medical Press,” The American Journal of Nursing, vol. 12, no. 12, pp. 1028-1030. 1028 42

more than a reprimand. Thirty shillings (six dollars) was the sentence of a man of fifty for assaulting a little girl of five.”118

While subjecting rapists to castration might seem to be an exertion of medical authority, this is better understood as jurists using medicine when it is convenient to do so.

Physical castration as a punishment predates physicians’ interest in rapists.119 When a surgeon performs an orchiectomy on a convicted sex offender he or she is acting on behalf of a judge. What would otherwise likely be considered cruel and unusual, akin to cutting off the hand of a thief, was outsourced to doctors, so that this form of corporal punishment could instead be classified as a medical treatment rather than eye-for-an-eye style justice.

Furthermore, the absence of evidence for the efficacy of castration as a way to prevent criminal behavior, and the dissent within the profession prevented those physicians who did favor castration as a legitimate scientific treatment from successfully brining rapists fully into the sick-role with both a medical explanation for their deviant behavior and a medical remedy for that behavior. Surgical castration emerged in the 1880s but the popularity of the procedure as a cure for rape declined sharply by the 1930s.120 The desire for both a harsh punishment, as well as a potential cure for raping shows that theoretically rape was a problem taken seriously. Unfortunately, for a woman to prove that she had been raped and secure justice for herself was extremely difficult.

118 “Notes from the Medical Press, ” The American Journal of Nursing, vol. 13, no. 3, pp. 197-200. 200 119 Gary Taylor, Castration: An abbreviated history of western manhood. (New York: Routledge, 2002). Victor T. Cheney, A Brief History of Castration. (Bloomington: AuthorHouse, 2006). Klaus Van Eickels, "Gendered Violence: Castration and Blinding as Punishment for Treason in Normandy and Anglo‐Norman England." Gender & History 16, no. 3 (2004): 588-602. 120 For more on the connection of castration to the eugenics movement please see Alison Bashford and Philippa Levine The Oxford Handbook of the History of Eugenics. (New York: Oxford University Press, 2010). In some states chemical castration is gaining in popularity as a punishment for sex offenses committed against children. See ABC News, “Does Castration Stop Rapists?” http://abcnews.go.com/Health/story?id=3985832&page=1. 43

Rape Victims

The earliest articles on rape victims are not focused on the clinical needs of women who have been raped, but on the belief that most women who report a rape are lying.121 The possibility of venereal disease as well as unintended pregnancy were noted by physicians, in no small part because these possible consequences of rape were relevant as evidence that at least intercourse had occurred, if not evidence as to whether or not it was consensual. As a consequence, there is little in the writings of medical professionals that speaks to the experiences of women directly, but rarely, accounts of rape published in medical journals did include statements from the victims themselves. One such account demonstrates how difficult it could be for a woman to prove a rape. The account of Sarah Fleming, an Irish widow who was raped in 1837 was particularly detailed. Dr. D.B. Bullen of Cork wrote up her story initially for The Dublin Medical Press, but it came into the hands of the American physician, T. Romeyn Beck, who repeated it in other medical journals as well as his own textbook of medical jurisprudence for decades after the incident took place.122

Sarah Fleming worked as a “nurse-tender” at the North Shore Infirmary and was the mother of three children, one of whom was in “the house of industry.”123 On the 21st of

September, 1837 she was walking home from her place of employment “when she was accosted on the North Bridge by a man, who told her, among other things, that her sister was coming from Clonmel, and was taken ill on the road, and that he was looking for her.”

Fleming went with him to look for her sister, but “when the clock having struck twelve, she became alarmed, and said she wished to be at her lodgings.” The two of them were

121 J Am Med Assoc. 1897;XXIX(20):1023-1024. “Hysteric Accusations and Hypnotism” 122 The following case taken from Theodric Romeyn Beck, “Alleged Rape. Feigned Diseases,” The American Journal of the Medical Sciences 1841, 1(1): 254-257. 123 Ibid. 44

approached by a woman who appeared to know the man, asking “Is that you, Bill?” and arrangements were apparently made for Fleming to lodge with the woman whom the man claimed was his sister. “After some further conversation, the clock struck one, when another man came up, and they whispered together. They soon made off, and arriving at a lane near

Dominick street, the first man pushed her in, upon which two other men came up, one of them disguised with a cap, which nearly covered his face.” Sarah Fleming suspected that the two men were the Callaghan brothers, an identification made on the basis of “one of them being lame.” The brothers were known to Fleming, as she had previously accused them of inappropriate sexual contact with her daughter. “Becoming alarmed, she clung-round the first man, when Patrick Callaghan knocked her down.” At that point all three men participated in raping her. They also stuffed her mouth with hay, gagged her, and left “the neck of a common black bottle” in her vagina. They took her clothing and tied her to the wall, “leaving her exposed; and in that state she was found in the morning, that she had lost her senses, which did not return until she found herself in the infirmary.” She was found between four and five o’clock in the morning by Nicholas Duggan who “saw the prosecutrix in the position described in her own evidence; that he met a woman lower down in the lane, whom he begged for God’s sake to relieve the prosecutrix from the state in which she was.”

Once at the North Infirmary, she was examined by Dr. Howe who “distrusted her story from the commencement.” “There was no mark of bruises upon her thighs, nor any appearance of violence about the pudenda. Considerable indentation had been left about the wrists where the strings had been tied, and when a hand was applied to the contusions on her chest, she screamed and appeared to suffer great pain. She expectorated bloody saliva in quantity, and with consummate art developed the several symptoms which may be expected

45

to follow the injuries she pretended to have received.” Fleming was accused of “having invented a false and horrible tale, with intent to swear away the lives of three innocent men” to which she responded, “God forgive you gentlemen, wait awhile and you shall see how you wrong me.” She also interacted with Dr. Bullen (a surgeon at the same infirmary) when she was found wandering at night and she “appeared much confused.” She developed “venereal cancres, apparently in the first state of formation.” Fleming considered this to be proof that she had been raped, saying “See gentlemen how you wronged an innocent woman, as God may judge me, I got this disorder from the Callaghans the night they assailed me.” But an examination of the Callaghans by another physician, Dr. Evans, did not find evidence of veneral disease. Sarah Fleming was then indicted for perjury and sent to the city jail.

Dr. Bullen reenters this story when in May, he “took medical charge of the prisoners in the city jail, for his friend, Dr. Nugent, who had gone to London. He found Sarah

Fleming in the infirmary of the prison, confined to bed, in consequence, as she asserted, of the injuries she had received on the night when assaulted by the Callaghans.” Fleming was not at all pleased to see him, “when she was informed that she was to be placed under his care, she broke out into the most violent invective and abuse, and said, ‘that as he had helped to ruin her character in the North Infirmary, he was not come to persecute her to death in the prison.’” Fleming was in the infirmary of the prison because she was really very ill. “She seemed to be suffering under some very severe abdominal disease. There was great swelling and tenderness of the whole belly, but more especially above the pubis. The stomach was extremely irritable, immediately rejecting every thing she swallowed. Her pulse

130, and very small, tongue foul and parched, skin hot and dry.” Bullen remained suspicious that she was malingering, and asked to examine all of her excretions. She became “alarmingly

46

ill” and “in spite of the most determined resistance on her part” Dr. Bullen performed a pelvic examination upon which he and another doctor “with much difficulty” extracted what he described as a “large rough paving stone.” (emphasis original) Sarah Fleming (“the miserable woman”) then “exclaimed, ‘God forgive you, that is the stone the Callaghans forced into my body, and the doctors at the infirmary could not make it out.” Dr. Bullen acknowledges that the 7 ox. Stone must have been there for some time to become “thickly coated with a white calcareous incrustation and layers of thickened mucus.” He hypothesized that she had taken the stone from the prison garden and put it inside herself.

Sarah Fleming was tried at the August Assizes, convicted for perjury and then sentenced to transportation to New South Wales to spend seven years in one of the female factories there.124 She may also have taken one of her children with her. The physician who wrote up the case in The American Journal of the Medical Sciences, T Romeyn Beck, was a prolific publisher of manuals of medical jurisprudence and went on to retell this story in other medical publications in order to illustrate how necessary it was to have a physician examine rape victims to verify their claims. Beck’s own words best describe the suspicion women who reported a rape were subjected to, and the attitude of clinicians towards their role in cases of rape.

“Remarkable as is this case for the malignant perseverance of the accuser, and improbable as the occurrence of a similar attempt may seem, yet it should not be forgotten that the lives of the Callaghans might have been forfeited, had not an immediate examination been made by Dr. Howe. Not only in Ireland, but I think, in some parts of this country, accusations of rape are increasing. They are very readily preferred, and they depend for proof on the testimony of the accuser alone. Should it not be required that an early examination be made in these cases by a medical practitioner, and in default

124 Ibid. 257. Sarah Fleming can be found in various online databases cataloging records of transported convicts, such as this one specifically devoted to convicts transported from Ireland. http://members.pcug.org.au/~ppmay/cgi-bin/irish/irish.cgi 47

of a speedy application for that purpose, that the charge be proporitonably discredited?”

Within this paragraph Beck articulates several principles which guided physician’s actions in regards to rape victims. Foremost, the belief that women are prone to make capricious rape charges and so their testimony is untrustworthy. He also argues that the authority of physicians in this matter ought to be viewed as so complete and indispensable that not having a physician testifying on her behalf ought to count against a woman’s case. Sarah

Flemings was not, for him, an example of a woman brutalized by the professionals who ought to have been providing care, but proof that women will go to any lengths to ruin the lives of innocent men, unless vigilant doctors prevent them from doing so. Her case was even reprinted after her death in the 1910 text Legal Medicine by Gilbert Holland Stewart, but without much of the detail of the story, and with her name misspelled as “Glemming.” In

Stewart’s book, Sarah Fleming is the embodiment of the malicious woman who falsely accused men out of a desire for “revenge” but Stewart fails to mention the alleged assault on her daughter, the only possible motivation she could have had to go through the ordeal that she did.125

The physician who examined Sarah Fleming, would have searched primarily for marks of violence, given that Fleming was a mother and a widow, but unmarried women and girls were still expected to possess various signs of virginity that could be detected through examination. Beck’s Elements of Medical Jurisprudence points out that the knowledge of the signs of virginity is required when “children of a tender age have been abused” and also because of the potential for “malicious charges from abandoned females.”126 This passage provides, what for Beck, and other physicians throughout the century, is a depiction of the

125 Gilbert Holland Stewart, Legal Medicine, 1910, 133. 126 Theodric Romeyn Beck and John Brodhead Beck. Elements of medical jurisprudence, 1863 188. 48

proper rape victim, who is ideally a child, regarded as sexually pure. An adult woman would already have a more difficult time making her case—a woman suspected of engaging in consensual sex outside of marriage, or who was a sex worker would have found it very difficult to press charges. Even in cases where the victim was a child justice was hard to come by.

In the case of Rex. V. Gammon (1832) the judge, Barron Gurney declared, “I think, that if the hymen is not ruptured, there is not sufficient penetration ton constitute this offense.”127 In this particular instance, the surgeon who had examined the ten-year-old girl in question had found “considerable inflammation about the parts of the child” and that “the hymen had been recently ruptured.”128 However, given the dubiousness of the hymen as a physical sign, the importance that this judge attached to it seems misguided even measured against the medical knowledge of the day. Additionally, Gurney’s remark shows that physicians, even if not courtroom authorities, did have an influence on legal proceedings, and jurists did adopt some of the language of physicians in their consideration of what properly counted as rape.

Women’s own accounts were seldom recorded in the medical literature, largely because they were not believed. Another issue that limited women’s own voices was the idea that rape was too unseemly for women to discuss, even if they were describing things that happened to themselves. A book review in The British Medical Journal criticized Iconographie

Photographique De La Salpêtrière (1879) for including “long pages of the obscene ravings of delirious hysterical girls, and descriptions of events in their sexual history.” These girsl seem to have been “in some cases brutally subjected to rape and seduction at a very early age”

127 Ibid. 193 128 Ibid. 49

which would have “a most important bearing on their medical history.” However, the “loose words of the patient when delirious and completely under the influence of a hysteron- epileptic attack” while possibly “interesting to the inquisitive student of diseased and degraded human nature… is actually in the words of the law-courts, ‘matter unfit for publication.’”129

While women’s own accounts of rape and sexual assault were deemed too unseemly to publish, graphic detail was a staple of accounts written by doctors, as well as courtroom testimony. These comments show that evaluating rape victims was not merely about expert medical knowledge, but also a dispute over who would have the power to write the narratives of women’s bodily experiences. Physicians’ accounts were valuable scientific evidence, while women’s own descriptions were offensive. Physician’s claim to a specially privileged right to describe and interpret women’s bodies was not limited to women who had been raped, but part of a broader trend that took place with professionalization.130 Rape itself hinges on the desire to exercise power over another person, and the disregard for women’s own right to define the experience could be viewed as another violation of a right to control one’s own life story.131

Children were generally held not to have the sexual impulses of adults, but even where the rape victim was a child, her appearance or conduct could still be considered

129 Reviews & notices 1879. BMJ 1 (962): 856-857. Another interesting note in this review, is that it does point out that rape was important in a woman’s medical history, and a major health event, however there is little in the medical literature to suggest that the medical needs of rape victims were much discussed. 130 The literature on the subject of male physicians claiming authority over women’s bodies in both matters of physical and mental health is vast. This issue has been especially relevant in the history of childbirth, as in Richard W. Wertz and Dorothy C. Wertz’s, Lying-in: A History of Childbirth in America. (New Haven: Yale University Press, 1989). 131 133 Heather Curry, “Beyond Survival: An Exploration of Narrative Healing and Forgiveness in Healing from Rape” (2010). Graduate School Theses and Dissertations. http://scholarcommons.usf.edu/etd/3559 50

relevant in a report of the case. Julia Amelia Sprayson was a victim of incest, committed by her uncle while she was living with him, his wife, and their two children. The case attracted much attention, as she became pregnant despite being only 11 years old. Dr. John Smith wrote up the case in the London Medical Gazette and described Julia as an attractive young woman.

“She was rather of prepossessing appearance, of fair complexion, with brown hair and dark grey eyes—more womanly by far than is usually witnessed at her age, her figure being tolerably plump, well-set and proportioned and her height being rather more than five feet; and, notwithstanding her casually childish manner, there was that forwardness of expression which betokened a more than ordinary development of character.”132

Such a description is unnecessary to the facts of the case, and portrays this child as alluring, justifying her uncle’s sexual attraction. Later in the article Dr. Smith described how “criminal intercourse” “took place for the first time about the middle of November, 1847, and was allowed to be repeated on four occasions, at weekly intervals.”133 The characterization of an

11 year old as sexually attractive, along with the description of intercourse having been

“allowed” to take place implies that the girl played a significant role in her own abuse. In this instance even though the victim was unquestionably a child, this sexualized description served to explain away what happened to her as being the consequence of her appearance. Her uncle was sentenced to two years at hard labor.134

The intense medical study of the bodies of rape victims is another example of medicalization, even though there was not much to offer women in terms of medical treatment.135 Women’s bodies have in general been more subject to the medical gaze, Conrad

132 John Smith, London Medical Gazette, 1848 7 ( 42): 751-752. 752. 133 Ibid. 134 Ibid. 751 135 Antibiotics were a long way off, as was emergency contraception. 51

suggests that possibly “women are more vulnerable to medicalization than are men because their physiological processes (menstruation, birth) are visible, their social roles expose them to medical scrutiny, and they are often in a subordinate position to men in the clinical domain.”136 While male bodies have also been medicalized (as the bodies of rapists certainly were), the extent to which physicians felt entitled to inspect and describe the bodies of women who reported rapes, certainly seems to indicate that women had very little power in clinical encounters.

19th century physicians did not generally understand rape in the context of trauma. In large part this has to do with the historicity of the concept. The simplest definition of trauma is a wound. However, the term has come to indicate not just a physical wound but also a substantial level of ongoing mental suffering associated with an injury or severe stress.137 A

California doctor noted in 1905 that “sudden and severe fright (as from fire, brutal punishment, rape, etc.)” could cause Neurasthenia.138 This is, however, a very rare and early recognition from the medical profession that rape might be included in the emerging diagnosis of trauma. Note also, that rape is not particularly distinguished from over potentially stressful life events.

Much of our modern ideas about trauma originate not with rape, but with the combat experiences of soldiers during the First World War. Initial theories of trauma described it as a kind of hysteria—an illness previously associated with women. “Even ‘robust men presenting all the attributes of the male sex,’ Charcot asserted, ‘could be disaggregated by the traumatic accident.’ Trauma thus found itself plugged into Charcot’s monumental taxonomy of

136 Conrad, 24. 137 Merriam-Webster’s Online Dictionary, s.v. “trauma” http://www.merriam- webster.com/dictionary/trauma 138 Hubert N. Rowell, 1905. Neurasthenia in childhood California State Medical Journal 3 (3): 74-75. 52

hysterias.”139 Physicians would periodically encounter cases where foreign objects were found in women’s vaginas, but this did not seem to raise the possibility of sexual abuse. Rather, as

Lisa Cardyn argues, “Medical men confronting these cases often sought to inject a dose of humor when imparting their findings to colleagues.” This tendency, which seems rather callous to modern observers, may have stemmed from “a benign wish to alleviate the stress and discomfort of a decidedly grave situation to a more malignant manifestation of the brand of professional gynephobia that allowed some physicians to delight in ridiculing the ‘oddities’ of women, it’s presence is nonetheless instructive.”140

Popular advice written for newlyweds, including advice written by phsyicians, acknowledged “women’s vulnerability to sexual traumata in marriage” with frequent comparisons between rape and wedding night enounters.141 However, “these conversations remained deeply embedded in a literature that was in the mian dedicated not to the study of women’s sexual trauma but rather to the elaboration of changing conjugal norms.”142 The

Journal of the American Medical Association reported on the Louisiana case, State v. Haines, which held that “the husband of a woman can not be guilty of an actual rape on his wife, on account of the matrimonial consent which she has given, and which she can not retract.”143 The question itself was described as “unique and novel.”

Although our present medicalized view of trauma is mostly a twentieth century invention, this does not mean that there were not lasting consequences for women who suffered a rape. The case of a woman identified only as “Mrs. M,” reprinted in 1863 in The

139 Roger Luckhurst,. The Trauma Question. Routledge, 2008. 35 140 Lisa Cardyn, “The Construction of Female Sexual Trauma in Turn-of-the-Century American Mental Medicine,” in Traumatic Pasts: History Psyciatry and Trauma in the Modern Age, 1870-1930, ed. Mark S. Micale and Paul Lerner (New York: Cambridge University Press, 2001), 185 141 Ibid. 194-195 142 Ibid. 196 143 JAMA. 1899;XXXII(25):1462-1465. 1463 “Miscellany” 53

American Journal of the Medical Sciences from the Edinburgh Medical Journal is another unusual instance of a woman quoted directly, and more unique still, she reports symptoms that are remarkably consistent with what a modern observer would recognize as post-traumatic stress disorder.

Mrs. M and her husband of sixteen years ran a hotel together in Scotland.144 She was raped while she slept by a servant who had “been for eight or nine years” the “horsekeeper and ostler.” On the night in question, as her husband was “siting by the fire reading the papers,” she took a nap as she had “stayed up all night the previous night, and had been much fatigued during the week before.” She went to sleep in her clothing, and takes pains in her testimony to assure that she had been fully dressed. She fell asleep but was awoken when she “felt the pressure of a man.” She then went on to say, “thinking it was my husband, I raised myself up. It was that blackguard—I mean the prisoner. He was lying upon me, and when I rose up he drew himself away. My clothes I found folded up, and the lower part of my person was exposed. It was his weight that awoke me. He withdrew himself when I awoke. I was then lying more upon my back. When I awoke his body was in contact with my person.

His private member was in my private parts. I felt him withdraw it from them. In doing so, I felt a discharge from him in my person, and all about on my clothes.”

Mrs. M was fortunate that her husband was at home, and that there was a policeman on the premises at the time since “the police, often, when they came late at night got payment from me (Mrs. M) of their accounts.” When she realized the man in her bed was not her husband, Mrs. M “immediately called out for him to go away as a filthy dirty blackguard.” She then continued to cry out for him to “go away” and alerted her husband as to what had

144 Theodoric Romeyn Beck, “Case of Rape During Sleep” The American Journal of the Medical Sciences, 45(89):261-262. 54

happened. He then “went with the constable” to take the servant who raped her to the prison. Mrs. M’s testimony is described as “corroborating” her husband’s testimony, rather than being the primary account of what happened. That her husband was involved and presumably supportive of her, and the couple’s prior history of amicable dealings with the local constabulary no doubt made the police more favorably disposed to Mrs. M’s situation.

Notably, there is no mention whatsoever of any medical examination being carried out upon her, the inclusion in the journal is on account of the legal precedent set that a woman could be raped while sleeping. Mrs. M testified “I suffered from the effects of this for a long time. I was much distressed, and have been kept from sleeping by it.”145 The man was found guilty and sentenced to ten years of penal servitude. The contrasting outcomes for Mrs. M and

Sarah Fleming highlight how the characteristics of victims were decisive in the outcomes of cases.

Even though rape was sometimes included in lists with other potentially distressing events, the idea that rape might have particular significance, or that women who had been raped would have differing medical needs than the survivor of a fire was absent. Most manuals of medical jurisprudence mention that a woman might be reluctant to submit to an examination. Chapman’s guide points out that “in alleged cases of rape, a medical examination is not compulsory; but if a woman under such circumstances refuses to have an examination made, that in itself would be strong presumptive evidence against the truth of the charge.”146 While there is great attention to detail in terms of examining evidence, there is no guidance offered on how to make a woman who had been raped more comfortable,

145 Ibid. 146 Henry Cadwalader Chapman, A Manual of medical jurisprudence and toxicology, 1896, 98. 55

neither is there any suggestion that perhaps women who had been victims of rape might be more comfortable being examined by a woman.147

Abortion access for rape victims has also been a long-standing controversy. Leslie

Reagan points out in When Abortion was a Crime an instance when a physician wrote into the

Jouranl of the Americal Medical Association to inquire whether or not it would be legal to perform an abortion on a patient who had been raped. The appearance of the question in the journal

“suggests that some did perform abortions for rape.”148 The idea that women who have been raped are more deserving of abortion, reveals the extent to which limits on abortion access are not merely an issue of when life begins, but also (if not more so) an attempt to regulate women’s sexual behavior. The likelihood of pregnancy following rape, was a topic of some controversy. JAMA responded to the physician inquiring about abortion for rape victims by asking him to “remember that ‘pregnancy is rare after real rape.’”149 This particular bit of folklore has proven to be remarkably persistent, and likely originates from the ancient theory that a woman had to orgasm in order to conceive.150 The position of physicians that rape could lead to pregnancy, but was extremely unlikely to do so has in some ways harder to debunk than a claim that rape never led to pregnancy since instances of undoubted rape which did lead to pregnancy would never disprove that conception was unlikely, though would have proved that it was not impossible.

147 At the time Chapman’s book was published, there were approximately 7000 women physicians in the United States, comprising approximately 5% of the profession. Female modesty was commonly offered as an argument in favor of training women as physicians. See Regina Markell Morantz- Sanchez, Sympathy and Science: Women Physicians in American Medicine (New York: Oxford University Press, 1985) 148 148 Leslie J. Reagan, When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867- 1973. University of California Press, 1997. 65. 149 Ibid. 65. 150 Thomas Laqueur,. "Orgasm, generation, and the politics of reproductive biology." Representations (1986): 1-41. 1. 56

Vigorous professional debate on the ethics of legal abortion for rape victims would have to wait until the 1960s, a time that would see other improvements in care for women who had been raped. Feminist groups who fought for the recognition of rape as a trauma adopted the “militant advocacy” psychiatrists had used in their own efforts to have post- traumatic stress disorder recognized as a diagnosable health problem of Vietnam veterans.151

The first diagnosis that clearly paced rape victims in the sick role came not from doctors, but from a nurse and a sociologist. In 1974, Ann Burgess and Lynda Holmstrom described “Rape

Trauma Syndrome,” creating a formal diagnostic category for women who had been raped.152

Conclusion

Even though rape is fundamentally about bodies, medical practitioners were unable to claim authority over rape to the same extent that they were able to do so around other bodily events, such as childbirth. The already well-established legal profession was able to limit the power physicians could wield in legal settings by forbidding doctors from diagnosing a woman in court as having been raped, and by refusing to grant physicians the exclusive prerogative to provide expert testimony on bodies. Medicine’s focus on the individual was a deterrent to addressing the prevailing social mores that enabled sexual violence, but few physicians would have been inclined to do so anyway. Physicians were not exceptional in their beliefs about the role that women supposedly played in their own rape, or in seeing certain women as less deserving of justice or sympathy. Despite their inability to fully exert professional control over rape, the activities of physicians did have some impact; their activities helped maintain and reinforce the values which became a staple of modern rape culture. Firstly, they were often successful in undermining women’s own reports of rape.

151 Roger Luckhurst. The Trauma Question, 2008. 58-59 152 Ann W. Burgess, and Lynda L. Holmstrom. "Rape trauma syndrome." The American Journal of Psychiatry 131 (1974) 981-86. 57

Physicians may not have successfully challenged jurists, but they certainly were held to be more credible than rape victims. Secondly, physicians were very successful in claiming a right to examine the bodies of rape victims. Women were subjected to court ordered pelvic exams, but they also sought them out voluntarily in order to validate their accusations.

Better treatment for rape victims in institutional medical settings would have to wait until the 1960s and 70s, which saw the creation of the Sexual Assault Nurse Examiner

(SANE) program, as well as training lay women to act as advocates for victims in hospitals.

Susan Brownmiller’s book, Against Our Will: Men, Women and Rape, was hugely influential in pushing the definition of rape from an act of uncontrollable lust, to a crime of aggression that targeted women as a group.153 The twentieth century also saw greater recognition of rape as a traumatic event that could precipitate mental health problems lasting for months or years after the initial attack, and the addition of special guidelines for medical practitioners about the particular needs of survivors of rape and sexual assault in their practices. Examining how doctors responded to rape within a medical context, and attempted to claim rape as an explicitly medical experience as they professionalized illuminates an important part of the roots of our contemporary attitudes towards sexual violence, as well as the problems that remain for women who have been raped when they seek medical assistance.

153 Susan Brownmiller, Against Our Will: Men, Women and Rape (1975). Pearson Education New Zealand, 2005. 58

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