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Monday, October 19, 2020

Explained: How important is victim’s testimony, and if absence of semen can rule out rape

The guidelines state that spermatozoa can be “identified only for 72 hours after assault” and asks doctors to refrain from taking swabs for spermatozoa after three days of assault.

Written by Sofi Ahsan , Edited by Explained Desk | New Delhi | Updated: October 10, 2020 10:48:48 pm
Section 164A of the Code of Criminal Procedure states that a woman, against whom rape has been committed or an attempt has been made, can be medically examined by a medical practitioner after her consent or on consent of a person competent to give it on her behalf.

Last week, Uttar Pradesh Additional Director General (Law and Order) Prashant Kumar, while quoting a Forensic Science Laboratory report in the Hathras case, said no semen or sperm secretion was found in the viscera sample and the cause of death was trauma caused by assault.

Kumar’s statement, which seems to negate the rape allegation, has been challenged by several legal experts on the basis of the existing law as well as the various court rulings of the past. What does the law say about the issue?

How important is a victim’s statement in a rape case?

There have been many cases where the victim’s “reliable” testimony has been the sole basis for conviction of the accused, with the courts holding that the testimony in such cases requires no corroboration. Such testimony or solitary evidence, however, has to appear to be “absolutely trustworthy, unblemished, and should be of sterling quality”, as per the Supreme Court’s ruling in Krishna Kumar Malik vs State of Haryana. The “material contradictions” in statements of victims have many a time led to acquittal of accused in cases where there is no medical or corroborative evidence. In Hathras case, the statement of the victim before her death will hold the key when the case goes to trial. The victim in her statement to doctors during medical examination has claimed both physical assault as well as “complete” “penetration by penis” of the “vagina”.

What does the law say about medical examination of the rape victim?

Section 164A of the Code of Criminal Procedure states that a woman, against whom rape has been committed or an attempt has been made, can be medically examined by a medical practitioner after her consent or on consent of a person competent to give it on her behalf. The examination has to take place “without delay” and the report is required to state her identity, age, the description of the material taken from her for DNA profiling, the marks of any injury, the general mental condition of the woman or any other material in reasonable detail. The report is required to provide reasoning for the conclusions and the exact time of commencement and completion of the examination. In the Hathras case, the medical examination of the 19-year-old was conducted on September 22 at AMU’s Jawaharlal Nehru Medical College while the incident allegedly took place on September 14.

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What are the Centre’s guidelines regarding the examination of the victim?

The Ministry of Health and Family Welfare, in its guidelines for medico-legal care for survivors or victims of sexual violence while defining the purposes of forensic medical examination, states that “a sexual act may not only be penetration by the penis but also slightest penetration of the vulva by the penis, such as minimal passage of glans between the labia with or without emission of semen or rupture of the hymen”. The doctor, according to the guidelines, is also required to collect information about post-assault activities like “changed clothes, cleaned clothes, bathed/urinated/showered/washed genitals and rinsing mouth, drinking, eating (in oral sexual violence)/had sexual intercourse after the sexual violence” as same would have bearing on trace evidence

The guidelines also state that “the likelihood of finding evidence after 72 hours (3 days) is greatly reduced; however it is better to collect evidence up to 96 hours in case the survivor may be unsure of the number of hours lapsed since the assault”. The guidelines also state that spermatozoa can be “identified only for 72 hours after assault” and asks doctors to refrain from taking swabs for spermatozoa after three days of assault. “In such cases, swabs should only be sent for tests for identifying semen,” read the guidelines, adding evidence on the outside of the body and on materials such as clothing can be collected even after 96 hours.

How is rape defined in law?

Under Section 375 of Indian Penal Code, a man is said to have committed rape of woman not only when there is penetration “to any extent” of penis into her vagina (labia majora included), mouth, urethra or anus but also when there is insertion of any object or a part of the body into her. It is also rape when the man “applies his mouth to the vagina, anus, urethra of a woman…”.

However, the acts would amount to rape only when the same were committed against the will of the womAn, without her consent — defined as “unequivocal voluntary agreement” in the forms of words, gestures or any form of verbal or non-verbal communication — and when her consent has been obtained by putting her or any person in whom she is interested in fear or death or of hurt. It is also rape when at the time of giving consent, there was unsoundness of mind in the woman or intoxication or after administration of some substance due to which she is unable to understand the nature and consquences of her consent. The acts are rape, with or without consent, when the girl is under 18 years of age.

While the punishment for rape is rigourous imprisonement of at least 10 years or life, the sentence in a case where the victim has died or has been subjected to gangrape is at least 20 years of jail, which can be extended to imprisonment for the remainder of convict’s natural death. The convict can also be sentenced to death where the victim has died.

What have courts held about the absence of semen stains on a victim’s person or her clothes?

The Supreme Court, in 2014 in a rape case, upheld a Delhi High Court deicision, which had relied on a passage from ‘Medical Jurisprudence and Toxicology’ stating that “…to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen”. The apex court in Wahid Khan vs. State of MP reiterated that it has been the court’s consistent view that even a slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial. In Ranjit Hazarika Vs. State of Assam (1998), the Supreme Court rejected the doctor’s opinion in which he said “no rape appeared to have been committed” on the basis of absence of rupture of hymen and injuries on the private parts of the victim.

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