Introduction

Prior to codification of many personal laws, Polygamy was in trend which provided a legitimate outlet for keeping physical relations. But post independence, legislations on divorce, immoral traffic in women &  children, marriage and other enactments relating to personal laws have narrowed down the scope of legitimate sex activities and also easy availability of pornography on social media resulted in increase in sexual urge and ultimately leading to increase in sex crimes in India.

          In many cases of rape, the acused has often gone free may be because victim did not lodge the complaint or because of poor evidence collection or lacuna in the law. In such cases experts opinion play very important to ascertain the offence. In many cases pre-examination of the victim is very very important to establish offence.

So it makes very important to have an overview of the laws applicable to sexual assault cases, specifically in terms of the roles and responsibilities of healthcare providers in providing medical evidence to the courts. It’s very necessary to know the importance of conducting an examination, its procedure, role of consent, and the lacunas in the Medico-Legal services.

Sex Offences

 The Indian Penal Code recognises eight major forms of sex offences which are punishable under the law.

a) Section 375 : Rape

b) Section 376A : Intercourse by a man with his wife during separation

c) Section 376B : Intercourse by public servant with woman in his custody

d) Section 376C : Intercourse by superintendent of jail, remand home, etc

e) Section 376D : Intercourse by any member of the management or staff of a hospital with any woman in that hospital

f) Section 354 : Assault or criminal force to woman with intent to outrage her modesty.

g) Section 372 & 373 : Selling & buying minor for purposes of prostitution, etc

h) Section 377 : Unnatural offences

i) Section 354A of IPC defines Sexual Harassment.

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.

According to Indian law, a woman cannot commit the offence of rape on a man. But she can be charged to have committed indecent assault on a man.

“Examination of the Victim and the accused should be undertaken without unnecessary delay so that the findings do not obliterate e.g. spermatozoa if present if present in the vagina, the blood stains on the cloths of  victim etc.                                            

There are many provisions and judgments related to the examination of the rape victim. Forensic Science also plays an important role in helping to prevent, early detection, providing expert medico legal and scientific reports, which will result in quick trial and instant administration of justice to victims. 

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.

There are two objectives of a medical exam

1. The first is to give medical care to victim.

2. The second is forensic, for the purpose of investigation.

General examination of the Victim and the Accused : Pre-examination preparation

(a) There must be request from the officer-in-charge of police station or the court.

(b) There should be identification of the victim and the accused and should be noted.

(c) An adult mentally sound female should be present at the time of examination.

History of the case

The following things should be enquired and recorded :

1. Her age, religion, educational qualification and occupation.

2. The date, place, time of the alleged occurance of the rape and examination.

3. Relationship of the accused and the victim, whether they related to each other.

4. Whether she was given any food or drug etc before the alleged crime.

5. Whether she was given any threat to her life or offered any monetary gains.

6. Whether she resisted, shouted for help or gave any injurious marks to the accused by nails or teeth.

7. Whether there was any penetration of her private part or there was any pain or bleeding during the alleged act.

8. Whether she is married or a previous experience of sexual intercourse or habituated in sexual intercourse.

Examination of the clothings

1. The examination of worned cloths of victim as well as the accused is very useful if the cloths are not changed before examination.

2. If the incident has happened in an open ground, farm, etc, they may show mark of resistence, presence of mud, soil stain on cloths matching with alleged place of occurrence.

3. Because of violence or resistance, there may be blood stain marks on cloths.

4. Their clothing may exhibit the seminal stain-starchy in appearance.

5. The clothings should be preserved for future examination if required.

6. There should be examination of presence of pubic hair to match with that of accuse or victim.

General Examination of body parts

1. Growth, appearance of breasts, of axillary and pubic hair.

2 To look for injury marks like bruises or abrasions on the body of the accused as well as victim on the back, of the chest, buttocks, forearms, on and around sex organs.

3. To look for any bleeding from the vagina or any part.

4. To look for semen stains or pubic hair on the bodyof the victim & accused.

5. The pubic hair if found matted due to semen, they should be cut and send for examination.

Examination of the private parts

Detail medical examination of the victim and the accused is  very important because there may not be any eye witness and the whole crime is proved by the medical report.

Presence of spermatozoa in the vaginal secretions is a positive sign of rape.

In married woman before and after delivery,  the chances of bruises or lacerations are less may be absent sometimes but there is bound to be some injury if struggle or resistance is there.

The detail examination of internal or external genitalia  is also essential.

Intact hymen is considered as sign of virginity, but legally it is not an absolute sign of virginity.

Examination should be carried out in presence of a competent adult female.

“The Supreme Court of India and the Ministry of Health and Family Welfare have prohibited the practice of conducting the two-finger test (TFT) on survivors of sexual assault. This practice is scientifically baseless, traumatising, and violates the survivor’s dignity and rights,”

Duties of the Hospital

1. There should not be any delay in conducting the examination of victim.

2. In case female doctor is not available for examination, male doctor can examine but in presence of a female attendant or any close relative.

3. Providing treatment and necessary medical investigations is the prime responsibility of the examining doctor. Admission, evidence collection or filing a police complaint is not mandatory for providing treatment.

4. If patient is directly coming to hospital, without approaching police, hospital is bound to give treatment and collect evidence as much as possible and inform the police of the incidence.

Rights of Victim

1. Right to Privacy : No one is allowed to disclose the name of the victim. Also there is a provision of incamera proceeding in section 327 of Cr.PC.

2. Right to free medical treatment : It is the duty of all medical centres whether private or public to provide free legal treatment to victim.

3. Right to examined by female doctor

4. Right to speedy trials.

5. Duty on public servant : The law ensures failure of a public servant to record any information of such offences as a punishable offence

6. Duty of Court : The court during any trial for rape will presume the absence of consent by the survivor. 

Yunus Turab Shaikh v. State of Maharashtra (1993) : The hyman was intact, the labia majora, minora, and clitoris were normal. The Doctor said that, even without all these signs, there still can be rape. In cross examination he said, it can be a case of rape even if there are no marks of injury on the genital organs and hyman is intact but the labia majora and minora are separated and are inflamed and flabby. The accuse was held guilty of rape.

Mahesh Kumar v. State of Rajasthan (1998) : The victim was 14 years old girl. A doubt was raised whether penetration can take place at such a tender age. It was held that if penetration takes place, private parts can not escape injuries or atleast pain or signs of violence. In this case doctor did not notice any injury. Hence the offence of rape was not proved but were charged for an attempt to rape.