This article is written by Aarchie Chaturvedi, from the National University of Study and Research in Law, Ranchi. In this article, she discusses the violation of dignity and injustice that is faced by the survivors of sexual violence acts, the legal changes that were implemented to provide justice to sexual assault victims and suggestions for improving the conditions in the society.

Introduction

On paper, India has many progressive and supportive laws for women. These laws appear to be more reformist than the laws of many developed countries. However, in practice transgression of law takes place from the very grassroot level. The violation of laws at the most basal level, is actually, what should bother our collective conscience. Lack of education and understanding among the upholders of law, doctors and police officers often hinder the path of justice for the survivors. Not only can this lack of awareness stop the survivors from reporting, but even when the survivors might have decided to report of the crime, this deficiency of awareness can make them feel more traumatized and disempowered. All of this in total has led to an increase in the crime rate against women from 57.9% in 2017 to 58.8% in 2018  as per the data released by the National Crime Record Bureau (calculated on the basis of per lakh women population). The data released by NCRB also shows that approximately 47,139 cases were filed for investigation of rape in the year 2018 which means that an average of 3800 cases per month, 129 cases per day, and 5 cases per hour were filed.

In this article, we will be discussing the crime of rape, the provisions of the IPC relating to non-consensual sexual intercourse, the medical examination of rape victims, the ineffectiveness of the laws in place which leads to an increase in the number of crimes and some of the leading cases.

Understanding of non-consensual sexual intercourse provisions under the IPC

Section 354 of the IPC

Assaulting or using criminal force against a woman with the knowledge/intention of outraging the modesty of the woman would be punishable under Section 354 of the IPC with imprisonment of not less than one year (which can be extended to a period of five years) and shall also be liable to pay fine.

Section 354A of the IPC

Section 354A of IPC begins with the sub-section(1) stating that any man committing any of the below-mentioned acts:

(i) physical contact and advances comprising of unwelcome or explicit sexual overtures; or

(ii) demanding or requesting for sexual favours; or

(iii) showing of pornography to a woman against her wishes; or

(iv) making of sexually coloured remarks, shall be guilty of the offence of sexual harassment.

Sub-section (2) further states that any man committing a crime under the ambit of clause (i), (ii) & (iii) of the sub-section(1) shall be punished with rigorous imprisonment for a term which may extend to a period of three years or shall be liable to pay fine or both.

This is followed by the sub-section (3) of the IPC which states that any man who commits a crime as described under clause (iv) of the sub-section (1) shall be punishable with imprisonment (which may be extended to a period of one month) or with fine or both.

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Section 354B of the IPC

Section 354B states that anyone who tries to assault or tries to use criminal force against a woman, with the knowledge/intention to outrage her modesty, by disrobing her or compelling her to be naked, would be punishable with a imprisonment of not less than three years (which can also be extended to a period of seven years)  and would also be liable to pay fine.

The question that arises on reading these sections is what constitutes an outrage to female modesty. The clear cut answer to this question is provided nowhere. The sex of a woman is considered the essence of a woman’s modesty. The culpable intention of the accused is of utmost importance in these kinds of cases. The woman or the victim’s intention is also relevant but is not the only determining factor in these cases.  The word ‘modesty’ as used under this section, as an attribute, is also used to associate females as a class of human beings. It is an attribute attached to a woman owing to her sex. 

A leading case relating to these provisions is of Raju Pandurang Mahale v. State of Maharashtra.  

Facts

In this case, the victim was brought to the house of the co-accused by the accused and was intoxicated against her wishes. The accused thereafter disrobed her and clicked her nude photographs. 

Judgment

The accused was held liable by the Supreme Court under section 354 of the IPC as his acts amounted to insulting the normal sense of female decency. 

Section 375 of the IPC

A man is said to have committed rape under Section 375 of the IPC when he has sexual intercourse with a female under the following circumstances

Firstly – Against the will of the woman;

Secondly – Without her consent;

Thirdly – With her consent, however, putting her under the fear of death or hurt to her or any of the persons whose welfare she is concerned with;

Fourthly – With her consent, when she has given her consent to have sexual intercourse with a man whom she believes she is lawfully married to, however, the man knows that he is not her husband;

Fifthly – With her consent, when her consent is given due to unsoundness of mind or intoxication and the woman is unable to understand the nature and consequences of that to which she has  given consent;

Sixthly – With or without her consent, when she is under sixteen years of age;

Seventhly- When she is unable to communicate her consent.

This section is followed by an exception and an explanation. The explanation states that penetration is sufficient to constitute the sexual intercourse to the offence of rape. However, the exception to this section is that sexual intercourse by a man to his own wife when she is not under 15 years of age would not constitute the offence of rape. The offence of rape is said to have occurred when:

  • A man penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of the woman or makes the woman do so with him or some other person; or
  • Inserts to any extent, into the vagina, mouth, urethra or anus of the woman any object or a part of the body other than the penis of him or of some other person; or
  • Manipulates any part of the body of the woman so as to cause penetration into the vagina, urethra or anus or any other part of the body of such woman or makes the woman do so with him or any other person.

Section 375 wipes out the possibility of the offence of rape being committed against a male, transgender and marital rape. Sexual violence under these heads cannot be counted as rape but would be covered under Section 377 of the IPC under the head of unnatural offences.

The fundamental notion of not treating marital rape as rape is that after marriage woman is considered the chattel of the husband and he is entitled to have access over her body. According to this notion, the tag of a marital relationship justifies a man having sexual intercourse with his wife irrespective of her consent. The definition in IPC is quite narrow and justifies patriarchal roots. 

Section 376 of the IPC

Section 376 of IPC prescribes the punishment for rape. It states that imprisonment in cases of rape shall be of rigorous nature, not less than ten years (which can also be extended up to imprisonment for life). The punishment shall also be accompanied by a fine.

 

What is Virginity Testing?

People have different surreal ways of detecting whether a female is a virgin or not. This detection is usually done to separate “pure” females from “impure” females. Purity is decided on the basis of whether a female had sexual intercourse or not. If a female didn’t have sexual intercourse and is a virgin, then she is worthy of getting respect otherwise she is not considered worthy enough of being respected by the society. These tests are mainly done on unmarried females, often without consent or in situations where they are unable to give consent. Countries, where this practice has been reported, include Afghanistan, Bangladesh, Egypt, India, Indonesia, Iran, Jordan, Palestine, South Africa, Sri Lanka, Swaziland, Turkey, and Uganda. The reasons for the conduct of these tests vary from region to region. Certain communities in Swaziland and South Africa conduct these tests to prevent pre-marital sex and HIV disease. In India, this has been a part of the sexual assault assessment of rape victims. In Indonesia, this is a part of the selection process of the police force.

This test is done by the doctor when he inserts two fingers into the vagina of the victim. The test helps in determining laxity and the sexual activity of the victim i.e whether the victim is sexually active or not. This test would help in verifying whether the hymen is broken or not. Insertion of one finger with strain into the vagina shows that the victim is a virgin whereas easy or smooth insertion of two fingers in the vagina shows that the female is habituated to sexual activity.  The reports of these kinds of tests were usually submitted by the doctors to the lawyers who used them as evidence to defend their clients. The process as a whole is unjust for the women and is ethically wrong also. The process also has no scientific background and has also been completely discarded by the Ministry of Health and Family Welfare of the Government of India, in its guidelines and instructions for the victims of sexual violence. The reasons given by them for dumping this process are:

  • Vaginal introitus has no bearing in the cases of sexual violence;
  • The status/size of the hymen is of no proof as the hymen can be torn due to various reasons such as cycling, riding, etc;
  • An unbroken hymen does not rule out the probability of sexual violence and a torn hymen does not prove the sexual intercourse;
  • Per vaginum examination has a limitation as it can only be done on adult women.

Thus hymen should be regarded as any other part of the genital while documenting examination in cases of sexual violence and other episodes like bleeding, oedema should be documented properly.

It was the combined efforts of judiciary, activists, governmental and non-governmental organizations that have led us to the important steps forward in the process of delivery of justice. Let us discuss in detail some of the major amendments and changes in the various laws and statutes.

The Criminal Law (Amendment) Act of 1983

There were amendments in CrPC in 1983 related to what amounted to custodial rape, provisions for enhanced punishment for the offences under Section 376 of the IPC and the presumption of the absence of the consent in cases booked under Section 376 of the IPC. The changes in CrPC were done by bringing changes in Section 114A of the Indian Evidence Act. Thus, in cases of custodial rape or the rape of a pregnant woman or a gang rape if it is proved that the man had sexual intercourse with a woman and the question of consent arises, and the woman who is alleged to have been raped says that she did not consent to the act of that man, then the Court will presume that the woman didn’t consent.

This amendment tries to balance the gender inequities that are existing almost at every place like police stations, jails and other such stations where the victim is overpowered and it is extremely difficult to prove non-consensual sexual intercourse through the testimonies of the witnesses. By presuming the absence of the consent (under Section 114A of the IPC) and granting of enhanced punishment for custodial rape (under Section 376 of the IPC) the judiciary and the legislature is trying to identify and fill the loopholes in law, in order to prevent the miscarriage of justice and in order to ensure speedy and fair trial. One more dimension to this issue that the upholders of law should acknowledge, is the fact that even when a woman was subjected to sexual intercourse without her consent then also she might be suffering from few or no injuries.

The Supreme Court Judgement in 2000

Prior to the Supreme Court judgment in the case of State of Karnataka v/s Manjanna doctors examined the rape victims only after receiving a report from the police officer. The victims must then first gather the courage to file a complaint in the police station of the correct jurisdiction. This kind of procedure would lead to a delay in the process of administration of justice considering the social obstacles faced by the woman to come out in the open against the accused. Further, a woman is often shunned out or excluded from society after being the victim of sexual violence. Only after the delayed complaint by the victim, begins the process of investigation by the police which is followed by a requisition sent to a doctor at a government hospital to examine the rape victim. On many occasions, if without reporting at the police station a victim reaches the hospital then she is denied the medicolegal examination and the collection of medical evidence because the requirement of a prior requisition of a police officer is not furnished with. By the time medical requisition is collected, much of the medical evidence is lost or can not be collected. This results in the release of the accused in many cases as no solid proof can be obtained to convict him. 

In its 2000 judgment of State of Karnataka v/s Manjanna, the Supreme Court recognized the victim’s right to medical examination as a medicolegal emergency. The provision of registering a complaint first also changed and now the victim can approach a doctor for a medical examination or medical help even without registering a complaint in the police station. The doctor was also obliged to examine her now even without a requisition. There are three ways according to the judgment by which a doctor/hospital may receive a victim. They are 

  • When the victim voluntarily reports; or
  • When a requisition is made by the  police officer; or
  • When a requisition is made by the Court.

However, currently, the scenario is that as many doctors are not aware of these amendments in the existing laws, they still insist on requisition by the police officer before examining the victim.

Indian Evidence (Amendment)  Act of 2002

Section 155 of the Indian Evidence Act, 2002 earlier allowed the defense lawyer to confront the victim by presenting the argument that she has an immoral character. This confrontation in the name of legality allowed the defense lawyer to question her on her previous sexual acts,  her personal life, and other private matters. The amendment act in 2002 deleted Section 155 of the Indian Evidence Act and added a provision under Section 146 of the Indian Evidence Act.

According to the new provision the defense lawyer was barred from asking questions to the prosecutrix related to her general moral character. This paved the way for an end on to the unwarranted questions to the victim regarding her previous sexual activity.

However, a doctor conducting an examination on the victim requires information about her previous sexual activity, intercourse, and sexual practices. This is to correctly interpret the physical and genital findings. The findings of a forceful sexual act on a virgin would be different from a person who has experienced sexual intercourse in the past. So it is the duty of the doctor now to properly inform the victim of the purpose of the findings, the effect of such findings and how the findings will help her in getting justice. A victim must also be explained the amendments of Section 155 of the Indian Evidence Act. Otherwise, the victim would be hesitant to part with this crucial information as she would fear that this information will be used by the defense lawyer in the case to character assassinate her.

The Code of Criminal Procedure (Amendment) Act of 2005

For the liberal interpretation of Section 53 of the CrPC, it became necessary that a rape victim should be examined by a woman doctor only. This was done with the thought that the victim would be safer in the hands of a woman doctor. But it was sooner realized that there were fewer number of woman doctors in the workforce of doctors (especially in the rural hospitals) and their workload with maternity services often resulted in delaying the medical examination of the rape victims. Even if a doctor was available their busy schedule forced them to have only a cursory look at the victim and that resulted in an improper and incorrect collection of evidence. As earlier there was no specified law in these regards there was a lot of confusion regarding to who will ultimately examine a victim : a male doctor or a female doctor, and what will be the extent of that examination. 

The CrPC Amendment Act of 2005 brought about specific sections related to

Section 164(A) CrPC explains the legal requirements for the medical examination of rape victims.

  • One of the main elements is the consent of the victim for the conduct of the examination on her. This is an important step and should be a part of the procedure.
  • The examination should be conducted by medical practitioners (who are allopathic doctors registered under the Medical Council of India) in a hospital run by the government or by the local authority. If such a practitioner is absent then the examination should be conducted by any other registered medical practitioner. This provision would help in granting permission to any practitioner to carry out the examination if the victim consents.
  • The examination should be conducted within 24 hours of the police receiving information about such an incident.
  • The examination should be conducted duly and a comprehensive and a “reasoned” report must be prepared. The report must contain the victim’s name, age, address, the details of the person by whom she was brought, the description of the materials collected from the victim for the DNA profiling, marks of injury if any, the victim’s mental condition, the exact time of the commencement and the completion of the examination. The report must also state the reasons for each conclusion that is drawn after examining the victims. Also, without delay, it must be forwarded to the investigating officer who in turn shall transfer it to the concerned magistrate.

Section 164A(7) of CrPC explicitly states that nothing else should be considered as reasonable enough for conducting the medical examination on the victim if she (or any other person legally entitled to do so on her behalf) has not given the consent for the same. It tries to make it clear that no examination should not be conducted on the victim forcefully without her consent. On reading the section closely, one finds out that this section even grants the right to the victim to not consent to any sort of partial examination being conducted on her.

In cases where the victim reports to the hospital on her own, without informing the police, the law gives the victim the right to decide whether she wants to inform the police or not. Even Section 39 of the CrPC that allows the public to give information in certain offences also does not enumerate Section 375 and Section 376 of the IPC. 

In these cases, it must also be made clear that for how long the hospitals should be without such information or evidence. For this, it is also essential to ensure the hospitals are equipped for doing so.

Section 53(A) CrPC lays down the requirements for the medical examination of a person accused of rape. There was no law earlier whether age proof was required, whether to check the potency was sufficient or not, whether evidence of injuries, stains or DNA samples was required to be collected or not. The answer to this confusion is now provided in this section as to what must be done. The medical examination is to be carried out by medical practitioners who are allopathic doctors registered under the Medical Council of India) in a hospital run by the government or the local authority. In the absence of such a practitioner within a radius of 16km from where the offence has been committed, the examination can be conducted by any registered medical practitioner on the request of the police officer, not below the rank of the sub-inspector.

By this, it is comprehensible that the law wants the medical examination of the accused also to be conducted as soon as possible. The medical examination of the accused should be carried out in as smooth a manner as provided for the examination of the victim.

Section 176 CrPC had amendments regarding the inquiry by the magistrate into the cause of death in custody. Section 1(A) was added under which after an inquiry by the police, an inquiry shall be conducted by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction the offence had been committed.

According to Section 1(A), the cases under which such power is provided to the Magistrate should fall under the ambit of clause (i) or clause (ii) of sub-section (3) of Section 174 of the CrPC.

The amendment now requires a judicial magistrate to investigate all cases of rape and death in custody.

The Code of Criminal Procedure (Amendment) Act of 2008

Many women do not want to register a complaint in the police station because of the clumsy procedure it involves and the uncordial or uncooperative atmosphere of the police stations. 

A woman has to narrate her story of trauma and pain mostly to a male police officer which is yet another awkward situation for her. There are unreasonable delays in the whole process. A victim has to narrate her traumatic experience in open courts again and again in front of people who view her testimony with suspicion. She has to stand through all the open court long trials. She feels psychologically harassed because of the whole process. In many cases, it is also seen that after all this process due to the unavailability of sufficient evidence, the accused is acquitted and no relief is provided to the victim. After looking into all these issues amendments were done in CrPC in 2008 which came into effect in 2009.

A provision had been added to Section 157 of the CrPC which describes the procedure related to the investigation that must be followed. The investigation of the victim shall be done at the residence of the victim or any other place of her choice in the presence of her parents, guardian or any social worker of the locality.

The amendment in Section 173 CrPC requires a child’s examination for rape to be conducted within three months of the time when the complaint was registered with the police. Also when an investigation is forwarded to the magistrate it must contain a complaint that should be related to Sections 376,376A, 376B, 376C and 376D of the IPC.

The amendment to Section 309 CrPC has the additional provision that the examination or investigation of anyone under the sections of the IPC mentioned above should be completed within a period of two months from the time of the commencement of the examination of the witnesses.

The 2008 amendment to Section 327 CrPC allows an in-camera trial to be conducted and as far as possible by a woman police officer or magistrate. This section also partially lifts the ban on the printing or publishing of the proceedings in relation to the offence of rape, subject to maintaining confidentiality with respect to names and addresses of the parties.

There is yet another amendment in CrPC in Section 357(A) CrPC in relation to introducing a Victim Compensation Scheme. When a recommendation from the Court will be received, the state legal services authority or district legal services authority will decide on the quantum of compensation. There is also a provision for relief after inquiry by the state or district legal service authority in those cases where no trial takes place as it becomes impossible to trace or identify the accused.

Though the formal proceedings have to still be carried out, this amendment proves to be a progressive step. This amendment recognizes the monetary help that is needed for rehabilitation for the already shattered and devastated rape victim. 

Right to Privacy in the context of two-finger test

An appeal of an accused who was convicted by the trial court for the rape of the girl was heard by a Bench of the High Court comprising of Justice B S Chauhan and Justice F M I Kalifulla in 2002. The High Court upheld the conviction order given by the lower court. The counsel for the accused presented the argument that the girl was 17/18 years of age (though there wasn’t any evidence about the same; like a birth certificate) and also the reports of the doctor acted as a proof that there wasn’t any external injury on the body of the girl so, therefore, it meant that the girl had consented to the sexual activity and there wasn’t any type of force that was enacted upon her. However, the High Court referred to various cases and petitions and declined the request of the accused on the grounds that the two-finger test conducted on the girl violated her right to privacy, dignity and mental integrity. Also, the Bench presented its view that the consent given for sex cannot be established just on the basis of the two-finger test. Despite the fact that the woman’s virginity status has no role to play while medically examining her, the test still continues.

After such a brutal and heinous act, the women/girl must be protected & rehabilitated. Nevertheless, when tests like these are carried out it will be like more of a re-rape to the victim which will harm her Right to Privacy. The World Health Organisation also suggested that examination of women after rape should be minimally invasive and has also advised that any sort of medical examination is hardly necessary to be carried out on a sexual assault survivor.

The Supreme Court in 2013, in the case of [email protected] and Anr v. State of Haryana (2013), held that the two-finger test must not be practiced as it was unconstitutional and the previous sexual experience of the victim should not be taken into account or consideration while determining the consent or the quality of the consent given by the victim. The Supreme Court has described opinions based on the two-finger test as hypothetical and opinionative. In the year 2014, the Union health ministry framed new guidelines for treating the rape victims. Under the purview of those guidelines, every hospital was expected to have a separate room for the medical and forensic examination of the victim. These guidelines also outlawed the two-finger test conducted on the victims terming it to be unscientific. 

The Department of Health Research (DHR) along with the Indian Council of Medical Research (ICMR) also prepared national guidelines for controlling criminal assault cases,  which will put an end to the horrendous medical procedure which the victims are subjected to, after suffering from sexual abuse. 

We must, however, always bear in our mind that it was not an easy journey reaching over here. It took us a long time for the realization of the fact that rape is a stigmatized crime. The survivors face a lot of humiliation and discrimination within their homes, office/ workplace and therefore the doctor at such a point of time, or rather at the most vulnerable situation of the victim can be of great help or support. 

Suggestions

One of the main functions of the Government of India, (as it is a part of several international treaties) is to make the Government follow all the methods and the procedures and make the criminal justice process respect the survivor’s or victim’s’ dignity, integrity, physical and mental aspects.

Some suggestions to boost the whole process can be-

  • Hospitals should be using rape kits for the forensic examination which must comprise of bags, paper sheets for evidence collection, combs, documentation forms, envelopes, materials for blood sample collection, instructions, etc.
  • Every police station should have a sexual assault cell taking into account the increasing number of sexual crimes happening every day. A special team must be made including female doctors, female officers, and attendants. 
  • Doctors must not comment on the sexual history of the girl. 
  • Trial courts must not accept any view regarding the fact that whether the victim is habituated to sex or not.
  • The forensics test must be conducted by the female doctor and if it is conducted by the male doctor then it must be carried out in the presence of a female nurse.
  • In India, only Delhi and a few other states have amended the procedures. The rest of the states still follow the old techniques for examination.  Therefore there is a need for a strict law that uniformly applies all over the country and acts as a regulating measure.
  • There must be a strict implementation of the recommendation of the Justice Verma Committee about two-finger tests and regarding the collection of evidence. (The Committee has directed the discontinuation of the Two-Finger Test to find out whether the hymen is distensible because the process is hampering the right to privacy of the victim.)
  • There must be proper counseling of the victim who suffered such a brutal act and her future habits, behavior pattern should be recorded so as to give the victim better treatment for improving her health and mental condition.
  • Rehabilitation should be considered as one of the important processes so as to help the victim come out of the mental pain and trauma she just suffered.

Conclusion

Though much needs to be done for the sexual assault victims, some changes and amendments in the law in the past three decades have brought in hope for justice and fair treatment. With the help of various judicial and legislative actions there is a transformation in the process of investigation by the officers and doctors. Changes are also made in the procedure of trial and rehabilitation in cases of sexual assault. Rape is an odious, inhuman act which disrupts the purity of the society.  A test like the Two-Finger test is yet another inhuman and irrational process that attacks the right to privacy and is a serious blow to the mental, physical and ethical conditions of the victim. The test should be condemned and should be strictly prohibited by enacting amended laws that apply uniformly throughout the country.

References


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