September 7, 2010

I. Summary and Recommendations

The clerk told me a male doctor will conduct the test [forensic examination] and asked me whether that was ok. I said “yes.” But other than that, I did not know what they were going to do. I was so scared and nervous and praying all the time: “God, let this be over and let me get out of here fast.” I did not even know it was going to be like a delivery examination [an internal gynecological examination].
—Sandhya S. (name changed), adult rape survivor, Mumbai, August 2, 2010.

For decades, survivors of sexual violence in India have endured criminal justice and health care systems that pay scant attention to their needs and rights. But in December 2009, the Indian government—spurred by the Indian women’s rights movement, as well as by children’s and health rights activists—initiated a process to review and change the laws governing sexual violence, an important first step toward protecting the rights of survivors of such abuse. Of critical importance will be ensuring that any new laws or amendments build on good practices from both inside and outside the country, adhere to international standards and laws, and bring about changes in a transparent and consultative manner. Changes in laws alone will not ease the path to justice for survivors of sexual violence. Once laws and policies have been put in place, the Indian central and state governments must also ensure that these laws are adequately resourced and implemented.

Part of this should involve reforming and standardizing the way that health care providers manage cases of sexual assault. Health providers have a dual role when it comes to responding to sexual violence. They must provide therapeutic care to survivors—including addressing their sexual, reproductive, and mental health problems—and also play a critical role in the response of the criminal justice system, by collecting forensic evidence for use during any criminal investigation and prosecution. However, according to Indian health rights activists who have assisted survivors and studied their treatment in the health care system, doctors usually prioritize the collection of forensic evidence, and often insist on filing a police complaint as soon as survivors approach them for medical care, which can intimidate survivors and discourage them from pursuing treatment. Health providers often spend little, if any, time on essential therapeutic care. 

There is an urgent need for a holistic policy and program that directs health providers’ attention to the needs of survivors after an assault. Services geared toward survivors require structural changes so that it is easier to register complaints or access services. In the United Kingdom, the United States, and Canada, crisis intervention centers staffed by professionals provide integrated services with a special focus on the therapeutic needs of survivors. Similar centers are necessary in India.

The Finger Test

Sexual violence is, disturbingly, a growing trend in India. Between 1990 and 2008, reported rapes soared by 112 percent nationwide, according to the National Crime Records Bureau, while cases of molestation and sexual harassment also increased between 2001 and 2008 (the latest year for which data is available). Such figures likely understate the problem. Many survivors of sexual violence do not report attacks because they fear ridicule or retribution, as well as assumptions that victims of sexual assault are “bad,” “loose,” or otherwise responsible for the attack. Survivors and their families may also be reluctant to subject themselves to the criminal justice system, which offers no victim and witness support and protection program, and which may inflict additional trauma.

Not least of the disincentives for reporting abuse is the prospect of undergoing a forensic examination. Evidence collection techniques are by no means standardized and are frequently difficult. Too often, survivors must make grueling trips from one hospital or ward to another, and receive multiple examinations at each stop. Medical workers frequently collect evidence inadequately or insensitively, and it may then be lost, poorly stored, or subject to processing delays, rendering it unusable. At trial, judges often lack adequate information to interpret the medical evidence.

Indian criminal law does not require corroboration by forensic evidence to secure a conviction for rape, yet in practice, such evidence plays a critical role. Lawyers and activists say that the seriousness with which police investigate a complaint of rape usually depends on the manner in which a doctor collects and reports forensic evidence, and judges frequently give this evidence significant weight. A rape survivor who endured considerable indignity to provide evidence may see the perpetrator walk free if the evidence was improperly collected, stored, or reported.

This report does not present the whole range of problems that survivors of sexual violence encounter in their interactions with the Indian criminal justice and health care systems. Nor does it address all the problems inherent in collecting forensic evidence. Instead, it discusses the problems posed by one of the most archaic forensic procedures still in use: the finger test—a practice where the examining doctor notes the presence or absence of the hymen and the size and so-called laxity of the vagina of the rape survivor. The finger test is supposed to assess whether girls and women are “virgins” or “habituated to sexual intercourse.” Yet it does none of this.

Contrary to common misconceptions, the hymen is a flexible membrane that partly covers the vaginal opening and does not seal it like a door. Hence the notion that there was no rape if there is no “broken” hymen is false. Conversely, a hymen can have an “old tear” and its orifice may vary in size for many reasons unrelated to sex, so examining it provides no evidence for drawing conclusions about “habituation to sexual intercourse.” Furthermore, the question of whether a woman has had any previous sexual experience has no bearing on whether she consented to the sexual act under consideration. And the finger test itself can result in further trauma to the survivor, whose dignity is generally ignored. In effect, it is a procedure that without informed consent would amount to sexual assault.

Unscientific, inhuman, and degrading, the finger test also has no forensic value, according to forensic and medical experts from India and outside the country. It is also legally irrelevant: the Indian Supreme Court, whose decisions are nationally binding, has ruled that finger test results cannot be used against a rape survivor, and that a survivor’s “habituation to sexual intercourse” is immaterial to the issue of consent at trial. Amendments to Indian law have also prohibited cross-examining survivors about their “general immoral character.” The number of finger test exams has fallen and courts have become less likely to draw conclusions about a survivor’s “habituation to sexual intercourse” as a result of these developments. Yet the finger test is still pervasive in many hospitals in India, and more needs to be done to reform India’s approach to sexual violence in general, and to eradicate finger testing in particular.

At least three leading government hospitals in Mumbai, including one where more than a thousand rape survivors are examined every year, continue to conduct the finger test. In 2010, the Delhi and Maharashtra governments introduced new forensic examination templates for rape survivors, which, among other things, seek details about the hymenal orifice size of the survivor. And anecdotal evidence suggests that the practice occurs elsewhere in India.

Since doctors tend to seek blanket consent for the forensic examination as a whole, and not to mention the finger test specifically, many survivors have little understanding of what the test entails; what information is collected for what ends; and the implications of refusing to undergo a forensic examination or any part of it—including the risk of appearing to hide information. Nonetheless, findings may be presented in court. Defense counsel may use the findings of the finger test to shake the morale of survivors, and challenge or discredit their testimony. In some cases, defense counsel even use the findings to claim that sexual intercourse was consensual. Many judges consider the results of the finger test at trial and appellate stages. In theory, an allegation that a rape survivor is “habituated to sexual intercourse” is not by itself grounds for an acquittal. But courts across the country have at times used this as evidence to assert that the rape survivor had “loose” or “lax” morals.

The common use of the finger test shows that many doctors, police officers, lawyers, judges, and others do not understand what constitutes rape, what elements could help establish that rape has occurred, and what facts are irrelevant to determining whether rape has occurred. It underscores the pressing need for uniform nationwide guidelines for forensic examinations that respect survivors’ rights to health, consent and dignity, and for scientific, relevant and accurate information to be presented in courts, rather than outdated material gleaned from textbooks or old-fashioned medical practices. Doctors, police, prosecutors, and judges should all work together to stop the finger test from being administered, and to standardize evidence collection to protect the rights of survivors.

India is party to several international treaties that obligate its government to ensure that all forensic procedures and criminal justice processes respect survivors’ physical and mental integrity and dignity. Guidelines issued by the World Health Organization (WHO) for examining survivors of sexual violence state that forensic examinations must be minimally invasive and that even a purely clinical procedure such as a bimanual examination[1] is rarely medically necessary after sexual assault. In the case of prepubescent girls and boys who are victims of sexual abuse, the WHO guidelines say that “most examinations” should be “non-invasive and should not cause pain,” and that “speculums or anoscopes and digital or bimanual examinations do not need to be used in child sexual abuse examinations unless medically indicated.” The guidelines further caution: “consider a digital rectal examination only if medically indicated, as the invasive examination may mimic the abuse.”  

The Indian government should provide additional information to doctors, police officers, prosecutors, and judges. The government should issue uniform guidelines specifying how forensic evidence can be collected in a manner that respects survivors’ rights, and also what types of forensic evidence should be collected. In addition, the Indian government should use its law reform process to prohibit the finger test, as well as the inclusion of opinions about whether survivors are “habituated to sexual intercourse”, from all forensic examinations. Yet creating new laws and policies related to forensic examination is not enough. The Indian central and state governments must also ensure that they are adequately resourced and implemented.

As an important part of this, the government should conduct training and sensitization programs to familiarize doctors, police officers, prosecutors, and judges with the latest legal and scientific methods of evidence collection that respect survivors’ rights. Hospitals need multi-disciplinary centers, adequately equipped and staffed with trained and sensitive personnel, to provide integrated and comprehensive services for survivors of sexual assault.

To fulfill its obligations, the Indian government can draw on the experience of other countries, and also build on good domestic examples. For instance, South Africa provides specialized training for medical students on how to treat and examine survivors, while the United Kingdom provides detailed theoretical and on-the-job two-month training for all doctors who interact with, and examine, survivors of sexual violence. The United States and Canada also have forensic nurses who specialize in such examinations. In parts of the United Kingdom, the United States, and Canada, there are also specialized sexual violence crisis intervention centers equipped and staffed with trained professionals drawn from various backgrounds and able to provide integrated services with a special focus on the therapeutic needs of survivors. Within India, the Mumbai-based nongovernmental organization Centre for Enquiry Into Health and Allied Themes (CEHAT) has developed a detailed forensic examination protocol accompanied by an instruction manual,  currently used in two Mumbai hospitals, that explicitly states  that the two-finger test should not be conducted.

Recommendations

To the Indian Central and State Governments:

In order to ensure that the current review processes bring about concrete change in how the health and criminal justice systems approach survivors of sexual violence in general, and rape survivors in particular:

  • Prohibit the finger test and its variants from all forensic examinations of female survivors, as it is an unscientific, inhuman, and degrading practice, and
    • Instruct doctors not to comment on whether they believe any girl or woman is “habituated to sexual intercourse”.
    • Instruct all senior police officials to ensure that police requisition letters for forensic examinations do not ask doctors to comment on whether a rape survivor is “habituated to sexual intercourse.”
    • Communicate to trial and appellate court judges that finger test results and medical opinions about whether a survivor is “habituated to sexual intercourse” are unscientific, degrading, and legally irrelevant, and should not be presented in court proceedings related to sexual offences.
  • Devise special guidelines for the forensic examination of child survivors of sexual abuse to minimize invasive procedures. Emphasize that tests that risk mimicking the abuse should be conducted only when absolutely medically necessary to determine if injuries need therapeutic intervention. Ensure that any test is only carried out with the fully informed consent of the child, to the extent that is possible, and the consent of the child’s parent or guardian, where appropriate. 
  • Develop, in a transparent manner and in consultation with Indian women’s, children’s, and health rights advocates, doctors, and lawyers, a protocol for the therapeutic treatment and forensic examination of survivors of sexual violence that adheres to:
    • The procedural and evidentiary decisions pronounced by the Indian Supreme Court and international laws.
    • Standards and ethics issued by the World Health Organization.
  • Organize, in consultation with national and state judicial academies and experts on women’s, children’s, and health rights, special programs for trial and appellate court judges on proceedings related to rape and other sexual offenses, and on the rights of survivors. 
  • Organize, in consultation with state police academies, judges, and experts on women’s, children’s, and health rights, special programs for police related to investigating and prosecuting sexual offenses, and on the rights of survivors. 
  • Organize, in consultation with judicial and other officers in charge of prosecution services and experts on women’s, children’s, and health rights, special programs for prosecutors on proceedings related to rape and other sexual offenses, and on the rights of survivors.
  • Develop, in consultation with women’s, children’s and health rights experts in India, multidisciplinary centers in at least one government hospital in every district of the country (or in an alternative appropriate population-to-distance norm), staffed with trained personnel and equipped to provide integrated, comprehensive, gender-sensitive treatment, forensic examinations, counseling, and rehabilitation for survivors of sexual violence.
  • Develop and introduce, in consultation with lawyers and experts on women’s, children’s, and health rights, a mandatory gender-sensitive training module for medical students on treating and examining survivors of sexual violence. 
  • Form a committee to review, update, and revise medical jurisprudence textbooks to ensure the inclusion of the latest positions in Indian law on procedure and evidence related to sexual violence.
  • Consult with women’s rights and children’s rights activists and lawyers to ensure that their concerns regarding forensic examinations in sexual violence cases are addressed in the final version of the Perspective Plan for Indian Forensics. Before finalizing the plan, the government should also study lessons learned from other jurisdictions about how integrated medical and forensic services are provided in a gender-sensitive and timely manner.

 

[1] A clinical procedure that involves the insertion of two fingers to diagnose medical conditions of the uterus or urinary tract.