MEDICAL EVIDENCE IN RAPE CASES

MARCH 2012

1
Table of contents
Abbreviations ..............................................................................................3
Acknowledgments.......................................................................................4
Background .................................................................................................5
Legal Framework ........................................................................................8
Constitutional equality rights ..................................................................8
Statutory provisions on rape ....................................................................8
Procedure to be followed in rape cases.....................................................10
Provisions on medical examinations ........................................................12
Practical challenges in collecting medical evidence.................................15
Interpretation of rape provisions by courts ...............................................17
Study of case records ................................................................................23
Description of the sample studied .........................................................24
Findings and analysis ............................................................................24
Age of the victim and the accused .....................................................24
Time and place of incident .................................................................25
Relationship with the accused ............................................................27
Nature of the incident.........................................................................28
Proceedings ........................................................................................29
Shalish ................................................................................................31
Medical examination records ................................................................34
MLC and FIR .....................................................................................35
Time of conducting medical examinations ........................................35
Place of Medical Examination ...........................................................36
Consent to medical examination ........................................................36
Personnel involved in conducting medical examinations ..................37
Recording of physical injuries ...........................................................37
Recording of mental state ..................................................................38
Obstetric/Gynecological Examination and Marital Status ................40
Treatment Prescribed .........................................................................43
Victim’s age .......................................................................................43
Medical Examiner’s Opinion .............................................................43
Medical examination and investigation .............................................45
Conclusions and recommendations ..........................................................47

2
Abbreviations

VAW Violence against women

CrPC Code of Criminal Procedure

NSA Nari O Shishu Nirjatan Daman Ain, 2000

NSA Tribunal Tribunal constituted under the Nari O Shishu

Nirjatan Daman Ain, 2000

Victim Victim/survivor of rape

Minor Girls under 16 years of age. 16 years is recognized

as the age of consent to sexual intercourse under
Section 375 of the Bangladesh Penal Code.

Evidence Act Evidence Act 1878

FIR First Information Report

MLR Medico-Legal Report

3
Acknowledgments
This short research study is part of the SAFE project, which seeks to
highlight issues of choice as critical parameters in asserting women’s
rights and liberties, in particular the right to freedom from violence. The
author is grateful to ICDDRB for its support.

The research was conducted in the BLAST office. Showvick, Susmita,

Maria and Sharmistha entered data from case reports for analysis. The
author is deeply grateful to office bearers and staff members of BLAST
for their support, especially Sara Hossain (Honorary Director, BLAST)
for her guidance and invaluable inputs to this study. Thanks are also due
to Farida Yeasmin and Rezaul Haq for their support.

This study builds on the BLAST’s work on the issue of violence against
women and sexual assault and is informed by research previously
conducted in this field by Sylvie Rougerie and Dina Siddiqui, as well as
insights provided by legal aid lawyers associated with BLAST. Other
than members of BLAST, practitioners from the field were also
consulted. Naripokkho’s Kamrun Alam and Rita Das deserve special
mention for sharing Naripokkho’s rich experience on this issue. Nijera
Kori and Mohila Porishod provided case records for analysis.

Preliminary findings of this report were presented at a workshop

organized by BLAST on December 26, 2011. The author would like to
acknowledge and thank all the workshop participants for their valuable
inputs. (LIST of participants needed)

4
Background

“Sexual violence is ubiquitous; it occurs in every culture, in all levels of

society and in every country of the world. Data from country and local
studies indicate that, in some parts of the world at least, one woman in
every five has suffered an attempted or completed rape by an intimate
partner during her lifetime. Furthermore, up to one-third of women
describe their first sexual experience as being forced. Although the vast
majority of victims are women, men and children of both sexes also
experience sexual violence. Sexual violence can thus be regarded as a
global problem, not only in the geographical sense but also in terms of
age and sex.”
WHO Guidelines on Medico-Legal Care to Victims of Sexual Assault;
2003

In Bangladesh, police statistics on cases registered on violence against

women (VAW) show that rape is the second most commonly reported
form of violence against women, 1 following dowry related harassment.
Rape cases have constituted 20-25% of all VAW cases filed with the
police in the period 2001-2010.

Table 1
Cases Registered by the Police on Violence Against Women
(Information Collated by Naripokkho, 2011)
Year Dow Acid Abd Rape Rape Traf Mur Inju Othe
ry Atta uctio and ficki der ries r*
relat ck n Mur ng
ed der
2001 2986 153 1691 3178 20 63 82 63 4722
2002 4922 209 2236 4095 22 74 90 83 6700
2003 5869 258 2262 4442 28 74 73 120 7152
2004 3081 208 1594 3097 17 68 62 134 4568
2005 3130 206 2069 2796 22 138 97 49 2949
2006 3417 146 2089 2566 14 107 109 95 2558
2007 4186 177 2936 3495 33 113 142 74 3374
2008 4487 163 2874 3387 65 105 131 87 3032
2009 4061 129 2772 2900 39 100 139 94 2693
2010 5331 97 3391 3328 25 117 196 120 3768
Total 41,43 1746 23,71 33,28 285 959 1101 899 41,51

1
Approximately 23% of all cases of violence against women reported in the period 2001-2010

5
 0 2 4 2
*This category is not defined.

However, these figures reflect only those complaints that have been
registered with the police, and not the actual number of rape incidents
that may have occurred.2

NGO compilations of news reports on rape incidents indicate declining

media reportage, although police records show that rape complaints have
remained more or less consistent with the overall rate of other reported
forms of VAW.

2001 Bangladesh Mahila Parishad’s Compilation

“Comparative Frequency of Different Forms of Violence by Year”
1996 1997 1998 1999 2000 2001
Rape 194 434 230 502 465 639

2010 ASK Compilation in

Human Rights in Bangladesh Report
2003 2004 2005 2006 2007 2008 2009
Rape 948 618 585 515 436 486 446
Gang 433 359 250 226 198 127 158
rape

Overall crime statistics on “cruelty against women” compiled by the

police show that after a decline in the years 2004-2006 and then in 2009,
there is an increase in numbers of registered cases on ‘cruelty to women’
in 2010.3 However, as these statistics are not disaggregated according to
individual offences it is difficult to track trends in rape cases per se.

Police Crime Statistics

Number of Registered Cases (2001-2010)*
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
Cruelty
1295 1845 2024 1281 1142 1106 1425 1428 1290 1621
to
8 5 2 5 6 8 0 4 4 0
Women

2
Other than police reports there is lack of public availability of information on pendency and disposal
of rape cases in court.
3 It must be noted that NGO statistics may not be entirely accurate based as they are on news reports
and not their own case records or original police or court records.

6
Total
1141 1276 1256 1193 1230 1305 1572 1579 1571 1628
No of
91 16 39 23 33 78 00 79 08 98
Crimes
* http://www.police.gov.bd/index5.php?category=48

While it is difficult to ascribe reasons for these fluctuating numbers, it

must be noted that while the overall crime4 rate has increased, crime rates
for ‘offences of cruelty against women’ has remained more or less
constant. In so far as the crime of rape is concerned, the highest numbers
were reported in 2001, when it constituted 25% of all cases reported
under ‘cruelty to women’ and the lowest in 2010, when it constituted
20% of all cases reported under the same category.

Though it is also difficult to draw conclusions based on these statistics,

there is a probability that rape reportage has declined, albeit marginally,
over the years instead of rising, as appears to be the trend observed in
other countries.5 This aspect requires to be further explored.

There may be a number of reasons for declining reportage. Although the

law provides for stringent punishments, including the death penalty, in
rape cases, activists identify gender-insensitive/ inappropriate medical
procedures as one of the main reasons behind women being dissuaded
from seeking justice.6 Other reasons include the lack of support services
or provision of protection for victims and witnesses, social stigma
associated with rape and prevailing patriarchal attitudes, protracted court
proceedings, inadequate investigations by the police, lacunae in the law,
particularly the absence of rape shield provisions, etc. Addressing the
latter causes call for holistic long-term interventions. However, an aspect
that may have a significant and immediate bearing on facilitating
women’s access to justice is improving the manner in which medical
evidence is collected—since medical evidence is considered pivotal in the
adjudication of rape cases.

4
Crimes reported include – dacoity, robbery, murder, speedy trial act, rioting, child abuse, kidnapping,
police assault, burglary, theft, arms act, explosive act, narcotics, smuggling, others.
5
India, NCRB; United Kingdom, Stern Review; United States
6
Moni Jharna; Bangladesh: Why Dhaka’s Rape Survivors Give Up on Justice: Women’s Feature
Service; February 8, 2010 http://periodicals.faqs.org/201002/2035982201.html

7
Legal Framework

Constitutional equality rights

Equality guarantees are contained in three separate provisions in the
Bangladeshi Constitution. Relevant to the context of women are:

• Article 27 guarantees, which equality before law and the equal

protection of laws.
• Article 28 (1) prohibits discrimination on grounds of inter alia sex.
Article 28 (2) guarantees equal rights for women in all spheres of
public life
• Article 28(4) allows the State to make special provision for women
and children
• Article 29 guarantees equality of opportunity and prohibits
discrimination in matters of public employment.

Internationally, all forms of gender-based violence, including rape, have

been recognized as a form of discrimination against women and violative
of women’s human rights.7 The broad guarantees of equality provided in
the Constitution, therefore, impose both positive and negative obligations
on the State to protect rights of rape victims.

Statutory provisions on rape

Penalties for the offence of rape is provided for in Section 9 of the
Suppression of Violence against Women and Children Act, 2000 or the
Nari O Shishu Nirjatan Daman Ain, 2000 (NSA). This law uses the
definition of rape provided in Section 375 of the Bangladesh Penal Code -
- under this gender specific provision, a man is said to have committed
rape if he as ‘sexual intercourse’ with a woman

(1) against her will

(2) without her consent
(3) with her consent when her consent has been obtained by putting
her in fear of death or hurt
(4) with her consent, when the man knows that he is not her husband
or whom she is or believes herself to be lawfully married
(5) with or without consent, when she is under 16 years of age.

7
CEDAW Committee, General Comment 19 “The Convention (CEDAW) in Article 1 defines
discrimination against women. The definition of discrimination includes gender-based violence that is,
violence that is directed against a women because she is a woman or that affects women
disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of
such acts, coercion and other deprivations of liberty…”

8
For the purposes of Section 375, sexual intercourse is defined as requiring
penetration and marital rape is specifically exempted, unless the wife is
under 13 years of age. To this definition, the NSA adds a further
explanation:
“If a male person without marital relationship has sexual intercourse
with a woman above 16 years of age without her consent or with consent
obtained by putting her in fear or by deceitful means or with a woman
below 16 years with or without her consent he shall be presumed to have
raped such a woman.”

Penalties provided are:

• life imprisonment and fine for those committing rape on any
woman or child (child being defined gender neutrally as any person
under 16 years of age)8
• death penalty and fine for causing death during or as a consequence
of rape 9
• death penalty or life imprisonment and fine for each member of a
gang for causing death of the woman who has been gang raped.10
• Penalties for attempts to cause death or hurt by committing or
attempting to commit rape,11
• Penalties for custodial rape, particularly for persons failing to
ensure proper custody. In cases of custodial rape, the onus of
proving safe custody is placed on the person who had custody of
the rape victim/survivor.12
The inadequacy of this definition of rape is that it does not recognize
other forms of sexual assault not involving penetration. Such forms of
assault may be addressed using Section 10 of the NSA on ‘penalty for
sexual oppression’. However, this provision, used primarily in cases of
sexual harassment, imposes less severe punishments.13

Further, Section 17 of the NSA imposes penalties (rigorous

imprisonment) for filing false complaints with the intent of causing harm
to the accused or without lawful cause. This provision may have the

8
Section 9(1) NSA
9
Section 9 (2) NSA
10
Section 9 (3) NSA
11
Section 9(4) NSA
12
Section 9(5) NSA
13
Section 10- “Any person with a view to illegally satisfying his sexual lust by any of his organ or
matter touches genital organ or any other part of body of a woman or child or violates her modesty,
such act of that person shall constitute offence of sexual oppression and he shall be liable to rigorous
imprisonment for a term not exceeding 10 years but not less than 3 years and shall also be liable to
fine.”

9
effect of deterring women from filing complaints, as failure to prove a
case may attract penalties under this provision. Here it must be noted that
failure to prove case may be due to the inadequacy of evidence presented
and not, in all cases, because the case was inherently false.

Procedure to be followed in rape cases14

Once an incident of rape takes place, any person may make a report of it
to the Officer-in-Charge (OC) of the police station, and this report will be
recorded in a “First Information Report” (FIR)15. In some cases, women
put in an application to the police in writing and the contents of the
application may then be recorded as an FIR.

If the police refuse to file an FIR, the complainant may file a petition
directly with the court 16 , which in cases of rape will be the Tribunal
established under the NSA (NSA Tribunal). 17 This is known as a
complaint case. In such cases, the court may take cognizance of the case
only if the petition reveals the likelihood of the commission of a crime
(the level of enquiry being slightly higher than a prima facie enquiry.

In cases where an FIR is recorded, the OC designates an officer as

Investigating Officer (IO). One of the first things that the IO must do is to
get the complainant medically examined by an authorized Medical
Officer. The medical examination should be done within 24 hours of the
incident. The paper work involved includes putting together the order of
the court, passport-sized picture of the victim, consent form, medico-legal
report form, etc.

The IO is required at this stage to locate the accused record the evidence
of witnesses under Section 161 of the Code of Criminal Procedure
(CrPC), prepare site plans of the place where the incident occurred,
confiscate weapons, and collect other physical evidence as part of the
investigation.18

14
The procedure is prescribed both under the Code of Criminal Procedure as well as the NSA.
15 Section 154 CrPC
16
Section 200 CrPC
17
Section 2(d) NSA
18
Section 4(1)(l) CrPC

10
Upon completion of investigation, the IO may submit a report ("charge-
sheet")19 if the investigation indicates that an offence has taken place, or
file a Final Report (‘FRT)’ if s/he finds there is no merit to the case.20 The
charge sheet has to be prepared or the investigation completed within 60
days.21 This period may be extended by an additional 30 days if required.
The IO has a duty to inform the complainant of the submission of the
charge sheet or the FRT as the case may be.

In either case, the complainant may file an objection petition or a “naraji”

petition”. In case of a charge sheet, the complainant’s objection may be
against the accused being charged under incorrect provisions or the
dropping of the names of any accused person/s originally named in the
FIR or otherwise involved, from the chargesheet. In the second instance
the complainant may object on grounds that the FRT - and the
discontinuance of the process - is unacceptable. If the court finds merit in
the complainant’s naraji petition, then it may take suo moto action and
order fresh investigations to be completed within 30 days or summon the
IO for further details. Further enquiries under Section 202 of the CrPC
may be conducted by the police or any other reputed person, or person
related or by the panchayat.

If there is an adverse report filed on the basis of further enquiries, the

court will have to inform the complainant who may then file another
naraji petition. If, on the other hand, the court finds merit in the case upon
further enquiries then it may take cognizance.

Once the charge sheet is admitted or the case is admitted after re-
investigation, a case docket is prepared and the trial commences. The
court then issues process, which in cases of rape mean that a warrant will
be issued. 22 If the warrant procedure is not honored or the accused does
not make an appearance, the police may either issue a proclamation or
attach the accused’s property. The trial begins thereafter.

The trial is to be concluded within 180 days from the date of ‘the receipt
of the case.23 If the trial is not complete within this time then the accused
may be released on bail and if not released, reasons recorded for non-

19
Section 272 of PRB and Section 173 CrPC
20
Rule 275 P.R.B.
21 Section 18 NSA
22 Part III Chapter VIIA CrPC
23 Section 20 (3) NSA

11
release. 24 The trial may also be held in the absence of the accused if
summons are not responded to or warrants not complied with.

The NSA is a stringent law that does not allow for release on bail and
provides for the imposition of severe penalties, including the death
penalty. This leads to many observing that NSA provisions are misused
as a tool for harassing or detaining political opponents or settling personal
vendettas. For instance, the 2010 Mainstream Law Report (MLR)- a
standard compendium of reported cases, in its commentary on rape,
cautions:
“Instances are not rare in our society that innocent persons are
implicated in false cases of rape with a view to satisfying grudge out of
enmity to harass under stringent provision of law relating to bail, trial
and punishment. The tribunal in such circumstances is required to
exercise great care and caution against false implication of innocent
person and exuberance unrelated with the reasonable standard of proof,
probability and improbability fairly based on the facts and circumstances
of each and every case so that the real culprits are punished.”

However, there are few statistics or studies to support this claim. A judge
and a public prosecutor interviewed in the NSA tribunal claimed that bail
is not impossible under NSA and is granted, particularly in cases of
simple hurt, by exercising of the inherent powers of the court.

Although the procedure to be followed in rape cases as described above is

theoretically adequate to secure justice for the survivor/victim, in practice
a number of hurdles make the process ineffective.25

Provisions on medical examinations

Relevant to the context of medical examinations, Section 32 of the NSA
provides that medical examinations of victims of offences are to be
conducted either in government hospitals or any ‘private hospital,
recognized by the Government for the purpose’.

Under this provision, a medical officer, when approached by a victim,

must ‘quickly’ perform the medical examination, furnish a certificate to
the victim and notify the police station of the commission of the offence.
This means that there is no mandatory requirement to record an FIR

24
Section 20(4) NSA
25
See Naripokkho report; Supra N 1. Also see infra discussion on ‘practical challenges’ in the next
section.

12
before a medical examination is conducted. 26 This provision further
provides that the failure to conduct medical examinations within
reasonable time is deemed to be inefficiency/ misconduct, punishable
with appropriate penalties and sanctions set out in the provision27

Pursuant to Naripokkho’s28 consistent campaign, the Ministry of Health

and Family Welfare, in 2002, issued guidelines by way of a circular
(poripotro) to be followed while conducting medical examinations in
cases of violence against women - particularly in cases of rape and acid
attack. Of relevance to the issue of rape, is the following:

When any woman or child victim of rape approaches a government

health facility or a government designated health facility without police
reference, doctors of such facilities are duty bound to conduct the
necessary examinations immediately. After completion of the
examinations, the doctor shall forward the medical certificate to the
district administration, nearest police station, as well as give a copy to
the victim. Doctors and clinic assistants must provide necessary medical
services to the woman or child.

The effect of the guidelines is that all government and recognized,

whether at the district or upazila levels may conduct medical
examinations on rape victims. The second significant aspect of the
guidelines is it clarifies that there is no need for a victim to first file an
FIR or complaint -- i.e. initiate criminal proceedings-- before an
examination is conducted. The practice in this regard has developed over
the years. Prior to 1998, a court order was a mandatory before such
examinations were conducted. This was subsequently changed to allow
the conduct of such examinations upon filing a police complaint. These
guidelines mark a further step ahead.

Along with the guidelines, the Ministry of Health also issued a standard
form for recording medical evidence in rape cases. This form is to be
used by all government and government designated health facilities for
recording evidence for both acid attacks and rape. The form provides
space for recording:

• Personal history of the victim.

• Name and address of the accused.

26
This is further clarified in the guidelines discussed next.
27
Section 32 NSA
28
A women’s collective working inter alia with women victims of violence.

13
 • Informed consent of the victim to the examination, which is to be
attested by two witnesses.
• Date and time of examination
• Name and address of woman assistant
• Specifics of the incident – namely: the place, date and time, and a
brief description of the incident
• Results of physical examinations- including bodily structure,
weight, height, dental specifics.
• Other physical signs for identification
• Signs of physical force

Evidence to be recorded specifically for rape victims:

• Details of menstrual cycles.
• Marital status
• Number of children
• Description of pubic/underarm hair and breasts
• Description of abdomen
• Detailed description of sexual organs, including “vaginal canal” –
for which the finger test is used.
• Other examinations – x-ray, ultrasound tests, pathological tests,
DNA tests and others.
• Date of release
• Referral to other hospitals for treatment
• Opinion of the examining doctor
• Signature and registration number of the examining doctor.

An important aspect of this form is that a woman’s consent has to be

taken before any examination is performed – it s assumed that such
consent has to be informed and free, which means that the medical officer
should accurately inform the victim of the nature of the tests to be
performed and reasons thereof prior to conducting the tests.

It is also noted that the format allows for recording information not only
of the incident of sexual assault but also the sexual history of the victim.
The latter information may be used to discredit the victim’s testimony, in
line with Section 155(4) of the Evidence Act, which reads as follows:

“When a man is prosecuted for rape or an attempt to ravish, it may be

shown that the prosecutrix was of generally immoral character.”

However, neither the guidelines nor the format are being strictly followed
in the country. Medical examination facilities are mostly available only at

14
district levels and not lower at the upazila levels; and recording formats
are not always uniform. Naripokkho, which has consistently advocated
for the uniform adoption of both the guidelines and the format, points out
that in 2009 only 3 medical examinations were conducted at the upazila
level.

Further, even in cases where the aforementioned recording format is used,

the following issues arise:

• There is no space to record any other forms of sexual violence

except rape.
• The recording of information on hair and breasts has little bearing
on aspects of consent.
• There is no space to record activities such as bathing, washing,
urinating, etc., which may result in the loss of evidence.
• The use of the two finger test in conducting examinations of the
vaginal canal is highly contestable and problematic, not only due to
inherent inaccuracies associated with this test but also the manner
in which such findings are used to discredit women’s testimonies.29

A significant lacuna in collecting medical evidence is the absence of a

uniform protocol to be applied by medical officers and practitioners while
attending to victims of sexual abuse.

Although medical evidence is required only to corroborate the victim’s

testimony, it is often given principal importance in rape trials. This is
despite Supreme Court judgments allowing convictions based on the sole
testimony of the victim.30 It is therefore, essential that medical evidence
be recorded in a manner, which is efficient, accurate and gender sensitive.
Other than these substantive challenges, there are also a number of
practical challenges that impede accurate recording of medical evidence.

Practical challenges in collecting medical evidence

Before listing the practical challenges that arise in the context of

conducting medical tests, two aspects observed by practitioners bear
mentioning. First, a significant number of reported rape cases could be
broadly categorized as follows:

29
For further information see infra
30
Md. Abdul Mannan v State 51 DLR (1999) 154 Abdus Sobhan Biswas v State; 54 DLR (2002) 556,
Misti v State 6 MLR (HCD) 2001(412); Monir Hossain v State 59 DLR (2007) 416

15
• Cases involving sexual intercourse without consent (usually
accompanied by force or other forms of intimidation and coercion) and
• Cases involving sexual intercourse based on a promise to marry
that has later been breached.31 (Siddiqui 2011)

However, in both types of cases it has been observed that parties may
initiate or be pressurized to participate in mediations (shalish) for
compensation and/or marriage. It is only when the mediation fails that the
formal justice system is approached. This aspect of mediation has been
acknowledged and recorded in some higher court decisions.32 This means
that the medical examination is not conducted until the shalish is
completed - thus significantly delaying the medical examinations, which
ought to be collected within 72 hours of the incident. 33 On the other hand,
some practitioners observe that minors or children, who are victims of
rape, are usually brought to medical facilities earlier than adults, as they
sustain injuries that require immediate medical treatment. 34 A further
question arises here regarding whether invasive tests conducted on
children immediately after an incident, in the absence effective psycho-
social support for them, adds to the trauma of rape.

While the option of mediation in rape cases raises significant ethical

issues, it also indicates a lack of faith in the formal justice system.
Structural deficiencies in the justice system, preventing women from
accessing medical examinations, fuel such concerns. Some of these are35:

• Women lack access to necessary services: medical examinations

routinely take place at district level, which are often at
insurmountable distances from where the incident occurs or where
the victim resides. Although government and other designated
health facilities at the Upazila levels are authorized to conduct this
test, they do not do so either because they are not aware of this fact
or because they lack the necessary equipment, particularly that
which is required for chemical or pathological tests.36

31
A number of cases brought to NSA tribunals involve cases of sexual intercourse based on a promise
to marry. See Abdul Kader v State 11 MLR HC 2006 (196); Sohel Rana v State 57 DLR (2005) 591;
Zitu v State Id.
32
Roni Ahmed Liton v State 14 MLR (HCD) 2009, Md. Abdul Quader v State 11 MLR 2006 (196);
Zitu Ahsan v State 59 DLR (2007) 528; Khairul v State 13 BLC 2008 (303)
33
See Infra N 39. See also http://www.nhs.uk/chq/Pages/2482.aspx
34
Interview with Naripokkho staff, October 2011
35
Excerpted from BLAST Exploratory Study by S.M. Rougerie; September 2011
36
However, the latter reason can be overcome if samples are collected at the upzila levels and sent for
analysis to higher levels.

16
 • Tests are conducted during office hours: If the incident has taken
place at night or during after hours, the victim is usually retained in
police custody overnight before the facility opens in the morning.
This raises concerns of the victim’s safety while in custody.

• Unavailability of female doctors: This is an important reason for

women being dissuaded from submitting to medical examinations,
particularly since the tests are extremely invasive.

• Doctors are reluctant to testify: Health professionals are reluctant

to conduct these tests as it means that they will subsequently be
called upon to testify in court. Given the delays endemic in the
legal system, health professionals may be required to attend court
on multiple occasions without reimbursements of costs incurred or
any compensation.

• Relevant personnel may be induced or pressurized not to examine

victims There are also widespread reports of corruption,
particularly when the perpetrator is socially, economically and
politically powerful.

• There are no facilities or staff: Inadequate staffing and

infrastructure in existing health facilities, with no appropriately
trained doctors, or no doctors at all.

• Insensitive treatment of victims at health facilities: This leads to

harassment, humiliation and further trauma, in addition to violating
the victims' rights to dignity and privacy.

Other than these structural deficiencies, lack of awareness amongst

women and girls regarding the steps to be taken in the event of sexual
assault to safeguard evidence also results in behavior that reduces the
evidentiary value of the examinations. Such behavior includes bathing,
washing clothes, rinsing mouths, etc. Inadequate knowledge of the legal
system and procedures, therefore, also place major hurdles in accessing
justice.

Interpretation of rape provisions by courts

Despite the prevalence of sexual assault, responses of the criminal justice
system to rape victims are problematic. Not only is the access to justice
fraught with the challenges above mentioned, poor treatment meted out to

17
victims of sexual abuse, prevailing patriarchal attitudes and inadequate
infra-structure for collecting good quality medical evidence may be major
reasons for under reporting or low conviction rates in rape cases.

Patriarchal attitudes are perpetuated by leading medical jurisprudence

textbooks, which rarely reflect progressive court judgments and legal
developments and ‘create a picture that women falsely allege rape and
therefore doctors should exercise caution while conducting such
examinations.’37 These attitudes are also reflected in case law cited in
reported judgments of the higher judiciary. For example, the following
principles from English case law have been repeatedly quoted with
approval in a number of cases: 38

“Rape is an accusation easily to be made and hard to be proved and

harder to be defended by the party concerned, though never so innocent.”

Medico-legal evidence is needed to corroborate the victim’s account in a

court of law and, in some cases, is crucial in securing convictions.
However, globally, there are few studies that correlate legal outcomes in
sexual assault cases with medical evidence used.39 A study of reported
judgments on rape of the higher courts in Bangladesh show that the
higher judiciary at least, has not taken a consistent approach in this
regard.40 Hence in some cases, convictions have been based on the sole
testimony of the victim while in others independent corroboration or
corroboration based in medical evidence has been insisted upon.

On the issue of convictions based on the sole testimonies, the Evidence

Act, under Section 134, provides that there is no particular number of
witnesses required for the proof of any fact. The courts are, therefore,
concerned with the merit of a particular witness’s statement.41 In so far as
rape prosecutions are concerned, this provision was interpreted, in the
landmark case of Al Amin v State,42 as follows:

37
Flavia Agnes; “To whom do experts testify? Ideological Challenges of Feminist Jurisprudence”;
EPW (40) 18: 1859-1866. To demonstrate the article quotes from Modi’s Medical Jurisprudence – the
authoritative text used across South Asia from the colonial times: “Beware- A charge of rape, of
attempted rape or of indecent assault may be made against the doctor or dentist- which may arise from
a genuine misunderstanding of the nature of medical examination (especially of breasts and genitalia).
A nurse or a female attendant/witness should be present while a male doctor examines a female
patient.”
38
Quoted in infra N 43; Sobuj v State 11 MLR (HC) 2006 (284)
39
Du Mont and White: The Uses and impacts of medico-legal assault cases: A global review; WHO;
2007
40
The analysis in this portion is limited to only reported cases
41
See the Indian case of Raja v State (1997) 2 Crimes 175 (Del)
42 Al Amin & Ors v State 51 DLR (1999) 154

18
“Law does not require any particular number of witnesses to prove a case
and conviction may be well-founded even on the testimony of a solitary
witness provided that his credibility is not shaken”

Hence, although in a number of cases, including the one cited above,

convictions have been based on the victim’s sole testimony43, the court
has also, in a number of cases, deemed the “rule of corroboration” to be a
“rule of prudence” to be borne in mind by judges in dealing with rape
prosecutions. 44 Corroboration of the prosecutrix’s testimony under the
rule of prudence is required for the ‘satisfaction of the court that the
testimony has a ring of truth around it and the person arraigned of the
offence is not falsely implicated.”45

In Jahangir Hossain v State46 the court clarified that decisions where the
rule of prudence has been used if ‘read minutely, ( ) in each of these
cases, firstly the evidence of the prosecutrix was disbelieved not only on
the ground of it being uncorroborated, but on analyzing the evidence
itself and distrust to that particular woman”.

“Distrust” towards a particular woman can be on a number of grounds.

Section 155(4) of the Evidence Act, lays down its legal basis by allowing
the victim’s testimony to be discredited if she is proven to be of
‘generally immoral character’. In some judgments ‘distrust’ appears to
be based on the victim’s educational levels and economic status. To
illustrate, here is the reasoning from a judgment that allowed a conviction
based on the victim’s sole testimony:

“the evidence of a victim of sexual assault stands almost at par with the
evidence of an injured witness and to an extent is even more
reliable…But if the victim of sexual assault comes from an ordinary and
lower strata and lower strata or she is proved to be a woman of ill-repute
or easy virtue, corroboration must be sought as a rule of caution.

43
Id. In this case the court also held that “the testimony of the victim of sexual assault is vital unless
there are compelling reasons which necessitate looking for corroboration of her statement, the court
should find no difficulty in acting on the testimony of a victim of a sex crime alone to convict an
accused where her testimony inspires confidence and is found to be reliable.”
44
Safazuddin v State 27 BLD (HCD) 2007 (321). In this case it was held that “There must be a
satisfaction on the part of the Judge that on the uncorroborated testimony of victim of sex crime it is
safe to record conviction upon an accused indicted for an offence of rape.” Hence there must be an
“indication in the course of Judgment that the Judge had this Rule (of prudence) in mind when he
prepared judgment and if the judge finds that there is no need for such corroboration he is to assign
reasons for dispensing with the necessity for such corroboration.” (Emphasis supplied)
45
Biplob v State 6 BLC (2001) 632
46
BCR 1983 HCD 144

19
In the instant case, the victim girl comes of a respectable educated family
having good background as she is the daughter of a Professor of a
college. She, as well as her father is not expected to lodge a false case
outraging her modesty and dignity and honor of her family.”47

The above is merely an illustration and it cannot be said that the court has
viewed the testimony of all persons belonging to the ‘lower strata’ with
suspicion in all cases.48 However, aspects of easy virtue or chastity are
recurring themes. Hence even when a woman’s sole testimony has been
used to base convictions on, it is because the particular woman is not
expected to make false accusations and therefore subject herself to the
“ignominy and embarrassment of being raped by the accused.”49

Marital status and the age of the woman have also been considered as
factors in determining the kind of corroboration required. To illustrate, in
Biplob v State50 the court observed that:

“In the case of a grown-up and married woman it is always safe to insist
upon corroboration”

Theses illustrations are useful to demonstrate how rape is addressed

within frameworks of morality, chastity and honor, instead of being
viewed as a crime against an individual and a violation bodily integrity.51
These interpretations have a direct bearing on the scope of medical
examinations in rape cases and the manner in which findings are
recorded, particularly with regard to findings on the victim’s prior sexual
history. To illustrate, defence counsel, to discredit the victim’s testimony
often rely on the findings of “habituated to sexual intercourse” to
disprove allegations of rape. Correspondingly, there are also numerous
examples where the courts have acquitted the accused on this ground.52

Gender stereotypical notions also frame the manner in which courts have
interpreted the definition of rape. Rape, as defined under Section 375 of

47
Misti v State 6 MLR (HC) 2001
48
in Manirul Islam v State 8 MLR (HC) 2003 (27) the court observed, while assessing evidence in a
case in which the conviction was based on the victim’s sole testimony, observed that ‘ the victim, a
helpless village woman is telling the truth about her shameful ordeal in the hands of the accused.”
49 Id
50
Supra N 43; See also Hossian Shially v State; 8 MLR (HC) 2003 (355)
51
See also Sobuj v State 11 MLR (HC) 2006 where it is observed that “Rape, though a humiliating
event in a woman’s life and an unlawful intrusion on the privacy and sanctity of a female and
commission of rape upon women is on increase yet it is noticed that for ravishment upon a woman,
along with real rapists and offenders, innocent persons are trapped and brought in with ulterior
motive.’
52
For example, see Firoz Chokdar v State 11 MLR (HC) 2006

20
the Penal Code is inter alia sexual intercourse without consent or against
the woman’s will. However, the term ‘consent’ is not clearly defined. As
a result, courts have in most cases required evidence of force to
demonstrate lack of consent.

Rape Myths

…Across cultures, there exist a number of pervasive and remarkably negative beliefs that constitute the
historical schema of rape mythology. Overriding this taxonomy of assumptions is the general suspicion
of women’s claims of rape and an inclination to ‘down-play’ perpetrators’ responsibility and criminality
while shifting blame towards the victim based on her behavior and personal characteristics. Examples
of these common, prejudicial, stereotypical and false notions of rapes, raped women and rapists, as
captured in a study of 478 Supreme Court decisions on rape in Philippines are:
- Rape happens only to young, pretty or desirable women.
- Rape is a crime of lust or passion
- Men can have sex freely with women deemed to be of loose morals because these women have
nothing to lose.
- Rape is committed by maniacs or perverts.
- Rape happens only in poorly lit or secluded places
- Sexy clothes incite men to rape
- When a women’s chastity is threatened, she violently resists, attempts to escape or screams for
help.
- Women seeking to avenge slights or to extort money often fabricate rape charges.

Excerpted from “The uses and impacts of medico-legal evidence in sexual assault cases”; WHO 2007

Globally definitions of rape have evolved from requiring proof of force or

violence to requiring proof of consent.53 However, experience has shown
that there is secondary victimization of women when the prosecution has
to prove lack of consent beyond reasonable doubt. To remedy this
situation, some countries 54 allow evidence to prove ‘coercive
circumstances’ rather than proving the lack of consent.55 Unfortunately,
these trends do not appear to be reflected in rape provisions or its
interpretation in Bangladesh. To illustrate, in Shahjahan v State ‘rape’
was explained as follows:

“The word ‘rape’ literally means forcible seizure and that element is
characteristic feature of the offence. Therefore, it can be said that rape is
the forcible ravishment of a woman without her consent. The simplest
definition of rape it that it is having sexual intercourse with a woman
without her consent.”56

53
UN Division on the Advancement of Women; Handbook for Legislation on Violence against
Women; July 2010
54
Combating Rape Act (2000) of Namibia and Sexual Offences Act (2003) of Lesotho. Id
55
See also
56
10 BLC (2005) 196

21
The court has also relied upon dated texts of medical jurisprudence to
support the need for evidence of violence and force- in Biplob v State,57
the court quoted with approval from Taylor, Principles and Practice of
Medical Jurisprudence, Vol II for dealing with cases of rape on “a grown
up woman”:

“A false accusation of rape may sometimes be exposed by marks of

violence wholly inadequate or absent.

Bruises upon the arms or the neck may be considered to constitute some
evidence of a struggle; and impressions of fingernails are also
significant. Bruises or scratches about the inner side of thighs and knees
may be inflicted during attempts to abduct the legs forcibly, and care
must also be taken to examine the back, for the victim may have been
pinned against the wall or floor. It is important to record these in detail,
and to say, if possible, how fresh they are. The aging of the bruises is, ( ),
a matter of some uncertainty in the absence of microscopy.

Strong corroborative evidence of a struggle might be obtained from an

examination of the accused for similar marks of bruises or scratches
about the arms or face, and possibly even about his penis, though this is
less likely.”

This case illustrates the emphasis placed on evidence showing physical

injuries. On the other hand there have been cases where the court has
acknowledged that the victim may have been prevented from offering any
physical resistance. In a 1983 case, the court opined that

“The absence of any injuries on the person of the complainant may not,
by itself, discredit the statement of the complainant. Merely because the
complainant was a helpless victim who was by force, prevented from
offering serious physical resistance, she cannot be disbelieved. In this
situation, the non-production of a medical report would not be of much
consequence if there is evidence on record that is believable…58

A study of these judgments shows that the court seldom bases its
decisions on a particular aspect; instead a number of factors are viewed
together in arriving at a decision on whether rape has taken place. These
factors include the nature of injuries found, whether or not a medical

57
Supra N 44
58
” 1983 Cr.LR (SC) 413

22
examination was done, sexual history of the women, age and marital
status.59

Another factor that is considered in judicial deliberations is whether there

has been a delay in lodging the FIR. There have been cases where a delay
in fling an FIR has been used inter alia as a ground for acquitting the
accused.60However, courts have clarified, in a number of cases that if a
delay in filing an FIR is adequately explained then it is not be fatal to the
outcome of the trial.61

As mentioned earlier case law in rape cases is not always consistent. In

some cases medical evidence is considered to be pivotal in proving a
case, whereas in others it has been given a go-by. In still others, the court
has accepted that the victim may have been prevented from offering any
physical resistance. But one aspect that bears mentioning is that none of
the reported cases studied either mention or analyze medical evidence
collected from the accused. This indicates that medical evidence is in
most cases collected only from victims and that the courts do not insist
upon medical evidence to be collected from the accused.

However, this analysis does not aim to present trends in court decisions,
as not all court decisions are reported. Instead, it attempts to indicate
issues that are considered by courts in the adjudication of rape cases.

In the next section, case records of rape cases are studied to discern
commonalities in rape cases and the kind of evidence that is recorded.

Study of case records

In this section information from case files maintained by legal aid
organizations is examined to understand practices followed in existing
rape cases. The objective is to discern common threads that can be further
explored and issues that need to be addressed to ensure efficient

59See Sohel Rana (Md) v State 57 DLR (2005) 591- “When the victim woman was
habituated to sexual intercourse with the appellant and it is found from the
evidence on record that she did not resist or raised any outcry and as seemingly a
willing partner, there is no offence of rape committed.”
60
Firoz Chokdar Supra N 51; Abdul Kader Supra N 31; Hossain Shially Supra N 49
61
See Misti Supra N 30- “Delay in lodging of FIR can be due to a variety of reasons particularly the
reluctance of the prosecutrix or her family members to go to the police and complain about the incident
which concerns the reputation of the prosecutrix and the honor of her family. It is only after giving it a
cool thought that a complaint of sexual assault is generally launched.” In this case the delay was thus
considered to be satisfactorily explained and hence not considered to be fatal.

23
collection of medico-legal evidence. As this study examines records in
cases that are ongoing, there is no attempt to correlate legal outcomes
with the documents examined.

Description of the sample studied

The sample consists of 61 case records from across 15 districts62 sourced
from BLAST (51), Nijera Kori (8) and Mohila Porishod (2)–
organizations that provide legal aid to inter alia rape victims. The
maximum number of cases (15) has been collected from BLAST's offices
in Tangail district.

All these cases have been filed under Section 9 of the NSA and are
pending before the NSA tribunal. A majority of these cases (42) have
been filed under Section 9 (1). Other provisions that have been used
include other sub-sections of Section 9 as well as Sections 5, 7 and 30 of
the NSA.

The cases involve incidents that have taken place in the past 10 years
(2001-2011), with a majority(42) taking place in the period 2008-2011.
Although the files do not mention the current status of the proceedings, in
more than half the cases (37) chargesheets have been filed.

Records examined in the case file include:

• Complaint
• FIR
• Medical Records
• Police Report (Charge Sheet)
• S 161 CrPC depositions

Findings and analysis

Age of the victim and the accused
The age of the victims range from 6 to 48 years. In nearly half the cases
(46%), the age of the rape survivor is less than 16, which is the age of
consent. Of these, in 8 cases, the age of the rape survivor is below 10
years. The high number of rape cases involving minor girls (aged under
16) may indicate that there is more reportage of such cases. However, as
the data has been collected from NGO sources, it is also possible that
NGOs have taken on more cases of rape involving minors.
62
Barisal (5), Chittagong (2), Comilla (3), Dhaka (2), Dinajpur (4), Faridpur (4), Khulna (4), Lakhipur
(1), Mymensingh (5), Natore (2), Noakhali (6), Rajshahi (4), Rangamati (3), Rangpur 91), Tangail (15)

24
 Age of Victim

>10
11--16
17-22
<23
Not mentioned

The age of the primary accused range from 14 to 50 years. In nearly 40%
of the cases, the primary accused is between 18-25 years of age. In nearly
half the cases (46%), the age difference between the accused and the
victim is between 2-10 years.

Table 1
Comparison of Age of Victim and Accused
Age Range (in No. of Victims No. of Accused
years)
>10 8 0
11-16 20 1
17-22 16 13
23-28 3 15
29-34 3 9
35-40 0 6
41-50 1 8
Not mentioned 10 9

Time and place of incident

As is evident from Table 2, a majority of the incidents (68%) occurred
late at night.

Table 2
Time of Incident
Time of the incident No.
Morning (7 a.m- 12 p.m.) 13
Afternoon (12 p.m.- 5 p.m.) 9
Evening (5 p.m.- 9 p.m.) 15
Night (9 pm- 7 am) 20
Not recorded 4

25
 Time of the incident

Morning (7 a.m- 12 p.m.)

Afternoon (12 p.m.- 5

p.m.)
Evening (5 p.m.- 9 p.m.)

Night (9 pm- 7 am)

Not recorded

In more than half the cases (68%), the incident took place either in the
victim’s place or in a place near the victim’s home. Table 3 provides
details on the places where the incident allegedly took place.

Table 3
Place of Incident
Place of Incident No.
Victim's house 26
Near Victim's house 14
Accused's house 5
Other (agricultural land, bazaar,
etc) 14
Not recorded 2

26
 Place of incident

Victim's house

Near Victim's house

Accused's house

Other (agricultural land,

bazaar, etc)
Not recorded

Relationship with the accused

In a majority of the cases, victims knew the accused, because they lived
in the same village (45%), or were related (17%, including 2 cases where
the father raped the daughter) or were neighbors (18%). There are very
few cases where the victim was not related to the accused or where the
victim did was not acquainted with the accused.

Table 4
Relationship with the accused
Relation with victim No.
Living in the same village 27
Relative 10
Neighbor 11
Employer, professional, service provider 3
No relationship 4
Boyfriend 5

27
 Relationship with Victim

Living in the same village

Relative

Neighbor

Employer, professional,
service provider
No relationship

Nature of the incident

In 8 cases there were multiple incidents of rape, 10 cases of gang rape

(involving more than 1 accused), and three cases where the victim was
killed by the accused after the incident (of which one involved a 6 year
old victim) and one where the victim was not found after the incident.

The cases can be broadly categorized into three, first – cases involving
non-consensual sexual intercourse with the use of force (violent rapes),
second - cases involving minors (under 16 years of age) and third - cases
where sexual intercourse took place based on a promise to marry, which
was later reneged upon, in many cases after the woman was found to be
pregnant.

Table 5
Categorization of Incident
Nature of incident No.
Non-consensual sexual intercourse 19
Sexual intercourse with minors (with or without violence) 26
Sexual intercourse with promise to marry 16

Other than cases in the third category (involving sexual intercourse based
on the promise to marry), all the cases mention various forms of
intimidation and force. In a couple of cases, rape was committed after the
rape survivor had refused relations with the accused.

In many rape cases involving minors, the victim was acquainted with the
accused. A number of such cases involve allegations of kidnapping in

28
addition to rape. The mean age difference between the accused and the
victim in these cases is the maximum of the age differences observed (16
years) in all cases.63

Conclusions
- It is possible that cases involving rapes of minors are reported more than
cases involving victims above the age of consent.
- The accused are mostly older than victims
- Incidents of rape occur mostly at night.
- Most of the incidents occur either in the victim’s home or near the victim’s
home.
- Victims are likely to be either related to or acquainted with the accused.
- Rape cases can be broadly categorized into those involving
o Non-consensual sexual intercourse
o Minors (statutory rape)
o Sexual intercourse based on a promise to marry.

Proceedings
Comparing the date of the incident and the date of the FIR, it is found that
in a number of cases (37%), the FIR was filed within 3 days of the
incident, with 4 cases in which the FIR was filed on the same day. On the
other hand, there were major delays in 11% of the cases, where the FIR
was filed anywhere between after a couple of months to more than a year
after the incident.

Of the 35 cases where the FIR was filed without delay, a majority (46%)
involved rapes of minor victims. The comparatively large proportion of
such cases, when compared to higher age groups in cases where there has
been delayed reportage, indicates that rapes involving minors/ children
are reported more speedily than others involving older victims. Here
again, it is possible that, as these cases are handled by NGOs, which have
a particular focus on working with children, a larger proportion of such
cases are being pursued, or are given priority. It also may indicate that
there are fewer women above the age of consent (16 years) who are
seeking criminal redress from the formal justice system.

Table 5
Time between incident and FIR
Time between incident and FIR Nos.
Same day 4

63
The least mean age difference is in cases involving sexual intercourse based on a promise to marry.

29
Within 3 days 19
Within 10 days 6
10 days to a month 9
More than a month but less than 6 months 10
More than 6 months but less than a year 5
More than 1 year 2
Not recorded 6

Time between incident and FIR

Same day

Within 3 days

Within 10 days

10 days to a month

More than a month but less

than 6 months
More than 6 months but less
than a year
More than 1 year

Not recorded

Chargesheets have been filed in 37 of the cases. In a majority of these

cases (67%) chargesheets were filed within two months of the FIR. Only
in one case was the chargesheet filed 10 months after the incident. This
indicates investigators are generally able to meet time frames prescribed
in the NSA.

Time between FIR and Chargesheet

Less than a month

More than a month but

within 2 months
More than 2 months but
less than 4 months
More than 4 months but
less than a year

30
Whether or not the investigation is duly conducted cannot be assessed
from this data, even if it appears that investigation reports are filed in
time. It is observed that none of the chargesheets contain any information
that is not already present in the FIR. The chargesheets also mention
names and numbers of witnesses interviewed. In this sample, the number
of witnesses mentioned varied from 7 to17.

As may be expected in rape cases, there are hardly any direct witnesses to
the incident and most of the witnesses interviewed are family members,
neighbors and others to whom the victim the victim or her family may
have reported the incident (e.g. police officers, magistrate, examining
doctors).

Shalish
Although rape is a cognizable, non-compoundable, and non-bailable
offence, in a relatively large number of cases (37%), of which 5 involve
rapes of minors shalish was attempted before legal proceedings were
initiated. More positively, it was found that in most rape cases involving
minors, shalish is not attempted.

In three cases it is mentioned that shalish was attempted more than once
(between 3-6 times). In most cases, shalish was attempted by the village
elders or matbors. In three cases, the shalish was conducted by members
of the Union Parishod and in one case by the lawyer. In a majority of
these cases, the shalish did not result in any outcome. This indicates that
shalish may be attempted in a significant number of cases, with legal
proceedings being initiated only when the shalish does not result in any
resolution. Significantly, in two cases, it is mentioned that the accused
and the victim were married after the shalish or after the FIR was filed.

Comparing the date of the incident with the date of the FIR in cases
where shalish has been conducted it appears that, except in one case, FIRs
were filed after some delay. In some cases, the FIRs was filed within 15
days while in some others the FIR was filed after the lapse of anywhere
between 6 months to a year. This indicates that cases, where shalish is
attempted, are rarely filed soon after the incident occurs. This has
substantial implications for the collection of medical evidence. Since
medical examinations are, in practice, usually conducted only after FIRs
have been filed, any delay in registering FIRs seriously affects the quality
of medical evidence collected. In fact, it is recommended practice that

31
medical examinations of rape survivors should take place within 72 hours
of the incident.64

It is observed that in a majority of such cases (10 of 23), no medical

examination was conducted at all. This is highly problematic as medical
evidence is of crucial import in rape trials. However, it must be noted that
of these, a number of cases involve sexual intercourse with a promise to
marry, which was subsequently breached. In such cases, the aspect of
medical examination is not as important since the act of sexual
intercourse is not in question. However, there are some cases of violent
rape and rape involving minors where shalish has been attempted, in
which delayed medical examinations may be fatal to trial outcomes.

64
See N 33

32
 Conclusions
- FIRs appear to be registered more speedily in cases involving rapes of
minors than in cases involving rapes of older victims.
- Fewer complaints filed by victims who have attained the age of consent,
(16 years and above) may indicate that fewer women in this age group are
seeking redressal from the formal justice system
- On filing the FIR, investigators are generally able to meet time frames
prescribed in the NSA. This indicates that time prescriptions in the law
encourage speedy investigations.
- Evidence in rape cases is mostly collected from the victim’s family
members or others whom the victim or her family may have reported the
incident to.
- In a significant number of cases, criminal proceedings are initiated only
after shalish attempts fail to resolve the issue.
- Shalish is not, in most cases, attempted in cases involving rapes of minor
victims.
- Attempts at shalish delay filings and medical examinations thus adversely
impacting on trial outcomes.

33
Medical examination records
In this section, findings of the study of medico-legal records (MLR) are
presented.

Purpose of Medical and Forensic Examination

(Excerpt from the CEHAT Manual for Medical Examination of Sexual Assault
2010)

The purpose of the medical and forensic examination of the survivor is to

establish the following:
• Whether a sexual act has been attempted or completed. A sexual act
may not only be penetration by the penis but also slightest penetration
of the vulva by the penis, such as minimal passage of the glans between
the labia with or without emission of semen or rupture of the hymen.
Sexual acts include genital, anal or oral penetration by the penis,
fingers, or other objects as well as any form of non –consensual sexual
touching.
• Whether such a sexual act is recent.
• Whether such an act was forcible. Signs of resistance to the assault are
documented through examination. The history of resistance and/or
evidence of struggle and injuries inflicted on the survivor by the
accused and the survivor on the accused provide evidence that the act
was against her will. However, the absence of signs of struggle does not
imply consent.
• If validity of consent is questionable. Verifying the age of the patient in
case of pre-pubertal /adolescent girls/ boys. Ascertaining influence of
alcohol or drugs administered to the survivor.
• Providing treatment for sequelae of the assault and appropriate
referrals for the patient.

Medical reports were available in 28 of the case records examined. Of

these, 18 cases involve rapes of minors. This indicates that medical
examinations are more likely to be conducted in such cases than in
others.65 There may be two reasons for this – first, there is less stigma
attached in such cases to the victim, who is a child. Second - it is possible
that minors sustain greater injuries due to rape, and hence are brought to
health facilities for immediate medical attention and care, at which time
medical examination reports are also filled in.

65
There may be many reasons for missing medical examination reports. However, it is noted that all
the cases where medical reports are missing involve women over 16 years of age. This too, might
indicate that it is more likely that medical examinations are conducted in cases of minor rape.

34
MLC and FIR
In all except three cases, the medico-legal examination was conducted
after an FIR was filed. The existence of these three instances shows that it
is possible to get a medical examination done without filing an FIR.

In half of these cases (14), the FIR was registered within 3 days of the
incident. Since most of the cases in this section involve rapes of minors,
all the cases where the FIR is recorded, and consequently medical
examinations done on time, involve victims who were less than 16 years
of age. From this sample it appears that the earliest a medical
examination is done is within 2 days after the incident.
Considering that these cases are being closely monitored by NGOs, this is
perhaps an indication that 2 days is the shortest time within which
medical examinations are conducted.

In other cases, (where information is complete), there were major delays

between the incident and registering the FIR, ranging from a couple of
days to months. The longest delay in this regard was of 3 years. It must
be noted that in most these cases (where there were considerable delays in
filing of the FIR), the medical examination was conducted within a day or
two after the FIR was filed. There are only a few cases of delayed FIR
filings where the medical examination was conducted much after the date
on which the FIR was filed. This indicates that medical examinations are
conducted as a matter of course in rape cases. Although there appears to
be little point in conducting medical examinations after such long delays,
as much of the evidence is most likely to be lost in the intervening
months.

Predictably, in all the cases where there has been a delay of a month or
more, shalish has been attempted. Shalish has also been attempted in
most of the cases involving delays of less than a month but over three
days. On the other hand, no shalish, except in 1 case, has been attempted
in cases that have been filed within a couple of days of the incident. This
indicates the conduct of shalish delays reporting and consequently
medical examinations.

Time of conducting medical examinations

In a majority of the cases (19 of 28) medical examinations were
conducted in the afternoon between 12:00 p.m. to 5:00 p.m.—i.e. during
office hours. However, as has been observed earlier, the incidents take
place predominantly in the evenings and at night. Table 6 below

35
compares the time of the incident with the time at which the examination
was conducted.

Table 6
Comparing time of incident and time of medical examination
Time Incidents MLE
Morning (7 a.m- 12 p.m.) 13 2
Afternoon (12 p.m.- 5 p.m.) 9 19
Evening (5 p.m.- 9 p.m.) 15 -
Night (9 pm- 7 am) 20 -
Not recorded 4 4

This means that in many cases, the victim is kept in custody till the
medical examination takes place. Some practitioners report that in certain
cases, the victim is retained in the custody of the police station, which in
turn raises issues of ensuring her safety. The non-availability of medical
examinations after office hours, when the incident is most likely to take
place, may be a major deterrent to victims seeking legal redress.

Place of Medical Examination

In a majority of the cases (20), medical examinations were conducted at
the district level. However, it is also noted that 7 of the examinations
have taken place at the Upzila level. 66 Although there is a delay of a
month in one of these cases, in all the other 6 cases, the FIR was lodged
within a day or 2 of the incident. Further, there are 2 cases involving
victims over 16 years of age. This indicates that medical examinations are
more efficiently administered when facilities are utilized at a local level.

Consent to medical examination

In all except 2 of the cases, consent has been taken either from the victim
herself or her legal guardian. The form itself provides minimal details of
what the victim consents to or notes whether such consent is truly free
and informed.

Practitioners observe that the victim’s consent is not considered to be

particularly relevant, as initiating legal action by filing an FIR necessarily
entails such action. Hence the fact of initiating legal proceedings is
deemed to amount to an omnibus consent to all investigative and
evidence collection processes. Further, the MLR form itself, does not

66
Referred by Modhupur Thaa, Dhonbari Thana, Char Jabur Thana (2), Kotwali Thana, Bakalia Thana,
and Begumganj Thana.

36
provide space to allow the victim to consent to certain aspects of the
procedure or to decline consent to any part of the procedure.

There appears to be diverse practices followed in recording consent. In a

number of cases, minors have signed the consent section themselves.
However, in most of the cases, consent was obtained from the minor’s
legal guardians. It is also surprising to note that in two cases, adult
victims’ legal guardians have signed the medical examination forms,
although there are no allegations of the victim’s mental incapacity in
either case.

Obtaining the victim’s free and informed consent to undergoing specific

forms of medical examinations is an aspect of ethical practice - it is
perhaps essential to incorporate specific instructions on how consent is to
be obtained by the examiner prior to the conduct of such tests.

Personnel involved in conducting medical examinations

In all except three cases (where no details were recorded), a female
attendant was present at the time of the medical examination. On the
other hand, with the exception of one case, medical officers conducting
the tests are all male.

The medical board constituted for this purpose has not certified most of
the forms. However, it is apparent from the few certified form that both
male and female medical officers constitute medical boards. This
indicates that though female medical officers are available, they are not
present in adequate numbers since male medical officers primarily
conduct examinations on rape victims.

Recording of physical injuries

There are only seven cases where descriptions of physical injuries have
been provided, although coercion and force has been alleged in most of
the cases. In another seven cases, no signs of physical injuries have been
recorded, while in the remaining (50%) of the cases, no signs physical
injuries have been found.

One of the reasons for this could be the time lapse between the incident
and medical examination. It is observed that in all the cases (except one)
where physical injuries have been found, the medical examination was
done within 2 days of the incident, whereas in all the cases where the
examination was conducted after long delays, no physical injuries were

37
found. This finding highlights the need for medical examinations being
conducted immediately after the rape incident. However, it must be born
in mind that not all rape is committed with the use of physical force, as
other forms of coercion and intimidation may also be used. In fact
research shows that injuries are seen only in one third of cases on sexual
assault.67

The form also allows the medical officer to record his/her finding on the
nature of injuries sustained. It is found that in 15 cases, the medical
examiner did not record anything under this entry. One of the reasons for
this may be that the medical examiner has already recorded a description
or the signs injuries sustained. Another reason may be that this portion is
left blank when no sign of injury has been found. However, there are
some cases where the medical examiner has recorded both the description
of the injury as well as the nature of the injuries. These diverse practices
indicate that there is a lack of clarity on how findings on physical injuries
should be recorded in MLR forms. It may also indicate a lack of uniform
understanding among medical officers on how such entries are to be
made.

In cases where the medical examiner made a recording, there are two
findings of simple injury, three findings of grievous injury and nine cases
where no injuries were found. The nature of injuries found corresponds to
the findings on signs of injury mentioned above.

One possible conclusion that can be drawn from the low finding of
physical injuries could be that not all rape is committed with the use of
force and instead, coercion and intimidation is been used to vitiate
consent, especially in cases of rape involving minors.

Recording of mental state

The form provides space for recording the mental state the victim. In
more than half the cases, no information is recorded under this entry. The
observations recorded are presented in the Table 7 below.

Table 7
67
Bower, Dalton; Female victims of rape and their genital injuries; Br J Obstet Gynaecol 1997 May;
104 (5): 617-20, quoted in CEHAT; Review of Sexual Assault Examination Forms and Manuals
Prepared by the Appointed High Court Committee; Mumbai; 2011
http://www.cehat.org/go/uploads/SexualViolence/Critique.pdf. See also McGregor et al; Sexual Assault
forensic medical examination: is evidence related to successful prosecution? Ann Emerg Med. June
2002; 39: 639-647 where it was found that genital injury is absent in more than 50% of cases of sexual
assault, even among victims presenting to a hospital based service. Quoted in CEHAT; Manual for
Medical Examination of Sexual Assault; Mumbai; 2010

38
 Observations on “Mental State”
Observation Numbers
“Worried” 2
‘Normal’/ ‘sound’ 8
Insane 2
Not recorded 16

There may be a number of reasons for this kind of reporting. First, the
victim may not manifest any recent trauma due to the delay in reporting.
Second, not all victims may manifest any signs of trauma but appear calm
and composed. Finally, it is possible that the medical examiners, being
physical practitioners, are not equipped to identify mental trauma
accurately. To demonstrate, ‘worried’ cannot possibly be an accurate
representation of what, as in these cases, 12 and 14 year-old rape victims
may be experiencing. Also the terms ‘insane’ have little clinical
relevance, as it does not indicate the nature and extent of mental illness, if
any.

39
 Rape Trauma Syndrome
(Excerpt from CEHAT Manual for Medical Examination of Sexual Assualt)

‘Rape Trauma Syndrome’ was first described by Burgess and Holmstrom in the year 1974. The identification
of this syndrome by them was based on the analysis of 92 adult women rape survivors whom they interviewed
and followed up. They delineated the symptomatology of this syndrome into two phases.

Phase 1, the acute phase, is one of disorganization. The survivor feels shock and disbelief regarding the rape.
They may initially react in two ways:
(1) In the expressed style, patients display anger, fear and anxiety and often cry and
(2) In the controlled style, the patient remains calm and composed and displays little outward emotion.
Often, the controlled patient needs permission to express her emotion. This phase can last from 6
weeks to a few months...

Phase 2 – the reorganization phase, is a long term process in which the survivor develops certain coping
mechanisms. Reorganization may include stages of outward adjustment, personal integration. However, it
is most important for doctors to realize that not all survivors will have similar kinds of symptoms. Some
may exhibit more severe forms of symptoms constituting the syndrome, some might have few and others
may have no symptoms at all…

Obstetric/Gynecological Examination and Marital Status

In more than half the cases, the medical examiner has not mentioned
details of menstrual history. On the other hand all MLRs, except one,
mention the victim’s marital status and the number of children she has.
(Unsurprisingly, given the predominance of rapes of minors in the
sample, a large majority of victims are unmarried). It may then be
inferred that this data is routinely collected from rape victims. Similarly,
results of examinations of breasts, hair and abdomen of the victim are
routinely conducted, although only a few MLRs provide details of
injuries sustained to these parts.

Another aspect routinely recorded (only three of the reports did not
contain any details of such examinations) is the findings of examinations
of genital organs. Findings pursuant to an examination of the mons pubes,
labia majora, labia minora and vestibule are mostly noted as ‘normal’,
‘healthy’ or ‘ok’. Only two MLRs recorded injuries. Similarly results of
examining the fourchette and cervix and rectum, which appear to be
conducted routinely, are mostly ‘healthy’ and ‘normal’, with only a few
recordings that are different. Although required, results of rectal
examinations are mostly not recorded (in 19 cases).

Details on the hymen examination are, however, slightly more

descriptive. These are:

Table 8

40
 Findings of hymen examinations
Recording No.
Old tear 8
Healthy 5
Ruptured 3
Ill Defined 1
Thick, fleshy, elastic and
tough 1
Not recorded 10

It is clear that the examiners use the finger or the 2-finger test to examine
the vaginal canal. In this test, the medical examiner

‘notes the presence of the hymen and the size and so-called laxity of the
vagina of the survivor. This test is widely used in efforts to assess whether
unmarried girls and women are ‘habituated to sexual intercourse’.68

Only in nine cases have these details of the 2-finger test not been
recorded. In others observations recorded are as follows:

Table 10
Observations recorded for examinations of
the vaginal canal
Description No.
Admits 2 fingers 4
Admits 2 fingers easily 3
Admits 2 fingers loose 3
Admits 2 fingers tightly 1
Admits 3 fingers easily 4
Healthy 2
Admits 1 finger loose 1

Only in one instance is there an additional recording that the genital area
was ‘reddish, tender and blood-stained’. It must be noted that in 12 cases
the finger test was conducted on minor/child victims. In one case, the
finger test was conducted on a victim found to be 26-27 weeks pregnant.
It is also noted that finger tests are also conducted in cases where there
have been significant delay in reporting the incident. This indicates that
finger tests are routinely conducted on all rape victims.

68
Human Rights Watch; Dignity on Trial: India’s Need for Sound Standards for Conducting and
interpreting forensic examination of rape survivors’; www.hrw.org

41
 There appear to be no commonalities in the nine cases where findings
from this examination have not been recorded. These MLRs do not record
reasons for not conducting the finger test. However, it is observed that in
six of these cases, medical examinations were conducted in the shortest
possible time (i.e. within 2 days) and involved minor/child victims. In
three of these cases, the examining officer found signs of forceful sexual
intercourse, as well as signs of physical injuries. This indicates that
although finger tests are routinely conducted, such tests are not
necessarily required by medical examiners to arrive at a finding of forced
sexual intercourse.

Excerpt from
BLAST Exploratory Study by S.M. Rougerie

The finger test, which is a standard practice at the OCC-DMCH, (One Stop Crisis Center) is a practice that
involves the doctor inserting one or more fingers into the rape survivor’s vagina, to note the presence of absence of
the hymen, the laxity of the vagina, and vaginal tenderness. Where a medical report submitted to the court notes
that the victim was “habituated to sex”, that finding is generally based on the so-called laxity of the victim’s
vagina, as measured by the finger test.

The finger test is problematic in many ways. First of all, it has been denounced by doctors around the world as
having no scientific value. An obvious reason for this is that doctors’ fingers may be of different sizes, meaning
that the perception of laxity will differ from one doctor to the next. A number of other concerns have been raised
about the finger test’s forensic value, with the general conclusion being that women’s bodies come in different
shapes and sizes, and that the insertion of a finger cannot lead to a conclusion about a woman’s sexual past.
Doctors have also indicated that the presence or absence of the hymen is not necessarily a conclusive sign that
penetration has or hasn’t taken place.

Aside from being scientifically untenable, the finger test is also painful and invasive for rape survivors,
particularly young girls. One interviewee confirmed that the test had previously been used on one of her ten-year
old clients, who cried and screamed throughout the procedure. It is not difficult to imagine that the test, which is
intended to simulate penetration, is also traumatic for rape survivors.

Finally, aside from a finding of vaginal tenderness being used as evidence of forceful penetration, the results of the
finger test have no legal relevance. An alleged finding of laxity, or “habituation to sex”, has no bearing on the
legal requirements of rape: sexual intercourse and the absence of consent. Even if the test permitted drawing
conclusions about the survivor’s sexual past, those conclusions would be immaterial to any allegation of rape. In
fact, including such a conclusion in the medical report serves no purpose but to fuel defence counsel’s attempts at
disparaging the victim’s character. In India, the Supreme Court has already ruled that the finger test cannot be
used against a woman in court, and that any evidence that a woman is habituated to sex is inadmissible.
The course of this research has already revealed that the OCC-DMCH, which has one of the largest and most
women-friendly forensics departments in the country, performs the finger test as part of its normal examination.
However, further research will be required to determine how widespread its use is in other hospitals.

42
Treatment Prescribed
It appears that medical examinations are conducted on rape victims with
the sole purpose of collecting evidence to be used in court and no
treatment or care is prescribed to the victims following the examination.
This is inferred from the fact that in almost all the cases, spaces provided
for advice and referral have been left blank; even in the few cases where
grievous injuries have been discerned. The possibility of treatment being
provided without documentation is not ruled out. However, there is a risk
that such treatment may be given in an informal manner, thus making it
difficult to ensure the accountability of the treatment/service provider to
the victim, given that no recordings are made of the same.

It is also found that in a majority of the cases (28) no further tests have
been advised or recorded. In others the most common tests recommended
are ultrasound, x-ray and pathological tests. There is one instance where
the rape victim was rendered pregnant as a consequence of rape, in which
a DNA test was advised.69

Victim’s age
After conducting the examinations, the medical examiner has to provide
an estimate of the victim’s age. This has been done in 16 of the cases in
this sample. In half of these cases (8) the ages tally exactly. In others (8),
the age has increased by a minimum of 1 and maximum of 3 years in all
but one case.70 Although there is a significant increase in the ages in the
latter cases none of these cases involve a lapse in reporting time of more
than a couple of months.

The forms do not provide space for recording the methods used to
determine age. It is also not known whether any age related documents
(e.g. birth certificate, school leaving certificate) were presented to the
examining officer for further verification.

Medical Examiner’s Opinion

Finally, at the end of the examination, the format provides space for the
medical examiner to express his opinion. Opinions are not recorded in
only 6 cases, most of which were filed after considerable delay.71

69
The facts in this case involved sexual intercourse based on a promise to marry.
70
In this case the age of the MLC is 17-18 years, whereas the FIR mentions the age of the victim to be
12 years.
71
In one of these cases there was a delay of 3 years between the incident and the registering of the FIR

43
In a number of cases (9) it is opined that ‘no sign of forced sexual
intercourse has been found’. In comparatively fewer cases (6) it is opined
that ‘signs of forced sexual intercourse has been found’. There is no
elaboration of the term ‘forced’ used in these opinions. As mentioned
earlier, it is not necessary that all rape is accompanied by physical force.
In many cases, duress is applied through coercion and intimidation, e.g.
when a person is threatened with injury or when an abuser is a position of
authority vis-a-vis the victim as happens in cases of rape. Four of the
cases where ‘no sign of forceful intercourse’ was found involved sexual
intercourse on a promise to marry. In others various violent acts have
been alleged, including one case where the victim has alleged gang rape.

In 5 of the 6 cases where ‘sign of forceful intercourse’ has been found,

were reported within two days of the incident. This again indicates the
importance of recording medical examination findings soon after the
incident has taken place.
Other opinions (6) that have been given are:

• The victim is “habituated to sex” (there was over 9 months delay in

this case. It is alleged that the victim was threatened with a bottle
of acid and raped in her own house when her parents were away.)

• There is “no sign of recent forceful intercourse but intercoursed

(sic)” (case where a 14 year old has alleged gang rape)

• “No sign of recent forceful intercourse” (this is a case involving a

14 year old girl and the incident was reported within a day of its
occurrence)

• “Sign of recent sexual intercourse is found” (case of a 15 year old

victim)

• “The victim is not consistent with sexual intercourse” (case

involving the alleged rape of an eight year old)

• “R has signs of recent sexual intercourse and age is about 12 years”

These varying opinions have significant implications for legal outcomes.

For instance, legal practitioners point out that defence counsel often rely
upon the phrase “habituated to sex” or “habituated to sexual intercourse”,
to discredit the victim’s testimony . Another problematic aspect is the use
of the word ‘forceful’, as the assessment is only of bodily injuries caused

44
by physical force. In fact, it is noticed that in all cases where signs of
forceful intercourse have been found are also cases where physical
injuries have also been found (not in all cases to the genital organs). This,
however, does not negate the possibility of using intimidation in cases of
rape.

These cryptic recordings do not indicate the reasoning used by the

medical officer in reaching his/her opinion. There are also no recordings
of why certain sign or injuries were not discovered and a correlation of
examination findings with the facts of the case as related by the victim.
Medical examination and investigation
There is a strong indication that medico-legal certificates are the most
crucial piece of evidence that courts rely on during rape trials. This is
evidenced by the fact that in 25 out of 37 cases where chargesheets have
been filed, the medico-legal examination report is also furnished.72 This
indicates that medical examination reports are essential to the
investigations that are conducted.

In a number of these cases (12), the chargesheet was filed in a month or

less from the date of the medical examination. In the remaining, in 12
cases the chargesheet was filed within 3 months from the time of the
medical examination and in only one case was the chargesheet filed after
3 months of the examination.

In a majority of these cases (26 out of 37) no additional evidence was

collected or mentioned in the charge sheet. In the remaining the following
items were recovered:
• clothes belonging to the victim and/or the accused (4 cases)
• reports of DNA analysis (3 cases)
• Marriage registration certificate (1 case)
• Post mortem report (in one of the cases where the victim was killed
pursuant to the rape)
• ‘Bed, blanket and bed sheet’ (1 case)
• A video CD of the incident in a case where the incident was
recorded on a phone camera.

The relatively small number of cases where other evidence has been
collected by the investigators, when compared to the large number of
cases where the medical report has been filed along with chargesheets,

72
This means that chargesheets have been filed in 25 of the 28 cases where the medical examination is
complete.

45
indicates that the medical report is the most crucial evidence that is relied
upon by State investigators and the court.73

Conclusions
• It is likely that more medical examinations are conducted on minor/children
under the age of 16 than on women in higher age groups.
• Although most medical examinations are conducted after the FIR is filed, it
is possible to get an examination done even before an FIR is filed.
• Medical examinations are conducted routinely in all cases, even if there is a
considerable delay between the incident and complaint, when the likelihood
of finding evidence is reduced.
• Medical examinations are conducted during office hours although most
incidents of rape take place at night, which means that victims may have to
be kept in custody till such tests, are conducted.
• Most medical examinations are conducted at the district level, which are in
most cases, a considerable distance from where the incident occurs or where
the victim lives.
73
• Filing of between
A comparison time
an FIR is lapses in
deemed toreporting and age
be consent show
to the allthat there is no correlation
investigative procedures between
either.
including medical examinations. Victims’ consent to specific aspects and
forms of testing are not taken, nor is the victim given the option to decline
any tests part of the medical examination procedure. 46
• Medical examinations are mostly conducted by male medical officers in the
presence of a female attendant.
Conclusions and recommendations
It appears from this sample that cases involving minor/child victims are
reported and attended to more than cases involving women in higher age
groups. This means that these cases involving minors are reported shortly
after the incident of rape, shalish or mediation is not attempted in most
cases and medical examinations are done on time. In the absence of
publicly available disaggregated statistics on police complaints and court
proceedings this cannot be identified as a trend but rather as an indication
that requires further exploration. However, the efficacy with which such
cases are treated ensures that medical examinations yield reliable
evidence.

On the other hand, this data indicates that in cases involving women in
higher age groups, i.e. women above 16 years of age, there are major
delays in reporting. In a number of instances, this is due to shalish
attempts to reach a settlement before recourse is sought under the formal
justice system. Delayed complaints result in delayed medical
examinations that may have deleterious impacts on trial outcomes. This
gives rise to cause for serious concerns as the analysis of decisions of the
higher judiciary shows that medical evidence is insisted upon in most
cases involving adult women, particularly if they are married.

Medical evidence is considered pivotal in rape trials. As this study shows,

MLRs are often the only piece of evidence furnished with investigation
reports (chargesheets), which rarely add any further details to complaint
filed. However, the process by which such evidence is collected gives
cause for some serious concerns. These are:

• A limited understanding of rape, which is centered on the use of

force than on the absence of consent. Hence the emphasis is placed
on discerning signs of injuries instead of correlating physical
/mental symptoms with the victim’s account of sexual assault. This
is particularly problematic as it observed that as the victim is
acquainted with the abuser in most cases, it is possible that the
abuser may use other forms of duress to vitiate consent, which may
not involve the use of force.

• A narrow definition of rape in law that is limited to acts of

consensual penetration, does not take into account the myriad ways
in which sexual assault is perpetrated.

47
 • Use of the two finger test is not only unreliable but reinforces
gender stereotypes and is hugely traumatic for victims. It must be
noted that the cases studied in this paper show that injuries or signs
of ‘forceful sexual intercourse’ can be discerned even without the
conduct of these tests. However, victims are not given an option to
refuse to undergo such tests as initiation of legal proceedings is
deemed to be consent to all forms of investigative proceedings
including medical examinations of all forms.

• Delays in conducting medical examinations severely reduce the

value of evidence collected through medical examinations. Delays
can be caused for a number of reasons, e.g. lack of awareness of
legal rights and legal procedures, reluctance caused by trauma or
fear of retaliatory violence or repercussions, stigma associated with
rape, etc. However the MLR forms do not provide space for causes
of delays or behavior that may result in reducing evidentiary value.

• The availability of medical examination facilities at the district

levels and during office hours severely impedes women’s access to
such facilities. It may also compromise her safety and add to her
trauma, as she may be retained in custody till such tests are
conducted. There appears to be no method in place to collect
medical evidence immediately, or record the victim’s physical and
mental condition when she approaches medical facilities for
treatment at the upazila levels.

• The lack of female medical officers to conduct such tests may also
be a reason for women’s hesitation in undergoing such tests.

• Medical examinations are predominantly conducted on female

victims and almost never on alleged perpetrators.

The following recommendations may be useful to overcome some of

these concerns:

• Review the MLR form to reflect the manner in which sexual

assault takes place.

• Put in place protocols for medical officers that cover aspects of

both evidence collection and provision of treatment and ensures
uniform understanding on the role of medical professionals vis-à-
vis victims of sexual assault.

48
• Provide for or authorize medical professionals at the local (upazila)
levels to conduct medical examinations and record the physical and
mental state of women victims of sexual assault. Record creation
immediately after the incident will yield reliable evidence that can
be used whenever the victim is ready to initiate legal proceedings.

• Prohibit the mandatory or routine conduct of the two finger tests.

• Repeal Section 155(4) of the Evidence Act that allows the victim’s
testimony to be discredited if she is shown to be of generally
immoral character.

• Amend the definition of ‘rape’ in Section 9 of the NSA and Section

375 of the Penal Code to include different forms of sexual assault,
which are not limited to only penetrative non-consensual sexual
intercourse.

49