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Rape: forensic science’s error leads to injustice

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Forensics: exact science or dramatised fiction? #4

rape victim

According to the official figures furnished by the National Crime Records Bureau for the year 2020, nearly 77 rapes take place in India every day, that is, a woman is raped about every 19 minutes. The figures, however, do not tell the complete story. They have nothing to do with the terrible trauma which the victims have to undergo. To their horror, the trauma they are forced to suffer after the rape is much more severe than the trauma of the crime per se. She suffers at the hands of everyone she encounters thereafter. The doctors and nurses she comes across for her medical examination are generally utterly ignorant of the law and are extremely callous if not overtly hostile. Then the cops, who epitomize a retrogressive mind set and misogyny.

The horror of the illegal two-finger test

Generations of police officers and doctors have been deriving perverse pleasure in getting this test conducted on living as well as dead women. In this atrocious practice, the examining doctor notes the presence or absence of the hymen, and the size and the so-called laxity of the vagina of the rape survivor by inserting two fingers and thus violating her dignity. The finger test is supposed to assess whether the woman is a ‘virgin’ or ‘habituated to sexual intercourse.

From a scientific perspective, contrary to popular notions, 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 utterly false. Conversely, a hymen can have an ‘old tear’ and its orifice may vary in size for many reasons unrelated to sex. Thus, examining the state of the hymen provides no evidence for drawing conclusions about ‘habituation to sexual intercourse. Whether the vagina admits one finger or to fingers is of no consequence. The inherent elasticity of the vagina may be vastly different in different women. Obviously, there cannot be any quantitative standards.

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Readers will be shocked to learn that even as the Hon’ble Supreme Court has acknowledged these scientific facts for a long, the Indian police and forensic fraternity still do not know these. In Narayanamma (Kum) vs. State of Karnataka & Ors. (1994), the Apex Court held that the fact of admission of two fingers and the hymen rupture does not give a clear indication that prosecutrix is habitual to sexual intercourse. In Lillu @ Rajesh & Anr vs. State of Haryana (2013), the SC declared it unconstitutional. Subsequently in 2014, the Ministry of Health & Family Welfare, vide paragraph 18B of ‘Guidelines & Protocols–Medicolegal Care for Survivors/Victims of Sexual Violence’ prohibited the two-finger test.

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Yet, we find this demeaning and worthless test still being conducted and no doctor has been punished for trying to confound the court by casting unwarranted aspersion on the character of the victim.

Readers will be shocked to learn that in a rape case reported only a few days back from the IAF establishment in Coimbatore, the victim has alleged that the doctors at the IAF hospital conducted the two-finger test on her. You can imagine if this could happen to an officer of the IAF in an IAF hospital, what would be the fate of the ordinary women of this country who have to go to small hospitals in rural, semi-urban or urban areas. 

Perversity in looking for injuries on the body of the victim 

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Most police officers and doctors in India, being the ignoramuses they are, derive their notions of rape from what they have seen in cheap films and expect the rape victim’s body to be full of bruises, contusions and bite marks. In fact, if injuries are not there, they try to create an impression in the court that the complaint is false. This happens in spite of the fact that the Supreme Court has held in a chain of judgments since 1983 in Sheikh Zakir vs. State of Bihar and until 2014 in Krishan vs. State of Haryana that the absence of injuries on the person of the prosecutrix does not lead to an inference that she consented for sexual intercourse with the accused.

Indian doctors do not know the research of Deborah Rogers et al that on average, 40% of complainants of sexual assaults had no general injuries. Of those who were injured, most had only minor injuries, which would fade rapidly or heal without a trace. Going by the wrong notions they harbour, Indian cops and doctors would hold that in that 40% of cases, no rape took place at all!

Unnecessarily looking for sperms

Most Indian forensic experts tend to look for the presence of spermatozoa in the vaginal swab. The ignoramuses do not realize that spermatozoa would not be found at all if the accused has been vasectomized; was wearing a condom, or had withdrawn before ejaculation.

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Once again, police and forensics do not know what science and the Supreme Court have held since long. In State of Maharashtra vs. Chandraprakash Kewal Chand Jain (1990), it was held that spermatozoa can be found if the woman is examined within 12 hours after intercourse, thereafter they may be found between 48 and 72 hours but in dead form. If the prosecutrix washed by then, the spermatozoa may not be found.

Unreliability of conventional tests for seminal fluid

The Brentamine test for acid phosphatase used commonly in India for checking the presence of seminal fluid is not reliable. Most Indian doctors do not know that acid phosphatase is found even in vaginal secretions and many other body fluids. Secondly, the only reliable test in this regard is p30/PSA RSID, which they do not generally use. p30/PSA is a prostate-specific antigen and RSID means Rapid Stain Identification Series.

Mis-interpreting internal vaginal injuries

Deborah Rogers et al have shown that a lack of genital injury does not mean that penetration did not take place or that the complainant consented to the sexual acts. Under the best of circumstances, Indian forensic investigation stops at the Toluidine test. The only reliable device Colposcope is hardly ever used by Indian doctors.

Another thing, which confuses the Indian doctors, is the presence of blood in the vaginal swab. In the Badayun rape-cum-murder case (on which the 2019 award-winning Hindi film ‘Article 15’ is loosely based), two Dalit girls aged 14 and 15 respectively were found hanging from a tree. Dr Pushplata Pant, who performed the autopsy on the younger girl, gave the cause of death as ‘asphyxia due to ante mortem hanging’, which means that the girl was alive at the time of the hanging. She also claimed that the girl had ‘blood clots in and around the vaginal area, clots and abrasions around the hymen’. Pritha Chatterjee writes that the post mortem of the elder girl had noted multiple vaginal tears, vaginal discharge and bluish colouring in the perineal areas.

Rudraneil Sengupta reports that the case took a strange U-turn when a special investigation team took over from the local police and sent the autopsy reports, video recording and photographs to forensic specialists at AIIMS, New Delhi. Dr Adarsh Kumar was assigned the review. He had only the video and the photographs to examine. He said there were no genital injuries. As for the blood, he said it was menstrual blood.

Once again, the issue is that both sets of doctors could not be correct simultaneously. Whoever was wrong should have been punished severely so that the conscience of the criminal justice system remained clear and the possibility of the recurrence of such situations was reduced. In any case, an opinion based on the examination of photographs has no value.

Violating the above-mentioned Supreme Court order, the CBI cited the absence of any sign of struggle or injuries and semen in the vaginal swab for trashing the rape allegation!

In fact, in a Metropolitan Police Forensic Science Laboratory (MPFSL) study, it was found that nearly one-third of the vaginal swabs received at the laboratory were bloodstained. The study attributed 22% of the blood-stained swabs to menstruation and 10% to female genital trauma. In the remaining cases, no explanation for the bleeding could be given.

Hathras gang rape case, the ultimate example of bungling

The Hathras gang rape case was a classic example of bungling by a nexus of police and the doctors at every stage, particularly with respect to internal injuries and hymenal tears. In this case, there was a delay of as many as eight days in the sexual assault forensic examination. It can therefore be reasonably presumed that she could have been washed or douched without her knowledge or under sedation, etc.

Yet, and in violation of Supreme Court orders, they continued to harp on the presence of semen, rupture of hymen and injury to the genitals. The doctors of even Safdarjung Hospital in Delhi unnecessarily spoke of ‘old healed tears’ in the hymen, etc. in the post mortem report. It was overlooked that the post mortem, in this case, was done 15 days after the incident—which is sufficient time for minor injuries to heal! If this is the state of ignorance in a premier medical institution of the country’s capital, the state of the doctors in other parts of the country can be easily imagined.

From a scientific point of view, genital injuries or their absence does not prove or disprove anything. Nobody in our forensic community seemed to be aware of the findings of Nancy Kellogg et al. In their study of adolescent victims of sexual abuse, the genital examination was reported to be normal or nonspecific in 64% of the cases. Similarly, they are also unaware of the findings of Fraser et al who have shown the presence of micro-ulcerations, bruises, abrasions, and mucosal tear in healthy, sexually active women in the age group of 18-35 years who had consensual sex only. Even full-thickness lacerations or ruptures have been found.

The ignorance of the Indian forensic community is thus largely responsible for denying justice to the rape victims and those of them who are violating the Supreme Court and Govt. of India orders must be dealt with severely and exemplary punishment awarded to them.

(To be continued…)

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Dr N C Asthana IPS (Retd)
Dr N C Asthana IPS (Retd)
Dr. N. C. Asthana, IPS (Retd) is a former DGP of Kerala and ADG BSF/CRPF. Of the 51 books that he has authored, 20 are on terrorism, counter-terrorism, defense, strategic studies, military science, and internal security, etc. They have been reviewed at very high levels in the world and are regularly cited for authority in the research works at some of the most prestigious professional institutions of the world such as the US Army Command & General Staff College and Frunze Military Academy, Russia. The views expressed are his own.


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