In this article, Akshita Gopal discusses the laws relating to Medical examination of rape victims.
Medical examination of rape victims: What everyone should know
According to National Crime Records Bureau’s Crime report of 2016, total of 38,497 rape cases were reported in 2016, which means over 105 rapes in one day, i.e., almost four rapes in one hour, and these are only the number of cases reported, rest remains a scary mystery.
Merriam- Webster’s Dictionary of Law defines rape as, “unlawful sexual activity and usually sexual intercourse carried out forcibly or under threat of injury against the will usually of a female or with a person who is beneath a certain age or incapable of valid consent because of mental illness, mental deficiency, intoxication, unconsciousness, or deception.”
Punishment of Rape under the Indian Penal Code
Rape is the most heinous violence against an individual’s sexuality. It is an act which violates the autonomy over one’s body, it infringes the very private sphere over which an individual has absolute control. Section 375 of Indian Penal Code defines rape rather narrowly. It says,
“A man is said to commit “rape” if he-—
- penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
- inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
- manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of the body of such woman or makes her to do so with him or any other person; or
- applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:—
- Against her will
- Without her consent.
- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.
- With or without her consent, when she is under eighteen years of age.
- When she is unable to communicate consent.”
Section 375 eliminates the possibility of the offence of rape being committed against a male, transgender and marital rape. Sexual violence against a male shall not be constituted as an offence of rape, but would come under the purview of unnatural offences, section 377. In National Legal Services Authority v. Union of India, Supreme court identified transgender as the third gender and they are also entitled to the fundamental rights provided in the Constitution. But the irony is that on one hand where Constitution is accepting them, on the other hand other laws like IPC are gender specific to man and woman, and fails to consider other classes of the society.
The underlying notion of not treating marital rape as rape is that after marriage, wife is a property of husband, and he is “entitled” to have access to her body. But an act does not become “not rape” just because it happens with a woman carrying the tag of marriage. It is equally heinous and grave. Rape is not just a violent act against woman but it also violates the fundamental right of life and personal liberty and no relation between the victim and the wrongdoer could justify these violations. The definition given in IPC is indeed narrow and strongly reflects patriarchal roots.
Before discussing what you must know about the medical examination of rape victims/ survivors, let us briefly discuss the points you must know beforehand.
Medical examination of Rape victims
In case Bodhisattwa Gautam v. Subhra Chakraborty, Supreme Court said that rape is a crime against basic human rights and a violation of the victim’s most important fundamental right, namely, the right to life in Article 21. In Francis Coralie v. Union of Territory of Delhi, Supreme court said that the right to live is not just about animal existence. It does not limit itself to protection of limb and life; it is much more than this. It also means right to live with human dignity. Right to live with human dignity is the most basic element of right to life under article 21. An act of rape not just violate the one’s right of physical body, the person’s autonomy over body but also her dignity, mental stability. It is a crime against basic human rights.
It becomes more important and crucial that how a rape survivor is treated. The machineries like police and medical needs to be more gentle and careful while interacting with them. We shall now look into various guidelines, victims’ rights and obligations of the medical examiner.
State of Karnataka v. Manjanna
Prior to Supreme court’s judgement in 2000, the procedure for medical examination of rape victims was very lax. Doctors would proceed with the examination, only after the request of the police. Due to this, it became necessary for rape victims to file an FIR for getting a medical treatment. This attitude towards the rape victims was very unjust and unfair, because the doctors forgets about the intensity and heinousness of the offence and the human aspect, and only focuses upon the procedural aspect.
In the State of Karnataka v. Manjanna, said that medical examination of rape victims is a “medicolegal emergency.” It is the right of every victim and a duty of every hospital to medically examine the victim before filing of a legal complaint, and the hospital at the request of the victim, can afterwards file a complaint. A hospital may receive a victim of rape when victim voluntarily reports to the hospital, on requisition by the police or by the court.
2005 Amendment and Section 164A
Prior to the insertion of Section 164A by 2005 amendment in Cr.P.C., the position of the procedure was unclear. The questions like- whether a male or a female doctor should examine? To what extent the examination is to be done?- kept lingering.
Procedure for Medical Examination of Rape victims
Section 164A, Criminal Procedure Code says:
- The woman against whom the offence of rape has been committed shall be sent for medical examination within 24 hours of receiving the complaint
- The medical examination shall be conducted with the consent of the victim or with the consent of a competent person on her behalf
In Samira Kohli v. Dr. Prabha Manchanda and Another, Supreme Court held that the person giving the consent must be competent to give consent and it must be voluntary and based on adequate information provided by the doctor, like nature of the treatment, all the risks involved etc.
- Rape victim shall be examined by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner, by any other registered medical practitioner
- The medical examiner, to whom the woman is sent, shall examine without any delay and shall prepare a report containing following information:
- Consent of the woman or the person competent to give consent on her behalf
- exact time of commencement and completion of the examination
- Name and address of the woman and the person who brought her
- age of the woman
- the description of material taken from the person of the woman for DNA profiling
- marks of injury
- mental condition of the woman
- Any other information/ detail required
- Reasons for arriving at the conclusion from point e. -h.
- Consent is the key to proceed for further examination. If the consent is not obtained, the examination shall not be deemed to be lawful.
Guidelines and Protocols Issued by the Ministry of Health and Family Welfare for medico Legal care for the victims of sexual violence
To supplement the procedure laid in Section 164A, after the Nirbhaya case, Ministry of Health and Family Welfare in 2014 gave certain guidelines and protocols for medico legal care for the victims of sexual violence:
- Basic details and Consent: Medical examiner shall record the name, age, address, sex, name and relationship of the person who brought the rape victim/ survivor and the consent of the victim
- Before taking the consent of the victim, victim shall be informed of the nature of medical examination. Only in life threatening cases, the doctor may proceed with the examination without the consent as given in Section 92, IPC.
- Identification marks: Two marks of identification should also be recorded, for example moles, scars or any mark.
- Menstrual and vaccination history is to be recorded, and if the victim is menstruating at the time of the examination then a second examination is required on a later date in order to record the injuries clearly.
- History of incidence: Medical examiner shall record the history of the incidence in survivor’s own words, which shall have evidentiary value in court of law. If the history is narrated by a person other than the survivor, his/her name shall be noted.
- Details of the clothing, medical and surgical history should be recorded.
- General Physical examination: response to doctor’s questions, space and time awareness, pulse rate, blood pressure, temperature, pupil and stain or semen mark on the clothes of the victim should be examined and recorded.
- Examination of injuries: the entire body surface should be examined for any injuries, fractures, nail abrasions, teeth bite marks, cuts, boils, lesions, any discharge, weapon infection or stain on the body and shall be recorded with particular details of these injuries.
- Examination of genital parts and orifices: External genital area and Perineum is observed for evidence of injury, seminal stains, stray pubic hair, foreign material. Sample of pubic hair, and matted pubic hair is taken and preserved.
- Examination of vagina is done with the help of sterile speculum lubricated with warm saline/ sterile water to check the internal bleeding, bruises or any injuries. Such examination is not required in cases of minor where there are no signs of penetration or visible injuries. If at all the examination is required, it shall be done under the effect of anaesthesia.
- Two- Finger Test: Per vaginum examination must not be conducted for establishing rape/sexual violence and the size of the vaginal introitus has no bearing on a case of sexual violence. The guideline was given after the Supreme court’s judgement which held that the test is a violation of a woman’s right to privacy. The two finger test, is a way to determine whether the hymen of the woman is intact or not.it is based on the assumption that hymen can rupture only when a female undergoes sexual intercourse. The method is unscientific, against human rights and has no bearing on determination of commision of rape.
- Any injury, swelling, bleeding, discharge or stain near anus, anal opening and oral cavity should be examined and recorded.
- Collecting samples: if requested by police, radiographs of wrist, elbow, shoulders, dental examination etc. are be advised to be collected for age estimation.
- Urine sample: to determine the pregnancy
- Blood test: blood sample is collected for evidence of baseline HIV status, VDRL and HbsAg
- Post examination: After examination, medical practitioner should document the report, formulate opinion and sign the report. A copy of report must be given to the survivor, as it is her right to know about the information.
- All the evidences collected during the examination, like clothes of he woman, swabs from vagina, anal opening etc, pubic hair sample, foreign material, nail scrapings, swab sticks along with the report must be placed in an envelope and handed over to the police or judicial magistrate.
Doctors cannot do two-finger test
Two- Finger Test also called, per vaginum examination is a way to determine whether the hymen of the woman is intact or not.it is based on the assumption that hymen can rupture only when a female undergoes sexual intercourse. The method is unscientific, against human rights and has no bearing on determination of commision of rape. Supreme court in Lillu @ Rajesh & Anr vs State Of Haryana held that the two finger test is unscientific and it violates woman’s right to privacy, physical and mental integrity and dignity.
After the judgement, guidelines were passed by the Ministry of Health and Family Welfare in 2014 which also condemned the test, and said that it must not be performed. Instead of the two finger tests, various tests are performed which are discussed above.
Laws and their Enforcement
Guidelines are laid, provisions are amended in the interest of the victims, but what really is the ground reality? Not always the medical examination is conducted in accordance with the guidelines and policies. In a study conducted by an NGO “Partners for law in development” along with the Department of Justice, Ministry of Law and Justice and UNDP (United Nations Development Programme) showed that the victims, despite of the guidelines, were facing hurdles in filing of an FIR. The report also said that medical examinations were not carried out within the guidelines set by the Ministry of Health and Family Welfare such as consent is not formally taken, thumb impressions are taken much later, clothes of the victim not even connected with the crime were taken as evidences.
The guidelines of 2014 after the Nirbhaya case mandates doctor to be sensitive towards the victim while examining. But even after the guidelines of 2014 and Supreme court’s judgement in State of Karnataka v. Manjanna of 2000 which held two finger test in violation of women’s fundamental right, there are number of cases where such tests were performed. In one of the cases, the medical report said that the victim is habitual to sexual intercourse as her vagina easily admits two fingers.
Even after 2002 amendment which disallowed the defence to question the prosecutrix about her past sexual conduct for determination of commission of rape, still the two finger test pave way to the same thing. In Vinay Krishna Ghatak versus State of Rajasthan, Rajasthan High court held, “That the fact that the prosecutrix was an unmarried girl and she was habitual to intercourse further goes to show that she was a consenting party.”
Today, we are living in the 21st century, but still we are being pulled back by the harsh patriarchal, orthodox norms. Narrow provisions similar to “kachchi sadak”, i.e., weak roads, if not changed with the time will make us fall in the pit of patriarchy. At places, where guidelines and provisions are strong, their enforcement is poor. After the case of Nirbhaya, Ministry of Health and Family Welfare in 2014 gave certain guidelines and protocols for medico legal care for the victims of sexual violence, but very few states like Madhya Pradesh adopted them, and it is no wonder that even in those the condition is still vulnerable.
Today, it is required that we must stop seeing people through various filters of gender, race, caste etc, and treat them as a being, as an individual, who has basic human rights and need like any other person.