SEXUAL ASSAULT CASES: A CRITICAL ANALYSIS OF THE PROCEDURE OF INVESTIGATION IN INDIA

Source : NBC News

Vanshika Kasturi is a 3rd Year BA-LLB, Damodaram Sanjivayya National Law University, Visakhapatnam.

Rape investigation/examination is the technique to accumulate facts about a speculated assault, including legally recognizable proof of a culprit, kind of assault and different subtleties.

As far as studies go assaults of sexual nature are committed by people who are known to the person in question. Just somewhere in the range of 5 - 15 percent of sexual ambushes are executed by an absolute stranger. Therefore, the character of the culprit is as often detailed. Natural proof, for example, semen, blood, vaginal discharges, salivation, and vaginal epithelial cells might be distinguished and genetically unruffled by an investigative laboratory.

The state of medical examination in India:

The Two finger test:

Two-Finger Test also called, per vaginum assessment is an approach to decide if the hymen of the lady is unblemished or not. It depends on the suspicion that hymen can burst just when a female experiences sex. The strategy is informal, against human rights and doesn't signify any assurance of commission of assault. Incomparable court in Lillu @ Rajesh and Anr. versus State Of Haryana held that the two finger test is informal and it disregards lady's entitlement to security, physical and mental integrity and respect.

After the said judgment, rules were passed by the Ministry of Health and Family Welfare in 2014 which additionally denounced the test, and said that it must not be performed.

Advancement of science and rape investigation:

The data that is extracted from the examination can frequently help decide whether the sexual contact happened, given the data with respect to the conditions of the occurrence, and be contrasted with reference tests gathered from patients and suspects. Medical teams in numerous nations gather proof for potential assault cases by utilizing assault kits, but essentially speaking the time it takes to have assault kits prepared has been criticized.

Abrasions, scraped spots, wounds and gashes on the victim’s body help explain how an assault was done. 8 to 45 percent of casualties show proof of outside injury, most ordinarily at the mouth, throat, wrists, arms, bosoms and thighs. Injury to these body parts contain around 66% of wounds, while injury to the vagina and perineum represent roughly 20 percent.

Recent intercourse can be detected by conducting out a vaginal wet-mount microscopy assessment (or oral/anal-centric whenever showed) for identification of motile sperm, which are seen on the slide if under three hours have slipped by since discharge. Nonetheless, only 33% of rapes bring about discharge into a bodily oral cavity. Further, the supposed attacker may have had a vasectomy or have encountered sexual brokenness (approximately 50 percent of aggressors experience the ill effects of weakness or ejaculatory dysfunction). Also, corrosive phosphates levels in high focuses are a decent marker of ongoing sex. Corrosive phosphatase is found in prostatic discharges and movement diminishes with time and is normally missing after 24 hours. Prostate-explicit antigen (PSA) might be distinguished inside a 48-hour duration. The original liquid of vasectomized men likewise contains a noteworthy PSA level. Non-motile sperm might be recognized even past 72 hours after intercourse relying upon recoloring methods by this method.

But nevertheless, the process of rape investigation and medical examination in India is yet to evolve it still has some major flaws. Because of this, the 2014 amendment came forth with a new set of guidelines which were implemented by only a handful of states

To enhance and further improve upon the method laid down in Section 164A, of the criminal procedure code, after the Nirbhaya case, Ministry of Health and Family Welfare in 2014 laid out certain rules and conventions for medico lawful consideration for the casualties of sexual savagery:

1. Essential intricacy and Consent: Medical inspector will record the name, age, address, sex, name and relationship of the individual who brought the assault casualty/survivor and the assent of the person in question. Prior to taking the assent of the person in question, victim will be educated regarding the idea of clinical assessment. Just in dangerous cases, the specialist may continue with the assessment without the assent as given in Section 92, IPC.

2. Recognizable proof imprints: Two signs of distinguishing proof ought to likewise be recorded, for instance moles, scars or any other imprint. Menstrual and inoculation history is to be recorded, and in the event that the victim is bleeding at the hour of the assessment, at that point a subsequent assessment is required on a later date so as to record the wounds plainly.

3. History of occurrence: Medical analyst will record the historical backdrop of the frequency in survivor's own words, which will have evidentiary incentive in courtroom. On the off chance that the history is described by an individual other than the survivor, his/her name will be noted. Subtleties of the garments, clinical and careful history ought to be recorded.

4. General Physical assessment: Reaction to specialist's inquiries, reality mindfulness, heart-beat rate, pulse, temperature, understudy and stain or semen mark on the garments of the casualty ought to be inspected and recorded.

5. Assessment of wounds: The whole body surface ought to be inspected for any wounds, breaks, nail scraped areas, teeth indentations, cuts, bubbles, sores, any release, weapon contamination or stain on the body and will be recorded with specific subtleties of these wounds.

6. Assessment of genital parts and openings: External genital region and Perineum is watched for proof of injury, original stains, stray pubic hair, unfamiliar material.

7. Assessment of vagina is finished with the assistance of sterile speculum greased up with warm saline/sterile water to check the inner dying, wounds or any wounds. Such assessment isn't required in instances of minor where there are no indications of entrance or obvious wounds. In the event that at all the assessment is required, it will be done under the impact of sedation.

8. Any injury, growing, dying, release or stain close to butt, butt-centric opening and oral cavity ought to be inspected and recorded.

9. Gathering tests: Whenever mentioned by police, radiographs of wrist, elbow, shoulders, dental assessment and so forth are encouraged to be gathered for age estimation.

10. Pee test to decide the pregnancy and blood test is collected for proof of HIV status, VDRL and HbsAg.

11. Post assessment: After assessment, clinical professionals should record the report, define supposition and sign the report. A duplicate of the report must be given to the survivor, as it is her entitlement to know about the data.

All the confirmations gathered during the assessment, similar to garments of the lady, swabs from vagina, anal-centric opening, pubic hair test, unfamiliar material, nail scrapings, swab sticks alongside the report must be put in an envelope and be given over to the police or legal judge.

Victim blaming and the hindrance to Rape investigation:

One reason why individuals accuse a victim is to separate themselves from a terrible event and consequently affirm their own immunity to the hazard. By marking or denouncing the person in question, others can consider them to be not quite the same as themselves. Individuals console themselves by deduction, "Since I dislike her, since I don't do that, this could never transpire with me." We have to assist individuals with understanding this is certainly not an accommodating response.

Victim blaming is prevalent in India and time and again the burden of the assault is put on the shoulders of the victim which leads to a lot of prejudice regarding the victim and the absolute torture she has been through is deemed to be her fault.

Majority of the time it is this victim blaming and ostracization that lead to women not coming forth with any crime that may have been committed on her and even when they do come forward they have to go through a series of hurdles which is a added nail to the already closing lid.

Conclusion Today, we are living in the 21st century, yet at the same time we are being pulled back by the brutal man centric patriarchal standards. Tight and rigid arrangements like these, if not changed with the time, will make us fall in the pit of man-controlled society. At places, where rules and arrangements are solid, their requirements are poor. After the occurrence of Nirbhaya, Although Ministry of Health and Family Welfare in 2014 laid down certain rules and conventions for medico legal consideration for the casualties of sexual viciousness, however not very many states like Madhya Pradesh embraced them. The refining and streamlining of the investigation procedure has to be rectified to be victim friendly and to ensure that the victim feels safe and secure without feeling as though it was her fault. But it’s a long road to go but we are paving way towards it.