Forensic investigation in sexual violence in Nepal

Laxmi Murthy, deputy coordinator of the Sexual Violence and Impunity project, in an interview with Harihar Wasti, Visiting Professor at the Department of Forensic Medicine, Tribhuvan University, Kathmandu.

How would you rate the importance of proper collection of forensic evidence as a tool in the battle for justice for victims and survivors of sexual violence in Nepal? What should be the relative weightage of forensic evidence, circumstantial evidence and witness testimony in the pursuit of justice?

Forensic evidence plays an important role in the pursuit of justice to victims of sexual violence. The judiciary is in a better position to pass judgements in cases where forensic evidence such as injuries consistent with struggle, restraint, genital injury, etc, has been collected. The problem is at many levels – untrained police personnel who are usually the first representatives of state authority on the scene, untrained medical examiners and untrained judges. In order to build a credible case, evidence from the alleged site of the incident must be collected – blood stains, semen and other stains, signs of struggle, and so on. Photographs must be taken without disturbing the evidence. Chances of foolproof evidence collection are higher with trained examiners, which is not so in 95 per cent of the cases.

Thus, when there is insufficient available forensic evidence, only the weight of circumstantial evidence and witness testimony may be taken as the basis of judgements. Courts in Nepal are now increasingly incorporating physical forensic evidence along with witness testimonies and circumstantial evidence. However, they are reluctant to acknowledge that there is strong forensic evidence which gives conclusive proof of the occurrence of the incident, mainly because of poor procedural processes regarding forensic evidence. There are no Standard Operating Procedures (SOPs) or directives, and procedural laws such as the Evidence Act are not detailed enough to provide stringent guidelines. The abysmal condition of most laboratories, lack of qualified experts and absence of SOPs affects the credibility of test results.

 

How many trained doctors are there to carry out examinations of victim/survivors of sexual violence, and what is the resource allocation for this work?

Medico-legal examinations (MLE) are routinely carried out in every government health facility – more than 200 health posts, over 100 primary health centres (PHC), 75 district hospitals, 14 zonal hospitals and about 10 regional and sub-regional hospitals, the Maternity Hospital in Kathmandu, and a few community hospitals. Autopsies are permitted in PHCs and higher-level hospitals. The minimum qualification for a medical officer (MO) is an MBBS and only MOs are allowed to perform autopsies. For other clinical forensic cases, including cases of sexual violence, it is not necessary to have any basic qualification or training.

Our department, the Forensic Medicine Department, attached to the Teaching Hospital Maharajganj in Kathmandu, established around 2000, deals with cases for MLE brought by the police or [through a] court order. In Kathmandu, the Tribhuvan University Medical College is permitted to conduct an MLE and in eastern Nepal (Dharan), the B.P. Koirala Institute of Health Sciences provides MLE service by qualified experts in forensic medicine.

The main reason for poor quality medico-legal examination is that the government has not identified it as an essential component of basic health care services and a service related with crime investigation. In the Ministry of Health there is no separate unit which looks after medico-legal services. However, many doctors and other experts are trained in fields like forensic archaeology, forensic anthropology and forensic odontology, and their services need to be tapped by the government medical system.

There are about forty forensic experts in Nepal all of whom teach, mostly in private institutions, but since only government institutions are authorized to conduct medico-legal examinations, we have proposed an amendment to this law.

 

How is lack of training a major barrier to the collection and analysis of forensic evidence?

There are no legal provisions or guidelines regarding the procedural part of evidence, particularly in sexual assault cases; for example, [about] where, by whom and how the victim or accused should be examined and documentation prepared. In practice, the ‘victim’ is taken to a nearby health facility and examined by a general health service provider. There may be situations such as a delay in medical examination, which affect outcomes, and so these need to be handled by trained personnel. For example, if there has been a lapse of two or three weeks before reporting a superficial injury, the bruises might have faded. In that case, there is only a verbal complaint and no bodily evidence. Even the format to report evidence is not standard. An inexperienced examiner might note ‘no injuries found’ while failing to record that there was delay. This fact, and the reasons for delay, should be noted in the history. Some sensitized judges might be sympathetic, but in general this is not the case.

There are twenty medical colleges in various cities with forensic medicine departments and experts, but they are not authorized to conduct examinations, and instead non- or poorly-trained medical workers are compelled to [do so] with minimum knowledge and skills.

Usually women survivors wish to be examined only by female examiners, which is not always possible. So, they might refuse to undergo an examination; or an untrained female health worker conducts the examination.

A special training package called Medico-Legal Orientation Training for Medical Officers (fourteen days with practical exposure) is organized by the Health Service Department and conducted by the Forensic Medicine Department at Tribhuvan University, but it is irregular. There is no orientation or training in this field for paramedics who are usually the first point of contact for victims.

 

What about training in interpretation of forensic evidence – what is the judiciary’s role?

Having also studied law, I realized that academic courses included nothing about forensics. Expert witness testimony, for example, was just a formality. Now, the National Judicial Academy is conducting a series of training workshops for new judges. It also arranges observation of the actual process of conducting an autopsy. Sexual violence is one of the major sections of the module, and experienced female doctors conduct the discussions.

 

What facilities currently exist in the country to carry out forensic testing?

Forensic science laboratories constitute the backbone of conclusive medical and forensic evidence. There are two laboratories in Kathmandu: one is the Central Police Forensic Science Laboratory under the Police Department and aided by the Danish government. It has a DNA analysis laboratory and also departments of serology, ballistics, fingerprinting and toxicology, but it lacks qualified experts. And then there is the National Forensic Science Laboratory under the Ministry of Science and Technology. Set up over thirty years back, it has not been upgraded since then and the facilities are woefully inadequate. Even simple machines, for example, an alcohol meter for quantification of alcohol in blood, are not commonly available. High-power microscopes or acid phosphatase tests for semen analysis, which are routine elsewhere in the world, are also not available in Nepal.

It is not a priority with the government, so there is no budget allocation, and experts are not putting in their requests for equipment. There are many challenges in the field of collection, preservation and laboratory analysis of forensic evidence which can be addressed by proper training. Even medical examiners need to be trained to preserve swabs which should be put into a closed container and handed over to the police. Due to the backlog in laboratories, the examination of the sample may take two or three months. An improperly preserved sample yields no information. This is not to do with budget allocation, but is more a matter of procedure, which must be made mandatory. Likewise, maintaining a cold chain to ensure that samples do not deteriorate, requires a budget. But the cold chain used for preserving vaccines can also be used in forensics. The importance of this work has not been recognized by the authorities.

With regard to post-mortems in cases of suspected sexual assault with murder, the existing format of autopsy lacks specific headings for examination and documentation of findings related with GBV [gender based violence] and the guidelines for the doctor conducting the autopsy are insufficient. The autopsy format must include mandatory examination and apply specific procedures when the case demands in sexual violence related death cases.

 

Take us through a case of sexual assault – how does it proceed in terms of evidence gathering?

For medical reasons, the victim might be taken to a nearby hospital. The duty of the doctor starts here – to attend to [her] health needs. At the same time, evidence should also be collected. Samples of blood, semen should be taken, and alcohol/drug levels should be tested, in case the victim has been administered alcohol or drugs, or the suspect has imbibed alcohol or drugs.

Unless their injuries are life threatening, most victims do not immediately go to a health facility. So there are no available statistics of the time lapse between incidents of sexual assault and approaching a medical facility. Many cases come forward after a week’s delay, at which point there will be no semen or blood stains. We take down the history, ask for clothes worn during the incident, and confirm whether she washed her private parts. If the complainant approaches us within five-six days with a history of penetration, we collect a vaginal swab, since dead or fragmented spermatozoa might still be present. Whether it was rape or not is not a medical matter because it hinges on consent. We also record injuries, scratches, bite marks, and whether physical objects were applied or inserted in the body. However, such detailed examination and proper documentation of findings in the appropriate reporting format is usually done only in health facilities where experts in the field are attached.

Usually, the samples are sent to the Forensic Science Laboratory (FSL) in Kathmandu. Improper collection, inappropriate packing and preservation, a non-transparent chain of custody, and delay in analysis are other difficulties with forensic samples, which usually end with negative results and injustice.

Speaking out is a big issue. In the so-called higher castes or feudal households, even if something happens, silence is maintained, though that is changing nowadays. On the other hand, Dalits and the poor, due to pressure from the rich, might suppress instances of sexual violence. There are also cases of people with power and money trying to influence reports by medical professionals. But now there is an overall questioning and rejection of power and feudalism among the public.

 

What are the challenges to collecting forensic evidence in situations of conflict or militarization? What role can forensic evidence play in the pursuit of justice for crimes that have occurred in the past?

In conflict situations, the existing weaknesses relating to the collection of forensic evidence are further exacerbated. There was great fear because many perpetrators were either military personnel or combatants from the opposition. Cases are being exposed after years or decades, but they are unable to enter the justice-seeking process as the FIR [First Information Report] must be filed within thirty-five days. Theoretically, even if the statute of limitations was not a hindrance, forensic evidence would have limited value in old cases due to the reasons detailed earlier.

But even these cases can show evidence of the prolonged effects of trauma, such as specific scars which can be analysed in corroboration with circumstantial evidence and witness testimony. For example, particular types of physical injuries resulting in specific types of scars and mental conditions like PTSD [post-traumatic stress disorder] or chronic stage of ‘rape trauma syndrome’ can be taken as forensic evidence.

The criminal code of Nepal – the Muluki Ain – mentions autopsy, but says nothing about rape. No procedures are outlined, and only a vague directive such as ‘examination in hospital is necessary’.

 

What efforts are being made to standardize protocols and procedures for forensic evidence collection and analysis in Nepal?

A project from the Prime Minister’s Office is underway to address gender based violence (GBV), and seventeen hospitals in different regions of Nepal have been identified to house One Stop Crisis Management Centres (OCMC) – an integrated approach to provide counselling, medico-legal service, treatment, legal aid and also safe homes.

This initiative came about due to external pressure on the government by the European Union, UNFPA, etc. to address GBV. The medico-legal aspect was not strong; hence our department was brought on board. The experience of these centres is validating the importance of medico-legal examinations. This project has developed a ‘Clinical Protocol for Health Workers on Health Response to Gender Based Violence’, which is awaiting final approval. The clinical protocol has incorporated essential components of standard practice of MLE of sexual violence and standardized formats for medical/forensic investigation.

 

How are the health needs of survivors and victims reconciled with the need to collect forensic evidence?

All cases of sexual violence brought to hospital are acute emergency cases. The first need is medical but it should not compromise the importance of evidence related needs. Both sectors must function simultaneously in well managed centres with proper facilities.

 

What is the role of forensic doctors and how are they treated in the legal system?

I have about twenty-four years experience with court attendance. Earlier, court hearings were completed as mere formalities, without fulfilling the objectives of the procedure. Gradually, legal professionals are also upgrading their education standards and realizing the importance of expert witness testimony procedures.

Another challenge is the gap between the medical process and the pursuit of justice. Because of a lack of commitment, health workers sometimes are not willing to conduct examinations. They regard it as a burden because they know they may be summoned by court. They have to spend for travel and stay out of their own pockets since there is usually no budget. Besides, they feel it is unpleasant to deal with courts, stand in a witness box and [be] made to feel like an accused.

 

Could you share your experience of being part of exhumations in landmark cases during the conflict in Doramba and the Maina Sunuwar case?

Forensic tools were very effective in cases of forced disappearances and extrajudicial killings that occurred during the decade long conflict in Nepal. I was a member of the team that conducted the first exhumation in this country which was ordered by the National Human Rights Commission (NHRC) in 2003. On 17 August 2003, the Royal Nepal Army in the district headquarters of Ramechhap, captured seventeen Maoist unarmed cadre from a meeting in Doramba village. They, along with two civilians, were lined up and shot dead at close range, following which a report of an ‘encounter’ with armed rebels was filed. Upon exhumation of the bodies ten days later, we found in almost all cases a single firearm injury to the head and that each individual was handcuffed. It could be concluded that this was a case of summary execution of unarmed Maoist cadres by the Nepal Army. The NHRC report was released at the peak of the war, when the ceasefire had broken down, so there was a lot of heat generated.

In 2007, I was a member of the team that went to Kavre district and excavated the suspected burial site of Maina Sunuwar, 16, who had been disappeared by the army four years earlier. Skeletal remains of a young female suspected to be Maina were recovered; she was killed by rifle firearm injury to the spine. The identity was reconfirmed by DNA profiling in a laboratory in Hyderabad, India, by matching the DNA from recovered bone and samples from her parents. Though there were allegations of sexual violence, in exhumation cases there is hardly ever any sign of sexual violence remaining, unless it is very recent, since soft tissue degenerates very fast. Maina Sunuwar was exhumed about three-four years after her burial – now only the bones remained. We did find an injury on her spine, which clearly remained because it was a bone injury.

 

What role can forensic evidence play in successful prosecution at international fora?

International standards and protocols like the UN guidelines for exhumation, use of Minnesota Protocol and Istanbul Protocol in death investigation and torture victim examination, and documentation are now accepted as general standards in a situation of peace.

The acceptance of forensic tests conducted in Nepal is not high in international fora because basic requirements are not met, required formats are not adhered to, and there is no timely application of procedures.

I have been summoned to London to depose in the case of Lt. Col. Lama, accused of torturing two Maoist cadre to death in 2005, during the war. I had examined one of the victims, who had been severely tortured in the army barracks in Kapilavastu district. I tried to adhere to the Istanbul Protocol while examining and reporting these cases. Lama was arrested in 2013 and brought before a London court because of the UK’s obligations to bring suspects to justice wherever they are detained under the UN Convention against Torture.

 

What role do forensics play in the transitional justice mechanism?

The main role of forensics is to carry out prompt and accurate fact-finding, to identify individuals and families who are entitled to receive compensation. It also aids in prosecution of cases, reparation, and making the rules and laws for the period of transition.

 

In the post-conflict transition period, what reforms can be institutionalized to use forensic evidence in the pursuit of justice?

First, forensics must be recognized as essential to the pursuit of justice. Second, procedural guidelines must be evolved and made mandatory all over the country. Last, there needs to be physical as well as human resource development. Some budget must be allocated by the government to develop physical facilities as well as human resources. Forensics in Nepali is called kanooni chikitsa, which translates roughly to the term used in Europe, that is, ‘legal medicine’. In order to take forward the issue in a systematic manner, we are registering a new body, the Medico Legal Society of Nepal, which will act like a sort of trade union for practitioners in the forensics field.