Law > Medical Jurisprudence > Law and Medicine > Medico-Legal Aspect of Sexual Assault
A Medico-Legal Case (MLC) can be defined as a case of injury or ailment, etc., in which investigations by the law-enforcing agencies are essential to fix the responsibility regarding the causation of the injury or ailment. It may be a legal case requiring medical expertise when brought by the police for examination. In this article we shall discuss medico-legal aspect of sexual assault.
List of Medico-Legal Cases:
- All cases of injuries and burns -the circumstances of which suggest commission of an offense by somebody. (Irrespective of suspicion of foul play)
- All vehicular, factory or other unnatural accident cases specially when there is a likelihood of patient’s death or grievous hurt.
- Cases of suspected or evident sexual assault.
- Cases of suspected or evident criminal abortion.
- Cases of unconsciousness where its cause is not natural or not clear.
- All cases of suspected or evident poisoning or intoxication.
- Cases referred from a court or otherwise for age estimation.
- Cases brought dead with improper history creating suspicion of an offense.
- Cases of suspected self-infliction of injuries or attempted suicide.
- Any other case not falling under the above categories but has legal implications
Medical professionals are often unsure of the course of action in medico-legal cases. Thus, they are rather reluctant to attend to cases of accident for fear of being involved in unnecessary litigation later on. Even in cases of serious accidents, medical professionals hesitate to offer help, sometimes resulting in patient’s death. The first question that arises in such cases is whether any medical man can be forced to accept an accident victim. The answer to this till some time back was very clear. The doctor could choose patients according to his own will.
In Parmananda Katara Vs Union of India, AIR 1989 SC 2039 case, the apex court held that every doctor is bound to provide medical aid to the victims irrespective of the cause of injury; he cannot take any excuse of allowing law to take its course. Hence, if now a doctor refuses treatment, in case of emergency, he/she could be sued under the law. Once the doctor accepts the case and starts treatment, then the doctor-patient relationship is established.
The doctor or hospital is required to examine a victim of rape if she reports to the hospital directly, and voluntarily, without a police requisition.
In State of Karnataka v. Manjanna, 2000 (3) SCR 1007 case, the Supreme Court recognized that the rape victim’s need for a medical examination constituted a “medicolegal emergency”. Second, it was also the right of the victim of rape to approach medical services first before legally registering a complaint in a police station. The hospital was obliged to examine her right away; they could always subsequently initiate a police complaint on the request of the victim. The judgment also recognizes the three ways by which a hospital may receive a victim of rape: voluntary reporting by the victim; reporting on requisition by the police, and reporting on requisition by the Court.
Medico-Legal Aspect of Sexual Assault:
Section 375 of the Indian Penal Code defines the term “Rape” as follows:
A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:
(First) — Against her will.
(Secondly) —Without her consent.
(Thirdly) — 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.
(Fourthly) —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 law¬fully married.
(Fifthly) — 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 stupe¬fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
(Sixthly) — With or without her consent, when she is under sixteen 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 fifteen years of age, is not rape.
Object of Rape Evaluation Test:
Victims of alleged Sexual offences like rape may be brought for the medical examination by police, or by order of a court, or the victim may come on their own. In the event the victim comes directly, the police will be informed and necessary action will be taken to register a case. The objects of medical examination are as follows:
- Medical assessment and treatment of injuries and assessment, treatment, and prevention of pregnancy and Sexually transmitted diseases (STDs)
- Collection of forensic evidence;
- Psychological evaluation;
- Psychological support;
- Prepare reports required under the law.
The principal features of the examination are:
- Primary data;
- Physical Examination and mental condition;
- Signs of struggle on clothes and body;
- Local examination of the genitals.
Medico Legal Aspect of Sexual Assault with Reference to Victim:
Section 53(5) of the CrPC talks about examination of a female victim, which should be done by or under the supervision of a female doctor.
Section 164(A) CrPC explains the legal requirements for medical examination of a victim of rape. One of the main elements of this is that the consent of the victim is mandatory and should be part of the report.
The Section provides for a medical examination of the victim of rape by a registered medical practitioner. It also provides that when no woman doctor is available, there is no bar against a male doctor carrying out the examination, if the victim consents. Though getting the examination done by a woman doctor is ideal, the law does not mandate it, keeping in mind that a medical examination should not be postponed because of an extreme situation such as the want of a female doctor.
The same section mandates that a medical examination must be carried out within 24 hours of the police receiving information, thus recognizing this as a medico legal emergency and putting a timeframe for the investigating officer.
The report shall state precisely the reasons for each conclusion arrived at. The exact time of commencement and completion of the examination shall also be noted in the report. The registered medical practitioner shall, without delay, forward the report to the investigating officer, who shall forward it to the Magistrate referred to in section 173 of Cr. P. C. as part of the documents referred to in clause (a) of sub-section (5) of that section.
Medico Legal Aspect of Sexual Assault with Reference to Accused:
Section 53A of the CrPC provides for a detailed medical examination of a person accused of an offence of rape or an attempt to commit rape. A detailed medical examination is to be carried out by a registered medical practitioner (only allopathic doctors registered under the MCI) employed in a hospital run by government or local authority – and in the absence of such a practitioner within the radius of 16 km from the place where the offence has been committed, by any registered medical practitioner acting on the request of a police officer not below the rank of a sub inspector.
The medical examination should be carried out without any delay and a “reasoned” report be prepared recording the name and address of the accused, the person by whom he was brought, the age of the accused, marks of injury if any, a description of materials collected from the accused for DNA profiling, other material particulars in reasonable detail, and the exact time of commencement and completion of examination. The report should be forwarded without any delay to the investigating officer who in turn shall forward it to the magistrate concerned.
The report shall state precisely the reasons for each conclusion arrived at. The exact time of commencement and completion of the examination shall also be noted in the report. The registered medical practitioner shall, without delay, forward the report to the investigating officer, who shall forward it to the Magistrate referred to in section 173 of Cr. P. C. as part of the documents referred to in clause (a) of sub-section (5) of that section.
Where the accused in a case of sexual offence in police custody is brought for medical examination, consent is not required. Samples may be collected and handed over to the police for forensic examination.
SAFE Kit:
The kit was developed in Chicago in the mid-1970s by Louis Vittulo, in order to provide a more uniform protocol for evidence collection after sexual assaults. For years, the standardized tool was referred to as a Vitullo kit. Today it is colloquially referred to as a rape test kit or a rape kit, which is used interchangeably to refer to the specific evidence that is obtained through the use of the rape kit. Other terms and abbreviations used are sexual assault kit (SAK), a sexual assault forensic evidence kit (SAFE), sexual assault evidence collection kit (SAECK) and PERK (Physical Examination Recovery Kit).
A SAFE kit consists of small boxes, swabs, microscope slides, sterile containers, and plastic bags for collecting and storing evidence such as clothing fibers, hairs, saliva, blood, semen or body fluid from lips, cheeks, thighs, and vagina.
The kit is useful for investigations conducted after an alleged sexual assault, and can be used in evidence to punish the assailant. It is equally useful to exonerate persons who have been falsely accused of sexual assault.
In Delhi Commission of Women v. Delhi Police, W.P. (CRL) 696/2008 case, the Court mandated certain changes in the police system, health services, child welfare committees, legal services and support services in order to give justice to victims of rape. The court pronounced that a SAFE Kit (Sexual Assault Forensic Evidence collection kit) be used by all medical personnel for gathering and preserving physical evidence following sexual assault. Court issued guidelines to police, medical examiners, courts, and prosecution. Click here for guidelines
Guidelines for attending alleged victim of sexual offence
- The date and time of arrival of the victim must be mentioned, both in the case sheet and the MLC Register. The duplicate copy of case sheet and Medicolegal Report shall be preserved for future reference.
- The date and time of examination will be mentioned in the case sheet.
- Case sheet will be initiated, noting personal particulars of the victim, along with date and the time of reporting.
- MLC will be initiated after filling the MLC Register available at examination facility.
- The alleged victim will be admitted if the medical condition is serious.
- The police will be informed telephonically followed by in writing after filling up the MLC Register.
- The Senior Registrar / Station HQ will be informed.
- At least two identification marks of the victim will be mentioned in the case sheet as well as in MLC register.
- Report to the police will be given by name of the victim or as an unknown case (If name of the victim is not known). Care must be taken to preserve the confidentiality of the victim from others not related with the case.
- Police will register a case under the relevant section of the IPC.
- The police may take the victim and the accused for medical examination at a hospital which is authorized to carry out medicolegal work.
- Neither the victim nor accused in cases of sexual offences should be permitted to wash or take a bath till the medical examination is completed.
- The proforma for recording medical examination of alleged rape victim and the accused are enclosed as in prescribed format respectively.
- Consent of the victim must be obtained before starting the examination. The steps of examination and their purpose should be explained to the victim in a language she understands. The examination is to be carried out in the presence of a female attendant.
- All injuries present on the body will be recorded. Line diagrams depicting the front and back of the body may be used for a better description of location of the injuries.
- If the clothes are the same as those worn during the occurrence of alleged sexual offence, they should be carefully examined for the presence of blood, seminal stains, mud etc.
- If there are any marks of suspicious stains, the clothes should be preserved with a view to forwarding them to forensic laboratory in prescribed format.
- If there are foreign hairs, fibres, debris under the nails etc, they must be carefully preserved and sent to experts of forensic laboratory for comparison with those found on the accused. Specimens should include vaginal swab, preferably from the posterior fornix.
- Care must be taken to preserve various samples of medicolegal importance for their submission to respective police authority.
- In case the victim reports herself directly to the hospital after the alleged crime, she should not be sent to the police station for legal formalities; instead the police will be called to the hospital for the necessary requirements.
Other Legal provisions Associated with Sexual Assault:
- U/s 228A of Indian Penal Code, no person can disclose the name of the rape victim and if anybody discloses the name, he shall be punished with either description for a term which may extend to two years and shall also be liable for fine.
- U/s 114-A of Indian Evidence Act, presumption can be made as to the absence of consent in certain prosecutions for rape. Whenever the person of a female victim is to be examined under section 53 [5] of Criminal Procedure Code (Cr. P. C), the examination shall be made only by, or under the supervision of, a female registered medical practitioner.
- U/s 327(2) of Code of Criminal Procedure, there should be in camera trial for all rape victims.
Conclusion:
Medico legal evidence has been considered an important component in the prosecution of crimes, especially those related to sexual violence. The courts heavily rely upon it. However, it is important to understand that forensic science itself is a new and emerging discipline. No forensic method has rigorously been able to demonstrate a definitive connection between a specific individual and a sample or source. So special precaution should be taken and care, emphasis should be laid on section 53 CrPC and 164A CrPC.