Sexual violence and Medico-legal evidence

The Criminal Law Amendment Act 2013, in Section 357C Cr.PC says that both private and
public health professionals are obligated to provide treatment. Denial of treatment of rape survivors is punishable under Section 166 B IPC with imprisonment for a term which may extend to one year or with fine or with both.

REMINDER: Forensic evidence is likely to be found only upto 96 hours after the incident.

Forms of Sexual Violence include:

• Coerced/forced sex in marriage or live in relationships or dating relationships.
• Rape by strangers.
• Systematic rape during armed conflict, sexual slavery.
• Unwanted sexual advances or sexual harassment.
• Sexual abuse of children.
• Sexual abuse of people with mental and physical disabilities.
• Forced prostitution and trafficking for the purpose of sexual exploitation.
• Child and forced marriage.
• Forced abortion and forced sterilization.
• Female genital cutting.
• Inspections for virginity.
• Forced exposure to pornography.
• Forcibly disrobing and parading naked any person

Health consequences of sexual violence

Physical health consequences:
• Severe abdominal pain.
• Burning micturition.
• Sexual dysfunction.
• Dyspareunia.
• Menstrual disorders.
• Urinary tract infections.
• Unwanted pregnancy.
• Miscarriage of an existing fetus.
• Exposure to sexually transmitted infections (including HIV/AIDS).
• Pelvic inflammatory disease.
• Infertility.
• Unsafe abortion.
• Mutilated genitalia.
• Self-mutilation as a result of psychological trauma.

Psychological health consequences:
Short-term psychological effects:
• Fear and shock.
• Physical and emotional pain

• Intense self-disgust, powerlessness.
• Worthlessness.
• Apathy.
• Denial.
• Numbing.
• Withdrawal.
• An inability to function normally in their daily lives.

Long-term psychological effects:
• Depression and chronic anxiety.
• Feelings of vulnerability.
• Loss of control/loss of self-esteem.
• Emotional distress.
• Impaired sense of self.
• Nightmares.
• Self-blame.
• Mistrust.
• Avoidance and post-traumatic stress disorder.
• Chronic mental disorders.
• Committing suicide or endangering their lives.

Medico-legal questions to be  ascertained

  1. Whether a sexual act has been attempted or completed. Sexual acts include genital, anal or oral penetration by the penis, fingers or other objects as well as any form of nonconsensual sexual touching. A sexual act may not only be penetration by the penis but also slightest penetration of the vulva by the penis, such as minimal passage of the glans between the labia with or without emission of semen or rupture of the hymen.
  2. Whether such a sexual act is recent, and whether any harm has been caused to the survivor’s body. This could include injuries inflicted on the survivor by the accused and by the survivor on the accused. However, the absence of signs of struggle does not imply consent.
  3. The age of the survivor needs to be verified in the case of adolescent girls/boys.
  4. Whether alcohol or drugs have been administered to the survivor needs to be ascertained.

Guidelines for examination of Sex Workers

While examining sex workers reporting sexual violence, it is important to keep in mind that sex workers face a number of challenges due to the nature of their work when they approach the healthcare system. They have already faced a significant amount of discrimination from various agencies of society at every stage and hence their decision to approach a health care facility for treatment or examination should be considered a courageous one.
• A sex worker has a right to receive treatment and not providing it for any reason is
punishable by law.
• Do not make assumptions about the person’s health. Myths such as, “Sex workers are
all addicts/HIV positive” are only myths. These propagate an unhealthy assumption of
this group which may lead to further marginalization.
• Sex workers can be of any gender. No statements blaming the survivor or his/her
profession for the violence faced should be made.
• Only information of the current episode of violence that the survivor is reporting must be documented. Any information of past sexual encounters is irrelevant to the current
incident of sexual violence and should not be noted. [GUIDELINES & PROTOCOLS – Ministry Of Health and Family Welfare, Government of India]

Guidelines for examination of transgender and intersex people (TG/IS)

• Gender identity is not constituted by anatomy, especially appearance of genitals.
Primacy should be given in the record to the survivor’s stated gender identity and
appropriate names and pronouns used.
• Intake forms and other documents that ask about gender or sex should have options as
male/female/others.
• Genital anatomical variations of transgender and intersex people must be included in
the examination proforma.
• Transgender and intersex people may be unwilling to report the case to law
enforcement for fear of being exposed to inappropriate questions and abuse, therefore
adequate care should be provided for those who do approach health institutions.
• Information on the intersex variations or transgender status of the survivor must be
treated as confidential and not to be revealed without the survivor’s consent.
• The inadvertent discovery during examination or history taking that a person is
transgender or intersex must not be treated with ridicule, hostility, surprise, shock, or
dismay. Such reactions convey that the person is being judged and is likely to make
them uncomfortable in the health care setting.
• It is important to be aware of the possible health consequences that the sexual violence
may have resulted in. For instance, transgender male individuals who still have ovaries
and a uterus can become pregnant even when they were using testosterone and/or had
not been menstruating. Similarly, intersex variations which include non-typical genital
appearance may still put some intersex women at risk of pregnancy. Health professionals must be aware of these variations and must anticipate health consequences accordingly.
• Some transgender or intersex survivors may want to talk about their perceptions of the
role their gender identity might have played in making them vulnerable to an assault.
Though Indian laws do not recognize gender identity-based hate crimes, it is important
for the health professionals to record the survivor’s account of the assault as part of the
procedural history-taking, making note of the survivor’s perception of the reasons for
the assault, if so stated.
• Information about referral agencies that provide services to transgender or intersex
survivors of sexual violence must be provided where available.

Guidelines for examination of Disable Persons

•Be aware of the nature and extent of disability that the person has and make necessary
accommodations in the space where the examination is carried out.
• Do not make assumptions about the survivor’s disability and ask about it before providing any assistance.
• Do not assume that a person with disability cannot give history of sexual violence himself/herself. Because abuse by near and dear ones is common, it is important to not
let the history be dictated by the caretaker or person accompanying the survivor.
History must be sought independently, directly from the survivor herself/himself. Let the
person decide who can be present in the room while history is being sought and
examination conducted.
• Make arrangements for interpreters or special educators in case the person has a
speech/hearing or cognitive disability. Maintain a resource list with names, addresses
and other contact details of interpreters, translators and special educators in and
around your hospital, who could be contacted for assistance.
• Even while using the services of an interpreter, communicate with the person directly as much as possible, and be present while the interpreter or special educator is with
the person. Understand that an examination in the case of a disabled person may take longer. Do not rush through things as it may distress the survivor. Take time to make the survivor comfortable and establish trust, in order to conduct a thorough examination.
• Recognize that the person may not have been through an internal examination before.
The procedure should be explained in a language they can understand. They may have
limited knowledge of reproductive health issues and not be able to describe what
happened to them. They may not know how they feel about the incident or even identify
that a crime was committed against them.
• Ensure that adequate and appropriate counselling services are provided to the
survivors. If required, the services of an expert may be required in this regard, which
should be made available.
• Consent: All persons are ordinarily able to give or refuse to give informed consent,
including persons with mental illness and intellectual disabilities, and their informed
consent should be sought and obtained before any medical examination. Some
specific steps may be required when taking informed consent from persons with mental
illness or those with intellectual disabilities. If it is deemed necessary, such persons
should (a) be provided the necessary information (what the procedure involves, the
reason for doing the procedure, the potential risks and discomforts) in a simple
language and in a form that makes it easy for them to understand the information; (b) be
given adequate time to arrive at a decision; (c) be provided the assistance of a
friend/colleague/care-giver in making the informed consent decision and in conveying
their decision to medical personnel. The decision of the person to either give consent or
refuse consent with the above supports, to the medical examination, should be
respected.

The following guidelines are for health professionals when a survivor of sexual violence reports to a hospital. The guidelines describe in detail the stepwise approach to be used for
a comprehensive response to the sexual violence survivor as follows:
I. Initial resuscitation/ first Aid
ii. Informed consent for examination, evidence collection, police procedures
iii. Detailed History taking
iv. Medical Examination
v. Age Estimation (physical/dental/radiological) – if requested by the investigating
agency.
vi. Evidence Collection as per the protocol
vii. Documentation
viii. Packing, sealing and handing over the collected evidence to police
ix. Treatment of Injuries
x. Testing/prophylaxis for STIs, HIV, Hepatitis B and Pregnancy
xi. Psychological support & counseling
xii. Referral for further help (shelter, legal support)

Examination for injuries of the Victim:

• Presence of injuries is only observed in one-third cases of forced sexual intercourse.
Absence of injuries does not mean the survivor has consented to sexual activity. As per
law, if resistance was not offered that does not mean the person has consented.
• The entire body surface should be inspected carefully for signs of bruises, physical
torture injuries, nail abrasions, teeth bite marks, cuts, lacerations, fracture, tenderness,
any other injury, boils, lesions, discharge specially on the scalp, face, neck, shoulders,
breast, wrists, forearms, medial aspect of upper arms, thighs and buttocks
• Describe all the injuries. Describe the type of injury (abrasion, laceration, incised,
contusion etc.), site, size, shape, colour, swelling, signs of healing, simple/grievous,
dimensions. Mention possible weapon of infliction such as – hard, blunt, rough, sharp,
etc. Refer to Annexure 2 for noting time of injury
• Injuries are best represented when marked on body charts. They must be numbered on
the body charts and each must be described in detail.
• Describe any stains seen on the body – the type of stain (blood, semen, lubricant, etc.)
its actual site, size and colour. Mention the number of swabs collected and their sites.

AGE DETECTION OF THE VICTIM

  • Medical age is the mean of physical age, dental age and radiological age of the person.
  • Physical age is estimated based on physical growth like height, weight, chest circumference etc and also based on secondary sexual characteristics.

EVIDENCE OF SEXUAL VIOLENCE.JPG


Connected:  Sexual Assault Forensic Evidence

Source : [GUIDELINES & PROTOCOLS – Ministry Of Health and Family Welfare, Government of India]