III. Background
Sexual violence is, disturbingly, a growing trend in India.[11] 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 years for which data is available). Such figures likely understate the problem.[12] Many victims of sexual violence do not report attacks or follow through with prosecution due to fear of ridicule or retribution, pervasive myths about sexual violence,[13] and a criminal justice system that offers no protection or support to victims and witnesses.[14] The absence of a comprehensive definition of sexual violence in Indian law[15] has also hindered the prosecution of various sexual offences, resulting in acquittals or inadequate punishments for convicted criminals.[16]
Health care providers play a crucial dual role in the response to sexual violence. They provide therapeutic care after an assault and yet they also assist in any criminal investigation. On the one hand, they must provide medical treatment for any injuries suffered by the survivor, address any adverse psychological, sexual, and reproductive health consequences of the assault,[17] and can also provide referrals to legal and social welfare services.[18] On the other hand, doctors conduct forensic examinations of survivors seeking evidence of a crime, and may later interpret this evidence as witnesses in court. The World Health Organization (WHO) recommends that health care and forensic services be provided at the same time, and by the same person, to reduce the potential for duplicating questions and retraumatizing the survivor of assault. The WHO guidelines state that the health and welfare of a survivor of sexual violence is “the overriding priority” and that the provision of forensic services cannot take precedence over health needs.[19]
In countries such as Canada, South Africa, the United States, and the United Kingdom, one-stop multidisciplinary centers provide survivors of sexual violence with integrated services, including physical and psychological care. Staff members at such centers offer medical aid and psychological counseling using standard treatment and examination protocols. They are trained to be sensitive to the needs of assault survivors and to treat them without bias or prejudice. In some cases, survivors may even file a criminal complaint at the center, giving a statement in a manner that respects privacy and dignity in order to launch a criminal investigation. Many of these centers are also linked to other specialized support services, including social welfare and legal aid.[20] Such centers, governed by standard treatment and examination protocols, can play a key role in ensuring adequate standards of care and supporting the collection of forensic evidence for survivors of sexual violence. They can also serve as an educational resource for health care workers, police, lawyers, and judges.[21] While this report focuses on sexual violence, this kind of integrated service could also extend care to survivors of other gender-based violence, such as domestic violence and acid attacks.
India currently has no nationwide policy or guidelines to govern the medical treatment and forensic examination of survivors of sexual violence nor the provision of psychosocial support and other specialized services to them.[22] Women’s rights groups have urgently pressed for a sensitive, holistic approach to treating and examining survivors of sexual violence. Almost all the doctors who spoke with Human Rights Watch said that the Indian central and state governments need to introduce a program of therapeutic care for survivors of sexual violence and their families.[23] Doctors and activists who have analyzed medical responses to rape survivors in India say that the categorizing of such survivors as “medico-legal cases,” has led most doctors to treat them as “walking, talking crime scenes,” invariably focusing solely on forensic examination.[24]
The psychological and social consequences of sexual violence can play out in myriad and unexpected ways. A trial court judge told Human Rights Watch that rape survivors in her court often grapple with the psychological fallout of the violence without any support and some have become suicidal.[25] A lawyer assisting a 14-year-old survivor of gang rape reported that the girl’s father abandoned the family, blaming the mother for what had happened.[26] In another case, the parents of a six-year-old survivor of rape told Human Rights Watch that since the rape, their older daughter had dropped out of school and her fiancé had broken off their engagement; the girls’ father, unable to focus on his work, had quit his job.[27] Another lawyer helping a 15-year-old rape survivor said that the rape had left her pregnant, she had delivered a baby and now her father was trying to arrange for her to marry her rapist (not an uncommon practice in India).[28]
Despite the layers of trauma, many social workers and health rights activists who have assisted rape survivors told Human Rights Watch that police and hospital staff often treat survivors, especially older girls and adults, with little or no sensitivity, adding to their grief. For instance, Dr. Rajat Mitra of Swanchetan, a Delhi-based nongovernmental organization that provides emotional and psychological support to thousands of rape survivors in different parts of India, said:
In cases of very young girls—girls below [age] 12 or 13—they [police officers and hospital staff] believe it is a case of sexual abuse. But if they are older, then they believe that the girl is trying to falsely frame someone. Their belief changes the way they address the survivors. They are very rude and disrespectful. They will say things like, “Why are you crying?” “You have only been raped.” “You are not dead.” “Go sit over there.” And order them around.[29]
Recollecting what she had seen accompanying survivors to hospitals, another social worker said, “In one case, the doctor said something like, ‘You there! You are so dirty! Don’t sit on that chair!’ because she had come immediately after the assault, and had blood and soiled clothes.”[30] Discussing another of her cases, she said,
In another gang rape case, the survivor was made to sit for six hours after the medical examination inside the labor room without even being allowed to change out of her bloodied clothes and shower. When she saw me, she asked me if there was a way she could get some water so she could wash up. I ran from the labor ward to the emergency ward trying to get a bucket of water. You won’t imagine how hard it is to even get some water to wash up![31]
Summing up the overall experience of rape survivors in the health care and criminal justice systems, Dr. Mitra said,
Many of our rape survivors have told us how police and doctors treat them. The experience by and large is humiliating for all victims. It adds to their overall trauma after rape. Some of them just become numb. Others find the whole process entirely dehumanizing. The insensitive manner and distrust with which they are treated negates their very being.[32]
Women report specific difficulties with the ways they are treated during the process of forensic evidence collection. Police officers and doctors often send survivors from one hospital to another to take various tests, and often make them wait for hours, subject them to multiple uncomfortable examinations, and sometimes publicly identify them as “rape cases” in hospital corridors.[33] Some survivors are admitted to hospital for up to five days because certain doctors are not immediately available to examine them and aspects of the forensic examination take time. The hospital then charges the survivor’s family the costs of the hospital bed and examinations.[34] Overburdened gynecologists and other physicians are often reluctant to examine rape survivors because they want to avoid embroiling themselves in a complex and sensitive case that could eventually require them to testify in court. One Delhi-based forensic expert said, “They will be dragged out of their work in another ward to come and examine [the rape survivor], and this annoys them, and they take out that anger on rape survivors.”[35]
***
Women’s rights, children’s rights, and health rights activists have been strong advocates for changing criminal laws and health care and criminal justice practices for dealing with sexual violence. Though much remains to be done, some promising developments, including recent amendments to criminal laws, demonstrate the Indian government’s willingness to protect the rights of women and children who experience sexual violence.[36] In March 2010, the Indian central government publicized and invited response to a draft Criminal Law (Amendment) Bill that seeks to reform both substantive and procedural laws regarding sexual violence.[37] The government has also initiated drafting a separate law dealing with sexual offences against children. In response to Supreme Court orders, the National Commission for Women and the Ministry of Women and Child Development have drafted a proposal for the “relief and rehabilitation” of rape survivors.[38] Simultaneously, a “Perspective Plan for Indian Forensics,” which aims to reconsider the ways in which all forensic services are delivered, is under development.[39] This time of change presents a unique opportunity for reforming the approaches of the criminal justice and health care systems to survivors of sexual violence.
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. 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 and comments about whether she is “habituated to sexual intercourse.”[40]
The Role of Forensic Evidence in Sexual Violence Trials
Collection of forensic evidence is routine in sexual violence cases in India. Usually, after the police register a complaint of rape, police officers take the survivor to a government hospital to collect forensic evidence. A doctor examines the rape survivor and prepares a report (commonly known as a medico-legal certificate or MLC) that becomes part of the evidence. The doctor may also collect and seal samples (vaginal swabs, blood samples, nail clippings, and so on) and hand them over to the police officers, who take them for testing at a forensic laboratory, which also submits a report.[41] All the reports, along with the doctor’s opinion, are then used in court, along with the oral testimony of the doctor, if any.[42]
Under Indian criminal law, the prosecution can secure a conviction on a rape charge based solely on the testimony of the rape survivor, provided the testimony is cogent and consistent, inspiring confidence. The law does not require corroboration by forensic evidence to secure a conviction.[43] In theory, it is legally relevant but not essential. However, prosecutors and lawyers have told Human Rights Watch that in practice, judges and the police give significant weight to forensic evidence, and it can influence whether a conviction is secured.[44]
Forensic evidence plays a powerful role inside and outside the court. Several legal experts and activists interviewed by Human Rights Watch said that in their experience, it significantly influences the beliefs of both the police and doctors about whether a woman was in fact raped.[45] Maharukh Adenwala, a legal activist with many years of experience assisting rape and child sexual abuse survivors, said,
How sincerely and seriously the police investigate the case itself depends on what they see in the medico-legal report. They form an opinion about whether the woman was actually raped or not just based on what the doctor’s report says. So if the doctor’s report is written poorly, it does affect us [the prosecution], even though technically, medico-legal evidence is not required for conviction.[46]
Problems with Forensic Evidence and its Use in Rape Trials
Given the importance of medico-legal evidence, it is critical for such evidence to be properly collected, stored, tested, recorded, and presented in court. Yet for decades, problems have riddled Indian procedures for the collection and use of medico-legal evidence.
Delays in reporting rape and in gathering and processing forensic evidence pose a huge stumbling block for the prosecution. It is well documented that many rape survivors do not immediately lodge a police complaint because of the tremendous social stigma attached to the crime.[47] Yet the defense counsel often uses any reporting delay to discredit the survivor. Delays in reporting rape also lead to the loss of forensic evidence, which may weaken the survivor’s case in court.
When survivors of sexual violence decide to file a report, they often face unnecessary impediments.[48] Survivors who approach health care providers directly often find that doctors are reluctant to examine and treat them unless they have already registered a police complaint, which can discourage or delay them from pursuing treatment.[49] Even when forensic evidence is collected without delay, poor methods of collection, storage, and chain of custody of evidence, as well as processing delays, often either render it unusable or result in inconclusive information.[50]
Doctors’ evidence collection techniques are extremely uneven. In the past, Indian criminal law did not specify what types of information should be collected during a forensic examination of a rape survivor. In 2006, the law was amended to provide some clarity on this, but many activists feel that the new law has not been effectively implemented.[51] Further, the 2006 amendment still left a great deal of discretionary scope for individual hospitals or doctors to record what they considered relevant as “other material particulars in reasonable detail.”[52] The Indian Medical Association (IMA), a voluntary network of doctors across the country, has, with the help of the Indian Department of Women and Child Development, developed a standard template for the forensic examination of rape survivors.[53] Yet as neither the doctors nor the department have the power to implement it in hospitals, it is not followed nationally.[54] There have been localized initiatives. In early 2010, the office of the Delhi Director General of Health Services issued a template similar to that of the IMA, to be followed in all Delhi government hospitals.[55] In June 2010 the Maharashtra state government introduced state-wide guidelines to standardize a system in which many hospitals had their own templates, and where, in those that did not, doctors would write medical opinions on blank sheets of paper.[56] Health rights activists across the country have criticized all of these various templates as flawed, because they are either based on outdated medical jurisprudence textbooks or on medical practice passed down over the years that has ignored scientific developments, current legal trends, and survivors’ rights.[57]
In any event, forensic examination protocols or templates alone are not sufficient. Doctors repeatedly told Human Rights Watch that the Indian government should introduce training to demonstrate how to use protocols and develop medical opinions in an accurate and scientific manner without prejudices against survivors.[58] Dr. N. Jagadeesh, a forensic expert who has analyzed medico-legal responses to sexual violence, said that “there are inherent biases in the manner in which the doctor writes the reports. Some hospitals do it well. Many do a superficial, mechanical job.”[59] Based on his experience from accompanying hundreds of rape survivors for forensic examinations, Dr. Rajat Mitra said, “There is no informed, uniform, or sensitive procedure. What guides the testing is the personal belief of the police and the doctor.”[60]
Doctors who examine rape survivors receive little, if any, training on how to conduct a forensic examination and document evidence.[61] Unlike many other countries, India does not have a class of forensic nurses or specialized training programs in forensic examination for sexual offences for medical students.[62] Dr. Harish Pathak, a professor of forensic medicine who formerly headed the forensic medicine departments of leading government hospitals in Mumbai, explained doctors’ preparation:
At best, doctors will have some half-an-hour or one hour lecture on medical evidence every year. No training. Nothing at all for medical examination in rape cases. Compare this to SAFE—Sexual Assault Forensic Examination— programs in other countries like Canada and US. They have a dedicated cell where women can come and report sexual assault and be treated and examined by trained doctors.[63]
Forensic experts, lawyers, and health activists told Human Rights Watch that the absence of such training left doctors ill-equipped: most doctors do not know how to collect evidence and write consistent and accurate medico-legal opinions. A Delhi-based forensic medicine expert cited examples of medico-legal reports where the doctor had merely recorded that a rape survivor displayed no injury marks or bleeding, without noting that this might be because the survivor had delayed reporting the assault. He said that later the defense tried to take advantage of this to suggest that no rape had occurred.[64] He said, “There should be a simple format and doctors should be told how much to write and what is relevant. And ideally, when doctors are working to examine a victim, they should be able to consult with lawyers. We need some kind of inter-sectoral approach where everyone works together.” Adenwala, a legal activist who aids women and children survivors of sexual abuse, said that she finds that a poorly written medical opinion can often prejudice police officers and judges against a survivor and cause them to doubt the merits of her case.[65] Rebecca Mammen John, another leading criminal lawyer, reiterated the importance of training doctors to write medico-legal opinions, citing several examples of inconsistent and unclear documentation that led to confusion during trials.[66]
The Indian women’s movement has consistently noted that medico-legal opinions and their interpretations frequently perpetuate damaging stereotypes in the law. For instance, the assumption is to doubt whether a woman or girl was in fact raped if she does not show obvious signs of emotional distress, which are recorded in the medical report, or if she shows no visible physical sign of injury from her “resistance” to rape.[67] Flavia Agnes, a leading feminist lawyer in the country, has strongly condemned the “blatantly anti-women statements” in medical jurisprudence textbooks that are “disguised as neutrality,” and fail to “take into account the recent trends in medico-legal aspects of rape.”[68] The finger test, more commonly known as the two-finger test, is an example of an arcane test presented in many medical jurisprudence books and commonly practiced by doctors in many hospitals in India.
[11] Section 375 of the Indian Penal Code defines rape. The official Indian National Crime Records Bureau provides data on the number of cases where complaints have been registered for rape. See for example, the National Crime Records Bureau, “Crime in 1990: Table-59 Victims of Rape Under Different Age Groups During 1990,” November, 1991, http://ncrb.nic.in/ciiprevious/Data/CIII1990/cii-1990/Table-59.pdf (accessed July 21, 2010), p.190; National Crime Records Bureau, “Crime in 2008: Table-5.3 (Concluded) Age-Group-Wise Victims of Rape Cases (Total) During 2008,” December 29, 2009, http://ncrb.nic.in/CII2008/cii-2008/Table%205.3.pdf (accessed July 21, 2010), pp. 397-8. Between 1990 and 2008 (the more recent year for which official data is available), the data shows roughly a 112 percent increase in India overall.
Since India does not have a comprehensive definition of sexual violence, there is no official data on all the different forms of sexual violence and the recorded number of cases. However, there is some data on the number of cases of molestation and sexual harassment. See, Ministry of Home Affairs, “Crime-head wise incidents of crimes against women in India (2001-2008),” http://www.indiastat.com/CrimeandLaw/6/IncidenceandRateofCrimeCommittedAgainstWomen/453345/389705/data.aspx (accessed July 22, 2010). This data also shows there has been a rise in the number of cases of molestation and sexual harassment between 2001 and 2008.
[12] See Amita Pitre and Meenu Pandey, Response of Health System to Sexual Violence, (Mumbai: CEHAT, 2009) p. 4; Pratiksha Baxi, “The Medicalisation of Consent and Falsity: The Figure of the Habitué in Indian Rape Law,” The Violence of Normal Times: Essays on Women’s Lived Realities (Kalpana Kannabiran ed., New Delhi: Women Unlimited, 2005), p. 275.
[13] See World Health Organization (WHO), “Guidelines for medico-legal care of victims of sexual violence,” 2003, http://whqlibdoc.who.int/publications/2004/924154628X.pdf (accessed July 21, 2010), pp. 10-11, for a discussion on myths surrounding rape and a list of common myths, including that sex is the primary motivation for rape, only certain types of women are raped, rape is perpetrated by a stranger, rape involves a great deal of violence, and that rape leaves obvious signs of injury.
Human Rights Watch found that these myths were reinforced by different actors in the Indian criminal justice and health systems. For example, in Human Rights Watch interview with Radha M. (name changed to protect identity), a former chief public prosecutor, location withheld, May 11, 2010, she stated that from her experience she believed that usually women who were raped by strangers were telling the truth but that women who said they were raped by an acquaintance were lying.
See Human Rights Watch interview with Dr. Harish Pathak, a leading forensic medicine expert, Mumbai, May 10, 2010, where he stated that rape survivors who did not have injuries faced higher rates of post-traumatic stress disorder because no one or fewer people believed that they were raped. See for example, Anand Holla, “A girl being raped would ‘resist fiercely’: HC,” Mumbai Mirror, July 19, 2010, http://www.mumbaimirror.com/article/2/201007192010071902533881633a9776f/A-girl-being-raped-would-‘resist-fiercely’-HC.html (accessed August 2, 2010), where it was reported that the Aurangabad Bench of the Bombay High Court acquitted the accused because the girl’s conduct was “unnatural” as she did not resist and no scuffle broke out. For a detailed analysis of courtroom proceedings that reinforce some myths around sexual violence, see Kalpana Kannabiran, “A Ravished Justice: Half a Century of Judicial Discourse on Rape,” De-Eroticizing Assault, Essays on Modesty, Honour, and Power (Calcutta: STREE, 2002), pp. 104-169. Kannabiran shows through her analysis of judgments how many judges characterized rape as a crime committed to fulfill male lust, or alternatively, looked for signs of “resistance” against “violent” rape and interpreted the absence of injuries as absence of rape.
[14] See Letter by Indian women’s groups to Mr. G. K. Pillai, Secretary, Ministry of Home Affairs, Government of India, June 2010. In this letter the women’s groups called for a victim and witness protection program in India that would assist survivors of sexual violence.
[15] At the writing of this paper, the Indian Penal Code 1860 had not yet been amended to improve definitions of sexual offenses. As it stands, the law does not carry comprehensive and graded punishments for different forms of sexual violence based of the gravity of the offense. The Indian Penal Code defines rape (section 375) and it is punishable by a maximum sentence of life imprisonment. All other sexual offences, ranging from forcibly stripping and parading women naked, sexual mutilation, and sexual harassment to passing lewd remarks, are punishable by either a maximum two-year term under section 354 or a one-year term under section 509 of the Indian Penal Code. These sections together criminalize any word, act, gesture, or criminal force used to “outrage” or “insult” the “modesty” of a woman, use phrases that are not only patriarchal but also ineffective in punishing sexual offenses, and have come under repeated criticism of Indian human rights activists. There is no definition of “child sexual abuse” in Indian law. Child rights activists are compelled to use section 377 of the Indian Penal Code, which defines an “unnatural offence,” to prosecute for child sexual abuse. Section 377 violates the rights of gay, lesbian, bisexual, and transgender persons as it also criminalizes consensual sex between two adults of the same sex.
See Letter by Indian women’s groups to Mr. G. K. Pillai, Secretary, Ministry of Home Affairs, Government of India, June 2010. In this letter, the Indian women’s groups discussed the range of problems posed by the narrow definition of “sexual assault” under the proposed amendment which did not recognize and adequately punish non-penetrative forms of sexual violence including sexual mutilation and forcibly disrobing and parading women naked.
[16] The December 2009 law reform process was initiated in response to nation-wide protests against a six-month term of imprisonment handed to a police officer who was convicted of molesting a minor girl. The sentence was recently revised in appeal.
[17]WHO, “Guidelines for medico-legal care of victims of sexual violence,” p.1. According to the World Health Organization, the reproductive and sexual health consequences of sexual violence include unwanted pregnancies, sexually transmitted infections (STIs), HIV/AIDS, and an increased risk of adopting risky sexual behavior. The mental health consequences of sexual violence are also serious and long-lasting, and can include depression, substance abuse, post-traumatic stress disorder (PTSD), and suicide. See also, Human Rights Watch interviews with Radha M. (name changed to protect identity), a former chief public prosecutor, location withheld, May 11, 2010, and Dev D. (name changed to maintain anonymity as requested), a former public prosecutor, New Delhi, May 22, 2010. Both prosecutors stated that counseling services should be provided to rape survivors.
[18] WHO, “Guidelines for medico-legal care of victims of sexual violence,” p. 2.
[19] Ibid., p. 17.
[20] Human Rights Watch interview with Dr. Muriel Volpellier, a sexual offences examiner, The Havens Sexual Assault Referral Center (SARC), London, July 12, 2010. Dr. Volpellier said that these centers are set up through the joint effort and funding from the London Metropolitan Police and the National Health Service. There are three such centers in London and similar centers are opening in other parts of the United Kingdom. Doctors in these centers are trained to conduct forensic examinations and are called sexual offenses examiners. Similarly Canada has Sexual Assault Care Centers (SACCs). For more information, see, Sexual Assault Care Center, http://www.sacc.to/asap/aboutus/aboutus.htm (accessed August 2, 2010).
South Africa has similar one-stop multidisciplinary centers that are known as Thuthuzela Care Centers. For more information, see, United Nations Children's Fund (UNICEF), “South Africa: Thuthuzela Care Centres,” undated, http://www.unicef.org/southafrica/hiv_aids_998.html (accessed May 28, 2010).
Various states in the United States have centers with varying services. For example, the Rape Treatment Center at Santa Monica/UCLA Medical Center provides integrated services. More information about this center is available at http://www.911rape.org/about-us/who-we-are (accessed August 10, 2010). Many states also have Sexual Assault Response Teams (SARTs) and Sexual Assault Nurse Examiners (SANEs) who provide coordinated services when a survivor reports sexual violence in a hospital.
Several countries have passed laws or created policies and programs to ensure that survivors of sexual violence have access to a set of integrated services. See for example, South Africa’s National Sexual Assault Policy, Department of Health, 2005, on file with Human Rights Watch. Countries like the Philippines and Spain have laws providing for integrated services for survivors. See for example, Women and Children Crisis Survivors Assistance and Protection Act, 2007, http://webapps01.un.org/vawdatabase/uploads/Philipppines%20-%20rape%20victim%20assistance%20act%201998.pdf (accessed June 22, 2010), and Act 35/1995 of September 11, For the Provision of Aid and Assistance to Victims of Violent Crimes and Sexual Offences, http://webapps01.un.org/vawdatabase/searchDetail.action?measureId=3176 (accessed June 22, 2010).
[21] WHO, “Guidelines for medico-legal care of victims of sexual violence,” p. 2.
[22] A draft proposal for a national scheme for the relief and rehabilitation of victims of rape has been put forward by the National Commission for Women. See “Revised Scheme for Relief and Rehabilitation of Victims of Rape,” dated April 15, 2010, http://ncw.nic.in/PDFFiles/Scheme_Rape_Victim.pdf (accessed August 6, 2010). This proposal seeks to set up district level criminal injuries relief and rehabilitation boards that will receive and process applications for relief and rehabilitation which include psychological, medical, and legal assistance to the victims. While the proposed scheme puts in place a mechanism for survivors to apply for and receive support, it does not lay down the standards for such treatment.
[23] Human Rights Watch interviews with Dr. Anaka L. (name changed to maintain anonymity as requested), a doctor who has analysed health system responses to sexual violence, New Delhi, May 14, 2010; Padma Deosthali, coordinator, CEHAT, Mumbai, April 27, 2010; Dr. Haroon N. (name changed to protect identity), head of the forensic medicine department of a leading government hospital, New Delhi, May 18, 2010; and Dev D. (name changed to maintain anonymity as requested), a former public prosecutor, New Delhi, May 22, 2010; phone interviews with Dr. Rajat Mitra, director, Swanchetan, New Delhi, May 25, 2010, and Dr. N. Jagadeesh, a forensic expert and health rights activist working on creating gender-sensitive rape examination protocols, Bangalore, May 12, 2010.
[24] Human Rights Watch interviews with Dr. Niwas K. (name changed to protect identity), a doctor and government medico-legal advisor, Mumbai, May 12, 2010; Dr. Harish Pathak, a leading forensic medicine expert, Mumbai, May 10, 2010; Dr. Anaka L. (name changed to maintain anonymity as requested), ibid.; and Padma Deosthali, coordinator, CEHAT, Mumbai, April 27, 2010; phone interviews with Dr. N. Jagadeesh, ibid., and Dr. Rajat Mitra, ibid.
[25] Human Rights Watch phone interview with Seema V. (name changed to maintain anonymity as requested), a trial court judge who has served for nearly two decades in different trial courts in Delhi, Delhi, July 3, 2010.
[26] Human Rights Watch interview with Chetna Birje, a lawyer, India Centre for Human Rights and Law, Mumbai, August 1, 2010.
[27] Human Rights Watch interview with Rani G. (name changed to protect identity) and Gopal G. (name changed to protect identity), the parents of a six-year-old child who was raped, Mumbai, July 15, 2010.
[28] Human Rights Watch interview with Pratibha Menon, a lawyer, Mumbai, August 6, 2010. In March 2010, in a national consultation organized to discuss offering psychological, social, and monetary support for rape survivors, the then chief justice of India had controversially remarked that a survivor should be allowed to marry the rapist if she chooses to, inviting much criticism from women’s groups. See “Respect victim’s wish to marry rapist, says CJI,” Times of India, March 8, 2010, http://timesofindia.indiatimes.com/india/Respect-victims-wish-to-marry-rapist-says-CJI/articleshow/5655797.cms (accessed August 6, 2010).
[29] Human Rights Watch phone interview with Dr. Rajat Mitra, director, Swanchetan, New Delhi, May 25, 2010.
[30] Human Rights Watch interview with Sangeeta Rege, a senior research officer who has worked with rape survivors and sexually abused children for 10 years, Mumbai, July 15, 2010.
[31] Ibid.
[32] Human Rights Watch phone interview with Dr. Rajat Mitra, director, Swanchetan, New Delhi, May 25, 2010.
[33] Human Rights Watch interviews with Dr. Harish Pathak, a leading forensic medicine expert, Mumbai, May 10, 2010; Dr. Anaka L., (name changed to protect identity), a doctor who has analysed health system responses to sexual violence, New Delhi, May 14, 2010; Padma Deosthali, coordinator, CEHAT, Mumbai, April 27, 2010; and Dev D. (name changed to maintain anonymity as requested), a former public prosecutor, New Delhi, May 22, 2010; phone interviews with Dr. N. Jagadeesh, a forensic expert and health rights activist working on creating gender-sensitive rape examination protocols, Bangalore, May 12, 2010, and Dr. Duru Shah, a gynecologist and member of the ethics committee of the International Federation of Gynecology and Obstetrics (FIGO), Mumbai, June 1, 2010.
[34] Human Rights Watch interviews with Rani G. (name changed to protect identity) and Gopal G. (name changed to protect identity), the parents of a six-year-old child who was raped, Mumbai, July 15, 2010, and Priya M. (name changed to maintain anonymity as requested) and Mikhail M. (name changed to maintain anonymity as requested), the parents of an adult survivor, Mumbai, July 15, 2010.
[35] Human Rights Watch interview with Dr. Haroon N. (name changed to protect identity), head of the forensic medicine department of a leading government hospital, New Delhi, May 18, 2010. See also, Human Rights Watch interviews with Satish J. (name changed to maintain anonymity as requested), a doctor who examines rape survivors in a government hospital (hospital name withheld at doctor’s request), Mumbai, May 12, 2010; Dr. Anaka L. (name changed to maintain anonymity as requested), a doctor who has analysed health system responses to sexual violence, New Delhi, May 14, 2010; and Shazneen Limrejwalla, a freelance researcher who wrote her PhD dissertation on rape in Gujarat, Mumbai, August 3, 2010.
[36] See Ministry of Home Affairs, The Code of Criminal Procedure (Amendment) Bill, 2005, June 23, 2005, http://www.mha.nic.in/pdfs/TheCCP(Amendment)Act,2005.pdf (accessed June 16, 2010), and Ministry of Law and Justice, The Indian Evidence (Amendment) Act, 2002, December 31, 2002, http://www.commonlii.org/in/legis/num_act/iea2002205/ (accessed June 16, 2010).
[37] Ministry of Home Affairs, The Criminal Law (Amendment) Bill, 2010, draft dated March 31, 2010, http://www.prsindia.org/uploads/media/draft/Draft%20Criminal%20Law%20(Amendment)%20Bill%202010.pdf (accessed June 5, 2010).
[38] National Commission for Women, “Revised Scheme for Relief and Rehabilitation of Victims of Rape,” dated April 15, 2010, http://ncw.nic.in/PDFFiles/Scheme_Rape_Victim.pdf (accessed August 6, 2010).
[39] Human Rights Watch email correspondence with Dr. Gopal Ji Mishra and Dr. C. Damodaran, consultants developing the Perspective Plan for the Indian Ministry of Home Affairs, June 6, 2010. Human Rights Watch phone interview with Dr. Gopal Ji Mishra, Mumbai, May 30, 2010. Dr. Mishra stated that he could not divulge any details about the Perspective Plan, but said the plan is “comprehensive” and would address forensic evidence in rape cases.
[40] See below, section titled “The Use of the Finger Test in India.”
[41] Human Rights Watch interview with Dr. Harish Pathak, a leading forensic medicine expert, Mumbai, May 10, 2010.
[42] Section 164-A, Criminal Procedure Code, 1973. Under Indian law, any registered medical practitioner (not necessarily a gynecologist) employed in a hospital run by the government or a local authority can collect medical evidence. In the absence of such a practitioner, any other medical practitioner can collect evidence.
[43] See for example, State of Punjab v. Gurmeet Singh, 1996Cri LJ 1728 and State of Maharashtra v. Chandraprakash Kewalchand Jain, 1990 Cri LJ 889.
[44] Human Rights Watch interviews with Maharukh Adenwala, a senior practicing lawyer who has assisted in the prosecution of hundreds of rape and child sexual abuse cases, Mumbai, May 28, 2010; Rebecca Mammen John, a senior practicing criminal lawyer, New Delhi, May 17, 2010; Dev D. (name changed to maintain anonymity as requested), a former public prosecutor, New Delhi, May 22, 2010; and Radha M. (name changed to protect identity), a former chief public prosecutor, location withheld, May 11, 2010; phone interviews with Dr. N. Jagadeesh, a forensic expert and health rights activist working on creating gender-sensitive rape examination protocols, Bangalore, May 12, 2010; and Dr. Indrajit Khandekar, an assistant professor in the Department of Forensic Medicine, Mahatma Gandhi Institute of Medical Sciences, Wardha, May 7, 2010. Human Rights Watch’s interview with Dr. Harish Pathak, a leading forensic medicine expert, Mumbai, May 10, 2010 also revealed the overall importance of medical evidence in rape investigations in trials.
[45] Human Rights Watch interview with Maharukh Adenwala, a senior practicing lawyer who has assisted in the prosecution of hundreds of rape and child sexual abuse cases, Mumbai, May 28, 2010; phone interviews with Dr. Rajat Mitra, director, Swanchetan, New Delhi, May 25, 2010; and Asha George, a former sessions judge and member secretary of the state legal services authority, New Delhi, May 15, 2010.
[46] Human Rights Watch interview with Maharukh Adenwala, a senior practicing lawyer who has assisted in the prosecution of hundreds of rape and child sexual abuse cases, Mumbai, May 28, 2010.
[47] See Amita Pitre and Meenu Pandey, Response of Health System to Sexual Violence, (Mumbai: CEHAT, 2009) p. 4, and Pratiksha Baxi, “The Medicalisation of Consent and Falsity: The Figure of the Habitué in Indian Rape Law,” The Violence of Normal Times: Essays on Women’s Lived Realities (Kalpana Kannabiran ed., New Delhi: Women Unlimited, 2005), p. 275.
[48] This point was raised by many activists during the national consultations in Mumbai and New Delhi that were organized to discuss the proposed Criminal Law (Amendment) Bill, 2010.
[49] Human Rights Watch interview with Padma Deosthali, coordinator, CEHAT, Mumbai, April 27, 2010; phone interviews with Dr. N. Jagadeesh, a forensic expert and health rights activist working on creating gender-sensitive rape examination protocols, Bangalore, May 12, 2010, and Dr. Rajat Mitra, director, Swanchetan, New Delhi, May 25, 2010. To resolve this, some activists and lawyers argued that rape survivors should be allowed to go to a hospital and be treated and examined by doctors irrespective of whether they lodge a complaint with the police. Likewise, activists and lawyers say that doctors should be authorized to collect evidence when rape survivors approach them directly, allowing a window period within which they may choose to register a complaint and use the collected evidence.
[50] Human Rights Watch interviews with Dr. Harish Pathak, a leading forensic medicine expert, Mumbai, May 10, 2010; Dr. Anaka L. (name changed to maintain anonymity as requested), a doctor who has analysed health system responses to sexual violence, New Delhi, May 14, 2010; Maharukh Adenwala, a senior practicing lawyer who has assisted in the prosecution of hundreds of rape and child sexual abuse cases, Mumbai, May 28, 2010; Justice Manju Goel, a former sessions judge and high court judge, New Delhi, May 15, 2010; and Dev D. (name changed to maintain anonymity as requested), a former public prosecutor, New Delhi, May 22, 2010; phone interview with Asha George, a former sessions judge and member secretary of the state legal services authority, New Delhi, May 15, 2010. Many doctors said that the latest technologies to record internal injuries were not used in hospitals. For example, a colposcope, which costs about 150,000 rupees (approximately USD 3300), is not provided for medico-legal examination.
[51] See section 164-A, Criminal Procedure Code, 1973, which was introduced by an amendment passed in 2005 and became effective in 2006. Human Rights Watch interviews with Dr. Harish Pathak, a leading forensic medicine expert, Mumbai, May 10, 2010; Dr. Haroon N. (name changed to protect identity), head of the forensic medicine department of a leading government hospital, New Delhi, May 18, 2010; Rajeev C. (name changed to protect identity), an official from the Indian Directorate of Forensic Sciences, New Delhi, May 20, 2010; Padma Deosthali, coordinator, CEHAT, Mumbai, April 27, 2010; Flavia Agnes, a feminist lawyer and cofounder of Majlis, Mumbai, July 16, 2010; and Khadijah Faruqui, a lawyer and human rights activist, Jagori, New Delhi, May 17, 2010; phone interview with Dr. N. Jagadeesh, a forensic expert and health rights activist working on creating gender-sensitive rape examination protocols, Bangalore, May 12, 2010.
[52] Section 164-A, Criminal Procedure Code, 1973. According to this section, a doctor conducting a forensic examination should record the name and address of the survivor and the person who accompanies her, her age, a description of material taken from the person of the woman for DNA profiling, any marks of injury on her person, the general mental condition of the survivor, and “other material particulars in reasonable detail.”
[53] Human Rights Watch email correspondence with Dr. Dharam Singh, honorary general secretary, Indian Medical Association, New Delhi, August 3, 2010; and Dr. Sharda Jain, National Chairperson, Women’s Wing, Indian Medical Association, New Delhi, August 2, 2010.
[54] Human Rights Watch phone interview with Dr. Sharda Jain, ibid. Dr. Sharda Jain stated that the IMA guidelines were developed in conjunction with the central government and not being followed by the states because “health” is not a federal subject under the Indian Constitution. However, lawyers and activists who spoke with Human Rights Watch stated that the collection of medico-legal evidence for submission in court cannot be seen as a matter of “health” alone. Rather, it also relates to criminal law and criminal procedures, which fall under the “Concurrent List” of the Seventh Schedule of the Constitution, which gives the Indian parliament and central government powers.
[55] “Medical Examination Report of Sexual Assault Victim,” 2010, on file with Human Rights Watch.
[56] Directorate of Health Services, Government of Maharashtra, “Instructions to Medical Officers for Performing Medicolegal Examination of Victims of Sexual Violence,” No. DHS/MLC/D-3/10, June 11, 2010, issued in response to Ranjana Pardhi and Vijay Patait v. Union of India and State of Maharashtra, Writ Petition no. 46/2010.
[57] Human Rights Watch interview with Padma Deosthali, coordinator, CEHAT, Mumbai, April 27, 2010; phone interviews with Dr. Indrajit Khandekar, an assistant professor in the Department of Forensic Medicine, Mahatma Gandhi Institute of Medical Sciences, Wardha, May 7, 2010 and Dr. N. Jagadeesh, a forensic expert and health rights activist working on creating gender-sensitive rape examination protocols, Bangalore, May 12, 2010. Human Rights Watch email correspondence with Padma Deosthali, CEHAT, July 13, 2010 where she sent Human Rights Watch the following documents. CEHAT, “Critique of Proforma made by DGHS [Director General Health Services], New Delhi,” (that was developed in consultation with experts from across the country), undated, “Minutes of the Meeting: Consultation on Comprehensive Health Care Response to Sexual Assault,” May 29, 2010, and Letter by Padma Deosthali to Dr. D. S. Dhakure, Directorate of Health Services, Maharashtra, July 8, 2010. All documents are on file with Human Rights Watch.
[58] Human Rights Watch interviews with Dr. Harish Pathak, a leading forensic medicine expert, Mumbai, May 10, 2010; Padma Deosthali, ibid.; and Dr. Anaka L. (name changed to maintain anonymity as requested), a doctor who has analysed health system responses to sexual violence, New Delhi, May 14, 2010; phone interviews with Dr. N. Jagadeesh, ibid., and Dr. Haroon N., (name changed to protect identity), ibid.
[59] Human Rights Watch phone interview with Dr. N. Jagadeesh, ibid.
[60] Human Rights Watch phone interview with Dr. Rajat Mitra, director, Swanchetan, New Delhi, May 25, 2010. See also, Human Rights Watch phone interview with Dr. Indrajit Khandekar, an assistant professor in Department of Forensic Medicine, Mahatma Gandhi Institute of Medical Sciences, Wardha, May 7, 2010, in which he said that he had filed a petition in the Nagpur bench of the Bombay High Court seeking the court to direct the Maharashtra and Indian central governments to frame guidelines, since doctors’ examinations of rape survivors varied dramatically.
[61] Human Rights Watch phone interview with Dr. Sharda Jain, National Chairperson, Women’s Wing, Indian Medical Association, New Delhi, August 2, 2010.To fill the training gap, between 2006 and 2008 the Indian Medical Association held regional workshops for doctors selected from different states. But these have had limited impact since states have not institutionalized such trainings and doctors who came to the workshops have not disseminated the information widely to ensure their uniform adherence.
[62] Human Rights Watch phone interview with Dr. Ruxana Jina, professor, School of Public Health, University of Witwatersrand, South Africa, who contributed to the manual developed by the South African Department of Health regarding treatment and examination of rape survivors, New York, May 26, 2010.
[63] Human Rights Watch interview with Dr. Harish Pathak, a leading forensic medicine expert, Mumbai, May 10, 2010.
[64] Human Rights Watch interview with Dr. Haroon N. (name changed to protect identity), head of the forensic medicine department of a leading government hospital, New Delhi, May 18, 2010.
[65] Human Rights Watch interview with Maharukh Adenwala, a senior practicing lawyer who has assisted in the prosecution of hundreds of rape and child sexual abuse cases, Mumbai, May 28, 2010.
[66] Human Rights Watch interview with Rebecca Mammen John, a senior practicing criminal lawyer, New Delhi, May 17, 2010. See also, Human Rights Watch phone interview with Aparna Bhat, a lawyer, Rape Crisis Intervention Cell, New Delhi, May 19, 2010.
[67] See for example Pratiksha Baxi, “The Medicalisation of Consent and Falsity: The Figure of the Habitué in Indian Rape Law,” The Violence of Normal Times: Essays on Women’s Lived Realities (Kalpana Kannabiran ed., New Delhi: Women Unlimited, 2005); Kalpana Kannabiran, “A Ravished Justice: Half a Century of Judicial Discourse on Rape,” De-Eroticizing Assault, Essays on Modesty, Honour, and Power (Calcutta: STREE, 2002); and Flavia Agnes, “To Whom Do Experts Testify? Ideological Challenges of Feminist Jurisprudence,” Economic and Political Weekly, vol. 40, no. 18 (2005), which provide a critique of the ways that medical jurisprudence and courtroom narratives of sexual violence perpetuate gender stereotypes.
[68] Flavia Agnes, ibid.