“There Had Been No Penetration:” Male Surgeons’ Roles in Defining Rape in Eighteenth-Century England

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In July of 1715, when Mary Marsh was asked about the details of her rape, she claimed that “the Prisoner threw her upon the Bed, press’d her very hard, and put something into her, but was so modest she would not declare what.”¹ When two medical surgeons “depos’d that there had been no penetration,” William Cash was acquitted of Marsh’s rape.² Despite other evidence that she received a sexually transmitted disease from her attacker, Marsh’s reluctance to speak in detail about the attack gave medical authorities the power to define it.

Rape in the eighteenth century was defined as “unlawful and carnal knowledge of a woman, by force and against her will.”³ While this definition is straightforward, legal, societal, and medical understandings of rape did not always align. Deciding what constituted sexual assault in the courtroom was complex and nuanced, and it was debated throughout the eighteenth century. The medical community played a significant role in this conversation, but male surgeons’ roles were particularly influential. Often, it was their authority and opinion that influenced the final decision of the court.

The Expectations of Women and the “Impossibility” of Rape

Accusing a man of rape in eighteenth-century England came with consequences, which included risking one’s reputation. Women were cautioned to speak modestly, and in the courtroom this meant sparing the details of their assaults. Women’s sexuality, considered the property of a father or brother before marriage, played an equally important role and could be used against them.⁴ If another man took ownership of that sexuality through sex or rape, the devaluation of her virginity threatened her opportunities for marriage, which jeopardized the potential for an economically stable future. This power over women took away their ability to define their own traumatic events and seized agency from victims.

Women’s credibility was measured in other various ways. Victims were largely responsible for escaping their own rapes by resisting, which included crying out for help or physically resisting their attackers. Anatomical misconceptions of women’s bodies reinforced this further with the idea that if women were not powerful enough in strength to move their attackers, they were expected to angle their body in just the right way that made it impossible for them to be raped.⁵ If women protected their reputations by not speaking out and proving they attempted to verbally and physically fight their attackers, medical advice would often often be the next step in determining rape.

Medical Authority and The Narrowing Definition of Rape

Though surgeons were trusted to use their medical expertise in courtrooms to determine physical trauma done to victims, they used this platform to debate and redefine rape. Not only did they narrow the definition of rape by privileging the success of penetration, but they also assessed the object, body part, and cause of penetration as evidence of rape. Eighteenth-century medical authorities used their knowledge in the new field of medical jurisprudence to debate the definition of rape even before surgeons entered the courtroom.⁶

While some medical jurisprudents believed in the two-proof rule of penetration and ejaculation (also known as seminal emission) to constitute rape, the majority of surgeons emphasized only penetration as proof of sexual assault. These stipulations created a “disagreement as to whether a woman had to swear one proof, penetration, or two proofs, penetration and seminal emission, to secure a rape conviction.”⁷

While medical jurisprudence debated about requiring proof of ejaculation and penetration as necessary evidence of rape, penetration as proof was used more consistently as a metric to attest to rape, provided there were physical marks upon the victim’s body, particularly in the pubic area. Though there was a legal precedent for this two-proof rule after 1781, and some judges used this rule, most eighteenth-century cases relied on the success of penetration to convict a man of rape.⁸ Courts typically relied on male surgeons to determine the success and level of penetration because it was considered nearly impossible to convict rape with the two-proof rule. This even led to a legislation change in the nineteenth century barring the two-proof rule.⁹

Though penetration was the primary evidence relied upon for rape convictions, it was difficult for women to prove penetration by medical standards. This metric required women to not only explain that a man entered them against their will, but also to complain of physical violence done against their body that was visible to the surgeon examining them. Anna Clark has emphasized that “seventy percent of the victims of rape in the London court records stressed that the rape ‘hurt’ them, and many continued to be ill for a considerable time afterwards.”¹⁰

Women were expected to make these complaints, and surgeons were expected to find physical evidence that a rape had been violent in order to prove there had been an assault on a woman’s body. Rape that did not show physical evidence of violence done against the sexual parts of a woman’s body would not be considered rape in the eyes of medical examiners or the judge and jury.

When male surgeons examined victims and stepped into the courtroom, their decisions reflected the necessary medical proofs that medical jurisprudents debated. If evidence was found that a victim had, in fact, been sexually assaulted and there was proof of penetration, surgeons would then consider how a woman was penetrated by determining if it was an object or a body part. In January of 1721, William Robbins was indicted for the rape of Mary Tabor. While a midwife found evidence that Tabor was sexually assaulted, two surgeons declared “that there was not a Penetration large enough for a man to make.”¹¹ While this insinuated proof that Tabor was assaulted, two male surgeons specified rape for Tabor as person-to-person penetration. Cases such as this served as an example for the narrowing definition of rape and challenged men’s legal accountability regarding rape in the eighteenth century.

Other evidence against women or for the rapist could often sway the jury to acquit the accused even if there was proof of violence and penetration found on a woman’s body during a medical exam. In some cases, if a defendant could negatively characterize the victim as a woman with a bad reputation, he could ruin the truth and credibility of her rape claims. Clark reasoned that in their defense, “men often did not bother to claim that the victim had consented or deny they committed a rape; if she had a bad reputation, rape was simply not regarded as a crime.”

Ruining a woman’s character was sometimes considered more pressing evidence than a medical examination and physical proof of trauma. Because of societal pressures on women to be pure, chaste, and obedient, judges and juries might dismiss a woman’s claims if she was considered resistant to the societal expectations put upon her and, therefore, a “bad” woman.

Surgeons played a role in defining rape for women especially as their ability to define their own violent experiences were largely ignored and actively silenced; however, despite surgeons’ power as a medical authority in the courtroom, convicting rape was a complex battle. Surgeons presented challenges to broadening the definition of rape by defining sexual assault solely by the presence of physical trauma that fit their own criteria. By often, though sometimes unintentionally, participating as an obstacle to the conviction of rape, they belonged to a structure that sought to keep the definition of rape in the hands of male authority and away from the voices of women.

It is no wonder that rape gained the lowest conviction rates of any crimes in eighteenth-century London.¹² In most instances, women did not obtain the justice they sought against their attackers; 80% of rape cases tried at the Old Bailey, London’s central criminal court where most rapes were tried, did not receive a guilty conviction.

Rape is a complex and fluid term, and the authority to define rape is certainly fought over by lawmakers, physicians, and victims, even today. In the midst of the #metoo movement, women are seizing agency by redefining rape and consent. While the eighteenth century focused on the physical act of rape, the direction has shifted to understanding power dynamics in the context of gender and how that contributes to our understanding of “force.” Not only have physical aspects surrounding rape broadened, but they now include mental and verbal dynamics that shed light to the complicated nature surrounding rape.

By looking back to past stories of victim’s experiences, we can better understand how law and medicine worked to define rape and how that definition continues to change. Understanding these structures that victims of sexual assault are forced to deal with is necessary in understanding how the feminist movement must break down these frameworks in order to move forward and better understand and assist victims in a more constructive and inclusive way.

Notes

1. Old Bailey Proceedings (OBP), July 1715, trial of William Cash (t17150713-54). All quotations are as written in their original format. Return to text.
2. OBP, July 1715, trial of William Cash (t17150713-54). Return to text.
3. Lena Olsson, “Violence that’s Wicked for a Man to Use: Sex, Gender, and Violence in the Eighteenth Century,” in Interpreting Sexual Violence (New York: Pickering & Chatto, 2013), 142. Return to text.
4. Anna Clark, Women’s Silence Mens Violence: Sexual Assault in England 1770-1845, (London: Pandora, 1987), 7-8. Return to text.
5. Lena Olsson, Interpreting Sexual Violence, 145. Return to text.
6. Mary Block, Interpreting Sexual Violence, 30. Return to text.
7. Ibid., 31. Return to text.
8. Ibid., 32, and Clark, Women’s Silence, Men’s Violence, 55. Return to text.
9. Block, Interpreting Sexual Violence, 32. Return to text.
10. Clark, Women’s Silence, Men’s Violence, 28. Return to text.
11. OBP, January 1721, trial of William Robbins (t17210113-28). Return to text.
12. Lena Olsson, Interpreting Sexual Violence, 141. Return to text.

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Featured image caption: “Rape.” (Courtesy Wellcome Library)