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Key Takeaways

  • Section 375 of the Indian Penal Code defines the offence of rape.
  • Section 53A of the CrPC contains provisions that state how the accused is examined in rape cases.
  • Section 164 of CrPC establishes the procedure for examining rape victims.
  • In Lillu @ Rajesh & Anr vs the State of Haryana, the Supreme Court ruled that the two-finger test is unscientific and infringes on a woman's right to privacy, physical and mental integrity, and dignity.
  • The Ministry of Health and Family Welfare, in 2014, issued guidelines and protocols for medico-legal care for sexual violence victims to supplement the procedure outlined in Section 164A.

Introduction

Rape is a significant issue in India. Official statistics and reports have evidenced the same. Often, the accused is not brought into Court, and no charges are filed, or the accused is found not guilty because the evidence is poorly collected. Rape is one of the most heinous sexual crimes, which generally refers to forced oral, anal, or vaginal penetration that is done against the will of or against the victim's consent, as well as being performed while the victim is intoxicated or disabled. The investigation and trial of criminal cases involving the charges of sexual assault or rape are greatly aided by the medical examination of rape victims and those believed to have been victims of sexual assault. There is a need for caution in performing a forensic examination of rape victims. The prosecution's decision will likely be based on the victim's medical examination.

Defining Rape

Section 375 of the Indian Penal Code defines rape.

It states that a man commits rape when he penetrates or manipulates any part of a woman's body to penetrate or manipulate his penis or any other object or body part into a woman's vagina, anus, or urethra or forces her to do so with him or anyone else. Even if he applies his mouth to a woman's vagina, anus, or urethra, or forces her to do so to him or another person under the following seven circumstances, he is said to have committed rape:

  • Against the will of the woman
  • Without her consent
  • With her consent, but only after threatening her or any other person she is interested in, with harm or death.
  • When she consents, believing that he is her lawfully married husband, but the man knows he isn't, she gives her consent.
  • With her consent if, at the time of giving such consent, she is unable to understand the nature and consequences of that to which she consents due to insanity or intoxication, or the administration by him personally or through another, of any stupefying or unwholesome substance.
  • When she is under the age of eighteen, with or without her consent.
  • When she is unable to give her consent.

The possibility of rape being committed against a male, transgender rape, or marital rape are not covered by Section 375. Sexual violence against a man is not considered rape but falls under unnatural offences, as defined by Section 377, IPC (now repealed).

The Supreme Court declared transgender people to be the third gender in the National Legal Services Authority v. Union of India. They are entitled to all of the Constitution's fundamental rights. However, while the Constitution accepts them, other laws, such as the IPC, are gender-specific to men and women and fail to consider other social classes.

Medical Examination and Its Need

In the investigation and trial of criminal cases involving sexual assault or rape, medical examinations of rape victims and suspected sexual assault victims are critical. A thorough medical examination includes a search for wounds, strangulation marks, or other signs of force. Medical tests like pregnancy tests, serologic tests for HIV, hepatitis, and syphilis are critical because rape victims may exhibit pregnancy symptoms, sexually transmitted diseases, genital or extragenital injuries, or even psychological symptoms.

If these tests are performed within a few hours of rape, they may reveal pre-existing infections rather than post-rape infections. Testing for alcohol or drug abuse is also essential because intoxication can discredit the victim in some cases. Victims of sexual assault should undergo a medical examination during criminal proceedings to increase the likelihood of identifying the offender. The medical reports are treated as evidence and are thus critical in determining whether or not the perpetrator of the rape has been apprehended.

The procedure of Medical Examination (Cr.P.C.)

The procedure for medical examination of the accused is laid out in Section 53 of the CrPC.

The examination of an accused person is warranted whenever the police have evidence that points to the commission of a crime, and there are sufficient grounds to believe that the examination of the accused person could lead to that evidence. The police can request a registered medical practitioner to conduct the examination. The sub-inspector or a person above that rank should direct the medical practitioner. Under the supervision of a female medical practitioner, the female accused can be examined.

Section 53A of the CrPC contains provisions that state how the accused is examined in rape cases.:

When a person is accused of rape or attempted rape, and there is reasonable cause to believe that the examination of the accused can provide evidence for the commission of the offence, it is legal for a registered medical practitioner of a government hospital or any local authority. If no one is present, an examination can be conducted by any registered doctor within a 16-kilometre radius of the crime scene at the request of a police officer not below the rank of sub-inspector.

The registered medical practitioner must conduct the examination as soon as possible and prepare a report for such a person that includes the following information:

  • The accused's name and age, as well as the name of the person who brought him in;
  • Any injury marks on the person and a description of the material taken from the person for DNA profiling or any other information.

Each conclusion reached in the report must be explained in detail. In addition, the report must include the start and end dates of the examination. The registered medical practitioner must send the report to the police officer as soon as possible. Under Section 173 of the CrPC, the police officer will then send the report to the Magistrate.

Medical Examination of a Rape Victim

Section 164 of CrPC establishes the procedure for examining rape victims:

Section 164A (1) - When it is proposed to have the woman, with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert during the investigation stage of rape or attempt to commit rape, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or local authority.

In the absence of such a practitioner, with the consent of such woman or a person competent to give such consent on her behalf, such woman shall be sent to such registered medical practitioner within twenty-four hours of receiving the information relating to the commission of such offence.

Section 164A (2) - The registered medical practitioner to whom such woman is sent shall examine her immediately and prepare a report of her examination, which shall include the following information:

  • The woman's name and address, as well as the name and address of the person who brought her;
  • The woman's age;
  • The description of the DNA profiling material taken from the person of the woman;
  • If there are any marks of injury on the woman's body;
  • The woman's general mental state, as well as other material details in reasonable detail.

The reasons for each conclusion reached must be stated in detail in the report. The report must expressly state that the woman's consent, or a person competent to act on her behalf, was obtained for the examination. The exact time of the examination's start and finish must also be noted in the report. The registered medical practitioner must immediately forward the report to the investigating officer, who will then forward it to the Magistrate referred to in Section 173, Cr.P.C. However, nothing in this Section makes it legal to examine without the woman's consent or the consent of a person authorised to act on her behalf.

The medical examination is mandated by Section 27(2) of the POCSO Act too. In the case of a female child, she also has the right to have her medical examination done by a female doctor.

Protocols laid by the Ministry of Health and Family Welfare

In 2014, the Ministry of Health and Family Welfare issued guidelines and protocols for medico-legal care for sexual violence victims to supplement the procedure outlined in Section 164A:

  • Basic information and consent: The medical examiner must note the victim's name, age, address, sex, and relationship to the person who brought the rape victim/survivor, as well as the victim's consent. Record of the patient's clothing, medical, and surgical history should be made.
  • The nature of the medical examination must be explained to the victim before obtaining the victim's consent. Only in life-threatening situations, as defined by Section 92 of the IPC, may the doctor proceed with the examination without the patient's consent.
  • Two marks of identification, such as moles, scars, or any other mark, must be recorded. It is also necessary to record the victim's menstrual and vaccination histories. Suppose the victim is menstruating at the time of the examination. In that case, a second examination will be required later to record the injuries clearly.
  • The medical examiner shall record the incident in the survivor's own words, which shall be admissible in Court. It is essential to note the name of the person who narrates the history.
  • Body temperature, pulse rate, blood pressure, pupil and any stain or semen mark on the victim's clothing should be examined and recorded. Examination of the entire body surface is to be conducted for injuries, fractures, nail abrasions, teeth bite marks, cuts, boils, lesions, discharge, weapon infection, or stains.
  • The external genital area and perineum are examined for signs of injury, seminal stains, stray pubic hair, and foreign material. Sample of pubic hair and matted pubic hair is taken and preserved.
  • A sterile speculum lubricated with warm saline/sterile water is used to examine the vagina for internal bleeding, bruises, or injuries. Minors with no visible injuries or signs of penetration do not require such examination. If a test is needed, it must be done under anaesthesia.
  • Examination and records of any injuries or swellings near the anus, anal opening, or oral cavity is to be made. If requested by the police, radiographs of the wrist, elbow, shoulders, dental examination, etc., should be collected for age estimation. A urine sample is further taken to test for pregnancy. A blood sample is taken to check for HIV, VDRL, and HbsAg.
  • The medical professional should document the findings, form an opinion, and sign the report after the examination. The survivor has a right to know about the information, so a copy of the report must be given to her. All evidence gathered during the examination, such as the woman's clothes, vaginal swabs, anal opening swabs, pubic hair sample, foreign material, nail scrapings, and swab sticks, must be placed in an envelope and handed over to the police or judicial Magistrate.

Two-Finger Test

The size of the vaginal introitus has no bearing on a case of sexual violence, and a per vaginum examination is not required to establish rape/sexual violence. The two-finger test is used to determine whether or not a woman's hymen is intact. It is based on the assumption that a female's hymen can only rupture during sexual intercourse. The method is unscientific, violates human rights, and has no bearing on determining whether or not rape was committed.

In Lillu @ Rajesh & Anr vs the State of Haryana, the Supreme Court ruled that the two-finger test is unscientific and infringes on a woman's right to privacy, physical and mental integrity, and dignity. Following the ruling, the Ministry of Health and Family Welfare issued guidelines in 2014 condemning the test and stating that it should not be performed. Various tests, such as those mentioned above, are used instead of the two-finger tests.

It is imperative to note that while carrying on the tests, the rights of the examined are kept intact. In the case Selvi v. State of Karnataka, 2004, the Court ruled that evidence gathered through medical examination and other techniques such as DNA profiling, brain mapping, and polygraph tests should be limited to incriminating the accused. Furthermore, the accused's right to privacy should not be violated.

Conclusion

Whenever a person is exposed to any form of sexual violence or abuse, they go through several emotions. They are in pain and also afraid. Hence, how a rape victim is treated is critical; police officers and doctors or medical practitioners must be gentle and cautious when dealing with rape victims. It must be ensured that all the tests conducted are done with the accused's consent, and the guidelines must be adhered to if possible. As the process of examinations is already tiring, it must be kept in mind that the officers, practitioners, while dealing with the victims, treat them with sheer care and not as mere patients.

As we live in the 21st century, the medical examination procedure for the victim should be changed in light of the current situation. To address recent concerns, improvements should be made to the government hospitals, which should be equipped with modern machines. Often, the offence is committed in a remote area, where immediate medical facilities are not available. Hence, improvements regarding the possibilities of the same must be made to ensure help and justice is given to the victim. These examinations are not only a matter of evidence to the Court, but they play a massive role in bringing justice to the victim. Therefore, this matter must be dealt with accordingly.


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