IV. ITS PROOFS.
It is by no means an easy thing in all cases to obtain evidence that an abortion has occurred; still more difficult, that it has been intentionally induced. As most laws read, it is necessary at the outset to prove the existence of pregnancy; as many still stand, it must be shown that the woman has quickened. These requisitions are unwise and unjust, and under them, if insisted on by adroit counsel, it is almost useless to pursue prosecution. In the earlier months, before quickening has occurred or the fœtal pulsations have become evident to the ear, it is impossible, as I have elsewhere insisted,[110]ever to be sure of the existence of pregnancy, and yet attempts at its termination are then in no degree less criminal. The only infallible sign of pregnancy is the sound of the fœtal heart, not always to be detected, even by the double stethoscope.
Putting aside, therefore, the question of the existence of pregnancy and of fœtal life, as taken for granted on the one hand by the attempt at their termination, and as proved on the other by this result, it is found that the evidence of abortion classifies itself into proofs of its occurrence, of its commission, of the criminal intent, and of the identity of the party accused.
The abortion may perhaps be known to have taken place by confession or witness; in either case requiring no further demonstration. Instances are not rare, however, where suspicion merely may exist, and the fact must be proved by collateral testimony; and this in two cases, where the woman is still alive, and where she is dead.
The general history of the case, even if pregnancy and delivery be equally denied, may throw some light on its true nature. This as given, no matter how affected by the evidence of interested or implicated witnesses, may be probable or improbable; as in an instance related byBurns,[111]where her sudden lessening in bulk was ascribed by a patient to a night’s profuse sweating, of course an impossible result. But, on the other hand, care is necessary lest from its rarity of occurrence or its improbability, the reality should be disbelieved. Cases are on record where innocent women, suffering from retention of menses or from ovarian disease, and suddenly relieved by a critical and spontaneous discharge, have on suspicion of abortion lost character and even their lives. If the statements contradict each other, this fact of itself may reveal the truth.
There are at times difficulties in proving delivery at the full period of pregnancy, as is well known. The earlier in gestation, if the patient survive, the more these difficulties are enhanced. The occurrence of normal labor cannot be discovered with any certainty by a personal examination after eight days have elapsed,[112]those of an early abortion not even after only one or two.[113]The signs of delivery that are well marked at the full period, the general symptoms then obtaining, the size of the uterus, ascertained by the hand and sound, lacerations of the perineum and cervix, the lochia, the state of the breasts, abdomen, vagina, and vulva, all of little value except in conjunction with each other, are proportionately less defined as we go back, until near the commencement of pregnancy it becomes impossible to distinguish the abortion from severe hemorrhage or from menorrhagia, unless by detecting the impregnated ovum.
If the patient is dead, and too long time have not elapsed since the supposed occurrence, decision is often more easy; many facts in the case being generally known, and concealment being less possible. If the ovum, but partially detached, be still retained, the fact is self-evident; if it has been discharged, and concealed or lost, there will still be present the recent corpus luteum and other well-known signs, in proportion to the period of the pregnancy. Allowance, in this latter respect, must be made for the possibility of partial uterine contraction after death, as is sometimes known to occur at the full period;[114]the writer has seen it to a marked degree some time previous to the expiration of pregnancy, at a Cæsarean section after death from laryngitis, occurring in the Edinburgh Maternity Hospital.
Allowing the fact of the occurrence of an abortion to be proved or granted, it becomes necessary to discover its cause, whether accidental, natural, or intentional. Of this it will be found that the proofs are both positive and negative; drawn from the history of the case and from personal examination of the patient and the fœtus. The value of each of these elements is increased in proportion as it is compared with the other; but “this I wish most especially to have noted, thatwherever there is a miscarriage, there is always present some actual, perceptible, and often tangible cause.”[115]
The story of the patient may be to one effect, and that of other parties involved, to a very different one; if the first is corroborated by the second, it may again, as has already been remarked, present or not the likelihood of truth. If the habit of aborting at a certain period has existed, which of course cannot be alleged in a first pregnancy, if the patient has had sudden fright or grief, or is known to have been accidentally injured, the chances are to be considered in her favor, in the absence of proof to the contrary. The converse of this statement, however, must not be considered as always and necessarily true. Women have time and again suffered shipwreck, undergone torture, been thrown from a height, and otherwise severely injured, and yet have escaped miscarriage; while, on the other hand, they may repeatedly have aborted before, and yet passing safely their usually critical point, may without trouble go on to the full period. In still other cases there may exist local disease, pelvic or uterine, which, if left alone, would of itself occasion miscarriage.
The character of the abortion is not without its value, whether occurring suddenly and without apparent cause, or preceded by maternal disease or the signs of fœtal death.
Examination of the mother, though proof that she has herself been injured is not necessary to establish the crime, may reveal local wounds and mutilations; or their absence, which, however, by no means goes to prove that violence may not have been inflicted; and, on the other hand, as in a case lately reported by the writer to the Boston Society for Medical Observation, traces of former violence in instrumental or other labors may remain, and to such an extent as to give to the touch every character of a recent and criminal interference.[116]The fœtus may showpre-existing and natural disease sufficient to account for the effect apparent, or may present the signs of direct and intentional interference. Recent scars of venesection on the arms and feet, and of leech-bites, especially on the upper and inner parts of the thighs, are suspicious in a patient who has aborted, unless they were evidently required by the state of her previous health. If signs of irritant injections into the vagina are present, they are ground for more than suspicion.
The instrument, where used, with which the operation has been performed, may sometimes be identified; though this is almost impossible unless by confession or direct testimony. The weapons resorted to by the unprofessional are various; knitting kneedles, pen handles, skewers, goose quills, pieces of whale-bone, and even curtain rods, are among the number. The finger alone, except where the uterus is prolapsed or can be depressed, and the os is very soft and patulous, is seldom if ever sufficient for the deed. If a physician be accused, it is important to notice with what instrument the crime is said to have been performed, if before witnesses, and whether it was introduced openly or under pretence of a digital examination.
The sensations of the patient at the time, are also in different cases unlike each other. In some instances nothing unusual is observed, in others a prick or probing, but in most an acute and tearing uterine pain, often followed by syncope or an hysterical attack. Slight but immediate hemorrhage generally occurs, save in professional cases, increased by compelled exercise, prolonged baths or ergot.
The time ensuing before the expulsion of the fœtus is an element not to be lost sight of. In 34 cases reported by Orfila, the minimum observed was 13½ hours, the maximum 6 days; in 36 cases by Tardieu, the minimum was 5 hours, the maximum 11 days. Of these last cases, however, 29 were within 4 days.
It cannot be alleged in excuse that the sex of the child, so fatal in advanced pregnancy, has any influence in producing early abortion. In 293 premature still-births reported by Collins,[117]146 were male and 147 female, bearing the proportion of 100 to 100. Nor can the plea of Drs. Gordon Smith, Good, Paris, and Copeland, that as a fœtus born before the seventh month has a slender chance of surviving, its murder should be viewed with leniency,[118]be allowed. Such arguments, that the perils anddangers to which the fœtus is naturally subjected should lessen the criminality of attempts at its destruction, are without foundation, and when advanced by physicians are utterly unworthy the profession.
We shall hereafter discuss the perpetrators of the crime, and the emergencies which can alone justify the induction of premature labor or obstetric abortion. We shall see that by none save medical men can such necessity ever be known; it is, therefore, apparent that the intent may frequently be judged from the relation of the parties implicated, and the excuses offered by them. It will also often appear from the other circumstances of the case. That the child was likely to be born a bastard, and to be chargeable to the reputed father, would be evidence to that effect; and proof of the clandestine manner in which the drugs were procured or administered would tend the same way.[119]
On the part of the mother, bastardy also, the having denied the existence of pregnancy, concealed its expelled product, expressed an intention or desire to abort, made a known application for this purpose, visited a notorious abortionist, taken alleged specifics, or given similar advice to a friend, are all presumptive evidence; as are also the having neglected to send for aid when needed, or refused to take precautions or remedies when prescribed. In like manner, evidence of criminal intent would seem apparent, if drugs generally supposed abortive had been advised or given to a pregnant woman, or violence of any kind usually productive of the effect in question, even to tooth-drawing, had been hastily or unnecessarily used.
Here, as in many other cases where no malice is expressed or openly indicated, the law will imply it; if, for instance, a man wilfully poisons another, in such a deliberate act the law presumes malice, though no particular enmity can be proved.[120]Malice is not confined in its legal definition to ill-will toward one or more individual persons, but is intended to denote an action flowing from any wicked or corrupt motive, a thing donemalo animo, where the fact has been attended with such circumstances as carry in them the plain indications of a heart regardless of social duty and fatally bent on mischief; and, therefore, it is implied from any deliberate or cruel act against another.[121]The rule is, that the implication of malice arises in every such case, and all the circumstances of accident,necessity, or infirmity are to be satisfactorily established by the party charged, unless they arise out of the evidence and attending circumstances; if they do not, there is nothing to rebut the natural presumption of malice. This rule is founded on the plain and obvious principle that a person must be presumed to intend to do that which he voluntarily and wilfully does in fact do, and that he must intend all the natural, probable, and usual consequences of his own act.[122]
The standing in society of the accused, unless notoriously bad, should of course be allowed to weigh but little; the less the likelihood of the crime, the greater, from example and previous education, its guilt.
If violent purging or vomiting have been resorted to without any apparent reason, or to a greater extent than ordinarily prescribed or required; or if leeches have been applied to the thighs, to the number of an hundred or more, as instanced by Tardieu, or the like, there is certainly ground for strong suspicion. And here it is that the criminal liability of careless or ignorant physicians becomes evident. In cases such as we have referred to, it would be very difficult for a successful defence to be offered, providing the pregnancy had been suspected by those not implicated, were the statutes on abortion properly drawn and enforced.
It has been ruled, and very justly, that attempts at the crime, though unsuccessful; or effective, yet the ovum retained as mole, hydatids, skeleton, mummy, or putrilage; and whether the woman be pregnant or not, and if pregnant, whether the child be alive, dead, or, abnormally developed or degenerated, should be amenable as though fully consummated.[123]We have seen the frequent difficulty in proving fœtal life; the attempt at its destruction shows the belief in its existence, and the intent. The proofs will here of course be of a different nature. The signs of delivery will be absent, and all evidence from the product of conception, unless the mother’s death ensue; in which event, as in the other fatal cases we have considered, and on the principle just laid down, procedure might be had on the charge either of abortion or homicide; but it must not be forgotten, as we early pointed out, that immediate death from the shock may occur, and no lesion of any kind be found. The patient or parties interested are proved by the attempt to have supposed pregnancy existing, and to have behaved as though this were the fact.
The age of the patient is not of consequence; nor is that of the fœtus, save as corresponding with the alleged period of pregnancy, in case any doubt exist as to its own identity or that of the mother, and as bearing on the statement we have already attempted to prove, that criminal abortionis comparatively rare after the period of quickening, and, therefore, on the probability of intent. The number of the pregnancy is also wholly immaterial, different as are the causes alleged for its criminal induction, and equally liable in youth and age, as women seem to be, to accident or placental disease. Whitehead and West are of opinion that abortion naturally resulting is most common after the sixth pregnancy,[124]but the point needs further investigation.
Among the proofs of intent must be included, as we have seen, the excuses offered by the accused or suspected party, and the means resorted to for consummation. These we now proceed to examine.
It will be evident that the plea of necessity can be made by none but a medical man. We shall show that the cases where abortion is legitimated by the rules of science are extremely few, and that for safety’s sake their applicability should in no instance be allowed to rest upon a single opinion.[125]For all others beside the physician there can be no allowable excuse except, in the mother’s case, insanity; which, however common in the true puerperal state, and often no doubt then showing itself by infanticide, has in early pregnancy, and to any extent, still to be observed. Other pleas as offered by the mother, ignorance of pregnancy or of fœtal life, duress, personal health or that of her family, accident, carelessness, fear of child-bed, malpractice on part of the attendant, we have already considered at sufficient length. It is sometimes effected in hatred of the husband or in jealousy, sometimes for concealment of shame; excuses of little more value than those of extravagance or fashion. Constitutional predisposition can hardly be asserted, unless the miscarriage have been preceded by others; very many ineffectual attempts are on record, although the existence of such predisposition was evident. It will often be alleged that the measures instituted were to prevent instead of to effect the miscarriage, and that this has resulted in consequence merely of an excess of good-will; the sophistry is generally apparent.
The means resorted to are for two purposes: on the one hand, to prepare the patient for the abortion and preliminarily to lessen her danger, or to conceal the character of those, on the other hand, which really occasion it, and for this end used prior or subsequently to them. We may yet take occasion to consider these several agents in some detail; it remains only to remark that their use in any given case must be compared with what was then actually needed, or would have been required had the abortion been justifiable and necessary.
Certain drugs, ergot and savin for instance, the class of so-called abortives, popularly considered specific, are always suggestive of evil intent. They would not be used, were abortion necessary, by a well-informed practitioner, caring for the life of the parent or fœtus. The same is true, though of course to a more limited extent, of all over-drugging, over-manipulation, or over-exertion by a pregnant woman, by whomsoever advised or performed. In every instance it is necessary to compare the cause alleged with the effects observed, and to judge of it from these. Where direct operative manœuvres are suspected or charged, the processes or instruments, the results, immediate and consecutive as well as remote, the period elapsing before their occurrence, must all be taken into careful consideration.
But, on the other hand, it is immaterial what was the agent, and whether or not it would produce abortion, if it was believed capable of this effect, and employed or administered with that intent. If the person charged knew that the woman was with child, and the probable effect of the agent administered, this is good presumptive evidence that the intent was to produce the miscarriage, and where the effect of abortion is actually thus produced, it will materially aid the presumption of such intent.[126]
It was stated early in this inquiry that a difference existed between the methods of investigation, as regards the examination of the fœtus, proper in abortion and infanticide. The reason of this has been pointed out by Tardieu.[127]In the latter case, the whole matter turning upon the questions whether the child was born living or dead, and in which of these states it was injured, it becomes necessary to prove one or the other of the alternatives, but in abortion they are intrinsically of no importance whatever. The only points then to be decided are, was the birth premature, and if so, was it intentional, and if so, was it absolutely essential and to save either maternal or fœtal life. Except as bearing on these questions, therefore, it is of no consequence whether wounds were inflicted, whether the lungs had been inflated, whether the fœtus was viable, or even whether it was ever discovered.
In their place, however, these points are each important, but only as bearing on the main facts to be determined. In a case, for instance, as that related by Ollivier d’Angers, where the fœtus, though very immature, lives several hours after its expulsion, this fact alone will preclude the idea of a slow and progressively acting cause like most forms of abortive disease, and will point to some direct interference, by means suddenly terminating the pregnancy without injuring the fœtus.
And so in other cases, especially of sudden maternal death, it is of importance to ascertain as nearly as possible the period at which death of the fœtus took place. If the two were coincident, the deduction might be other than if the latter were proved to have preceded the former by several days. The differences observed between putrefaction and decompositionin uteroand in the open air must not be lost sight of. In the one case, according to Orfila, Devergie and Martin, Moreau, P. Dubois, Danyau, Cazeaux, Tardieu, and my own experience, a uniform and characteristic reddish-brown hue obtains in proportion to the time of retention after death, varied perhaps by the action of the amniotic fluid;[128]the fœtus wrinkles, dries, and becomes mummified, unless in earliest pregnancy, when it generally resolves itself into a gelatinous mass.
If the cervix, the portion of the uterus most frequently wounded, is found punctured or lacerated, while the ovum is still retained, there is reason for suspicion; if the membranes are torn and extensively detached, while the cervix is but little dilated, such is increased; and it is made almost a certainty, if with the latter condition, nothing remain of the ovum in the uterine cavity but lacerated fragments. Here the abortion would probably not merely have been intentionally induced, but by the direct introduction and agency of instruments.
Wounds of the fœtus are much rarer than those of the mother, and are usually simple pricks of the skin marked by blackish coagula or extravasations; which, if upon the skull and unless care be used, are liable to be simulated by clots casually adhering to the hair or scalp. If the wound be deeper, its course may be traced by dissection. Its situation varies; Devergie thinking it always on the back and buttocks, while Tardieu, with some warmth, would restrict its location to the top of the cranium. This difference is easily explained by variations in the time of pregnancy, and in consequence partly, as may also depend on its life or death, in the presentation of the child. The rarity of their occurrence, though denied by Taylor[129]and other medical jurists, might, however, be expected, and is readily accounted for; the instruments used by ignorant persons seldom entering the os, however severely wounding the cervix, and where they do enter, usually only piercing the membranes; against which, except toward the end of pregnancy, in a deficiency of liquor amnii, or in labor, the fœtus can hardly be said to forcibly press.
Most of the points here involved having already been incidentally considered, we will not repeat them. The circumstances and history of the case, the relative correspondence of different testimony, the allegations of the accused, will all bear directly upon the question at issue.
In trials for abortion, of all others, the medical witness and the advocate should bear in mind their liability to error; the juror and the judge the fact that innocent persons are at times wrongly accused, often by the true criminals themselves.
In defence, it must either be pleaded that the alleged abortion did not occur, that it was accidental or natural, that it was necessitated, or that it was induced by another than the individual charged.
The first of these pleas is seldom offered except in the earliest months of pregnancy, and would be invalid if an attempt at the abortion could be proved. In default of this, however, where the ovum has been lost, or has passed unnoticed, the fact that the sanguineous effusion was hemorrhagic and attended with clots, would, in the absence of any uterine disease sufficient to account for this, be so far presumptive evidence; to be corroborated or not by the history of the case. Moles and hydatids are now generally allowed to be mere transformations of the product of conception; their premature discharge, therefore, equally an abortion.
In answer to the second plea, the importance of several points must be borne in mind. It has been well put by Tardieu that it is wrong to commence, as advised by most authorities on the subject, by enumerating all the natural and accidental causes liable to have produced the abortion. On the contrary, the signs and proofs of criminal violence should first be sought, and these compared with the allegations of witnesses and the possibility of a natural or accidental origin. The traces of falls, contusions, and wounds must be found, not believed on mere allegation; coincidences must be guarded against, equally with untruth.
We have already laid down rules here available; that the state of the fœtus often affords proof of the cause of its expulsion, this being slow and natural, and depending on disease and predisposition, or not; that in flagrant malpractice, the use of alleged specifics, or of measures likely to produce direct miscarriage, or otherwise absolutely counter-indicated by the general health and constitution of the patient, a contradiction exists to the plea offered, in itself strong presumptive evidence of criminal intent; and that in certain cases this evidence becomes positive, as where, for instance, a sponge found or proved to have been inserted into the osuteri as a dilating tent, is alleged to have been intended as a mere pessary and placed in the vagina.
If the accused be a physician, presumed as he should be, acquainted with the great principles of practice, his only plea can be, where the means used were unjustifiable and proved such, and where the pregnancy was known to others, that he was ignorant of its existence. Liable as the profession are at any time to this charge, and easy as it is in almost every case, especially of instrumental procedure, for us to take such preliminary measures as would be likely to settle the question of the existence of pregnancy, or to request the presence of a witness to our act, it is unjust to ourselves and to each other to omit these precautions.
But if, on the other hand, the charge be utterly unfounded, it is probable, as I have already remarked, that contradictions in the testimony or the alleged facts could always be shown to exist, and the perjury thus exposed. It would be self-evident, were the accused proved to have been first consulted after the abortion had terminated, though not if it had only commenced.