Medical Examination of the Accused in Rape Cases

Introduction:

Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without that person’s consent. “The act may be carried out by physical force, coercion, abuse of authority, or against a person who is incapable of giving valid consent, such as one who is unconscious, incapacitated, has an intellectual disability, or is below the legal age of consent. The term rape is sometimes used interchangeably with the term sexual assault.”[1]

There are many jurisdictions where the crime of rape has been mandated as a sexual assault, which also covers those acts which may fall short of intercourse. Rape for long has been considered to be caused by the unrestrainable/unbridled sexual desire, but now it is understood to be a pathological assertion of power over a victim.[2]

In India, the safety of women has been a major concern throughout the 21^st century. Cases like Scarlett Keeling’s rape and murder, Park Street rape case, Priyadarshini Mattoo rape, and murder case, and Nirbhaya case are just a few of the famous rape cases of recent time. They still burn a horrible picture of humanity in the minds of Indians.

Without proper investigation, rape victims will never get justice albeit this will instill more confidence in the criminal predators leading to a high rise in rape cases and other heinous crimes. Rape isn’t only committed against women but children and men (sodomy) too. So, these kinds of crime aren’t limited to only certain demography but their effects are found throughout the spectrum of a nation.

So, an efficient investigation process is of utmost importance to not only reduce rape cases but for providing a better society for every individual. The insufficiency of capable laws would amount to a loose grip over criminals and would give them a way out of the legal bindings.

Laws regarding Rape in India

Section 375 of the Indian Penal Code the act of intercourse between a man and a woman, if done against her will or without her consent, will be punishable. This also includes if the consent of the victim is obtained by coercion, by endangering her or any person in whom her interest lies is in fear of death or of hurt. Rape also includes if the girl is under 18 years (with or without her consent). Although there is an exception, if the girl is his wife and is not under 15 years of age, sexual intercourse or acts by a man will not be considered rape.

Seven years of jail term to life imprisonment to whoever commits the offense of rape is mandated by Section 376.[3]

It is presumed by Section 114A of the Indian Evidence Act that consent is absent in certain rape prosecution if the victim says so. This applies to custodial rape.[4]

The law for medical examination of the accused is Section 53 of the Indian Penal Code. It dictates that when an individual is arrested on the charge of committing rape and has been alleged to have committed it under certain circumstances which bring reasonable grounds in forth of the Police that they believe, an examination of this person will fruit to evidence as to the commission of the offense. Then it shall be lawful for a registered medical practitioner, by the request of a Police Officer, not below the rank of sub-inspector, and any other person who acts in the good faith to his aid and under his direction, to undertake such an examination of the person arrested because it is reasonably required in order to determine the facts which might produce such evidence and to use such force which is reasonable for that particular purpose. An essential fact to be added is in Section 53(2) states that if the accused is female then the medical practitioner who is in charge of the examination has to be female.[5]

Medical Examination of the Accused

Medical examination of the person accused is made mandatory under Section 53 of the Criminal Code of Procedure. It also states that if there are reasonable grounds to justify the possibility of rape against the victim’s consent and the accused is arrested on the ground as so mentioned before, then the accused has to take a medical examination done by a medical practitioner.  

The person accused will be brought into the custody of the Police by the Investigation Officer’s request, the medical practitioner has to examine the accused, report the required evidence, and hand it over to the Investigation Officer in charge of the case. The examination would include, “general physical examination, systemic examination, injury examination (if any) and local examination of genitalia”. The evidence of trace like blood, pubic hairs, clothes of the accused, nail clippings is to be preserved as they may help the case. The Police in their application may also request the medical practitioner for the “Potency Test”. After the examination, the medical officer has to give his opinions regarding the person’s capability of performing sexual intercourse. The medical examination report of the accused is labeled as the “POTENCY TEST REPORT”.[6]

From the above-mentioned procedures, we can deduce that two distinct processes are indulged to assess the accused on a medical basis. The first is the prima facie examination done by the medical practitioner on the command of the Investigating Officer and the second is the ‘Potency Test’ done so by the IO (Investigating Officer)’s command. In the first case, the obvious signs of the commission of rape are looked at, and in the second case, the much controversial ‘potency’ of the accused is checked. Both of these examinations have proven to be vital in the legal trial of the concerned rape case. It would prove to be important evidence for the Police as well as the victim in proving the rape. Although, the first part of the medical examination is straightforward and often fault-proof (if done before the accused take measures against it) whereas the ‘Potency Test’ often lands in controversies as it is not accurate always to prove rape. Let’s see what the ‘Potency Test’ actually is.

Potency Test

The potency test’s objective is to ascertain the ‘potency’ of the accused (male) if they have the capability of sexual intercourse. A male is determined to lack potency (impotent) when he is unable to develop or maintain a penile erection which is sufficient for the act of intercourse to orgasm and ejaculation. The question of potency arises in civil courts for cases like disputed paternity, adoption, nullity of marriage, and divorce. In criminal courts, the potency is examined in cases of crime against women and children like rape, sexual assault, molestation, sodomy.[7]

Though various factors come into play when potency is brought into question. And often these factors are unreliable to determine rape, like physiological, pathological, and psychological factors. “To correctly diagnose/rule out impotency or ‘Sexual Dysfunction’, other than general physical examination, following tests/investigations are needed to be performed:

1. Blood test:
   1. Serum testosterone and sex hormone binding globulin– to exclude endocrine causes.
   2. Fasting glucose and glycated hemoglobin (HbA1c)- to exclude latent diabetes mellitus.
   3. Lipid profile- for deranged lipid profile.
   4. Thyroid hormones- for hypogonadal patients.
   5. FSH– for patients with special clinical conditions.
2. Nocturnal penile tumescence.
3. Duplex ultrasonography.
4. Intracavernosal testing with vasoactive substance.
5. Cavernosometry – used to test for venous leaks.
6. Caver nosography – is the radiographic visualization of the cavernous penile tissues using contrast material in order to exclude structural abnormalities within the cavernous tissues. It helps in the differential diagnosis of organic impotence and is the only means of visualizing structural abnormalities of the corpora cavernosa.
7. Penile arteriography
8. . Spongiosography.”[8]

As we see there are so many methods of proving the potency of a male exists it can often become cumbersome. And even these tests can prove to be insufficient regarding the time frame they are taken. The legitimacy of potency test cases always has been in question and a point of being discussion. Though the medical examiner is the one who would decide the potency of an accused individual based on these tests, there is still quite enough chance of correct determination. Because medical professionals are the best interpreter of these medical tests.

Why the current process of only the Medical Examination of the accused is not enough for the conviction of rape?

The current process has proven to be faulty time and time again. Every day, 88 rape cases, unfortunately, take place in India as determined by the National Crime Records Bureau. And the conviction rate is 27.8%. This translates in simpler terms that out of 100 accused, only 28 of the accused gets convicted.[9] The data speaks for itself and an improved process of medical examination for a stronger case for the victims screams for its existence.

In 2020, we are faced with the same issue of women’s safety and the problem of a low conviction rate due to insufficient evidence against the accused. The system has been failing women from its inception and continues to do so. The urgent need for a better way to determine the accused’s crime, a medical examination of accurate results that speaks with the confidence of the heinous act performed, is the need of the hour.

In the case of The State of Maharashtra vs Amin Shaikh Khwaja And Ors, on 26 July 2017, there were five accused who abducted the victim in an auto-rickshaw. All of them raped the victim turn by turn, all the accused were examined by Dr. Chavan at Municipal Dispensary, Chalisgaon. The medical examiner determined that the victim was raped (her hymen was ruptured; vagina was bleeding as per the report).

Although the medical examiner also found that smegma was collected on the glans penis of two boys and it vanishes during intercourse. However, the medical examination certificates of accused persons (Exhibits 62, 63, 64, 65, and 66) do not show any smegma was present on the glans penis of any accused. This led to confusion about whether or not the accused were to be convicted of the crime. But further, we see that the learned advocate for appellants presents the court, if the arrest panchanama of accused persons is read together with their medical examination certificates, then it reveals that, accused No.1 to 3 and 5 sustained an abrasion on their both knee joints. In the medical examination certificate of Bapu Vithal Dhumal (accused No.3) (Exh.63), abrasions were found by Medical Officer on both knee joints. The arrest panchanama of accused No.1 (Exh.42) also shows that earth was found at his both palm and abrasions were found on both knee joints. Same abrasions are noted by Medical Officer in his Medico-Legal Certificate (Exh.64).

In the arrest panchanama of accused No.2 Jagan Chavan, it is noted that earth was found on his both palms of the hands with minor abrasions as well as on his both knee joints abrasions were found. Even in his Medico-Legal Certificate (Exh.62) abrasions are noted on both knee joints. Learned defense counsel has assailed this evidence on the ground that the age of these abrasions is 6 hours before medical examination of these accused persons. It is pointed out that, medical examination of accused No.1 to 3 and 5 was conducted on 15/5/1998 at about 4.45 p.m. to 5.30 p.m. and, therefore, the age of the injuries does not correspond with the time of the occurrence which occurred before more than 6 hours from their medical examination. However, we do not find any substance in this objection for the simple reason Criminal Appeal No.287/2000 (( 38 )) that the opinion of the Medical Officer is not binding on the Courts and age of the abrasions cannot be calculated mathematically.

Whatever the age of injuries is noted by the Medical Officer is only an approximate assessment. When these arrest panchanamas are prepared in between 3.10 a.m. till 4.10 a.m. on 15/5/1998, and when these all abrasions are noted on the body of accused No.1 to 3 and 5, only based on age mentioned in Medico-Legal Certificates, this important evidence cannot be discarded. Thus, we find that, abrasions on both knee joints of the accused No.1 to 3 and 5 found at the time of preparation of their arrest panchanamas and at the time of medical examination, fully corroborate the testimony of the victim (P.W.1).[10]

In the above case, we see how different factors were taken into account to reach the truth. The investigative process and medical examination are done by the registered practitioners have all played a key role in apprehending the accused. But the factors may not be the same in every case and thus the need for a similar yet flexible process is needed.

Conclusion

The conviction rate in rape cases of India speaks for itself. We can conclude the insufficiency of current methods of medical examination of accused and victim and the procedure of investigation often result to be inadequate to reach the truth. We see how the ‘potency test’ might turn out to be inaccurate and how the medical examiner’s discretion can often be a boon as well as a curse.

Today everyone concerned needs to assess our methods of providing justice to the victims of rape who suffer not only physical oppression but also psychological damage which lasts years, in some cases decades. The women of our nation who are the victim of this crime shouldn’t face the anguish of seeing their violator walk free because of an inadequate process of determination of rape on the part of the accused.

Medical examination of any number of accused proves to be the most important be it for the victim or the accused (if he is innocent). The process to be correct is not only vital but crucial in rape cases. If we cannot determine the accused’s involvement in the rape, the medical examination of the victim may as well be proven to be of no consequence and just bring shame and humiliation to the victim.

For not only justice but also for a better society and the safety of women, we need better ways to prove rape and convict the accused. We need stronger methods to ascertain the accused’s involvement in rape cases and not give them a way out. This will not only instill fear among the wrongdoers but also give peace of mind to the victims that the culprits will be rightly punished by the Justice System.

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References:

[1] https://en.wikipedia.org/wiki/Rape

[2] Annie L. Bairstow, Rape, (October 22, 2020), https://www.britannica.com/topic/rape-crime

[3] Soibam Rocky Singh, Explained: The laws on rape and sexual crimes, (December 08, 2019), https://www.thehindu.com/news/national/what-are-the-laws-on-rape-and-sexual-crimes/article30233033.ece

[4] Soibam Rocky Singh, Explained: The laws on rape and sexual crimes, (December 08, 2019), https://www.thehindu.com/news/national/what-are-the-laws-on-rape-and-sexual-crimes/article30233033.ece

[5] https://indiankanoon.org/doc/633996/

[6] Md Shadab Raheel, Abhishek Yadav, Shashank Pooniya, Sudhir Kumar Gupta, A.K. Jaiswal,

Potency test of a rape accused in India – Rationale, problems and suggestions in light of the Criminal Law (Amendment) Act, 2013, Egyptian Journal of Forensic Sciences, Volume 6, Issue 4,2016, Pages 333-336, ISSN 2090-536X, https://doi.org/10.1016/j.ejfs.2016.11.004.(http://www.sciencedirect.com/science/article/pii/S2090536X16300715)

[7] Md Shadab Raheel, Abhishek Yadav, Shashank Pooniya, Sudhir Kumar Gupta, A.K. Jaiswal, Potency test of a rape accused in India – Rationale, problems and suggestions in light of the Criminal Law (Amendment) Act, 2013, Egyptian Journal of Forensic Sciences, Volume 6, Issue 4,2016, Pages 333-336, ISSN 2090-536X, https://doi.org/10.1016/j.ejfs.2016.11.004.(http://www.sciencedirect.com/science/article/pii/S2090536X16300715)

[8] Md Shadab Raheel, Abhishek Yadav, Shashank Pooniya, Sudhir Kumar Gupta, A.K. Jaiswal, Potency test of a rape accused in India – Rationale, problems and suggestions in light of the Criminal Law (Amendment) Act, 2013, Egyptian Journal of Forensic Sciences, Volume 6, Issue 4,2016, Pages 333-336, ISSN 2090-536X, https://doi.org/10.1016/j.ejfs.2016.11.004.(http://www.sciencedirect.com/science/article/pii/S2090536X16300715)

[9] Under 30 per cent conviction rate in rape cases in India, says NCRB data, (October 03, 2020), https://www.newindianexpress.com/nation/2020/oct/03/under-30-per-centconviction-rate-in-rape-cases-in-india-says-ncrb-data-2205090.html#:~:text=NEW%20DELHI%3A%20On%20an%20average,accused%2C%20only%2028%20gets%20convicted.

[10] https://indiankanoon.org/docfragment/24025746/?formInput=medical%20examination%20of%20accused