MEDICO-LEGAL evidence has traditionally formed the substratum on which convictions in sexual violence cases can be pinned. In the past, medical evidence of penetration was almost mandatory to determine the factum of a crime because rape was confined to a peno-vaginal contact. However, with the changes in laws related to sexual violence to include penetrative (peno vaginal, peno anal, peno oral, body parts – fingering and objects) and non-penetrative (kissing, touching and manipulating) medical evidence is no longer necessary to establish rape/sexual assault.

Having said this, the evidentiary value of medical forensics cannot be discounted in rape/sexual assault trials. The courts also find it easy to rely on medical evidence to establish the crime and culpability of the accused. After the introduction of the death penalty in child sexual abuse cases, it becomes necessary to examine the medical engagement from the very first stage of committing an offence through to the process of trial right up to the verdict.

Dr. J.N. Reddy possess the twin insights of his medical as well as legal education and is thus equipped to unpack the role of medicine in criminal trials relating to rape/sexual assault. His concerns are evident. The lack of a protocol leads judges, doctors, police and lawyers to work at cross purposes instead of working in tandem. For Dr. Reddy this is clearly a focus area, as it not only ensures superior quality of evidence collection and presentation leading to an improved conviction rate in genuine crimes, it also acts as protection for the accused as judges do not blindly rely on medical evidence without examining its reliability.

According to him, even though medical evidence is no longer essential, an imperfect understanding continues to impede its assistance value or alternatively give it undue importance often resulting in disastrous consequences. Dr. Reddy explains what is medical evidence by placing it into five distinct categories, which includes trace evidence, injuries, sexually transmitted infections (STIs), pregnancy and its complications and evidence of treatment.

In explanation he says that trace evidence based on Locard’s principle, would include exchange of semen, spermatozoa, blood, hair, cells, dust, paint, grass, lubricant, fecal matter, body fluids, saliva; and injuries could comprise skin and mucosal injuries on the body or genitals, maybe in the form of abrasions, contusions, lacerations, fractures, incised, stab, chop, or firearm injuries; and STIs such as HIV, hepatitis, gonorrhea; and pregnancy and complications would include POC (products of conception)/fetus from either MTP (medical termination of pregnancy) or delivery; and evidence of treatment which could include treatment for pain, infection, depression. Each of these categories comes with its own set of challenges in the medico-legal interface.

 

Among trace evidence, DNA is understood by the lay person to provide conclusive proof of rape/sexual assault. It would be well to remember that in this context police, lawyers and judges are also lay persons. As a matter of fact, the veracity of a DNA sample result rests on how and when it was collected, how it was stored, when it was tested, the conditions in which the sample was preserved prior to testing and the chances of contamination of the sample in this process. The judiciary does not have a protocol to rely on for assessment of the authenticity of the result and therefore, they unquestioningly accept the findings of the DNA testing report presented before them without considering the limitations of the entire process.

Explanation 2 to Section 375 IPC clearly specifies that lack of physical resistance by the victim does not mean that the victim has consented to the sexual act. According to Dr Jagadeesh, while there is a general consensus that absence of injuries does not mean a negation of rape/sexual assault this principle is followed more in theory than practice. In reality courts approach rape/sexual assault cases with a clear-cut view that injuries imply resistance, therefore, equating it to lack of consent. Because of such a mindset, the absence of injury tends to favour the accused despite evidence from the WHO that shows injuries are found only in 30% of sexual assault cases.¹ This finding is supported by a study from CEHAT that shows there were only 19% cases where there were bodily injuries and 38% cases where there were genital injuries.² Yet another study on ‘Female Genital Injuries Resulting from Consensual and Non-consensual Vaginal Intercourse’ states that only 23% cases had injuries.³ Moreover, it needs to be understood that lack of injuries can be due to drugging of the victim, which may render him/her unconscious, or due to trauma, overpowering, freezing from fear or with the use of a lubricant.

 

Evidence related to STIs and other infections is invariably lost. Firstly, the follow up examination of rape/sexual assault victims is a rarity and not the norm. In fact at the very first stage of examination it is doubtful how many doctors actually test the victim to ascertain the presence of STIs and infections from this perspective. It is only when rape/sexual assault results in pregnancy that the victim re-engages with a medical professional.

In the case of an adult, the victim may exercise her freedom of choice about how to engage, with whom to engage and the outcomes. However, in the case of a victim of CSA because of statutory rape being clearly proven by a pregnancy, the victim is forced back into the medico-legal system. What transpires thereafter is that the guardian of the victim, usually the father, may or may not give consent for an abortion (MTP – medical termination of pregnancy) and in this connection the victim does not have agency. What medical practitioners are not aware of is that refusal by a parent/guardian to submit to an MTP could result in the victim being viewed as a child in need of care and protection and the matter could therefore be referred to the Child Welfare Committee (CWC).

Ironically, once the MTP is performed, the agency then shifts to the victim who though under age has the right to choose the manner in which the fetal matter is dealt with post MTP. As such many victims may refuse consent for the testing of the fetal matter even though they are minors. The other serious issue that besets doctors is that in case there is a dissonance between the wishes of a minor victim and her parent/guardian, who then has the decision making capacity regarding the line of treatment/evidence collection and their further testing. Unfortunately, doctors are unaware that apart from surgical interventions, the minor victim has the right to decide all other lines of treatment/evidence collection and their further testing.

 

Since the entire criminal justice system in practice remains oblivious of the fine line of distinction between when, where and how agency shifts from one actor to the other in the line of treatment, the evidentiary value of who has directed the treatment and in which direction with what underlying intentions is lost. Similarly, medical evidence in the form of documentation in case sheets, discharge summaries, prescription sheets, pharmacy bills, etc does not even enter the zone of consideration as medical evidence, let alone being given proper weightage. Yet these are important pieces of evidence as they help decipher the symptomatic state of the victim.

Valuable evidence is also lost due to the fact that doctors wait to begin examination and treatment till the police arrive on the scene, as they are afraid that doing otherwise will be taken adversely. Unfortunately, the courts have time and again questioned doctors as to why the police were notified at a late stage.

According to Dr. Jagadeesh neither law enforcement agencies nor medical professionals are aware that valuable evidence must not be lost by delays caused by the lack/non-availability of a female doctor/gynecologist – especially as some kinds of trace evidence can be lost forever if not collected within the initial few hours of the incident. A male doctor assisted by a female may properly approach the victim, explain the situation, describe his subsequent intentions and actions, the need and necessity for the intervention and after obtaining informed consent from the victim can proceed to examine.

Doctors as well the criminal justice system do not take proper note of the fact that a victim has the right to refuse intervention and treatment, even if she has been brought in by the police and/or is a minor. He also expressed concerns about the lack of empathy with the evolving capacities of a child as well as preconceived notions about the correct reactions to be displayed by the potential victim, which if absent create biases as to the veracity of their testimony. Therefore, there is a need for child development experts to assist the courts, an aspect that has not been given its due importance in India.

The introduction of the death penalty will only come into play after conviction, which may not result due to faulty evidence or which may result in a wrong conviction also due to faulty evidence. These are concerns that need to be addressed if our justice delivery system is to do its job, whether for restorative or retributive justice, really does not matter.

 

* As told to Roma Bhagat and Seema Baquer.

Footnotes:

1. L. Bowyer and M.E. Dalton, ‘Female Victims of Rape and their Genital Injuries’, British Journal Obstet Gynaecol 104(5) May 1997, pp. 617-620.

2. http://cehat.org/go/R83manual.pdf

3. I. McLean, S.A. Roberts, C. White and S. Paul, ‘Female Genital Injuries Resulting from Consensual and Non-Consensual Vaginal Intercourse’, Forensic Science Inter- national 204(1-3), January 2011, pp. 27-33.