Signs, marks, and private parts: Doctors, legal discourses, and evidence of rape in the United States, 1823-1930

Journal of the History of Sexuality

Volumn 8, Issue 3, 1998, Pages 345-388

  Robertson, Stephen ^a  

^a AMERICAN BAR FOUNDATION   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ART; ARTICLE; CRIMINAL LAW; EXPERT WITNESS; FORENSIC MEDICINE; HISTORY; JURISPRUDENCE; RAPE; SEX; UNITED STATES;

CRIMINAL LAW; EXPERT TESTIMONY; FORENSIC MEDICINE; HISTORY, 19TH CENTURY; HISTORY, 20TH CENTURY; HUMAN BODY; JURISPRUDENCE; RAPE; SEX; UNITED STATES;

EID: 0031609994     PISSN: 10434070     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (182)

1. Anatomy of a Murder, directed by Otto Preminger, Columbia Pictures, 1959.
2. Medical evidence could have played a greater role in this case. Laura Manion had been badly beaten in the course of the rape, producing bruises and marks that the doctor testified he had noticed. The doctor went on to testify that the police, however, did not ask him to determine the reason for these marks, a task that should have been part of a standard examination of a woman who charged she had been raped.
3. Theodoric Beck, Elements of Medical Jurisprudence (Albany, NY, 1823), 1:83.
4. This account of the eighteenth-century situation is drawn from Sharon Block, "Coerced Sex in British North America, 1700-1820" (Ph.D. diss., Princeton University, 1995), pp. 104-8, 111-12.
5. Women's role in rape cases represented a continuation of the English practice of having an investigatory jury of women (or a midwife) examine a woman's body in cases in which its condition could influence the verdict or sentence. For an account of this practice in the American colonies, see Kathleen Brown, "'Changed . . . into the fashion of man': The Politics of Sexual Difference in a Seventeenth-Century Anglo-American Settlement," Journal of the History of Sexuality 6 (1995): 180-83, 186.
6. For an account of the rise - and fall - of the field of medical jurisprudence in the nineteenth-century United States, see James Mohr, Doctors and the Law: Medical Jurisprudence in Nineteenth-Century America (New York, 1993).
7. Doctors and the Law: Medical Jurisprudence in Nineteenth-Century America Ibid., p. 107.
8. Historians of rape in North America make only passing references to medical testimony in particular cases or to the place of doctors and medical evidence in the legal process. For brief discussions, see Block, pp. 104-8, 111-12; Kathleen Parker, "Law, Culture, and Sexual Censure" (Ph.D. diss., Michigan State University, 1993), pp. 380-87;
9. Karen Dubinsky, Improper Advances: Rape and Heterosexual Conflict in Ontario, 1880-1929 (Chicago, 1993), pp. 27-28;
10. Cornelia Dayton, Women before the Bar: Gender, Law, and Society in Connecticut, 1710-1790 (Chapel Hill, NC, 1995);
11. and Mary Odem, Delinquent Daughters: Protecting and Policing Adolescent Female Sexuality in the United States, 1885-1920 (Chapel Hill, NC, 1995).
12. Medical historians have paid similarly scant attention to the writings about medical evidence. Based on the relatively small literature on rape in medical periodicals, Elizabeth Anne Mills and, more recently, Elizabeth Lunbeck, have concluded that physicians were concerned with the dangers of false accusations rather than with women who had been raped. See Elizabeth Anne Mills, "One Hundred Years of Fear: Rape and the Medical Profession," in Judge, Lawyer, Victim, Thief: Women, Gender Roles, and Criminal Justice, ed. Nicole Hahn Rafter and Elizabeth Anne Stanko (Boston, 1982);
13. and Elizabeth Lunbeck, The Psychiatric Persuasion: Knowledge, Gender, and Power in Modern America (Princeton, NJ, 1994), p. 214. The bulk of medicolegal writing on rape, however, is not in periodicals but in textbooks and treatises on medical jurisprudence. Mohr has recently drawn on these sources in his broad study of medical jurisprudence in nineteenth-century America, but he specifically discusses rape only briefly and without noting how medical evidence became transformed in this period; see Mohr, pp. 21, 31, 71-73.
14. John Reese, A Textbook of Medical Jurisprudence and Toxicology (Philadelphia, 1895), p. 535.
15. Beck, 1:73. A note on sources: my analysis of the writings of medical jurists is based on an examination of all the English-language texts and periodical articles on medical jurisprudence published between 1823 and 1940 available in three major medical libraries: the New York Academy of Medicine, the College of Physicians of Philadelphia, and the Columbia College of Physicians. These collections contained seventy-four different texts, many of which went through multiple revisions in the course of the nineteenth century. While this sample does not include all of the medical jurisprudence texts published in those years, it is representative, including all the influential texts and many less influential works that simply summarized or repeated large parts of the work of one or more of the most influential medical jurists. To avoid burdening this article with long footnotes, I generally have cited only the more influential texts.
16. For a broad discussion of this understanding of force and consent, see Susan Estrich, Real Rape: How the Legal System Victimizes Women Who Say No (Cambridge, MA, 1987), pp. 29-41, 58-71. On the understanding of physical force as intrinsic to sexual intercourse, see Beck, 1:79 (where he notes that violence "may not have been against the will of the female");
17. William Guy, Principles of Forensic Medicine (New York, 1845), p. 76;
18. and Amos Dean, Principles of Medical Jurisprudence (Albany, NY, 1850), p. 29.
19. Dean, p. 33.
20. Beck (n. 3 above), 1:83.
21. Samuel Farr, Elements of Medical Jurisprudence (London, 1815), quoted in Beck, pp. 83-84.
22. Beck, p. 84.
23. Theodoric Beck and John Beck, Elements of Medical Jurisprudence, 6th ed. (Philadelphia, 1838), p. 147.
24. Francis Wharton and Moreton Stilles, A Treatise an Medical Jurisprudence (Philadelphia, 1855), p. 336. This treatise appears to have displaced Beck's work as the preeminent American text on medical jurisprudence in the second half of the nineteenth century. See Mohr (n. 5 above), p. 38.
25. Johann Casper, A Handbook of the Practice of Forensic Medicine, Based upon Personal Experience, 3 vols., trans. George Balfour (London, 1864), 3:296-97, 311.
26. Lawlor v Wolff, 62 NE 973 (1902).
27. Cook v State, 24 NJL 852 (1855). For other decisions on this point, sec Woodin v People, 1 Parker Cr R 464 (1854); State v Peterson, 111 Iowa 647 (1900); People v Benc, 130 Cal 159 (1900); Commonwealth v Buckman, 82 Pa Sup Ct 433 (1923); and State v Brown, 166 La 43 (1928). A small number of decisions did take the opposite position; see People v Clark, 33 Mich 119 (1875).
28. Commonwealth v Buckman, 82 Pa Sup Ct 434 (1923); State v Perry, 41 W Va 641 (1896). The later case allowed that doctors had expert knowledge of the physical ability of a man with a wooden leg to have intercourse in the position alleged by the complainant.
29. No extended historical analysis of rape law in the United States exists. My analysis draws on published appellate court cases. Estrich, Real Rape (n. 10 above); Sue Bessmer, The Laws of Rape (New York, 1984);
30. New York State Law Revision Commission, Communication and Study Relating to Sexual Crimes (Legislative document 65[O], 1937);
31. and Hubert Feild and Leigh Bienen, Jurors and Rape (Lexington, KY, 1980), pp. 207-458.
32. Constance Backhouse, "Nineteenth-Century Canadian Rape Law, 1800-92," in Essays in the History of Canadian Law, ed. David Flaherty (Toronto, 1981), 2:204;
33. Anna Clark, Women's Silence, Men's Violence: Sexual Assault in England, 1770-1845 (London, 1987), pp. 61-63.
34. Beck quotes a passage from the work of Edward Hyde East, an English jurist, that illustrates medical jurists' conceptualization of rape: "Considering the nature of the crime, that it is a brutal and violent attack upon the honor and chastity of the weaker sex, it seems more natural and consonant to the sentiments of laudable indignation which induced our ancient lawgivers to rank this offense among felonies, if all further inquiry were unnecessary after satisfactory proof of the violence having been perpetrated by actual penetration of the unhappy sufferers body." See Beck (n. 3 above), 1:95-99. On the broad support for this position among American medical jurists, see Mohr, pp. 72-73.
35. Mohr, pp. 72-73; Beck, 1:95-99; Pennsylvania v Sullivan, Add. 143 (1793); State v Le Blanc, 1 Tread Const 354 (1813). Other state legislatures (California, New York, Minnesota, North Dakota) and courts (Alabama, Connecticut, Louisiana, Michigan, Nebraska) followed suit in the late nineteenth century. See State v Shields, 45 Conn 256 (1877); State v Burton, 1 Houst Cr Cas 363 (1873); Taylor v State, 111 Ind 279 (1887); State v Turner, 25 La Ann 573 (1873); People v Courier, 79 Mich 366 (1890); Comstock v State, 14 Neb 205 (1883); and State v Hargrave, 65 NC 466 (1871). The English parliament replaced the emission requirement in 1828 (Clark, p. 61), the Canadian legislature in 1841 (Backhouse, p. 204).
36. Guy (n. 10 above), p. 77.
37. J. Kost, A Textbook on Medical Jurisprudence for Medical and Law Colleges (Cincinnati, 1885), p. 232.
38. People v Dohring, 57 NY 383 (1874).
39. Estrich, Real Rape, pp. 29-37.
40. Beck, 1:79. See also Guy, p. 76; and Dean (n. 10 above), p. 29.
41. Francis Ogston, Lectures on Medical Jurisprudence (London, 1878), p. 90.
42. Mohr (n. 5 above), p. 72. The quotations are from the source of Mohr's argument: Sylvana Tomaselli, "Introduction," in Rape, ed. Sylvana Tomaselli and Roy Porter (London, 1986), p. 7.
43. Michel Foucault, The History of Sexuality: An Introduction, vol. 1 of The History of Sexuality, trans. Robert Hurley (New York, 1978), pp. 122-24.
44. A self-controlled character served as a building block for economic success and middle-class identity; in the absence of self-control, a man lapsed into an animal state of existence under the sway of sensual motivations. See Charles Rosenberg, "Sexuality, Class, and Role in Nineteenth-Century America," in The American Man, ed. Elizabeth Pleck and Joseph Pleck (Englewood Cliffs, NJ, 1980);
45. Stephen Nissenbaum, Sex, Diet and Debility in Jacksonian America (Westport, CT, 1980);
46. Karen Halttunen, Confidence Men and Painted Women: A Study of Middle-Class Culture in America, 1830-1870 (New Haven, CT, 1982);
47. and Steven Seidman, Romantic Longings: Love in America, 1830-1980 (New York, 1991).
48. Douglas Kerr, Forensic Medicine (London, 1935), p. 164;
49. Sydney Smith, Forensic Medicine (London, 1925), p. 221.
50. For an overview of these judicial decisions, see Bessmer (n. 21 above), pp. 325-43.
51. George Puppe, A Medico-Legal Study of Rape (1894; reprint, New York, 1935), p. 8.
52. See also J. Clifton-Edgar and J. Johnson, "Rape," in Medical Jurisprudence, Forensic Medicine and Toxicology, ed. R. A. Witthaus and Tracy Becker (New York, 1894);
53. William Brend, A Handbook of Medical Jurisprudence and Toxicology (London, 1915), p. 95;
54. and Charles Chaddock, "Rape," in A Textbook of Legal Medicine and Toxicology, ed. Frederick Paterson and Lawrence Godkin (Philadelphia, 1904), 2:127.
55. A woman could be overpowered not only by threats against herself but also by threats against her husband, children, or other relatives. The threat of physical violence to a woman's child held a particular fascination for many medical jurists. See Alfred Herzog, Medical Jurisprudence (Indianapolis, 1931), which provided this account of the archetypal example: "A case which occurred in a foreign jurisdiction some years ago shows, however, that even personal violence offered to another than the prosecutrix ought to be sufficient under some circumstances. No personal violence was offered to the woman nor any threats of personal violence were made, but the intruder picked her baby out of the crib and threatened to dash its brains out by hitting it against the wall of the room. The woman was alone with him in the house and help was not to be expected. Under these circumstances, he was convicted of rape by force" (p. 839).
56. People v Dohring, 57 NY 384 (1874).
57. Marybeth Hamilton Arnold, "'The Life of a Citizen in the Hands of a Woman': Sexual Assault in New York City, 1790-1820," in Passion and Power: Sexuality in History, ed. Kathy Peiss and Christina Simmons (Philadelphia, 1989), pp. 35-56;
58. Christine Stansell, City of Women: Sex and Class in New York City, 1789-1860 (Urbana, IL, 1987), pp. 23-27, 97, 182-83.
59. See my "Sexuality through the Prism of Age: Modern Culture and Sexual Violence in New York City, 1880-1950" (Ph.D. diss., Rutgers University, 1998), introduction.
60. Beck (n. 3 above), 1:87.
61. For analyses of the age of consent in the late nineteenth and early twentieth century, see my "Sexuality through the Prism of Age," chap. 1; Odem (n. 7 above), chap. 1;
62. David Pivar, Purity Crusade: Sexual Morality and Social Control, 1868-1900 (Westport, CT, 1973);
63. and Jane Larson, "'Even a Worm Will Turn at Last': Rape Reform in Late Nineteenth-Century America," Yale Journal of Law and the Humanities 9 (1997): 1-71.
64. Judge Ben Lindsey and Wainwright Evans, The Revolt of Modern Youth (Garden City, NJ, 1925), pp. 81-82.
65. The history of sexual modernity in the United States is only beginning to be written; much of the existing literature fails to elaborate a definition or broad framework for understanding how sexual modernity reconceptualized understandings of sexuality. See Kathy Peiss, Cheap Amusements: Working Women and Leisure in Turn-of-the-Century New York (Philadelphia, 1986);
66. Christina Simmons, "Modern Sexuality and the Myth of Victorian Repression," in Peiss and Simmons, eds., pp. 157-77;
67. Pamela Haag, "In Search of the 'Real Thing': Ideologies of Love, Modern Romance, and Women's Sexual Subjectivity in the United States, 1920-1940," Journal of the History of Sexuality 2 (1992): 547-77; Lunbeck (n. 7 above).
68. Foucault (n. 32 above), pp. 63, 68-70, 117-18, 152-53, 155-56. See also Arnold Davidson, "Sex and the Emergence of Sexuality," Critical Inquiry 14 (1987): 17-48, esp. 21-23, 46-47;
69. Laura Engelstein, The Keys to Happiness: Sex and the Search for Modernity in Fin-de-Siècle Russia (Ithaca, NY, 1992);
70. and Domna Stanton, "Introduction: The Subject of Sexuality," in Discourses of Sexuality, ed. Domna Stanton (Ann Arbor, MI, 1992).
71. Robert Woods and Albert Kennedy, eds., Young Working Girls: A Summary of Evidence from Two Thousand Social Workers (Boston, 1913), p. 1.
72. Generally, see my "Sexuality through the Prism of Age," pp. 21-44, 139-162, 224-29.
73. On the new emphasis on biological development as a characteristic of childhood, see Engelstein, pp. 75-84; and Carolyn Steedman, Strange Dislocations: Childhood and the Idea of Human Inferiority, 1780-1930 (Cambridge, MA, 1995).
74. On G. Stanley Hall and child study, see Dorothy Ross, G. Stanley Hall: The Psychologist as Prophet (Chicago, 1972);
75. and Joseph Kett, Rites of Passage: Adolescence in America, 1790 to the Present (New York, 1977).
76. On social reformers' use of the figure of the adolescent created by Hall, see Woods and Kennedy, eds.; and Ruth Alexander, The Girl Problem: Female Sexual Delinquency in New York, 1900-1930 (Ithaca, NY, 1995), pp. 33-66.
77. Kerr (n. 33 above), p. 164.
78. Francis Anthony, "Rape," Boston Medical and Surgical Journal 132 (1895): 31.
79. Charles Chaddock, "Sexual Crimes," in A System of Legal Medicine, 2 vols., ed. Allan Hamilton and Lawrence Godkin (New York, 1894), 2:539. Some treatise writers even achieved an almost empathetic tone: Sydney Smith urged, "One has only to consider how in a sudden emergency one of us may be temporarily paralyzed to understand the effect on a woman suddenly accosted by a man whose intentions are obvious" ([n. 33 above], p. 221).
80. Herzog (n. 35 above), p. 840. After the 1930s, discussion of the question of whether a healthy adult woman could be raped dropped out of medical jurisprudence textbooks. The recognition that a woman could be raped made such discussions redundant, particularly as textbooks became more narrowly focused on forensic issues and techniques.
81. Charles Mapes, "Sexual Assault," Urologic and Cutaneous Review 21 (1917): 433-34. Both Mills and Lunbeck give Mapes a prominent place in their analyses of medical ideas about rape.
82. Mapes, Urologic and Cutaneous Review ibid., pp. 430, 433,
83. and Charles Mapes, "A Practical Consideration of Sexual Assault," Medical Age 24 (1906): 928. Lawyers wrote only a small proportion of medical jurisprudence treatises and textbooks; doctors or doctors collaborating with lawyers produced most of these works.
84. The location of the writings of these doctors provides further evidence on this point. Almost all the doctors who took this position, like Mapes, published in general medical periodicals rather than authoring specialized treatises on medical jurisprudence. After the mid-nineteenth century, the vast majority of writing on medical jurisprudence took the form of treatises and textbooks, not articles in periodicals.
85. Transcript of Court of General Sessions Trial, Court of General Sessions Case File (hereafter CGSCF), People v P. L. (indicted July 1891) (Municipal Archives, New York City), p. 22. Note: I have withheld or altered the names of the participants in the rape cases discussed in this article; in my citation of the Court of General Sessions case files, I have retained the defendants' actual initials, as these records are grouped by month of indictment and filed alphabetically by the defendant's name and thus can only be accessed with this information.
86. My understanding of the concept of signs in medical discourse is indebted to Lester King, Medical Thinking: A Historical Preface (Princeton, NJ, 1982), pp. 73-89.
87. Fred Smith, Lectures on Medical Jurisprudence and Toxicology as Delivered at London Hospital, 1900, 2d ed. (London, 1908), p. 222.
88. Karen Dubinsky uses this phrase to characterize the arguments of Elizabeth Ann Mills (Dubinsky [n. 7 above], p. 28).
89. Kathryn Montgomery Hunter, Doctors' Stories: The Narrative Structure of Medical Knowledge (Princeton, NJ, 1991), pp. 28-38.
90. Casper offered an oft-cited formulation of this approach in regards to signs of virginity: "Where a forensic physician finds a hymen preserved, even its edges not being torn, and along with it a virgin condition of the breasts and external genitals, he is then justified in giving a positive opinion as to the existence of virginity" ([n. 17 above], pp. 281-82; for an example of the citation of this passage, see Charles Tidy, Legal Medicine [New York, 1884], pp. 121-22). See also Kost, who advocated looking to the presence or absence of other signs as a way of determining whether the marks of violence on a woman's body had been self-inflicted ([n. 26 above], p. 231).
91. See Alfred Taylor, A Manual of Medical Jurisprudence, 11th U.S. ed. (Philadelphia, 1892), pp. 648, 656; Guy (n. 10 above), pp. 65-66; Tidy, p. 116. Some medical jurists argued that incomplete penetration left few signs on the body of a young girl. See Clifton-Edgar and Johnson (n. 35 above), p. 679. Medical jurists identified young girls as the most frequent victims of rape; see Wharton and Stilles (n. 16 above), pp. 327-28; Clifton-Edgar and Johnson, pp. 705-6;
92. and Chaddock, "Sexual Crimes" (n. 47 above), pp. 543-44.
93. Tidy, p. 125; Clifton-Edgar and Johnson, p. 681; Sydney Smith (n. 33 above), p. 229; Herzog (n. 35 above), p. 829.
94. Ogston (n. 30 above), p. 104. The development of medical science did not resolve this uncertainty: Thomas Gonzales, Morgan Vance, and Milton Halpern, writing in 1937, e.g., argued that "the diagnosis of virginity is a difficult matter and in a large number of cases it is not possible to reach a definite conclusion from a physical examination of the genital organs." See their Legal Medicine and Toxicology (New York, 1937), p. 357.
95. Ogston, p. 102.
96. Tidy, p. 122.
97. See, e.g., Ogston, p. 103. Some medical jurists did raise objections to the likelihood of dancing, leaping, and riding rupturing a hymen. Tidy, e.g., argued that "no such case has occurred within his experience" (p. 122). Despite these arguments, the hymen never entirely shed its status as an equivocal sign. Doctors also attributed the uncertainty surrounding the hymen to its various forms, which led many physicians to make mistaken diagnoses. Sydney Smith, e.g., remarked, "Medical men are not often called to examine hymens unless specializing in medical jurisprudence, and are liable to give a mistaken opinion. In one case of incest we were called to examine in a Border town, the local practitioner had mistaken a fimbriated for a ruptured hymen" (p. 166). Many of these comments in regards to the hymen also applied to the other signs of virginity. The flourette, labia, and narrow vagina, in addition to being signs not peculiar to virgins, could also be lost from disease, discharges, falls, and masturbation, as well as being affected by the general state of health.
98. Tidy, p. 126; Wharton and Stilles, p. 330.
99. Since the presence of gonorrhea also constituted a sign of rape, a doctor's misidentification of leucorrhea as gonorrhea provided unwarranted support for a charge of rape, while confusing a discharge for gonorrhea offered an accused man the opportunity to evade prosecution by showing he did not have gonorrhea. See Tidy, pp. 125-28; Ogston, pp. 94-97; Wharton and Stilles, pp. 329-36.
100. Ogston, p. 96; Clifton-Edgar and Johnson, p. 684; Reese, p. 534; Ralph Webster, Legal Medicine and Toxicology (Philadelphia, 1930), p. 265.
101. Ogston, p. 96.
102. Sydney Smith, p. 229; Herzog, p. 831.
103. Chaddock (n. 47 above), p. 536.
104. Webster, p. 265. See also Casper (n. 17 above), p. 289; Ogston (n. 30 above), pp. 106, 117; Tidy (n. 57 above), p. 129; Chaddock, "Sexual Crimes," pp. 538-40; Sydney Smith (n. 33 above), p. 230.
105. Chaddock, "Rape" (n. 35 above), p. 137. See also Dean (n. 10 above), pp. 29-30; Ogston, p. 117; Tidy, p. 129; and Herzog (n. 35 above), p. 827. For a similar argument regarding bloodstains, see Casper, pp. 286-87. Discussions of the possibility that signs could be the result of manufacture rather than rape involved medical jurists in discussions of false accusations. Medical jurisprudence texts and treatises, however, contain little evidence to support Mills's and Lunbeck's characterizations of doctors as preoccupied with lying women. See Mills (n. 7 above), pp. 30, 33-37; and Lunbeck, p. 214. All medical jurists noted that women frequently made false charges of rape, but most jurists did little beyond offering an example and discussing the signs that women could simulate to support such accusations. Most of this discussion is concerned not with adult women charging they have been raped, but with mothers of young girls. Medical jurists argued that mothers used their daughters to bring charges for the same motives attributed to women who falsely charged rape: blackmail or revenge. Writings in medical periodicals exhibit a greater preoccupation with false accusations and a more vituperative tone.
106. See Jerome Walker, "Reports with Comments, of Twenty-One Cases of Indecent Assault and Rape upon Children," Archives of Pediatrics 3 (1886): 269-86, 321-41;
107. and Gurney Williams, "Rape in Children and in Young Girls," International Clinics, 23d ser. (1913), pt. 1, 2: 245-67,
108. Gurney Williams, International Clinics, pt. 2, 3: 245-67. Only Taylor and Reese among the textbook authors share this preoccupation, and only Reese, whose work is laced with adjectives such as "vile," "disgusting," and "unprincipled," shares the tone (Taylor [n. 58 above], pp. 647-99, 650-53, 655; Reese, pp. 530-1, 534). The emphasis on false accusations remains in the 1895 and subsequent editions of Reese's text, but most of the vituperative language is omitted (see Reese, pp. 531, 533-34).
109. Ogston, p. 105.
110. Wharton and Stilles (n. 16 above), p. 326 (emphasis in original). See also Tidy, p. 137; and Clifton-Edgar and Johnson (n. 35 above), pp. 661-62, 715-16.
111. John Glaister, A Textbook of Medical Jurisprudence and Toxicology (Edinburgh, 1921), p. 498. For other examples, see Tidy, p. 129; and Webster, p. 265.
112. Webster, p. 257. For other examples, see Tidy, p. 114; and Clifton-Edgar and Johnson, p. 661.
113. Boddie v State, 52 Ala 395, 398 (1875), cited in John Wigmore, A Treatise on the System of Evidence in Trials at Common Law (Boston, 1904), 2:2757-58. See also Bessmer (n. 21 above), pp. 104-5.
114. Wigmore, 2:2758. By 1904 only two states - New York and Iowa - had statutes that required corroboration in rape cases; those states and twenty-two others also had statutory corroboration requirements in cases of seduction, with most of these laws enacted in the 1890s. By 1940, Oklahoma had adopted a statute that required corroboration in rape cases (Hawaii and Washington introduced and then repealed laws in this period), seven other states had adopted statutes that required corroboration in rape cases that involved girls under the age of consent, and eleven more states adopted statutes that applied to seduction. See Wigmore, 2:2759-60, and John Wigmore, A Treatise on the System of Evidence in Trials at Common Law, 3d ed. (Boston, 1940), 7:350-54.
115. In the District of Columbia, Nebraska, and Georgia judicial decisions required full corroboration in rape cases; by the mid-twentieth century, judicial decisions in ten other states required either limited corroboration or corroboration in certain circumstances. See "The Rape Corroboration Requirement: Repeal Not Reform," Yale Law Journal 81 (1972): 1366-68;
116. and Janette Pratt, "The Demise of the Corroboration Requirement - Its History in Georgia Rape Law," Emory Law Journal 26 (1977): 805-39.
117. Wigmore, 2:2760.
118. New York State Law Revision Commission (n. 21 above), p. 77.
119. People v Grauer, 12 App Div 468 (1896).
120. People v Plath, 100 NY 590 (1885); New York State Law Revision Commission, p. 77; People v Cole, 134 App Div 759 (1909); People v Brehm, 218 App Div 266 (1926).
121. Webster and a small group of medical jurists urged doctors to extend their role in rape cases by using their examination of a woman charging rape as an opportunity to question her "as to the nature of the assault, the place, the exact time, and the woman's story of the resistance offered by her," because they had the opportunity to ask these questions "before the story (if it be manufactured) is fully concocted," as Tidy put it (Webster [n. 66 above], p. 258; Tidy [n. 57 above], p. 115). As Kost pointed out, however, any statements that a woman made to a doctor would be hearsay and inadmissible. The results of an examination of a woman's body represented the only evidence that a doctor could offer, or as Kost put it, "the medical jurist can only go by the signs" ([n. 26 above], p. 232).
122. Noonan v State, 55 Wis 260 (1882). See also People v Schultz, 260 Ill 40 (1913); People v O'Connor, 295 Ill 203 (1920); and People v Ardelean, 368 Ill 278 (1938).
123. Wigmore, 7:122, 125.
124. Thanks to Jennifer Mnookin for help clarifying this point.
125. Trial Transcript Collection (hereafter TTC), case no. 250, roll 46 (1901) (John Jay College of Criminal Justice), p. 162 (district attorney during summation).
126. I also found trial transcripts for thirty-five rape cases in this sample in the trial transcript collection at John Jay College of Criminal Justice. This material is drawn from the larger sample used in my "Sexuality through the Prism of Age" (Robertson [n. 38 above]).
127. New York State Law Revision Commission, p. 21.
128. Laws of New York, 1881, vol. 3, chap. 676, pp. 66-67 (Penal Code Title X, chap. 2, sees. 278 and 280).
129. An amendment in 1882 added the phrase "or an act of sexual intercourse with a female, not his wife" after the phrase "a person perpetrating such an act" in the preamble. See Laws of New York, 1882, chap. 384, p. 542.
130. Laws of New York, 1886, chap. 663, p. 953.
131. For the original seduction and abduction statutes, see Laws of New York, 1848, chap. 105, p. 118, and chap. 111, p. 148. The legislature had not taken the opportunity to apply the corroboration requirement to rape in the 1881 Penal Code; it is not clear why they changed their position in 1886.
132. See Laws of New York, 1887, chap. 693, p. 900, for the law that increased the age of consent to sixteen years;
133. Laws of New York, 1892, chap. 325, p. 681, for the law that divided the crime of rape into two degrees;
134. and Laws of New York, 1895, chap. 460, p. 281, for the law that increased the age of consent to eighteen years.
135. See supplement to Philanthropist 6 (1891): 9-10.
136. Laws of New York, 1881, chap. 130, p. 114;
137. The Nineteenth Annual Report of the New York Society for the Prevention of Cruelty to Children (New York, 1894), pp. 7-8.
138. Despite the importance of the NYSPCC, it has not been the subject of a full-length study; the law enforcement wing of the child protection movement that it led has been overshadowed in the historical literature by the more studied social work, family preservation wing represented by the Massachusetts SPCC. For discussions of the NYSPCC's role in the prosecution of sex crime, see my "Sexuality through the Prism of Age." For general discussions of the society, see Elizabeth Pleck, Domestic Tyranny: The Making of Social Policy against Family Violence from Colonial Times to the Present (New York, 1987);
139. and Lela Costin, Howard Jacob Karger, and David Stoesz, The Politics of Child Abuse in America (New York, 1996), pp. 46-86.
140. Paul Starr, The Social Transformation of American Medicine (New York, 1982), pp. 4-5. Starr is the source of the generalizations about the origins and growth of medical authority that follow; see esp. pp. 17-21, 134-44.
141. For examples of cases where parents went directly to the legal system upon finding blood on a girl's drawers, see CGSCF, People v F. P. (indicted September 1886); District Attorney's Closed Case Files (hereafter DACCF) no. 82082 (1911) (Municipal Archives, New York City); DACCF no. 82728 (1911); DACCF no. 109904 (1916). For a case that suggests courts expected blood should make parents suspicious, see DACCF no. 36934 (1901).
142. DACCF no. 84774 (1911). For other examples, see CGSCF, People v C. P. (indicted September 1886); DACCF no. 139570 (1921).
143. W. T. Gibb, "Indecent Assaults upon Children," in A System of Legal Medicine, ed. Allan McLane Hamilton and Lawrence Godkin (New York, 1894), 1:656.
144. CGSCF, People v G. S. (indicted June 1891); CGSCF, People v P. L. (indicted July 1891); DACCF no. 35362 (1901); DACCF no. 112009 (1916).
145. For an example of a case in which a family chose not to report an assault after a doctor found a girl's hymen to be intact, see TTC, case no. 2232, roll 280 (1916). In this trial, the girl's father testified about a previous case in which his daughter had been involved that followed this pattern. Obviously, because such cases rarely came into the legal system, the evidence on this point is fragmentary. Gurney Williams, a police surgeon in Philadelphia in the early twentieth century, noted that in his experience, "The vital point of interest to [parents] is the question, has or has not the child been entered? Is she still a virgin?" See Williams (n. 71 above), 2:262.
146. DACCF no. 84789 (1911). For other examples, see DACCF no. 11387 (1896); DACCF no. 35751 (1901); DACCF no. 34754 (1901); DACCF no. 83905 (1911); DACCF no. 86356 (1911); DACCF no. 82337 (1911); DACCF no. 109457 (1916); DACCF no. 108927 (1916); and DACCF no. 110642 (1916).
147. In some cases the mere threat of being taken to a doctor accomplished this; see DACCF no. 8874 (1896); DACCF no. 12298 (1896); and DACCF no. 133874 (1921).
148. See, e.g., doctors' descriptions of the purpose of their examinations in TTC, case no. 79, roll 19 (1896), pp. 8-9; and TTC, case no. 1494, roll 194 (1911), p. 34. The procedure that NYSPCC doctors employed in conducting their examinations also provided little opportunity for them to search her body or do anything other than examine her genitals for signs of penetration: "The girl was placed on a table by a nurse," Dr. Samuel Brown testified in a second-degree rape trial. "She was covered with a sheet and her knees were flexed or put into a position so her genital organs could be examined" (TTC, case no. 1492, roll 194 [1911], p. 158).
149. DACCF no. 109774 (1916).
150. A. Powell, "Medical Examination in Cases of Rape," Indian Medical Gazette 37 (1902): 230-31.
151. Girls and sometimes their mothers did testify about blood or semen stains they noticed on their clothing. But because these clothes had been washed or otherwise disposed of, doctors did not examine them and could not corroborate that testimony.
152. See, e.g., her certificate in CGSCF, People v H. R. (indicted September 1886): "This certifies that I have examined Jenny Fletcher, 10 years of age and I find that Rape has been committed upon her. The hymen is torn on one side and whole vulva very much excoriated. Also find she is suffering from Gonorrhea in its worst form."
153. Transcript of Court of General Sessions trial, CGSCF, People v V. O. (indicted May 1886).
154. See, e.g., Dr. Brown's certificate in DACCF, Case no. 83905, (1911). NYSPCC doctors also routinely noted whether the penetration was recent.
155. Clifton-Edgar and Johnson (n. 35 above), p. 725.
156. Gibb was still performing medical examinations for the NYSPCC in 1936.
157. New York law exempted a wide range of professions from jury service, including teachers, journalists, firemen, engineers, and national guardsmen. These exemptions left perhaps 25 percent of the city's population eligible to serve on a jury. The shorter service of petit juries meant that the wealthy businessmen who predominated on the Grand Jury did not occupy the same place on trial juries. Instead, panels consisted of "retail cigar and newspaper dealers and small tailors from the East Side." See Eric Fishman, "New York City's Criminal Justice System, 1895-1932" (Ph.D. diss., Columbia University, 1980), pp. 336-37;
158. and Arthur Train, The Prisoner at the Bar: Sidelights on the Administration of Criminal Justice (New York, 1926), p. 222.
159. The only evidence I have on the specific composition of juries in rape trials in my sample comes from newspaper reports of one trial in 1891. The last five jurors chosen in this case were an electrical goods manufacturer, a merchant, a button manufacturer, a commercial traveler, and an ostrich-feather dresser. See The Press (June 16, 1891), District Attorney's Scrapbook, Municipal Archives.
160. TTC, case no. 74, roll 19 (1896); TTC, case no. 268, roll 49 (1901); and TTC, case no. 2239, roll 281 (1916).
161. For examples of judges asking doctors to explain their testimony, see TTC, case no. 1494, roll 194 (1911), p. 38; and TTC, case no. 1475, roll 192 (1911), p. 42. For examples of jurors asking questions that indicate a familiarity with terms such as hymen, see CGSCF, People v V. O. (indicted May 1886); and TTC, case no. 250, roll 46 (1901), pp. 30-31. For an example that shows that jurors - and journalists - did have difficulty understanding the language used in medical evidence that extended beyond penetration, see James Goodman's discussion of the medical evidence in the Scottsboro trial (Stories of Scottsboro [New York, 1994], pp. 14, 128, 131, 139, 166).
162. Doctors did sometimes draw such conclusions in documents certifying the results of their examinations: "It is hardly possible that a child of her tender years should have a gonorrheal vaginitis without having had sexual intercourse" (Dr. Coakley to Eldbridge Gerry, NYSPCC [July 29, 1891], in CGSCF, People v J. C. [indicted July 1891]).
163. Transcript of Court of General Sessions Trial, CGSCF, People v P. L. (indicted July 1891), pp. 18-20. For a discussion of the other causes of signs of syphilis, see CGSCF, People v C. P. (indicted September 1886).
164. See, e.g., DACCF no. 112205 (1916), in which the district attorney decided to plea-bargain a case involving a man accused of having intercourse with several young girls rather than risk the inferences the jury would make from evidence that two of the girls showed signs of gonorrhea while the man did not. A delay before doctors examined the girls possibly produced this situation. See also DACCF no. 111344 (1916).
165. CGSCF, People v C. P. (indicted September 1886); DACCF no. 139570 (1921); and TTC, case no. 3093, roll 370 (1921). In the later case, the doctor employed by the defense reexamined the defendant during the trial and was forced to acknowledge he was in fact suffering from gonorrhea.
166. The first jury to hear this case could not reach a verdict. The jury in the second trial acquitted him. See TTC, case no. 1436, roll 186 (1911); TTC, case no. 1492, roll 194 (1911); and DACCF no. 84596 (1911).
167. CGSCF, People v P. L. (indicted July 1891); DACCF no. 36934 (1901); DACCF no. 139570 (1921); and TTC, case no. 3093, roll 370 (1921).
168. People v Shaw, 158 App Div 146, 142 NYS 782 (1913). See also People v Brehm, 218 NYS 473 (1923).
169. Three defendants facing only evidence of venereal disease agreed to plea bargains; see CGSCF, People v C. L. (indicted September 1891); DACCF no. 81821 (1911); and DACCF no. 85723 (1911). The willingness of these defendants to plead guilty could be the result of bad legal advice, but is more likely to reflect an awareness of how a jury would be inclined to interpret evidence of venereal disease.
170. For the convictions, see CGSCF, People v C. P. (indicted September 1886); and CGSCF, People v P. L. (indicted July 1891). For the case in which the jury could not reach a verdict, see DACCF no. 7796 (1896). The district attorney discharged the defendant in this case. For acquittals, see CGSCF, People v J. C. (indicted July 1891); and DACCF no. 7259 (1896).
171. DACCF no. 36934 (1901); and DACCF no. 82081 (1911). The additional evidence in these cases is evidence of opportunity. Juries convicted none of the defendants in the four child-rape cases that relied entirely on evidence of opportunity as corroboration, making it likely that their decision to convict the defendants in these two cases reflected the weight they gave to evidence of venereal disease. Venereal disease is also the key evidence in one conviction for attempted rape; see DACCF no. 35362 (1901).
172. Overall, 43 percent (twenty-four of fifty-five) rape cases that involved women eighteen years and older were dismissed by the Grand Jury in the sample years 1906-21, the years in which the records include cases dismissed by the Grand Jury. The Grand Jury dismissed 28 percent of second-degree rape cases (103 of 370) and only one of thirty-one child rape cases in these years.
173. Fifty-one percent (188 of 370) of the defendants held for Grand Jury were convicted in cases of second-degree rape in the sample years 1906-21, compared to 30 percent (twenty-three of seventy-six) of defendants in cases that involved adult women and 68 percent (nineteen of twenty-eight) in cases that involved girls under eleven years of age. In my sample years, 1906-21, 88 percent of the convictions for second-degree rape (165 of 188) are the result of plea bargains.
174. Morris Ploscowe, Sex and the Law (New York, 1951), pp. 165-66, 169-74. Twentieth-century appellate court judges also cited early nineteenth-century medical jurists in support of narrow interpretations of the definition of rape, without any acknowledgment of the shift in medical opinion in the subsequent decades. See, e.g., Brown v State, 127 Wis 193, 106 N W 536 (1906).
175. Wigmore (n. 77 above), vol. 7, sec. 924a, pp. 736-47.
176. In the middle decades of the twentieth century, psychiatric experts did play a role in the legal system's response to sexual offenders. In the context of a nationwide panic about sex crime, psychiatrists offered new interpretations of the causes of sexual violence and claimed the ability to treat offenders. In response to the panic and psychiatrists' claims, many states passed sexual psychopath statutes that provided for the psychiatric examination and indeterminate sentencing of sexual offenders. See Estelle Freedman, "'Uncontrolled Desires': The Response to the Sexual Psychopath, 1920-1960," in Peiss and Simmons, eds. (n. 37 above), pp. 199-225;
177. and George Chauncey, "The Postwar Sex Crime Panic," in True Stories from the American Past, ed. William Graebner (New York, 1993), pp. 160-78.
178. For the original study of Rape Trauma Syndrome, see Ann Burgess and Lynda Holmstrom, "Rape Trauma Syndrome," American Journal of Psychiatry 131 (1974): 981-86.
179. On Rape Trauma Syndrome in the New York context, see Governor's Task Force on Rape and Sexual Assault, Rape, Sexual Assault, and Child Sexual Abuse: Working towards a More Responsive Society (Albany, NY, 1990), pp. 124-25; and People v Taylor, 75 NY 2d 277 (1990).
180. Susan Estrich, "Teaching Rape Law," Yale Law Journal 102 (1992): 519-20.
181. Clifford Krauss, "DNA: The Test of Choice in Rape Cases," New York Times (August 13, 1995), p. 33.
182. Jeffrey Moran has recently made a similar argument about the persistence of resistance to modern notions of sexuality in regards to sex education. See his " 'Modernism Gone Mad': Sex Education Comes to Chicago, 1913," Journal of American History 83 (1996): 481-513.