DR.

RAM MANOHER LOHIA NATIONAL LAW UNIVERSITY

LUCKNOW

INDIAN PENAL CODE - II

“MEDICAL EXAMINATION OF RAPE VICTIMS”

GUIDED BY – SUBMITTED BY -

MR. MALAY PANDEY TIRTHARAJ

CHOUDHURY

ASSISTANT PROFESSOR B. A. LL. B. V SEM.

RMLNLU ENROLL NO. 170101152

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Table of Contents
ACKNOWLEDGEMENT...............................................................................................................3

RESEARCH METHOD..................................................................................................................4

INTRODUCTION...........................................................................................................................5

TRAUMATIZED VICTIM AND THE INSENSITIVE AGENCIES-...........................................6

INCONSISTENCY BETWEEN LAW ON PAPER AND PRACTICE.........................................7

ABUSIVE TWO FINGER TEST....................................................................................................8

FAILURE TO PROVIDE ADEQUATE HEALTHCARE...........................................................10

POOR POLICE RESPONSE.........................................................................................................12

MEDICAL EXAMINATION CANNOT PROVE RAPE.............................................................12

CONCLUSION..............................................................................................................................14

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ACKNOWLEDGEMENT

Firstly, I would like to thank my respected teacher Mr. Malay Pandey for giving me such a
golden opportunity to show my skills, through this project.

The project is the result of extensive ultrapure study; hard work and labour, put into make it
worth reading.

I wish to acknowledge that I completed this project by receiving help of my friends and teacher
His class lectures helped me immense to gather relevant information. This project couldn’t be
completed without the help of my university library Dr. Madhu Limaye library and through
university’s internet. I am also very thankful to my batchmates for supporting me to tackle every
stumbling block in my way.

Tirtharaj Choudhury

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RESEARCH METHOD

The research methodology adopted in this project is mainly descriptive. This project is based on
secondary data gathered from various sources such as books, journals.

Descriptive research: It includes surveys and fact-finding enquiries of different kinds. The major
purpose of research is to find out the origin of the idea of a republic state. The main
characteristics of this method are that the researcher has no control over the variables.

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INTRODUCTION

The crime of rape is a major problem in India. More than 20,000 rapes were reported in 2008,
and it is estimated that only one in 69 cases even gets reported. However, the concerted efforts of
the courts, the legislature, the Law Commission of India, non-governmental organisations and
women’s activists have led to important steps forward in the delivery of justice to victims of
rape. 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.

In India, after the Delhi gang rape case of 2012 certain amendments were made in criminal laws
of India to make it more victim friendly and to bring perpetrators to the book. India now has
several laws to address gender-based violence such as the Criminal Law (Amendment) Act,
2013, Protection of Children from Sexual Offences Act, and the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act if the victim belongs to a Dalit (formerly “untouchable”) or
tribal community.

However, the problem still remains in the lack of will of the state agencies to implement these
laws. There exists a complete disparity between the laws on paper and law in practice. One of the
areas in which this disparity is vehement is the area of medical examination of rape victims. The
laws and guidelines of state and the actual procedure being followed by the agencies involved
are diagonally opposite and completely contradictory. This disparity has acted as an obstruction
in the achievement of the objective of these amendments.

In this project, the author has, after discussing the existing disparity between the law on paper
and law being practiced, talked as to how the medical examination cannot prove the rape.
Therefore, subjecting a victim to such a painful and inhuman practice seems to be unfruitful.
Lastly, the author has suggested some steps that should be taken to make the system victim
friendly.

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TRAUMATIZED VICTIM AND THE INSENSITIVE AGENCIES-

Medical examination is one of the important aspects in a rape case but getting it conducted
properly is a tough task as the victim is often too traumatised to cooperate or follow instructions,
say cops as well as doctors . “We face multiple difficulties in handling the victims of rape or
sexual assault and getting their medical examinations conducted properly,” said a woman sub-
inspector (S-I) of Hazratganj police station. She said most victims experienced fear, nightmares,
sleep problems, anger, embarrassment, shame, guilt or a combination of all these. So first they
had to be counselled to calm them down and convince them to get their medical examination
conducted, she said.

Advocate Rohit Kant Srivastav, who has handled multiple case of rape with minors, said it was
very difficult to counsel rape victims and make them understand the importance of medical
examination. He said the rape survivors, especially minor ones, had to go through acute trauma
to recall the horror and face the accused during the medical examination.1

The S-I said the victims’ anger and fear was often vented on police personnel, hospital staff or
family members. She said it was very difficult to handle them in this condition and it required
proper training for women cops as well as men police personnel to treat them politely. But often
the police personnel were not trained to handle such situations and they started reacting to the
victim’s anger and fear, causing major delay or interruption in the medical process.

The S-I said the second difficulty that women constables faced in the victims’ medical
examination was that the medical staff in government hospitals was not sensitised so they were
often made to wait for long hours. “Doctors and medical staff react as if the cops have come to
them for a personal favour whenever women cops request them expedite the process or deal with
it on a priority basis,” she said.

Member of Lucknow Child Welfare Committee (CWC), Sangeeta Sharma feels it is high time
the law enforcement agencies and medical authorities focus on conducting sensitisation
programmes at school, parental and social levels to curb incidents of rape with minors.2
1
Rohit K Singh, ‘Medical Check up of a rape victim a tough task’ (hindustantimes, 24 March 2018)
<https://www.hindustantimes.com/lucknow/medical-check-up-of-rape-victim-a-tough-
task/storyCneClTafqzy0lTugvSJofI.html> accessed 28 October 2018.
2
Rohit K Singh, ‘Medical Check up of a rape victim a tough task’ (hindustantimes, 24 March 2018)
<https://www.hindustantimes.com/lucknow/medical-check-up-of-rape-victim-a-tough-
task/storyCneClTafqzy0lTugvSJofI.html> accessed 28 October 2018.

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INCONSISTENCY BETWEEN LAW ON PAPER AND PRACTICE

India now has several laws to address gender-based violence such as the Criminal Law
(Amendment) Act, 2013, Protection of Children from Sexual Offences Act, and the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act if the victim belongs to a Dalit
(formerly “untouchable”) or tribal community. Between the time the legal changes went to effect
and the end of 2016 (the most recent year for which data is available), there was a 39 percent
increase in the number of rape complaints reported to the police—from 24,923 cases in 2012 to
34,651 cases in 2016—likely reflecting a greater willingness of survivors to take their cases to
the justice system.3

As part of the legal reforms after the gang rape and murder in New Delhi in 2012, denying
medical treatment to rape survivors is punishable under section 166B of the Indian Penal Code
with imprisonment for up to a year. Health providers have a dual role when it comes to
responding to sexual violence. Apart from collecting forensic evidence for any criminal
investigation and prosecution, they must provide therapeutic care to survivors – including
addressing their sexual, reproductive and mental health problems.

However, Human Rights Watch’s investigation into 21 recent cases of rape and sexual
harassment in India shows that instead of providing a safe environment of trust for treatment and
examination, doctor attitudes toward women who report rape can leave them traumatised a
second time.4

THE 2014 GUIDELINES –

In 2014, India’s Ministry of Health and Family Welfare issued guidelines for medico-legal care
for survivors of sexual violence to standardise healthcare professionals’ examination and
treatment of sexual assault survivors. The guidelines integrate processes geared to respect
women’s and children’s rights to privacy, dignity, creating a non-threatening environment, and
informed consent.

3
Smita Sharma, ‘Everyone blames me’ (Human Rights Watch, 8 Nov 2017)
<https://www.hrw.org/report/2017/11/08/everyone-blames-me/barriers-justice-and-support-services-sexual-assault-
survivors> accessed 28 October 2018.
4
Smita Sharma, ‘Everyone blames me’ (Human Rights Watch, 8 Nov 2017)
<https://www.hrw.org/report/2017/11/08/everyone-blames-me/barriers-justice-and-support-services-sexual-assault-
survivors> accessed 28 October 2018.

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The Ministry of Health and Family Welfare, in collaboration with the World Health
Organization, has conducted five regional workshops over the last two years to encourage
adoption and implementation of the guidelines by the states. However, so far only nine states
have adopted the guidelines. But even in these states, the implementation has been uneven,
without any oversight mechanisms in place.

The guidelines seek to correct pervasive myths and degrading practices around rape that have
been reinforced by common medico-legal practices. Specifically, the guidelines eliminate what is
commonly known as the “two-finger test,” a practice where the examining doctor notes the
presence or absence of the hymen and the size and so-called laxity of the vagina of the rape
survivor, to assess whether girls and women are “virgins” or “habituated to sexual intercourse”.

This evidence has been used during trials to assert that the rape survivor had “loose” or “lax”
morals. The new guidelines limit internal vaginal examinations to those “medically indicated,”
such as when it is done to diagnose infection, injury, or presence of a foreign body.

ABUSIVE TWO FINGER TEST –

Even before the guidelines, the Supreme Court held that the results of the test cannot be used
against rape survivors and further that whether she is “habituated to sexual intercourse” or not is
irrelevant, constitutes an arbitrary and unlawful interference with the survivor’s reputation 5. The
2015 edition of Modi’s Medical Jurisprudence, a key reference tool for medical and legal
professionals, has also attempted to steer doctors away from the unscientific “two-finger test.”

However, Human Rights Watch has found that doctors continue to conduct the invasive,
humiliating, and inhumane finger test to make degrading characterisations. The doctors also fail
to explain the process or purpose of the finger test to rape survivors, causing them to be further
traumatised. The test can also cause pain. The doctors do this irrespective of whether the
survivor is under 18 or an adult, single or married.

Gayatri (not her real name), from Madhya Pradesh, was 17 when her brother witnessed their
father raping her in April 2016, which had been going on for months. After they reported rape,
the doctor noted she was likely pregnant, but still conducted a “two-finger test”. The doctor
5
Lillu v State of Haryana (2013) 14 SCC 643.

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wrote that her “vagina admits two fingers loose, not enlarged” and concluded that “she is
habitual to sexual intercourse”. The test was completely contrary to the guidelines, which
Madhya Pradesh state has adopted, and served no purpose at all.6

In an another study conducted by an NGO ‘Partners For Law in Development’ with support from
the Department of Justice, Ministry of Law and Justice and UNDP (United Nations Development
Programme) it was again revealed that the medical examination of rape victims is not conducted
in consonance with guidelines set by the health ministry, while calling for proper training of
personnel for carrying out such exams. The study also found that some victims experienced
obstacles and harassment from the police in registering FIRs.7

FAILURE TO PROVIDE ADEQUATE HEALTHCARE –

Doctors in India are legally obligated to provide first aid or medical treatment, free of cost, to
women and girls who approach them and disclose rape. The medical examination not only serves
a therapeutic purpose, but also helps gather possible forensic evidence. Under Indian criminal
law, the prosecution can secure a conviction for rape based solely on the testimony of the rape
6
Smita Sharma, ‘Everyone blames me’ (Human Rights Watch, 8 Nov 2017)
<https://www.hrw.org/report/2017/11/08/everyone-blames-me/barriers-justice-and-support-services-sexual-assault-
survivors> accessed 28 October 2018.
7
PTI, ‘Medical Examination of Rape Victims not in accordance with Ministry rules:Study’ (Indian Express, 02 Sep
2017) <https://indianexpress.com/article/india/medical-examination-of-rape-victims-not-in-accordance-with-
ministry-rules-study-4825334/> accessed 28 October 2018.

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survivor where it is cogent and consistent in so-called material particulars. Forensic
corroboration is considered legally relevant but not essential. But in practice, judges and police
give significant weight to forensic evidence, therefore necessitating standardized medico-legal
evidence collection and awareness around its limitations.

Human Rights Watch also found that doctors frequently give priority to the collection of forensic
evidence, and spend little, if any, time on essential therapeutic care. The 2014 guidelines lay out
psychosocial care for survivors saying that health professionals should themselves provide first-
line support or ensure someone else trained at the facility can provide it. This includes addressing
the survivor’s well-being, encouraging her to express her feelings and seek crisis counselling,
making a safety assessment and safety plan, and involving family and friends in the healing
process. But the state healthcare systems have largely failed when it comes to providing
therapeutic care and counselling to survivors.

According to Gayatri’s aunt, the gynaecologist said they needed the court’s permission to
perform an abortion, even though the law states that pregnancy can be terminated for those under
18 years with the written consent of her guardian. Gayatri’s uncle filed a petition in lower court
but the court denied the request. Her uncle then appealed to the High Court, which in May 2016,
gave Gayatri permission to terminate her pregnancy. By the time Gayatri terminated her
pregnancy, she was five-months pregnant. Gayatri was not offered any follow-up care or
psychosocial counselling after the abortion, and was ill for some time.8

Lack of adequate training, resources, and oversight mechanisms to ensure doctors treat sexual
assault and rape survivors with dignity and offer them the necessary services, have left survivors
without the critical support they need. The central government should work with all states to
adopt, enforce and implement the 2014 medico-legal guidelines.9

Even as authorities take small steps toward implementing guidelines to standardize collection of
forensic evidence, the healthcare system has largely failed when it comes to providing
therapeutic care and counseling to survivors. This includes advice on access to safe abortions and
8
PTI, ‘Medical Examination of Rape Victims not in accordance with Ministry rules:Study’ (Indian Express, 02 Sep
2017) <https://indianexpress.com/article/india/medical-examination-of-rape-victims-not-in-accordance-with-
ministry-rules-study-4825334/> accessed 28 October 2018.
9
Jayshree Bajoria, ‘Doctors in India continue to traumatise rape survivors with the two-finger test’ (Scroll.ion, 09
Nov 2017) <https://scroll.in/article/857169/doctors-in-india-continue-to-traumatise-rape-survivors-with-the-two-
finger-test> accessed 28 October 2018.

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tests for sexually transmitted diseases. The 2014 guidelines lay out psychosocial care for
survivors saying that health professionals should themselves provide first-line support or ensure
someone else trained at the facility can provide it. This includes addressing the survivor’s well-
being, encouraging her to express her feelings and seek crisis counseling, making a safety
assessment and safety plan, and involving family and friends in the healing process. In nearly all
the rape cases documented by Human Rights Watch, women and girls said that they received
almost no attention to their health needs, including counseling, even when it was clear they had a
great need for it.10

While positive steps have been taken indicating greater political will of Indian politicians and
officials, the promised changes have fallen far short of being realized. In the May 2017 case from
Rohtak, the police defended themselves, claiming that the family made only a verbal complaint
and had later withdrawn it. It was only after public protests over the rape and murder that state
authorities suspended two police officers and transferred another for negligence in handling the
case. Human Rights Watch also found that women and girls in India are often afraid to report
attacks because of fear of being stigmatized, and because they feel unable to overcome
institutional barriers in a criminal justice system that offers no protection to victims or
witnesses.11

POOR POLICE RESPONSE –

Indian law provides that in cases of sexual assault or attempted sexual assault, a trained female
police officer should gather testimony from the survivor, videotape her statement, and have her
statement recorded by a judicial magistrate as soon as possible. Amendments to the Code of
Criminal Procedure in 2013 also make it mandatory for police officials to register sexual assault
complaints; those who fail to do so can be imprisoned for up to two years.

10
Jayshree Bajoria, ‘Doctors in India continue to traumatise rape survivors with the two-finger test’ (Scroll.ion, 09
Nov 2017) <https://scroll.in/article/857169/doctors-in-india-continue-to-traumatise-rape-survivors-with-the-two-
finger-test> accessed 28 October 2018.
11
Smita Sharma, ‘Everyone blames me’ (Human Rights Watch, 8 Nov 2017)
<https://www.hrw.org/report/2017/11/08/everyone-blames-me/barriers-justice-and-support-services-sexual-assault-
survivors> accessed 28 October 2018

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Human Rights Watch found that police do not always adhere to these rules. They resist filing the
First Information Report (FIR), the first step to initiating a police investigation, especially if the
victim is from an economically or socially marginalized community. Police sometimes pressure
the victim’s family to “settle” or “compromise,” especially if the perpetrator is from a powerful
community.

MEDICAL EXAMINATION CANNOT PROVE RAPE

The process of collecting evidence from the body of a victim or survivor can take up to a few
hours. While the process differs from country to country, it often involves checking the genitals
for injury, noting any non-genital injury, combing pubic hair, looking for semen samples,
looking for samples of skin cells under the fingernails, and more.

The data collected is often referred to as “rape kit.” The exam could also involve questioning the
victim or survivor on the assault and providing follow-up care. Sometimes, medical evidence can
be used to substantiate a victim or survivor’s case in court. Sometimes, it can provide some proof
of rape. Unfortunately, this is one of the most widely-believed rape myths – one that’s often even
believed by progressive, open-minded people. This myth results in society letting rapists off the
hook. It means that many victims and survivors who can’t medically “prove” their rape are
denied the compassion and empathy they deserve. It means that communities fail to protect and
support those who experience assault.

1. Rape Doesn’t Always Involve Force

Medical examinations of rape involve looking for genital and non-genital injury. This is the
primary means of collecting evidence, amongst other things. Indeed, rape can often involve the
perpetrator causing physical injury to the victim or survivor. But that’s not always the case.

Rape is often legally defined as penetration without consent. Not only do we know that sexual
violence encompasses more than that, but physical injury isn’t a criterion for rape.

It’s often assumed that the perpetrator restrains or physically abuses the victim or survivor into
submission in order to assault them. This isn’t necessarily true. Sometimes, a perpetrator can

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subdue the victim or survivor by making verbal threats, intoxicating them, or waiting until
they’re unconscious.

Some victims or survivors freeze up and don’t “fight back,” so their perpetrator might not cause
them physical injury. Additionally, they might not scratch their perpetrator, which means there
won’t be any skin cells under their fingernails. The idea that rape always involves causing
physical injury is a harmful myth – and one we buy into when we believe that medical evidence
can always prove rape.

2. Rape Doesn’t Always Involve Penetration

We often view rape in a very one-dimensional way. Society often thinks about rape as something
that is perpetrated by a cisgender man to a cisgender woman. It’s often assumed that the male
perpetrator forcefully penetrates the woman’s vagina with his penis. The medical examination
process often works on this assumption.

Perpetrators and victims or survivors alike can have any gender identity. It might involve vaginal
penetration with a penis, but it can also involve other kinds of penetration with other body parts
or objects. Sometimes rape involves the assailant forcing the victim or survivor to penetrate
them. While this could result in injury to the patient’s genital area, that’s not always the case.

Often, the medical examination process includes looking for tears and fluid inside the vagina,
mouth, or anus. While this process can provide evidence in some cases, it’s not always true if the
victim or survivor wasn’t penetrated.

3. There’s Plenty of Room for Error in the Examination Process

It’s important to remember that, even if there was medical evidence of rape, a medical
examination can’t always pick it up and carry it through to court. Especially the unscientific
process being followed in India is full of errors and there is no scientific criteria which is being
employed in coming to a conclusion.

4. A Medical Kit Can’t Actually Tell You If Someone Consented or Not

A medical kit might be able to tell you whether someone recently came into sexual contact with
someone else. If DNA evidence is available, you might even be able to tell who came into sexual
contact with them. Because while medicine can tell you a lot about someone, it can’t tell whether

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they consented. Ultimately, if we want to eradicate rape myths and challenge rape culture, we
need to recognize the importance of consent. But despite these revelations, medical examination
report is taken as the most important defence by the accused.

CONCLUSION

In India, the medical examinations of rape victims have remained an unscientific and inhumane
process which causes immense pain and trauma to the victim. To make the system more victim
friendly the first requirement is to implement the laws and the medico legal guidelines in letter
and spirit. Along with that, for the proper implementation there is a need to sensitize the
authorities as well because it is their insensitivity which causes the biggest trauma to the victim.
For the sensitization, three fold path should be taken. One, doctors should get compulsory formal
medical training on how to examine rape victims. Two, nurses and hospital staff should get
certification courses on how to treat rape victims. Three, trained counsellors should be brought to
the emergency ward right after the medical examination.

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