In Medical Examination of Rape Accused
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Unpublished working draft Not for circulation REVERED ‘ROUTINES’ IN MEDICAL EXAMINATION OF RAPE ACCUSED SHREYA SHREE Research Fellow, Centre for Constitutional Law, Policy and Governance National Law University, Delhi. 1 Unpublished working draft Not for circulation INTRODUCTION In the adjudication of rape,1 medical evidence does not play a “decisive role”.2 The victim’s testimony can be the ‘sole’ basis for convicting the accused, without corroboration from any other evidence.3 However, evidence obtained from the medical examination of the victim and the accused plays an important corroborative role, particularly for proving the penetrative act and establishing its link with the accused.4 The Code of Criminal Procedure, 19735 provides for the medical examination of the victim and the accused under Secs. 164A and 53A respectively, but does not detail the stages or mode of conducting such examination. In practice, the protocols for medical examination and collection of evidence, formulation of opinion, and its interpretation by the Courts are guided by the textbooks on medical jurisprudence.6 As the literature focussing on the medical examination of the victims elucidates, the prescriptions in these textbooks reinforce the patriarchal notions of chastity and stereotypes and myths around rape and rape victims.7 The examining doctor is re-imagined in the role of a “detective”, who can unmask false allegations of rape8 by tracing evidence on and inside the 1 In this paper, unless otherwise specified, the term ‘rape’ shall jointly refer to the offence under Sec. 375 and 376 of IPC (Indian Penal Code, 1860 (“IPC”)) and the offence of ‘penetrative sexual assault’ under Secs. 3 and 4 of (Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”)). The terms ‘victim’ and ‘accused’ should be understood accordingly. Further, ‘accused’ does not include non-male persons accused under POCSO Act. 2 Mahindra v. Sajjan Galfa, MANU/SC/0458/2017 (Supreme Court) (speaking in the context of offences against the body and post-mortems, the Court observed that medical evidence plays a ‘decisive’ role); But see Rao Harnarain Singh v. State, AIR 1958 Punj 123 (Punjab and Haryana High Court); Rafiq v. State of Uttar Pradesh, (1980) 4 SCC 262, at ¶ 5 (Supreme Court); Bharwada Bhoginbhai Hirjibhai, (1983) 3 SCC 17, at ¶11 (Supreme Court); Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204, at ¶23; State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, at ¶ 9 (Supreme Court). 3 Id. 4 Mrinal Satish, The Law and Practice of Rape Adjudication in India in DISCRETION, DISCRIMINATION AND RULE OF LAW 34, 45 (2016). 5 The Code of Criminal Procedure, 1973 (“Cr.P.C.”). 6 Durba Mitra and Mrinal Satish, Testing Chastity, Evidencing Rape: Impact of Medical Jurisprudence on Rape Adjudication in India, ECONOMIC AND POLITICAL WEEKLY 51, 52 (2014). 7 Elizabeth Kolsky, The Body Evidencing the Crime, 22 GENDER AND HISTORY 109 (2010); Krishna Vij, TEXTBOOK OF FORENSIC MEDICINE AND TOXICOLOGY: PRINCIPLES AND PRACTICE, 306 (6th edn., 2014) (“genital injuries […] may be the result of intercourse indulged-in with full consent and enthusiasm at the time, but becoming grounds for a delayed allegation of rape when euphoria of the incident is replaced by self-disgust due to societal or other reasons”). 8 See for instance, PARIKH’S TEXTBOOK OF MEDICAL JURISPRUDENCE, FORENSIC MEDICINE AND TOXICOLOGY, 389, 399 (B.V. Subrahmanyam, 7th edn., 2016) (2016 edition of the book carries a sub-section on ‘false accusations’, which reiterates the Hale warning. It lists ways in which false evidence of rape may be produced by lying victims such as bruises made using nut juice, blood stains using frog’s and fowl’s blood, and semen stains using egg albumin or starch); Mitra, supra note 6, at 53. 2 Unpublished working draft Not for circulation body of the victim, often through invasive procedures that violate her bodily integrity, privacy and dignity.9 In the courtroom, these textbooks are regarded as legal authorities10 to interpret the medical evidence and opinion. Thus, biased, unscientific and legally irrelevant evidence finds its way into the trial and has a significant impact on its outcome.11 To remedy this, the Ministry of Health and Family Welfare12 released the ‘Guidelines and Protocols on Medico-Legal Care for Survivors / Victims of Sexual Violence’ in 2014.13 The guidelines focus on informed consent, dignity and privacy of the victim, and her medical and psychological care. They provide a standardized protocol for medical examination and collection of forensic evidence, which is based on medical and crime history, in tune with the amended definition of rape under the IPC.14 It also provides a pro-forma for reporting the findings.15 The insensitive and irrelevant tests such as those concerning the hymen, built of the victim and past sexual history16 are expressly barred.17 9 Flavia Agnes, To Whom to Experts Testify? Ideological Challenges to Feminist Jurisprudence, 40 (18) ECONOMIC AND POLITICAL WEEKLY 1859 (2005); 10 Mitra, supra note 6, at 55. Recent decisions from the High Court highlight the crucial role played in adjudication of rape. Jaisingh P. Modi’s textbook remains the most cited. MODI: A TEXTBOOK OF MEDICAL JURISPRUDENCE AND TOXICOLOGY 674 (K.Kannan J. and K. Mathiharan eds., 24th edn., 2011). See for instance, Sancha Hang Limboo v. State of Sikkim, 2018 SCCOnline Sikk 10 (Gauhati High Court); Taraman Kami v. State of Sikkim, 2017 SCCOnLine Sikk189 (Gauhati High Court) (referred to Modi’s textbook to ascertain if a “woman can be violated during natural sleep”); Neeraj v. State of NCT of Delhi, 2017 SCCOnLine Del 12359 (Delhi High Court) (referred to the section on rape of grown up woman in ‘Taylor on Principles and Practices of Medical Jurisprudence’); Abhay Singh v. State of NCT of Delhi, 2017 SCCOnLine Del 9369 (Delhi High Court) (referred to Taylor on ‘Principles and Practices of Medical Jurisprudence’ for ascertaining the possibility of forcible intercourse without bruises). 11 See Pratiksha Baxi, Medicalisation of Consent and Falsity – The Figure of Habitue’ in Indian Rape Law, in PUBLIC SECRETS OF LAW, 61 (2014). 12 Note that as health is a State subject (Entry 6 of List II, Schedule VII, Constitution of India, 1950), the implementation of the guidelines has not been uniform. 13 Ministry of Health and Family Welfare, Guidelines and Protocols - Medico-Legal Care for Survivors / Victims of Sexual Violence (2014) available at https://mohfw.gov.in/sites/default/files/953522324.pdf (Last visited on 21 May 2018)(“2014 Guidelines”). 14 Criminal Law (Amendment) Act, 2013 (“2013 Act”) (Post the amendment, definition of rape was expanded to include non-penile-vaginal penetrative acts, such as digital penetration, cunnilingus and fellatio). 15 Medico-legal Examination Report of Sexual Violence in Guidelines and Protocols - Medico-Legal Care for Survivors / Victims of Sexual Violence (2014), 60 (“Proforma for Victims”). 16 Cl. (4) of 155, Indian Evidence Act, 1872 which allowed evidence of victim’s general immoral character for impeaching her testimony was omitted by Indian Evidence (Amendment) Act, 2002. Further, Secs. 53A and 146, Indian Evidence Act, 1872 expressly lay down that such evidence is not relevant for proving ‘consent’ or impeaching the creditworthiness of the victim. 17 Jagadeesh N., Medical Evidence in Examination of Rape / Sexual Assault Survivor in RECENT ADVANCES IN FORENSIC MEDICINE AND TOXICOLOGY: GOOD PRACTICE GUIDELINE AND CURRENT MEDICOLEGAL ISSUES, Vol. 2, 18, at 20 (Gautam Biswas ed., 2018). 3 Unpublished working draft Not for circulation On the other hand, medical examination of the accused has received scant attention. The Constitution guarantees the right to privacy, including bodily integrity, fair trial and protection against self-incrimination to the accused. However, these rights are not absolute and permissible limitations exist to balance them with the public interest in effective investigation and justice to the victim.18 Medical examination of the rape accused can be conducted without his consent and with use of reasonable force, if necessary.19 No standard guidelines exist for such medical examination.20 Existing literature indicates that examination of an accused is often conducted in a routine manner, without considering the “informative history” of the alleged act, and involves invasive tests and collection of samples having no relevance to the offence.21 However, it does not provide detailed accounts of the practices and procedures forming part of the medical examination of accused, nature of evidence collected, and its impact on the adjudication of rape and the rights of the accused. The protocols in the medical jurisprudence textbooks are dated and retain focus on penile-vaginal penetrative acts.22 This paper hopes to bridge this gap in the literature. The paper presents the findings of my empirical research23 on the characteristic elements of the practices in the medical examination of the accused, and assesses them in light of the constitutionally guaranteed rights of the accused and the need for efficient investigation of rape. It also highlights the way in which these practices reflect and reinforce the prevalent stereotypes and myths around rape. 18 See Aparna Chandra and Mrinal Satish, Criminal Law and the Constitution in THE OXFORD HANDBOOK OF THE INDIAN CONSTITUTION 794 (Sujit Choudhary et al eds., 2016). 19 Sec. 53A, Code of Criminal Procedure, 1973. 20 One of the participants of the empirical research informed that deliberations on a draft protocol for examination of accused were then ongoing with the Ministry of Health and Family Welfare. 21 See generally, Aloke Mazumder, Examining an Accused of Sexual Assault – Some Practical Aspects, INDIAN MEDICAL GAZETTE 329 (September 2013); Indrajit Khandekar, Relevance of Semen Collection of the Accused of Rape at the time of Forensic Medical Examination, 35 (3) JOURNAL OF INDIAN ACADEMY OF FORENSIC MEDICINE 200-201 (2013); U.K. Kulkarni et al, Relevance of Semen Sample in Sexual Assault Investigation, 4 (8) WORLD JOURNAL OF PHARMACY AND PHARMACEUTICAL SCIENCE 1608 (2015); Md.