Uniform protocol and further research in forensic medicine required
The Union ministry of health has drafted a new proforma for forensic medical examination of rape victims. The changes in the proforma have been introduced in the aftermath of the protests against the Delhi gang rape incident of December 16, 2012. It was demanded that evidence based on the archaic two-finger test should be done away with. But the guidelines issued by the Department of Health and Family Welfare of the Delhi government to all hospitals in the capital on January 28, 2013, as a response to the widespread protests, was silent about the two-finger test. The manner in which a victim is treated in hospitals and is subjected to medical examination had come under criticism.
Even with the new changes in the proforma and with attempts to introduce a uniform proforma nationwide, India is far from introducing reforms that can help collect reliable forensic evidence. Some non-governmental organisations have developed kits to be used to collect evidence, but there is no research in forensic sciences in India.
In other countries entire mechanisms, including training of healthcare professionals, have been established to deal with rape cases. In the late 1970s, the United States developed Sexual Assault Nurse Examiner (SANE) programmes to improve efficiency in responding to cases of sexual assault. It involved the active participation of healthcare providers. Forensic nursing was recognised as a speciality by the nursing profession. The programme received funding through the Violence Against Women Act, 1994 in the United States. The system was also subsequently adopted by other countries such as Canada and South Africa.
Preliminary studies conducted to evaluate these programmes showed that they were helpful in improving the quality of forensic evidence and its documentation. This provided better expert testimony to law enforcement, community advocates and the judiciary. SANEs, for instance, have been observed to collect better quality medical evidence than staff in non-SANE programmes.
“In India, the problem is implementation. Firstly, they will have to ensure that the new proforma is used everywhere. Right now there is no uniformity. Secondly, they will have to see that the doctors and other people involved in the examination of the victim know about the proforma and the questions that have to be asked properly,” said Deepa Venkatachalam from the organisation Sama, a resource group for women and health. She said proper protocols need to be in place to reduce subjectivity involved in the two-finger test.
The medical name for the two-finger test is 'bimanual examination'. It is a clinical procedure that involves the insertion of two fingers into the vagina to diagnose medical conditions of the uterus or urinary tract, or any wear and tear or injury to the pelvic region. Gynaecologists often use one or two fingers for initial assessments to evaluate whether a speculum can be inserted without causing pain. In cases of sexual assault, the doctor notes presence or absence of hymen, and the size and laxity of the vagina of the victim.
"It is a common test gynaecologists use for examination of injuries or other problems in the pelvic region. Apart from sexual assault, the examination is conducted in the event of road accidents, fall etc," said Nikhil Datar, gynaecologist and founder-president, Patient Safety Alliance. He said the problem is it is used as admissible evidence in courts.
"The two-finger test has nothing to do with the confirmation of rape. It tests the gravity of damage. Doctors fill the details because the proformas and police ask for it. The interpretation of the test is done by the police and lawyers, who are not from the medical fraternity," said Datar.
The test has been traditionally used to test for the virginity or "habituation to sex" of a woman. Virginity is determined by assessing the condition of the hymen, and habituation by assessing the number of fingers that can be inserted in the vagina. In Indian courts these interpretations are used by defence lawyers to malign the rape victim’s reputation, and to weaken her case.
Due to the patriarchal mindset which affects the judiciary too, these arguments weaken the victim's case.
Flaws in the method
A 2010 report “Dignity on Trial” by Human Rights Watch reads “A common misconception underlying these (judicial) proceedings is that the hymen is like a closed door sealing the vaginal opening, which is necessarily “broken” on “first intercourse.” The hymen is actually just a collar of tissue around the vaginal opening that does not cover it fully. Especially in pubertal and post-pubertal girls and women, it becomes elastic.” International consensus is that the examination of a woman’s hymen cannot prove whether she is a virgin or sexually active. However, this is not followed in the Indian medico-legal system.
The report goes on to mention, ‘“old tears” or “laxity” of the hymen and vagina do not prove that a girl or woman is “habituated to sex,” because they can be caused by exercise, physical activity, or the insertion of tampons or fingers, among other events not related to sexual intercourse.”
“In any case, whether the victim has had an active sexual history or not has no bearing on her being raped. It is about consent for a sexual act. A sexually active person can deny sex and in event of forced intercourse, it is rape,” said Pratiksha Baxi, assistant professor, Centre for Law and Governance, Jawaharlal Nehru University and author of a forthcoming book ‘Public Secrets of Law: Rape Trials in India’.
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