Padma Deosthali is the co-ordinator of Anusandhan Trust's CEHAT initiative. She tells us about the problems in the health system’s response to survivors of rape and sexual assault, and why there needs to be an uniform protocol for their medical examination.
What problems exist in the hospitals’ response to rape survivors?
The hospitals’ response to survivors is rooted in a lot of misconceptions about sexual assault. These are even found in medical textbooks, such as ‘the chief evidence of lack of consent is signs of resistance’ and ‘in ordinary conditions, it is not possible for a man to have sexual intercourse with a healthy adult female against her will’. There is also a preoccupation with finding out whether the survivor is habituated to sex, whether or not she is a virgin. This is done through exams like the hymen test, which checks if the hymen is torn, if the tear is old, etc. However, as we know, the hymen can tear because of horse riding, cycling or any other reason.
Another problem is the two-finger test which checks how many fingers can enter the vaginal opening and with what degree of difficulty. The results of these tests are used to question a survivor’s character in court even though this is against the law (Section 25, Criminal Law Amendment Act, 2013).
What role does medical evidence play in a rape case?
Medical evidence is seen as a litmus test—positive or negative. If it’s positive, it means there was rape; if it’s negative, rape didn’t occur. Positive results are usually indicated by forensic reports or injuries on the survivor’s body. Scientifically speaking, though, according to the World Health Organization's global evidence, only 1/3rd of the survivors of rape and sexual assault have reported injuries. Also, genital injuries may heal very fast and may be very difficult to spot.
However, evidence depends on the nature of the assault; the time that has passed since the assault; and the activities undertaken after. Evidence is lost due to several reasons such as bathing, cleaning of genitals, urination and the like. It is critical to factor in the reasons for the loss of medical evidence. Medical evidence is considered corroborative evidence in cases of rape, but negative medical evidence does not mean that the rape did not occur.
Further, there is also a need to make the issue of rape and sexual assault an issue of health. The fact is that rape and sexual assault have several health consequences, and thus, this aspect should not be overlooked.
Tell us about CEHAT's work on the medical examination of rape survivors.
From 2004–08, we researched on the health system's response to survivors at tertiary and peripheral hospitals, as well as primary healthcare centres. We found that in several states across the country, there is no uniformity in conducting the medical examination. Besides, several biases and archaic practices have crept into the examination. So, there needs to be both uniformity and gender sensitivity in the examination of survivors.
CEHAT, in consultation with several experts such as lawyers, forensic doctors, gynaecologists and women’s rights advocates, has developed a gender-sensitive proforma for medical examination along with a manual which would assist a doctor in conducting examination and collecting evidence. Once these were developed, CEHAT began to collaborate with the Municipal Corporation of Greater Mumbai to implement a gender-sensitive and comprehensive healthcare response in three municipal hospitals of the city. The implementation of the comprehensive healthcare response to sexual assault comprised of:
- Training health professionals in therapeutic care and psychological first aid for survivors of rape and sexual assault.
- Establishing a chain of custody for the management of collected evidence and its dispatch to the forensic science laboratory.
- Setting up monitoring mechanisms for the smooth functioning of the healthcare response to survivors.
At least 250 survivors of rape and sexual assault have been received at these hospitals over the years.. (To know more, read CEHAT's Manual for the Medical Examination of Sexual Assault here.)
Can CEHAT’s Manual for the Medical Examination of Sexual Assault be used in all hospitals?
Yes, every hospital can use the manual as it gives step-by-step directions to a doctor about how he/she must deal with a survivor of rape or sexual assault. It also includes list of materials that are required for collecting evidence.
There are two main areas where we would like to see change:
i) The doctor's medico-legal role, which should be carried out in a scientific and gender-sensitive manner.
ii) The doctor's therapeutic role, which should be carried out in a comprehensive manner.
What steps has your organization taken to make a change in the health system?
We have taken these concerns to the Nagpur Bench of the Bombay High Court where we have intervened in a public interest litigation. We have engaged with the committee appointed by the Government of Maharashtra, sought a technical opinion from the World Health Organization, organized an expert group meeting, etc. (For more information, see http://www.cehat.org.)
The evidence from our interventions with the public health system were submitted to the Justice Verma Commission (JVC). The JVC report makes strong recommendations for changing the forensics protocol as well as provision of healthcare. We see this reflected in the Criminal Law (Amendment) Act, 2013, which recognizes the right to healthcare for all survivors of sexual violence by making it mandatory for all public and private hospitals to provide free treatment.
The Planning Commission organized a consultation for discussing the health sector response to sexual violence where the CEHAT model was deliberated upon. Following this consultation in February 2013, the Ministry of Health and Family Welfare set up a national committee of experts for formulating uniform protocol and guidelines for the medical examination of survivors of sexual violence under the leadership of the Health Secretary, Keshav Desiraju. The committee has finalized these through deliberation on the evidence, reference to international guidelines, and changes in Indian laws. They provide guidance on how health professionals must respond to survivors from different marginalized communities, such as persons with disabilities; persons from the LGBTQ community; persons discriminated on the basis of caste, class, and religion, amongst others. We are waiting for a final order from the Ministry of Health and Family Welfare.