|Year : 2017 | Volume
| Issue : 2 | Page : 72-76
Legal and ethical complexities in the examination of victims of sexual assault in India: A medical practitioner's perspective
Swapnil Sudhirkumar Agarwal1, Lavlesh Kumar2, Krishnadutt Harishankar Chavali3
1 Department of Forensic Medicine and Toxicology, Pramukhswami Medical College and SK Hospital, Karamsad, India
2 Department of Forensic Medicine and Toxicology, SBKS Medical Institute and Research Centre, Sumandeep Vidyapeeth, Vadodara, Gujarat, India
3 Department of Forensic Medicine and Toxicology, All Institute of Medical Sciences, Raipur, Chhattisgarh, India
|Date of Web Publication||20-Apr-2017|
Swapnil Sudhirkumar Agarwal
Department of Forensic Medicine and Toxicology, Pramukhswami Medical College, Karamsad - 388 325, Gujarat
Source of Support: None, Conflict of Interest: None
Sexual assault causes tremendous physical and psychological trauma in women and children. Indian law recognizes sexual violence very seriously through various sections of the Indian Penal Code, yet the conviction rate is meager. It resulted in several amendments of Penal and Criminal Procedure Codes, Evidence Act along with Protection of Children from Sexual Offenses Act. These amendments intend to broaden the focus of medical examination from mere collection of evidence to a holistic approach for complete care and rehabilitation of victims. However, these amendments have landed the medical practitioners as well as the victim in conflicts of ethical and legal issue such as mandatory reporting to police even when the victim is nonconsenting; mandatory examination, treatment and rehabilitation by any medical practitioner (government and private), and that too free of cost. The present article aims to highlight such conflicting legal and ethical issues for the medical practitioners who examine and treat such victims. All the relevant and pertinent statutory laws, guidelines, and regulations were studied together from the viewpoint of rights and duties of a medical practitioner. We intend the law makers to review the acts, codes, and guidelines for clarity, leaving no space for perplexity for medical practitioners and at the same time protecting the rights of victims of sexual assault.
Keywords: Care, caregivers, complexities, confidentiality, consent, cost, sexual assault
|How to cite this article:|
Agarwal SS, Kumar L, Chavali KH. Legal and ethical complexities in the examination of victims of sexual assault in India: A medical practitioner's perspective. J Med Soc 2017;31:72-6
|How to cite this URL:|
Agarwal SS, Kumar L, Chavali KH. Legal and ethical complexities in the examination of victims of sexual assault in India: A medical practitioner's perspective. J Med Soc [serial online] 2017 [cited 2018 Mar 19];31:72-6. Available from: http://www.jmedsoc.org/text.asp?2017/31/2/72/204826
| Introduction|| |
Strong public outrage post-Nirbhaya case in 2013 provided momentum to revisit the then existing laws and its implementation. Sexual assault includes anything from touching another person's body in a sexual way without the person's consent to forced sexual intercourse – oral and anal sexual acts, child molestation, fondling, and attempted rape. The World Health Organization defines sexual violence as “any sexual act, attempt to obtain a sexual act, unwanted sexual comments/advances and acts to traffic, or otherwise directed against a person's sexuality, using coercion, threats of harm, or physical force, by any person regardless of relationship to the victim in any setting, including but not limited to home or work.” Indian law recognizes sexual offence(s) through various sections of the Indian Penal Code (IPC). The statutory definition of “rape” in India is found under Section 375 of the IPC.
| Background|| |
It would be pertinent however in the backdrop to meticulously examine the statutory provisions and make inferences out of it to get a clear understanding of the ambiguity and the complexities arising out of it.
- From February 3, 2013, as per Criminal Law (Amendment) Act, 2013, Section 375 IPC states that a man is said to commit “rape” if he:
- Penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a woman or makes her to do so with him or any other person; or
- Inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra, or anus of a woman or makes her to do so with him or any other person; or
- Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus, or any part of the body of such woman or makes her to do so with him or any other person; or
- Applies his mouth to the vagina, anus, and urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:
- First: Against her will
- Second: Without her consent
- Third: With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt
- Fourth: With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married
- Fifth: With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent
- Sixth: With or without her consent, when she is under 18 years of age
- Seventh: When she is unable to communicate consent
Explanation 1: For the purpose of this section, “vagina” shall also include labia majora
Explanation 2: Consent means an unequivocal voluntary agreement when the woman by words, gestures, or any form of verbal or nonverbal communication communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity
Exception 1: A medical procedure or intervention shall not constitute rape
Exception 2: Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape
Till February 2013, Section 375 IPC read as:
A man is said to commit rape who, except in the case hereinafter excepted, has sexual intercourse with a woman under the circumstances falling under any of the following six descriptions:
- Against her will
- Without her consent
- With her consent, when the consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt
- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married
- With her consent, when, at the time of giving such consent, by the reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent
- With or without her consent, when she is under 16 years of age
Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape
Exception: Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape 
Since 1860, under the IPC, the minimum age at which a girl is legally competent to have consensual sex was fixed at 10 years, changed to 12 years in 1891, 16 years in 1940, till 2012, wherein a new act – Protection of Children from Sexual Offence (POCSO) Act made any sexual act below the age of 18 to be an offence
As per Se ction 7, POCSO Act, sexual assault is defined as – “Whoever, with sexual intent touches the vagina, penis, anus, or breast of the child or makes the child touch the vagina, penis, anus, or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.” The act further defines what is penetrative sexual assault, aggravated penetrative sexual assault, and aggravated sexual assault
“Child” as per the said act means any person below the age of 18 yearsSection 19, POCSO Act, 2012, mandates compulsory reporting of any case (even suspected) of offence under this act to policeSection 21, POCSO Act, 2012, provides punishment for not reporting of an offence under this act with imprisonment of either description which may extend to 6 months or with fine or bothSection 27, POCSO Act, 2012, states that if victim of a sexual offence is a girl (<18 years), her medical examination has to be mandatorily done by a female registered medical practitioner. Such an examination again has to be necessarily done in the presence of the parent of the child or any other person in whom the child reposes trust or confidence. In addition, in case the parent of the child or other person cannot be present, for any reason, during the medical examination of the child, the medical examination shall be conducted in the presence of a woman nominated by the head of the medical institutionAnother act under consideration would be Section 377, IPC, which states that: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fineCriminal Law (Amendment) Act, 2013, has added another section in Criminal Procedure Code, 1973. The new section is Section 357C, according to which all hospitals, public or private, whether run by the Central Government, the State Government, local bodies, or any other person, shall immediately provide the first aid or medical treatment, free of cost, to the victims of any offence covered under Sections 326A, 376, 376A, 376B, 376C, 376D, and 376E of the IPC (provide punishment for different acts of sexual assault as per Section 375 IPC), and shall immediately inform the police of such an incident With regard to the same section, Section 166B of the IPC states that – Whoever in charge of a hospital, public or private, whether run by the Central Government, the State Government, local bodies or any other person, contravenes the provisions of Section 357C of CrPC, 1973, shall be punished with imprisonment for a term which may extend to one year or with fine or both In 2005, Criminal Procedure Code, 1973, was amended to insert a new Section 164A which states that (1) when during investigation, medical examination of victim of rape/attempted rape is to be done, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the government or a local authority and in the absence of such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman should be sent to a registered medical practitioner within 24 h from the time of receiving the information relating to the commission of such offence. (2) The registered medical practitioner, to whom such woman is sent, should examine her, without any delay and prepare a report of her examination comprising the preliminary details with meticulous mention of injuries over the body, general mental condition of the female with detailed description of all materials taken for investigation. (3) The report should precisely state all the reasons for each conclusion arrived at. (4) The report shall specifically record that the consent of the woman or of the person competent to give such consent on her behalf to such examination had been obtained. (5) The exact time of commencement and completion of the examination shall also be noted in the report. (6) The report should be forwarded, without delay to the investigating officer, who shall forward it to the magistrate. (7) Nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalfIn relation to termination of pregnancy, we have The Medical Termination of Pregnancy (MTP) Act, 1971 (amended in 2003). As per Section 3 (2) (b) (i), of this act – a pregnancy may be terminated by a registered medical practitioner where the continuation of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical and mental health. Where any pregnancy is alleged to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the woman. No pregnancy can be terminated except with the consent of the pregnant woman. Age of consent is 18 years and for pregnant woman below 18 years of age or who is mentally ill, consent of her guardian is sufficient. The act does not mention of reporting to investigating authorities in cases of pregnancy because of alleged rape or determination of age of the pregnant woman if she does not appear to be of 18 years of ageThe Ministry of Health and Family Welfare, Government of India, too came out with Guidelines and Protocols for Medicolegal Care for Survivors/Victims of Sexual Violence in 2014, which are essentially aimed at doctors who might one day be called upon to handle female victims of sexual assault/rape in the course of their practice whether in a government hospital or even a private one. These guidelines mandate compulsory reporting to police of any case of sexual assault even though the victim/guardians do not wish for the same and need only treatment/counselingIn the year 2006, Prohibition of Child Marriage Act declared marriage of girl below 18 years, boy below 21 years as void. There is punishment for persons who conduct such marriage but child begotten or conceived of such child marriage legitimate for all purposes.
| Complexities|| |
The changes in various acts and codes, outlined above, in the recent past have been made with the aim to curb the menace of sexual violence. In an attempt to do so, it also has created conflicts and a medical practitioner possibly will be trapped in the web.
When any case of consensual or nonconsensual sexual act is either brought to a doctor (registered medical practitioner) or comes on its own for medicolegal purposes, he/she has to examine it with the purpose to form an opinion as to (1) whether a sexual act has been attempted or completed, (2) whether such a sexual act is recent and whether any harm has been caused to the survivor's body, (3) what is the age of the adolescent girl who is probably a victim of sexual offence, and (4) whether there is any role of any intoxicated substance in the alleged act. Apart from the same required for medicolegal purposes, the said victim is entitled for treatment that includes care for injuries, sexually transmitted diseases, HIV, testing for pregnancy, use of emergency contraception, psychological counseling, and follow-up care.
The complexities for medical practitioners arising out of these changes are as follows:
- Any medical practitioner can now be asked to examine and prepare a report for victim of sexual assault. Not all can be well trained, and refusal for such examination is now made punishable
- Not only mandatory to examine them, all medical practitioners now need to be aware of detailed examination and reporting of victims of sexual assault. This is practically not feasible, more so in remote areas where there is dearth of a medical practitioner itself
- For victims <18 years of age, the examination mandatorily has to be carried out by a female registered medical practitioner. It may be difficult to arrange one at times, so there is an issue when no one is available. This may result in referral and delay in examination
- If the girl is >18 years of age, the medical practitioner/hospital has to make arrangements for a female witness to be present during the examination, in whom the victim has faith. This again may be difficult at times
- On the other side, now it is mandatory to examine such victims immediately/without delay. Inordinate delay can occur in arrangement of female registered medical practitioner or a female attendant. In addition, delay can occur if there is only one registered medical practitioner and he/she has emergency cases to attend before undertaking examination of victim of sexual assault. Failure again has been made punishable
- Failure on the part of registered medical practitioner to protect victim from suspected/unsuspected pregnancy or sexually transmitted disease is now made punishable too
- All cases of overt or even suspected sexual assault are to be mandatorily informed to police. This mandatory reporting:
- Is necessary if any girl with sexually transmitted disease approaches medical practitioner for treatment. The patient/relatives may not be willing to inform the case to police and just would like to get treated. Insistence on the part of medical practitioner to inform police can result in such patients not approaching for medical assistance and landing up with quacks
- Is necessary when any patient approaches medical practitioner for psychological counseling following a traumatic sexual assault incident. Again, the patient or relatives may not be willing to inform the incident to police and insistence of medical practitioner can again result in failure of such patients to seek psychological counseling, which is necessary in these cases
- Is again necessary if a girl/parents approach a medical facility for medical termination of pregnancy. It is the right of every girl to get pregnancy terminated, if it has occurred as a result of rape, with maintenance of confidentiality. This confidentiality now gets lost on intimation to police. Hence, again people may resort to criminal abortion, thus risking their lives. A pregnancy allegedly due to an act of rape may be terminated as per MTP Act, 1971; it is noteworthy to mention that henceforth it is the duty of every such medical practitioner to collect samples for DNA typing to help the investigating authorities
Failure to intimate all such cases is now made punishable. Even failure to collect and preserve sample for DNA typing in cases of pregnancy resulting from rape can be punishable for loss of evidence of a crime
- Nonpenetrative sexual assault has now been recognized and made punishable. However, all such assaults generally do not leave any evidence over the body of the victim. This may result in unnecessary harassment of the medical practitioner for not conducting a proper medical examination or collection of evidence
- Treatment of victims of sexual assault is now mandatorily to be done free of cost. Failure again is made punishable now. This free treatment is up to what extent is not declared anywhere. If any such assault results in pregnancy, whether the pregnancy too is covered under the free treatment is not clear.
| Suggested Measures to Tackle Them|| |
- Where any registered medical practitioner finds himself/herself not well trained to do the same, he/she can ensure that any life-threatening issue is taken care of by him/her and then refer the case to the nearest qualified center for detailed examination and reporting of victims of sexual assault. Care needs to be taken that the victim/relatives do not get unnecessarily harassed in the due process
- For victims below 18 years of age, there is a need for examination by a female registered medical practitioner only. In case such arrangement is not possible, another alternative would be that the same be intimated to the investigating officer, victim, and relatives and consent taken for examination by a male registered medical practitioner in presence of any female, in whom the victim shows trust. All this to be documented to avoid future litigation
- A female witness for victim >18 years of age can be made available in routine setups. If not possible, any person in whom the victim shows trust can be made a witness with proper documentation
- Unnecessary delay has to be avoided earlier too. In cases where there is only one registered medical practitioner, who is busy with other emergencies, the same can be documented on case papers, and depending on the time required to take care of those medical emergencies, he/she can either safely refer the victim to the nearest available facility or attend to him/her as and when the medical emergency is over
- While examining a victim of sexual offence, mandatorily the registered practitioner must exercise the precaution of unwanted pregnancy or transmission of sexually transmitted disease; all measures undertaken with the consent of the victim/guardian
- In cases of mandatory reporting to police when the patient wants only medical treatment for a sexually transmitted disease/psychiatric counseling/getting a medical termination of pregnancy done, either the victim/guardian may be counseled to report to the police or reporting may be done after the requisite treatment has been given to the victim; all with documentation with reasons. Care must be taken to preserve the requisite samples for future investigations
- With respect to collection of evidences in cases of nonpenetrative sexual assaults, it is prudent that no physical evidence may be available
- With regard to examination and treatment to be provided free of cost, a proper representation from local body of medical practitioners can be done to appropriate authorities taking care of the best interests of the victim.
Medicine has long got converted into an industry. Like other industries, it is high time that medical practitioners start preparing standard operating procedures (SOPs) in consonance with local laws and adhere to them strictly. Having a uniform SOP with checklists for procedures will go a long way in protecting the rights of the medical practitioners as well as the victims of sexual assaults too.
| Conclusion|| |
There is not an iota of doubt that changes made in different codes and new acts, all aim to protect rights of victim of sexual assault, be it a fast and perfect medicolegal examination so that important evidence as to the commission of crime is not lost. Apart from medicolegal purposes, the victim gets adequate treatment including that for her physical injuries, sexually transmitted diseases, emergency contraception as well as psychological counseling and rehabilitation. However, to ensure the same, too many conflicting laws have been enacted that not only pose difficulty to a medical practitioner but also infringes upon the fundamental right of the victim too.
The lawmakers need to relook into them and come out with a comprehensive single act/guideline so that interests of all the stake holders are protected.
Financial support and sponsorship
Conflicts of interest
There are no conflicts of interest.
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