The word rape, “the
ravishing or violation of a woman” derives from the Latin raptus meaning
“seizure of property”. Rape, along with abduction, forced prostitution, dowry
death, torture, exposure to pornography, sexual harassment, molestation and
trafficking, comes under the umbrella term “crimes against women”. The WHO
defines sexual violence as “any sexual act, attempt to obtain a sexual act,
unwanted sexual advances and acts to traffic, or otherwise directed against a
person’s sexuality, using coercion, threats of harm or physical force, by any
person regardless of relationship to the victim in any setting, including but
not limited to home and work”. The term sexual assault is often used
synonymously with rape.
Following
a steady increase in both the incidence and reporting of rape, and catapulted
into the public domain by the Nirbhaya case of December 2012 where a student
was raped and left to die in the national capital, various new legislations and
amendments to existing laws have been made. This article looks at role of the
doctors in examination of cases of sexual assault, the Criminal Law (Amendment)
Act, 2013 and the POCSO Act (Protection of Children from Sexual Offenses Act
2012).
The
National Crime Records Bureau (NCRB) data show that a staggering 3,09,546
crimes against women were reported in 2013, an increase of more than 26% over
the 2012 figures of 2,44,270. Of these, there were 33,707 reported cases of
rape in 2013 compared to 24,923 cases in 2012 (increase of 35.2%). There is
also a steady rise in sexual crimes against children. Many believe that these
official figures are just the tip of the iceberg; missing incidents greatly
outnumber reported ones, and the rate of under-reporting varies sharply by
region. Dismally, only one in five perpetrators is convicted.
Victim or
survivor?
The
term “victim” literally means a person who suffers from a destructive or
injurious action; using this word for women who have been subjected to a non-
consensual sexual act (assault, rape or sexual violence), is considered
disempowering and demeaning. Judgmental
attitudes of police and health care providers assume that these persons are so
victimized that they do not have agency hence are unable to comprehend their
situation and make independent decisions.
Replacing this
terminology with “survivor” gives power back to the woman and recognizes that
despite her being humiliated and traumatized, she has autonomy and is capable
of making decisions.
Health consequences of
sexual assault include unwanted pregnancy, sexually transmitted infections, and
psychological trauma akin to posttraumatic stress disorder. The examination of
such cases should form a part of compulsory training of all postgraduates.
CEHAT (Centre for Enquiry into Health and Allied Themes) has developed a Sexual
Assault Forensic and Medical Evidence (SAFE) Kit which ensures uniformity in
examination, collection of evidence and reporting. A standard examination
begins with consent for medicolegal examination and collection of forensic
evidence. The health care provider is duty bound to inform the police but the
survivor has the right to refuse police investigation (which should be
documented); this should in no way interfere with the treatment. Recording a
complete description of the incident, eliciting contraceptive history, listing
the available evidence, documenting findings, collecting relevant swabs and
other samples, documenting and treating injuries, testing for and treating
infections, providing emergency contraception, support and referral, are the
duty of the examining doctor. The doctor should be unbiased and sensitive to
subjects with special needs, for example, marginalized groups like transgender,
sex workers, persons with disability or those from minority religions and
castes. Above all, he should collect good quality evidence and give a medical
opinion (based on clinical findings), rather than a legal opinion on whether
rape took place or not. Digital vaginal examination using two fingers, and
comments on presence or absence of hymen and laxity of the vagina, should be
avoided; terms like “habituation to sexual intercourse” should not be used as
prior sexual experience has no bearing to the present case.
The
Criminal Law (Amendment) Act 2013
Some important highlights
of this act are:
·
Various sections of the Indian
Penal Code, the Code of Criminal Procedure, the Indian Evidence Act and the
Protection of Children from Sexual Offences Act have been amended,
incorporating suggestions of the Justice JS Verma Committee, formed after the
Nirbhaya gang-rape in December 2012
·
Sections 326A and B of Indian
Penal Code (IPC) detail about acid attacks and punishment
·
Sections 354A, B, C and D have
been rewritten respectively, to include sexual harassment, assault or force to
disrobe a woman, voyeurism and stalking, and their punishments
·
Section 375 has expanded the
definition of rape to include all forms of sexual violence, penetrative or non-
penetrative. Penetrative may be peno –vaginal (including labial), oral or anal,
including use of fingers, objects or weapons, and non-penetrative includes sexual touching of genital, anal or oral areas
by penis, finger, mouth or other objects
·
With an aim of providing a strong
deterrent against rape, section 376
details the punishments for sexual assault. An offender can be sentenced
to rigorous imprisonment for a term which shall not be less than 7 years.
o Section 376A give punishment of up to 20 years to life in case of death
of the victim or vegetative state
o Section 376B give punishments to a husband who rapes his wife while
they are separated (2 to 7 years
imprisonment)
o Section 376C outlines punishments for persons in authority like police officers or public servants who
commit sexual crimes (5 – 10 years imprisonment and a fine)
o Section 376D outlines
punishments for perpetrators of gang rape, which is 20 years to life
o Repeat offenders may be given life imprisonment or handed the death
sentence (section 376E)
·
The act recognizes the right to
treatment for all survivors by public and private health care facilities;
failure to administer treatment is now an offence under the law
·
No reference should be made to
past sexual practices of the survivor
·
The age for consensual sex is 18
years as fixed by the law
·
Criticisms of this act have come from
many human rights groups and are:
o Marital rape and men as victims of rape has not been addressed
o Reduction in age of consent to 16 so as to protect couples having
consensual sex
o Amending the Armed Forces Act so that armed forces personnel accused of
sexual crimes can be prosecuted without sanction
POCSO Act (Protection of Children from Sexual Offenses Act 2012)
Along with an increase
in the number of rape cases, sexual crimes against children less than 18 years
has also been on the rise. Prior to this act, children who were victims of
sexual abuse had no legal mechanism in place, especially for crimes like
harassment, stalking, trafficking and child pornography.
At the centre of the act is the physical,
emotional and social health and well being of the child; reporting of sexual
offenses is mandatory and non- reporting is punishable. Similar to the Criminal
Law (Amendment) Act, punishments for sexual offenses range from few years to
life imprisonment, and a fine, with aggravated sexual assault being described
in cases of abuse of a mentally ill child or abuse by persons in positions of
authority or trust (parents, teachers, doctors, wardens).
Unique features of the POCSO Act are that it places the responsibility
of safety and security of the child on the police, who coordinate activities
between hospital, shelter home, Child Welfare Committee (CWC) and judiciary.
The medical examination is conducted in privacy, in a sensitive manner without
causing undue distress to the child. Special courts are appointed to conduct
the trial, and the child need not appear in court but may record his or her
statement with the help of a parent, teacher or special educator. The special
court also fixes an amount which is given as compensation to the child. The POCSO Act is a
landmark legislation that protects children from sexual crimes.