Past exam of the medicine course of the University of Oxford / 1866 / Second examination / Forensic medicine and hygiene / 3 / Solution

Seek evidence of penetration and evidence bearing on violence separately; neither a finding nor its absence can by itself determine consent or establish the whole felony. Twelve hours is a reason to examine and preserve evidence promptly, not a guarantee that diagnostic traces will be present.

For the historical legal element, use the original Offences against the Person Act 1861. Section 63 made carnal knowledge complete upon proof of penetration without requiring proof of emission of seed. Thus absence of semen cannot defeat proof of the penetration element, while the presence of semen does not by itself establish that element or identify an offence. Section 48 treated rape as a felony; §63 specifies the narrower evidential point asked about here.^[ref]

Obtain permission for the examination and each specimen, record the account in the woman's own terms, and note the reported timing, pain, bleeding, washing and changes of clothes. Ask about other recent sexual contact only insofar as it affects interpretation of a trace. Record observations independently of the allegation, preserving clothing and samples with their identities and collection sites. A medical examination should also address injuries and health needs; its purpose is not merely production of evidence.

For evidence of recent penetration, inspect the vulva, vaginal entrance and, where appropriate, the vagina for fresh abrasions, bruising, tears, swelling, tenderness or bleeding. Describe the location and appearance rather than calling an injury a “rape mark”. Collect any relevant fluid and stained clothing. An 1866 examination could use microscopy to look for sperm; modern analysis may add validated semen tests and DNA profiling. Neither retained sperm nor an injury can precisely date the event to twelve hours previously or prove who performed it without additional evidence. Conversely, washing, lack of ejaculation or loss of a sample may leave no detectable trace.^[ref]

Do not infer prior sexual history from vaginal laxity or the appearance of the hymen. A fresh injury can be documented, but an uninjured or previously altered hymen cannot prove or disprove the particular alleged penetration. Current authoritative guidance expressly rejects “virginity testing” as a scientifically valid inference about intercourse.^[ref]

For evidence bearing on force and non-consent, examine the whole body for abrasions, bruises, torn clothing, restraint marks and injuries of the thighs, wrists, arms, face or neck. Record any account of threats, overpowering, loss of consciousness or inability to resist. Injuries may corroborate an account of violence, but can have other causes; their absence does not establish agreement. A frightened or incapacitated person may not struggle, and penetration can occur without visible injury. Even apparently precise examination findings must be interpreted alongside the history and other evidence.^[ref]

Some nineteenth-century medico-legal writing demanded continuing resistance as evidence of non-consent. That was a historical assumption, not a biological test of whether consent was withheld.^[ref] The medical witness should state what was observed and how strongly it supports the account; the tribunal determines the legal conclusion. No universal combination of semen, hymenal findings and bruises can “legally establish” all the elements from the examination alone.