Janata Dal (Secular) MP Prajwal Revanna, who returned to Bengaluru from Germany on Friday, has been taken into custody by a Special Investigation Team (SIT). The SIT which is investigating sexual assault allegations against Prajwal is likely to have him take medical tests, including a potency test. What is a potency test? A potency test is conducted to examine whether a male has the capacity to develop or maintain a penile erection to be able to perform a sexual act. This medical ‘evidence’ is brought in cases involving sexual assault, divorce, and even in paternity suits. In divorce and paternity cases, a fertility test along with a potency test is commonly done. Section 53 of the Code of Criminal Procedure (CrPC) allows examination of “blood, blood-stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clipping by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case”, on the accused for investigation. Why is the test relevant in sexual assault cases? In sexual assault cases, the prosecution brings a potency test report to the court to counter any potential defence from the accused that he is incapable of sexual intercourse. Such a defence, however, is far from foolproof. Potency is not permanent, and can vary depending on several physiological and psychological factors. Just because a man is unable to develop or sustain an erection at the time of the test, does not mean that he cannot do so at other times. Thus, reports submitted in court simply indicate whether the accused is capable of sexual intercourse or not at the time of the test, and only have corroborative value. This is similar to the ‘two-finger’ test done for the prosecutrix to determine the laxity of the hymen, that is, whether a woman is habituated to sex. It is also not determinative of whether a forced sexual intercourse has occurred. While this test is still commonly used, it is not considered to be strong evidence. In fact, in a sexual assault case, it is only the statement of the survivor that is treated as complete evidence. Moreover, even if potency tests had some sort of relevance before 2013, a change in the law has now made them even less relevant. Prior to 2013, Section 375 of the Indian Penal Code (IPC) that defined rape was limited to a peno-vaginal intercourse. Intercourse would often be the benchmark to determine if the offence involved rape or a lesser crime. However, after the 2013 criminal law amendments, the definition of rape was expanded. Now, under the law, rape includes penetration of “any object”, “mouth” to “any part of body” of a woman. A non-peno-vaginal contact does not necessarily need a test of potency at all.
