The crime of rape is a major problem in India, evident from the reports in the press as well as official statistics. The accused has often gone free, because the victim did not file a complaint, or because of poor evidence gathering and well as lacunae in the law. Expert opinion in such cases is important to ascertain the cause of death, injuries, whether the injuries are anti-mortem or post – mortem, the probable weapon used, the effect of injuries, medicines, poisons, the consequences of wounds whether they are sufficient in the ordinary course of nature to cause death, the duration of injuries and the probable time of death.
There are provisions and judgments dealing with the examination of the rape victim. Forensic Science plays an important role in helping to prevent, early detection, providing expert medico legal and scientific reports at earliest, which will result in quick trial and instant administration of justice to victims. This paper presents an overview of the laws applicable to sexual assault cases, specifically in terms of the roles and responsibilities of healthcare providers to bridge the gap in providing medical evidence to the courts. This paper also discusses the importance of conducting an examination, its procedure, role of consent, and the lacunas in the Medico-Legal services.
Keywords: Medico-Legal, Rape, Crime, Medical Examination, Medical Report.
Sexual Offences: A Medico Legal Aspect
According to NCRB data 2018, a rape is reported every 15 minutes in India. Women reported 34,000 rape cases in 2018 of which only 27% led to convictions, according to annual crime report released by the Ministry of Home Affairs.
However, the concerted efforts of the courts, the legislature, the Law Commission of India, non-governmental organisations and women’s activists have led to important steps forward in the delivery of justice to victims of rape. Amendments in the law have been made in both factual and procedural details. Further, changes have been made regarding the legal obligations of medical personnel and other healthcare providers in response to a case of sexual assault.
Whenever a man penetrates or does sexual intercourse with a woman without her consent or will it amounts to rape.[1] Section 354 of IPC criminalises any act by a person that assaults or uses criminal force against a woman with an intention or knowledge that it will outrage her modesty.[2] Section 354A of IPC defines Sexual Harassment.[3] Rape can result into various extra genital injuries, psychological symptoms, STDs, pregnancy etc. Such incidents can leave psychological impacts on the mind of the victim such as sleep problems, anger, guilt etc.
Section 53(5) of the CrPC talks about examination of a female victim, which should be done by or under the supervision of a female doctor.[4] Section 53A of the CrPC provides for a detailed medical examination of a person accused of an offence of rape or an attempt to commit rape.[5] It sets down the requirements of medical examination of a person accused of rape. Before this amendment, there was no such law that gave the details regarding a medical examination. The explanation to this section now clearly states what must be included in a medical examination.
A detailed medical examination is to be carried out by a registered medical practitioner (only allopathic doctors registered under the MCI) employed in a hospital run by government or local authority – and in the absence of such a practitioner within the radius of 16 km from the place where the offence has been committed, by any registered medical practitioner acting on the request of a police officer not below the rank of a sub inspector. By this, it is clear that the law recognises the need for an immediate medical examination of the person accused of rape.
The medical examination should be carried out without any delay and a “reasoned” report be prepared recording the name and address of the accused, the person by whom he was brought, the age of the accused, marks of injury if any, a description of materials collected from the accused for DNA profiling, other material particulars in reasonable detail, and the exact time of commencement and completion of examination. The law mandates that the report should state the reasons for each conclusion arrived and this report should be forwarded without any delay to the investigating officer who in turn shall forward it to the magistrate concerned.
Section 164(A) CrPC explains the legal requirements for medical examination of a victim of rape.[6] One of the main elements of this is that the consent of the victim is mandatory and should be part of the report. It provides for a medical examination of the victim of rape by a registered medical practitioner. It also provides that when no woman doctor is available, there is no bar against a male doctor carrying out the examination, if the victim consents. Though getting the examination done by a woman doctor is ideal, the law does not mandate it, keeping in mind that a medical examination should not be postponed because of an extreme situation such as the want of a female doctor. The same section mandates that a medical examination must be carried out within 24 hours of the police receiving information, thus recognising this as a medico legal emergency and putting a timeframe for the investigating officer.
In the landmark judgment of State of Karnataka v. Manjanna[7], the Supreme Court recognised that the rape victim’s need for a medical examination constituted a “medicolegal emergency”. Second, it was also the right of the victim of rape to approach medical services first before legally registering a complaint in a police station. The hospital was obliged to examine her right away; they could always subsequently initiate a police complaint on the request of the victim. As a result, of this landmark judgment, the doctor or hospital is now required to examine a victim of rape if she reports to the hospital directly, and voluntarily, without a police requisition. The judgment also recognises the three ways by which a hospital may receive a victim of rape: voluntary reporting by the victim; reporting on requisition by the police, and reporting on requisition by the Court.
Additionally recent laws related to sexual violence namely ‘Protection of Children from Sexual Offences, 2012’ and ‘Criminal Law Amendment to Rape, 2013’ specify dual roles for health professionals; therapeutic and medico legal in relation to survivors of sexual violence. Both laws emphasize on the fact that sexual violence must be considered, as a medico legal emergency and immediate care must be offered to survivors irrespective of whether the health facility is a government one or a private one.
In 2014, Ministry of Health and Family Welfare issued guidelines for medico legal care for the victims of sexual violence such as recording of basic details and consent, identification marks, menstrual and vaccination history, general physical examination, urine and blood sample. It also laid down that two-finger test must not be performed as it is unscientific.
In landmark judgment of Delhi Commission of Women v. Delhi Police[8], mandated certain changes in the police system, health services, child welfare committees, legal services and support services in order to give justice to victims of rape. The court pronounced that a SAFE Kit (Sexual Assault Forensic Evidence collection kit) be used by all medical personnel for gathering and preserving physical evidence following sexual assault.
Conclusion:
Medico legal evidence has been considered an important component in the prosecution of crimes, especially those related to sexual violence. The courts heavily rely upon it. However, it is important to understand that forensic science itself is a new and emerging discipline. No forensic method has rigorously been able to demonstrate a definitive connection between a specific individual and a sample or source. So special precaution should be taken and care, emphasis should be laid on section 53 CrPC and 164A CrPC.
References:
1. Sangeeta Rege, Medico Legal Aspects of Sexual Violence: Impact on Court Judgments, JFRA, Nov 2017.
2. Yuvraj Dilip, Medico-Legal System in Sexual Assault Cases in India, JKIMU, pp. 151-154, July 2013.
3. N Jagadeesh, Legal Changes Towards Justice for Sexual Assault Victims, IJME, 2010.
4. Dr. Shankar M Bakkannavar, Recent Changes in Medical Examination of Sexual Violence Cases, JKMLS, June 2014.
5. Padma Bhate, Moving from Evidence to Care: Ethical Responsibility of Health Professionals in Responding to Sexual Assault, IJME, 2013.
6. S Contractor, Responding to Sexual Assault: A Study of Practices of Health Professionals in a Public Hospital, CEHAT, 2011
7. Establishing a Comprehensive Health Sector Response to Sexual Assault, CEHAT, 2012, Retrieved on 24th March 2020
http://www.cehat.org/go/uploads/Publications/R87%20Establishing%20a%20Comprehensive%20Health%20Sector%20Response%20to%20Sexual%20Assault.pdf
8. J Dumont, The Uses of Impact of Medico Legal Evidence in Sexual Assault, JFRA, 2007.
9. Antonia Quadara, The role of Forensic Medical Evidence in the Prosecution of Adult Sexual Assault, AIFS, July 2013.
10. Janice Du Mont & Deborah White, The Uses and Impacts of Medico-Legal Evidence in Sexual Assault Cases: A Global Review, Sexual Violence Research Initiative, 2007, Retrieved on 24th March 2020
https://apps.who.int/iris/bitstream/handle/10665/43795/9789241596046_eng.pdf;jsessionid=8E578968F1C6D529F3544AEF300B3C9C?sequence=1
11. T.K. Naidu, Medico Legal Aspects of Crime Against Women, JIAFM, 2006.
12. S. Zerbo, Medico Legal Procedures Related to Sexual Assault: A 10 Year Retrospective Experience of a Daphne Protocol Application, EJFR, 2018.
13. Karin Helweg-Larsen, The Value of the Medico-Legal Examination in Sexual Offences, FSI, Vol. 27, pp. 145-155, March 1985.
14. Strengthening the Medico- Legal Response to Sexual Violence, UNODC, WHO, Retrieved on 24th March 2020
https://www.unodc.org/documents/publications/WHO_RHR_15.24_eng.pdf
15. MK Khan, Doctors and Medico Legal Examination of Victims of Sexual Offences, IJFP, June 2015.
16. Suraj Sundaragiri, Medico-Legal Cases Need A More Professional Approach, JIAFM, Vol.37, September 2015.
17. Dr. J.N. Reddy, Medical Examination of Survivors/Victims of Sexual Violence: A Handbook for Medical Officers, VIMS, 2017.
End Notes
[1] Section 375, Indian Penal Code, 1860.
[2] Section 354, Indian Penal Code, 1860.
[3] Section 354A, Indian Penal Code, 1860.
[4] Section 53(5), Criminal Procedure Code, 1974.
[5] Section 53A, Criminal Procedure Code, 1974.
[6] Section 164A, Criminal Procedure Code, 1974.
[7] State of Karnataka v. Manjanna, 2000 SC Crl 1031.
[8] Delhi Commission of Women v. Delhi Police, W.P. (Crl) 696/2008.
Author Details: Niharika Tanwar (Symbiosis Law School, Pune)
