Instead of providing succour, the medico-legal procedure that follows the rape subjects the victim to an experience nearly as harrowing as the assault itself. That’s because no specialised-care programme exists despite the special needs of victims of this crime.
This testimony of a 20-year-old from a suburb of the National Capital tells the little known story of re-victimisation which survivors of sexual assault experience in healthcare settings day in and day out. Denied respect by doctors, the victims tell stories of fear, pain and exclusion which begins, quite ironically, from a place where healing should have begun.
But the health sector invariably fails the survivors of sexual assault, with doctors known to bear against them the same biases and insensitivity as the society. “They (the medics) give preference to other patients over rape victims in the emergency ward… for them, we are just another police case,” says another young rape survivor who had gone to the hospital on her own to seek treatment after the assault, but was firmly denied that until there was an FIR. Go to the ‘thana’ and have a requisition for medical examination sent, she was told.
Most doctors attending to survivors of sexual assault clearly do not know their law.
Section 39 of the Criminal Procedure Code says that a survivor of sexual assault can come to the hospital simply for treatment of the effects and the doctor is not bound to inform the police. He has to record the informed refusal of the victim if the latter does not want to intimate the crime to the police.
Moreover, even in the conduct of medical examinations, the doctor must seek the victim’s informed consent, explaining to her the processes involved. Neither the court nor the police can force the survivor of rape to undergo a medical examination without her consent, according to the CrPC. But most doctors violate the law every day, assuming that a woman who comes to them for treatment of sexual assault must first approach the police.
No uniform code
Much of the violation of rape victims’ right to health and dignity stems from the lack of uniform national protocols for medico-legal role of doctors in this. The government hasn’t cared to create a trained cadre of doctors and nurses to deal with the special needs of rape survivors, even though the world is replete with best practices such as the rape crisis centres in the West, which had in the late 1970s developed the first Sexual Assault Nursing Examiner (SANE) Programme to improve the response to sexual assault. The US funds this initiative under its Violence against Women Act, 1994.
In India, we don’t even have a protocol of what to ask a victim and how to record her history when she arrives at the hospital, often her first point of contact after the violent act.
“We have been demanding national protocols for seeking victims’ consent, history, conducting examination and collecting evidence in a way that it aids the victims’ testimony in court. The government is even free to adopt the WHO protocol on the issue, which has been around since 2000. It’s a matter of will,” says Padma Deosthali, Coordinator, Centre for Enquiry into Health and Allied Themes (CEHAT), which was the first one to start a direct intervention with the health system in matters of treatment of sexual assault victims in India as late as in 2008.
CEHAT established a hospital-based crisis counselling centre called “Dilasa” at a peripheral hospital in Greater Mumbai and trained the doctors to deal with domestic violence victims. The cadre that emerged volunteered to develop a similar healthcare response for rape survivors. Today, two Mumbai hospitals are using the CEHAT protocol (the first one in India) to address physical, psychological and medico legal needs of sexual assault survivors.
But that’s not intervention enough, considering most doctors in India lack the training to deal with sexual assault victims. Medical textbooks are outdated and encourage doctors to view rape victims with suspicion. They caution doctors to seek victims’ consent before conducting a medical examination, stating that if such consent is not sought the doctor would himself face the charge of rape.
In the process, healthcare providers invariably of see rape victims as subjects in a police matter and treat them with little care, even admitting that they mostly avoid seeking history of the case. A survivor recalls, “The doctor told me there would be an examination and I said it was fine. He did not tell me what it would be like. He then inserted two fingers into my vagina and took notes on a paper… it was extremely painful. I wanted to run away.”
The examination of rape victims in India continues to be replete with the degrading procedure of the “two-finger test”, where a doctor inserts his fingers into the vaginal opening to determine its flexibility. “Such a test has no bearing on the case. We have been seeking its prohibition. All it tells you is whether a woman is sexually active but the law says that does not matter,” Aruna Kashyap of Human Rights Watch points out. She has documented the practice of the test in India.
Another problem is most healthcare providers in cases of sexual assault perceive their role to be largely medico-legal rather than therapeutic. “There is no component of psychological support to survivors at all. Doctors see them as police cases where they are only required to give gynaecological opinion. The entire process of referrals in the hospital is coordinated by the police. Shadowing of the survivor by the police stigmatises her further and makes her unnecessarily conspicuous,” says the 2011 study CEHAT and Sama Resource Group for Women and Health conducted in Mumbai and New Delhi to assess the response of healthcare providers to rape victims.
There is also mounting evidence to show doctors seeing rape victims give them little therapeutic care for injuries, possible sexually transmitted infections and pregnancy, and instead concentrate on the presence or absence of injuries, denying the victims the right to health. The stereotype of sexual assault invariably resulting in injuries determines how doctors interpret the findings. The presence or absence of injuries (along with the laxity of the hymen) is often looked upon as the deciding factor to ascertain whether sexual assault has occurred or not, experts say.
However, these interpretations have no room in the Indian Evidence Act, which says past sexual history of a woman is irrelevant to rape. But doctors continue to record old injuries, give testimonies in court on how the two-finger test is very painful and how a woman who does not feel pain is habituated to sex. The defence then uses medical opinion to question the victim’s character and challenge the charge of lack of consent to the act to thwart her case, considering the IPC definition of rape equals non-consensual sexual encounter.
To spare rape victims this trauma, activists are now calling for further amendment of the Evidence Act to explicitly prohibit finger test which is unscientific because hymenal orifice can be flexible for reasons other than sex. The calls are important considering repeated court judgments that rely on such obsolete medical evidence to acquit the accused. The Jharkhand HC in one acquittal based on positive finger test results said, “Though the girl was aged 20 to 23 years and was unmarried but she was found to be habituated to sex and hence of a doubtful character.”
While the existing procedures are enough to deter victims from reporting rape, there are other findings to show how none of the swabs of victims who report are being dried up by doctors prior to packaging thus jeopardizing crucial medical evidence.
Researchers Sana Contractor and Deepa Venkatachalam recently found that the chain of custody, expected to ensure proper preservation of medico-legal examination in rape cases, was severely undermined. “After the evidence is dispatched with the police, it is kept in the store house (maalkhana) for days and not immediately dispatched to the forensic science lab. Reports of chemical analysis are never returned to the hospital for the doctors to provide a final opinion; so when the doctor goes to court as an expert witness he is unable to corroborate chemical analysis results with the history of the victim. This defeats the case,” indicated the research.
Dr Pradeep Goud, Head, Forensic Medicine, Kasturba Gandhi Medical College, Manipal, also makes a revealing statement when he says that the police often brought clothes of victims and accused in plastic bags, which were prone to fun gus. “Clothes have to be stored in paper bags. But that’s not done and crucial medical evidence is mostly lost. Also, swabs are being dried in the sun whereas they must be dried in shade to preserve their evidentiary value,” he says.
In case victims come straight to the hospital without registering an FIR, there are no protocols to say how medical evidence will be collected and passed on for storage to the police.
But more than anything else, the victims of sexual assault complain about lack of sensitivity to their suffering in hospital surroundings. They say they feel threatened to narrate their case history in the hostile healthcare settings with the police often present in the investigation room during the evidence collection process. The least a rape victim deserves is privacy but evidence shows she gets little of that.