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What is Meant by “Penetration However Slight?”

By Attorney Elisabeth K.H. Pasqualini, Criminal Defense Lawyer for Sexual Abuse Crimes, Harrisburg, PA

There are many crimes in Pennsylvania and throughout the United States that require “penetration however slight.”  These crimes, such as rape, involuntary deviate sexual intercourse, aggravated indecent assault and statutory sexual assault all require that some object, whether it be a penis in some cases or just an object, like a finger in others “penetrate” the victim’s sex organ.  Penetration in Pennsylvania means that some foreign object penetrates the female victim’s genitalia, which may just be the outside of the vagina, such as the labia majora.  It is sufficient for a finding of guilt that the defendant’s penis, finger or a foreign object– depending on the crime– penetrate, however slightly, the victim’s female sex organ.

The Myth of the Virgo Intacta

It was not that long ago in the 1990’s that leading doctors, gynecologists, pediatricians and rape nurses all testified at trial that because a female victim’s hymen (the innermost layer covering the opening to the vagina) was broken or torn, it meant that penetration had occurred.  I recall that the Children’s Resource Center doctors in Harrisburg and elsewhere all reported these prognostications as if they were provided to Moses atop Mount Sinai.  “It is torn, therefore her story is true.”  The masses roared and the accused were punished as if they had spit nickels in the days of Salem Witch Trials.  All bunkTrash, garbage, total crap.

Today, the very same doctors from the very same places have now come to a different understanding or scientific perspective.  That is, the hymen, from the time of birth to the time of adolescence erodes.  It is worn away.  Tears may appear naturally and without actually having the defendant’s forced penetration however slight.  It’s worn away by washing, walking, athletics, self-exploration and masturbation, to name a few.  These doctors will now say that the mere appearance of an intact hymen does not provide any proof that the victim’s explanation of events is not true.  Whereas before, they would say, “well, she said he penetrated her and I found a ‘cleft’ or tear, so it’s medically true.”

This is but another area of science and medicine that has evolved over the years.  For instance, the area of infant rib fractures, shaken baby syndrome and retinal hemorrhages have all changed significantly since original observances years earlier.  A medical diagnosis should never equate to a clinical finding of guilt.  Science is constantly subject to further proof, testing and new methods of determining outcomes.  The prosecution paradigm of “well our doctor says it’s true” should never be regarded as a death blow to a defense.  It’s important to contact an experienced attorney in these instances

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