Tag Archive for Sexual Violence India

How ‘Per Vaginal Examination’ turned into the ‘two-finger test’

sterilization deaths

Indian laws, clearly stating the role of health professionals while carrying out examination of sexual violence survivors, do not make any reference to assessing virginity of the survivor, degree of habituation to sexual acts, status of the hymen and status of the vaginal elasticity. Despite this, and in the absence of standard medical protocols in such cases, Indian forensic medicine and medico legal bodies continue to refer to these aspects

By Sangeeta Rege

The issue of sexual violence requires a multi-disciplinary approach in order to provide comprehensive response to sexual violence. This multi-disciplinary approach requires several systems such as criminal justice system, health system, child welfare committees etc. to interact with each other. This short article focuses on the role of the health sector vis a vis sexual violence.

The Indian law has clearly laid down role for health professionals in responding to sexual violence. Sec 164A of CrPC lays down the components of medico legal examination namely seeking informed consent for carrying out examination and providing a logical medical opinion for results of the examination. It does not make any reference to assessing virginity of the survivor, degree of habituation to sexual acts, status of the hymen and status of the vaginal elasticity. Despite this fact medico legal examination continues to constantly make a reference to these aspects. These techniques have been devised and perpetuated in forensic medicine text books.

The problem is further compounded by the lack of standard protocol for medico legal care of survivors. Health professionals across the country continue to assess the hymenal status of survivors, determine laxity of vagina by carrying out a finger test, look for marks of resistance on her genitals or body, record physical attributes like built, height, weight etc.

To add to this confusion, the Delhi health department put out an advisory stating that finger test can be conducted in some instances such as to determine internal injures for rape survivors. The advisory confused the term “finger test” with the clinical examination term “ Per Vaginal (PV) Examination”.

Let us decode these confusions:

• Finger test – Finger test emerged from forensic medicine as a way of determining whether a person is habituated to sexual violence. It is done by inserting one or 2 fingers inside the vagina of a woman . If more than 1 finger passes without difficulty , the woman is said to be habituated to sexual activity . Such a test is unscientific and is rooted in biases and stereotypes about rape and misconceptions about virginity. Several High Courts and Supreme Courts have already called it an unscientific test and have asked health professionals to refrain from it. It also contravenes Section 146 of the Indian evidence act of 1872.

• Other unscientific tests – Just like the finger test, Forensic medicine has also developed methods of recording old tears to the hymen to state that the woman is habituated. They ask providers to measure height – weight to argue that if she is well built than the perpetrator, she could not have been over powered . These comments too are in complete contravention of the Section 146 of the Indian Evidence Act (IEA), 1872.

• Overemphasis on injuries – Forensic medicine in India further essentialises the presence of genital and physical injuries on the survivor . Absence of such injuries makes the doctors suspicious about whether the survivor is reporting the “ truth” or was it a consensual act . It is important to lay down facts about absence of injuries . Aspects like fear, threat to life, being too shocked / numbed by the attack , being rendered unconscious etc prevents the survivor from resisting the perpetrator.

However doctors do not take in to account circumstances in which sexual violence occurs and so are unable to understand the lack of injuries on bodies of survivor . Evidence from WHO multi country study 2003 also shows that only 1 in 3 survivors have chances of sustaining any injury . The changes in the law especially CLA 2013 in its explanation (2) to section 375 IPC has clarified that lack of injuries should not be understood as consent to the sexual act . However these changes have still not found its way in the medico legal practices across the country

• Overemphasis on presence of medico legal evidence – Medical professionals , police as well as the Judiciary believe that medico legal evidence is the most clinching form of evidence in the form of semen , blood traces , sperms , saliva , etc which will help in conviction of a perpetrator of sexual violence . In fact in a case of child sexual abuse , the judge allowed an acquittal for lack of medical evidence in the form of seminal stains , despite the fact that the 8 year old child had given the history of fingering in the vagina . This is the extent of how misplaced the understanding on medical evidence is even with the highest echelon in the justice system . What is gravely missed is that medico legal evidence rapidly erodes with time as well as activities such as washing , bathing , gargling, urinating etc . A survivor often needs time to come to terms with the assault , consult family members and reach a hospital or police station . So in many instances evidence of semen , blood etc is not found . But this is misinterpreted as sexual violence did not take place by doctors and thus they are unable to explain the lack of positive forensic medical evidence.

There is a need to correct the biases and prejudices related to understanding of medical evidence

• If a survivor has reported peno- vaginal assault or there are clinical signs / symptoms such as vaginal pain, bleeding , discharge etc. they indicate a need for internal examination only then a Per Vaginal Examination (which should not be confused with finger test ) is done . This is done with the purpose of identifying clinical causes underlying a specific medical condition. This examination requires fingers to be inserted in the vagina but to assess a clinical condition and is followed up with a treatment plan. Here too consent for Per Vaginal Examination should also be sought from the woman/ girl.

• Second, it is important to understand components of medical evidence. Medical evidence is:
 Trace evidence in the form of semen, spermatozoa, blood, hair, cells, dust, paint, grass, lubricant, fecal matter, bbody fluids, saliva.
 Injuries either on the body / genitals
 Presence of sexually transmitted infection that the perpetrator has passed to the survivor in the form of HIV, Hepatitis, Gonorrhea, and also unwanted pregnancy.
 It is important to understand that the possibility of finding forensic evidence decreases significantly after 96 hours after the incident. Even within these 96 hours after the incident, the extent of medical evidence found is subject to activities undertaken by the survivor in the form of bathing, urinating, gargling, defecating etc. Also possibility of finding semen evidence is based on whether perpetrator ejaculated or not. These activities should be recorded by the doctor and explained in the court when asked about lack of medical evidence .

 Most importantly the possibility of finding any forensic evidence depends on circumstances of the sexual violence and also nature of sexual violence , therefore the dependence on forensic evidence is misplaced

• Third, it is important to state that a health professional, in this case doctors, has dual responsibility – forensic and therapeutic. The therapeutic role though often ignored, has now been made mandatory by the changes in the law(Section 357C CrPC and Rule 5 of POCSO). No hospital and health provider private or public can refuse treatment to survivors of sexual violence. Refusal to provide treatment is now punishable by law (section 166 B IPC).

• Fourth, MOHFW (Ministry of Health and Family Welfare, Govt of India) in April 2014 recognizes dual role of doctors therapeutic and medico legal and provides specific directions to doctors for responding to not just women and children but also transgender and other marginalized communities. It also equips doctors to understand the scope of medical evidence and steps in interpreting medical evidence. Besides the state health departments, civil society organisations must also be informed about this practice and must push for a comprehensive health care response to survivors of sexual violence.

• MOHFW (Govt of India) established a multi disciplinary committee of experts and developed gender sensitive and uniform protocol for responding to sexual violence survivors. This is the first national directive by the Union health ministry in 2014 to all states to adopt such a protocol. These guidelines have been drafted under Sec 164A of CrPC and must be adhered to uniformly across the country.

This article is based on CEHAT’s collaborative program with the MCGM hospitals in Mumbai on implementing a comprehensive health care response

India’s Daughter is not an act of global solidarity

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Film does not probe sexual violence as a systemic issue, opines eminent lawyer Vrinda Grover in her Facebook post

I have seen the documentary film, India’s Daughter. I think we need to take a position of engagement rather than posit it simplistically as a ban or no ban issue, which to my mind is much more convenient but not necessarily a helpful position.

One significant issue here is of rule of law; the fair trial and rights of victim and accused. It is critical to remember that the legal process has not yet concluded, the appeal is pending in the Supreme Court of India.

The other concern is that the film serves to amplify hate speech against women and broadcast misogynist views.

It is quite interesting that NDTV has spent a major part of the last evening discussing the issue of Violence Against Women, including the problems with the criminal justice system , impunity etc. This to my mind is the ONLY unintended positive fallout of the Udwin documentary.

What is terribly misleading in NDTV’s programmes though is the projection that Udwin’s documentary discusses or raises these issues.

In fact the precise problem with the film is that it does not probe sexual violence as a systemic issue; it isolates the 16 December gang rape and the murder accused. It profiles poor Indian men as rapists.

Thus, on the one hand, the film will serve to incite the wrath of the public and very soon cries of death to the rapists will resound, for they now carry the tag of ‘monsters’.

On the other hand, the film will, for many others, particularly men, reinforce that women deserve rape and their lives must be circumscribed by misogynist and patriarchal notions. Either way it is a lose- lose situation for women in India.

Telecasting this film, even as legal proceedings are pending does not advance the cause of women’s rights or the rule of law or the right to a fair trial

I do not subscribe to the government’s stance that the film defames India. India should be ashamed of each and every act of violence against women.

This film is however not an act of global solidarity. March 8th marks the day of struggle for the rights of women. The telecast of this film on that day will provide a platform for the broadcast of hate speech against women on International Women’s Day.

Related reading: Noted activists discuss their concerns over India’s Daughter in a letter to NDTV

What do you know about the criminal justice process?

Criminal law bill India

Lawyers Collective releases guide for those dealing with sexual violence

By Team FI

Lawyers Collective, an NGO is bringing out a handbook titled “Locating the Survivor in the Indian Criminal Justice System: Decoding the Law”.

According to the publishers ‘the handbook attempts to demystify the law, identify the various stakeholders in the justice delivery machinery and points out the specific roles assigned to each”.
It also provides a comprehensive coverage of the survivor’s entitlement introduced by the Criminal Law (Amendment), Act, 2013 and discusses the complementary changes brought in the Indian Penal Code, 1860 and the Indian Evidence Act, 1872.

An analysis of the data by the National Crime Records Bureau (NCRB) between 2010 – 2012 reveals that the conviction rates for all major crimes against women under the Indian Penal Code have declined. The conviction rate for rape has gone down by almost 3 % between 2010- 2012. This is, despite increasing awareness amongst masses and a growing concern for women’s safety.

Lawyers Collective sates that it has been studying reasons for attrition and what deters survivors to continue with the Criminal Justice process. A major reason is distrust towards the system and unfamiliarity with the law.

There is another handbook on Do’s and Dont’s for survivors of sexual violence titled “Engaging with the Criminal Justice System: A Guide for Survivors of Sexual Violence”. The publication consists of some basic questions that a survivor often has to deal with and provides necessary answers, thereby assisting the survivors of sexual offences, in navigating the criminal justice system.

Both these handbooks will be officially released by Chief Justice of India P. Sathasivam on 31st March in New Delhi.