Rape prompts reform demands, including those for medical exams
Health ministry has revised proforma to do away with "finger test" method
Activists: Invasive hymen observations, irrelevant details still remain
With a glaring spotlight on sexual violence after a fatal gang-rape case, a high-profile government panel has joined women’s rights advocates in demanding changes to India’s sexual assault medical exam.
Advocates say the exam includes unnecessarily invasive and irrelevant procedures.
The exam can include detailed observation of the victim’s hymen, the description of her nourishment level and body, and a so-called “two finger” test.
The finger exam consists of the doctor inserting two fingers into the woman’s body to determine whether she is used to sexual intercourse. The underlying assumption is that if two fingers pass, the woman is used to sexual intercourse.
“Are you trying to say married women can’t get raped? That only virgins get raped?” asked Donna Fernandes, of Vimochana, a women’s organization in Bangalore. “That she couldn’t have been raped, because she was used to sexual intercourse? It’s an unscientific way to approaching whether the rape has happened or not.”
Advocates like Fernandes who have called for reform in the medical exam have received critical backing from a panel appointed by India’s home affairs minister.
Last week, the commission published a 600-page report calling for several policy changes, such as creating a new offense of gang rape punishable by at least 20 years in prison, making it a crime for police to fail to investigate sexual assault complaints and banning the consideration of character or previous sexual experience of the victim at a criminal trial.
The panel report came after the outrage over the gang rape and subsequent death of a 23-year-old physiotherapy student, which prompted calls for reform on how rape is addressed by India’s police, courts and government. It has prompted initial changes – such as increasing the number of women working in New Delhi police stations and official pledges to strengthen laws regarding rape and assault.
The five suspects accused of taking part in the December 16 gang rape of a woman in New Delhi, are being tried in a “fast-track” court designed to bypass red tape. The sixth suspect in the gang rape is a minor and will be tried in juvenile court, according to police.
The government-appointed panel, headed by India’s former chief justice, J.S. Verma, devoted a chapter of its report to medical exams, criticizing controversial aspects that delve into a woman’s sexual history such as the finger test and the hymen observation.
“A test to ascertain the laxity of the vaginal muscles which is commonly referred to as the two-finger test must not be conducted,” the report stated. It also added that the “observations/conclusions such as ‘habituated to sexual intercourse’ should not be made and this is forbidden by law.”
The two finger test “has nothing to do with the rape case,” said Dr. Jagadeesh Reddy, professor of forensic medicine at Vydehi Medical College in Bangalore. “After a sexual assault, doing a two-finger test is not scientific.”
The finger test is not an accurate test of sexual activity, as doctors have different sized fingers and in some cases, report opposite findings on the same patient, he said.
In obstetrics, the two-finger exam is used to check the progress of labor. But in the context of a sexual assault exam, it is used to indicate a woman’s sexual history, which has enraged activists.
The report also denounced the hymen observation calling it, “largely irrelevant” and recommended that “only those that are relevant to the episode of assault are to be documented.”
The hymen test has also been used to infer whether a woman was used to sexual intercourse, despite the fact that some females are born without the tissue and it can be torn for various reasons besides sexual intercourse.
The findings on whether a woman was used to sexual activity would be used to “perpetuate false and damaging stereotypes of rape survivors as ‘loose’ women,” according to a Human Rights Watch report on India’s forensic exams of rape survivors published in 2010. “Defense attorneys use the findings to challenge the credibility, character, and the lack of consent of the survivors,” the report said.
The group has called the worst cases of medical exams “degrading and counter-productive.”
Activists in Bangladesh are also calling for the two-finger test to be banned there. More than 100 experts including doctors, lawyers, police, women’s rights activists signed a joint statement this month arguing that the “demeaning” test “does not provide any evidence that is relevant to proving the offence.”
Meanwhile, reported rape cases in India – where a cultural stigma keeps many victims from reporting the crime – have increased drastically over the past four decades, from 2,487 in 1971 to 24,206 in 2011, according to official figures.
Padma Deosthali, coordinator of the Centre for Enquiry into Health and Allied Themes in Mumbai has long advocated for reforms in the way sexual assault cases are handled.
“The Verma commission has made some significant recommendations in its report,” she said. “The report recognizes sexual assault as a medicolegal emergency and makes it obligatory for all doctors (public and private sector) to care for survivors immediately without waiting for any police complaint. The challenge now is to translate this into law and health policies.”
The report remains a set of recommendations, unless the Indian Parliament takes action to vote them into law.
One major turning point of the report is that it calls for the mental and physical support of the patient, she said.
Survivors of sexual assault often get little to no care for the possibility of pregnancy, sexually transmitted infections and psychological distress, Deosthali said. This is lacking across Indian states, in both rural and urban areas, she added.
The panel declared that hospitals are “required to preserve the life of the victim and for her recovery.” It recommended that the victim first see a professional counselor, followed by a doctor and the police.
“It says that treatment has to be over and above everything. It ropes in the private sector, in terms of making them accountable, and telling them it is their obligation to provide treatment,” Deosthali said.
In cases of sexual assault, some doctors refuse to treat patients. The report proposes making this a punishable offense.
“In our opinion, the duty of the medical profession to extend unqualified services to victims of such heinous offenses should be duly publicized and medical professionals and hospitals who abstain from performing the same ought to be punished in accordance with law,” the commission stated.
Challenges remain with the sexual assault exam that weren’t mentioned in the report, though, Deosthali said.
During medical exams, doctors take note of the physical build and nourishment of the woman. Even among medical professionals, there are notions that a healthy woman would have been able to fight back her attackers, said Reddy, who has conducted sexual assault medical exams.
The notion is perpetuated in forensic medical textbooks, Deosthali said.
If a sexual assault survivor lacks obvious signs of injury, this may bias the case, because there is such an emphasis on finding injuries during the exam, Reddy said.
“It’s not necessary to have injuries in sexual assault,” he said. “The absence of injury doesn’t mean she has consented.”
Rape cases can lack obvious signs of harm, because the victim could have been unconscious, intoxicated or the assailant could have used lubrication.
The government-appointed panel warned against relying heavily on “the marks of struggle.” It cited a law commission that said: “The Indian law of evidence does not, in general, lay down that a particular species of evidence should be insisted upon any proof or disproof of a particular fact.”