by Ayani Srivastava and Priyattama Bhanj
This is the first of a two part series by the authors discussing the changes in the legal system which need to be made in order to ensure that rape laws do not remain ineffective in providing any security and protection to the rape victims. Part I deals with the importance of medical evidence and how in the existing system the role of the same is flawed for more than one reasons.
The 2012 Delhi gang rape case ignited extensive national and international reportage, culminating in a clarion call for reform in rape laws. There were widespread public protests all over India against the Government for having failed in its responsibility of providing adequate security for women. However, all these protests ultimately watered down to a demand to hang the perpetrators of the heinous crime. Many have argued that the death penalty is a simplistic solution to a problem that is deep-rooted in the echelons of society. It is a mechanism for blame allocation, but cannot result in a solution to the increasing number of rapes in India. This write-up does not intend to go into the feasibility or efficacy of death penalty or chemical castration as a punishment for rape. The authors argue that the demand for making the punishment for rape harsher has subverted some fundamental questions regarding rape and the treatment meted out to rape victims. This write-up intends to highlight pertinent issues such as secondary victimisation, procurement of forensic evidence and investigative techniques adopted by the law enforcement agencies.
Though the possibility of using immoral character of the prosecutrix in a rape case as a defence is no longer available, secondary victimisation in rape cases is quite prevalent. Secondary victimisation or as it is referred to “re-rape” in popular culture consists of a chain of events wherein the rape victim is further brutalised by the State. Different agencies like the police, doctors, the lawyers and then finally, the judiciary scrutinise the victim through their own prisms of pre-conceived notions and chauvinisms. Before the filing of charge sheet, the victim is often subjected to insensitive and derisive questioning by the police. She is often rebuked on how she was attired. The victim then has to undergo the “two finger test” to determine vaginal laxity. During trial, basing their claims on the findings of “medical examinations”, defence lawyers proceed to ask the victims irrelevant questions in order to establish the “character” of the victim. Judges too have been known to base their judgements on the perceived “character” of the victim.
Various reports, including the recently concluded Justice Verma Committee Report, have made numerous recommendations to humanise the criminal justice system. All these reports unanimously advocate abolition of the two-finger test. The Supreme Court of India on various occasions has reinforced the need to do away with this test. Devised in the 1800s by French medical jurist L. Thoinot, the test is employed to determine the elasticity of a woman’s vagina, which further indicates whether or not she is habituated to sexual intercourse. Apart from being extremely degrading and violative of the privacy of the victim, this test has also been pronounced to be obsolete now. Many forensic experts have asserted that tears on the vagina or the hymen could be due to physical activities such as horse riding and swimming as also due to the use of tampons. Moreover, this test is fundamentally based on a social perspective that a woman habituated to consensual sexual intercourse is of “bad character” and therefore could not have been subjected to rape.
In the Mathura Case, the court held that the absence of injuries implies consent. This decision sparked widespread protests across the country and the legal indicators to establish valid consent became the focus of public debate. There have been reports stating that just one third of rape victims sustain “visible physical injuries”. However, injuries coupled with the two finger test are still detrimental to the fate of a trial. The canard of the forensic investigation system is that most police officers, doctors and judges in India still seek indication of a “struggle” and “injuries”; they conclude that no rape occurred if no visible injuries are found. Hence, unless a woman risks more physical damage to be caused to her in the process of resisting the rapists, her consent to the act is presumed. In a legal framework with such assumptions, it is rather hypocritical for the society to be shocked at severe unseen damage being done to a rape victim, for that is seemingly essential for the entire episode to be termed as a rape at all.
Hence, medical evidence in India is detrimental to the conclusion of a trial. The police, defence lawyer and then the judge end up being prejudicial to the victim assuming her to be of bad character based on the medical tests. In a rape case, once intercourse has been established, the burden of proof shifts from the prosecution to the defence. However, these presumptions regarding the character and conduct of the victim derived by medical reports impede this process. Thus, this unbinding evidence ends up changing the course of the trial, dramatically.
Though it was emphasised in State of Punjab v Gurmeet Singh that the corroboration by forensic evidence is not necessary to establish the crime of rape, the same does not seem to have been the followed approach in practicality.
It has been documented by reliable sources that despite precedents to the contrary, medical evidence is used to establish rape. There is a fundamental need for more efficient medical techniques for disproving sexual assault as a fallacy in the procedure may make or mar the conviction of the accused. Unfortunately, standardised procedures for the collection and storage of such evidence in India are not followed. Lack of proper storage facilities imply that the samples may easily be tampered.
A Mumbai based non-governmental organisation called Centre for Enquiry into Health and Allied Themes (CEHAT) has brought out detailed guidelines and an instruction manual enumerating the procedure for procurement of forensic evidence of rape victims. It talks about how the entire process of collection of evidence in sexual assault cases has loopholes and that it is the procedures that need to be changed first in order for the law to be effective. Further, for better evidence collection hospitals could start the practice of using sexual assault forensic evidence (SAFE) kits during medical examinations and evidence collection as done in the US and Canada. These countries also ensure the presence of a trained nurse for collection of DNA evidence from the body of the victim. Evidence collected through such methods would be more reliable.
(Post continues in Part II)