Medico-Legal Guide for Survivors of Sexual Assault

Medical Exam

OVERVIEW

What are the objectives of a medical exam?

The medical exam has two objectives.

1. The first is to give medical care, which can mean anything from looking after any sexual health needs by testing for pregnancy or STIs, to providing prescriptions.

2. The second is forensic, which means the medical practitioner will use their medical skills to help the police investigation, taking DNA swabs, identifying, and photographing injuries, describing the subject’s emotional state, finding foreign material and running toxicology tests.

The medical exam can take 2-4 hours.

Under what circumstances does a survivor undergo a medical exam?

There are three circumstances under which a survivor can undergo a medical exam:

1. When the survivor approaches the hospital/clinic for treatment for the effects of assault.

2. When there is a police requisition after police complaint; or

3. After a court directive or on the order of the Court.

Is an FIR mandatory for a medical exam?

An FIR is not mandatory for the medical exam. Further, the survivor can choose not to file a complaint. It is advisable to undergo a medical examination as soon as possible. The medical professionals will also inform the survivor of their right to file a complaint against the assault. In case the survivor does not want to file a complaint, the medical personnel should document the survivor’s informed refusal. However, they are duty bound to report the incident to the police.

Who conducts the medical exam?

A registered medical practitioner with the Medical Council of India can conduct the exam. The consent of the survivor must be taken for each stage of the exam. The medical practitioner has to skip a particular step, if the survivor does not consent to it. It is advised that a female doctor conducts the exam. If a female doctor is not available, a male doctor can conduct the exam, with the survivor’s consent. The survivor can choose to have a male doctor conduct the exam.

Is the medical exam free of cost?

Doctors are required to give first aid or medical treatment, free of cost, to survivors who approach them and disclose sexual assault at both private and government hospitals.

Medical Exam

PROCEDURE

What is the procedure of a medical exam?

1. An exam begins with treating any injuries that need immediate care.

2. Then, a survivor’s medical history is taken down by the medical practitioner.

3. Details of what happened, including identifying places on their body or clothes that may show evidence is collected.

4. Next, the medical professional may give a head-to-toe examination, which may include internal examinations of the mouth, vagina, and anus.

5. Blood, urine, body, and hair samples are collected for evidence from the survivor.

6. The healthcare provider may also take photos of the survivor’s body to document injuries.

7. STI prevention treatment or an emergency contraceptive is provided to the survivor if necessary.

8. Additionally, in cases where the survivor was the drugged, the healthcare provider may conduct a drug-facilitated kit, which involves taking blood and urine samples for testing.

9. The survivor will also undergo testing for pregnancy as well as for sexually transmitted infections (STI), HIV, Hepatitis B.

What medical history is collected?

Post assault, the medical practitioner collects information on the activities of the survivors like:

1. changing of clothes, cleaning of clothes

2. bathing/ showering

3. washing genitals, menstrual cycle, urinating, defecating

4. rinsing mouth, drinking, eating

5. vaccinations, recent sexual activity T

his information would have a bearing on the evidence collected from the survivor. However, information on the number of sexual partners or past sexual experiences is not necessary unless it is relevant to the assault in any way.

Medical Exam
FORENSIC EVIDENCE

How is forensic evidence collected?

1. Semen, saliva, hair, and fingernail scrapings are studied for DNA. These can identify a suspect and link them to the survivor or crime scene.

2. An examination of internal and external injuries also takes place. Injuries can indicate use of force or violence from an attacker and resistance from the survivor.

3. Blood and urine can show whether a survivor was under the influence of alcohol or drugs and could not consent.

4. And foreign material like clothing fibres, foliage and soil can link a suspect to the offence. This is done to gather as much evidence as possible to support and corroborate a version of events.

The collected evidence is stored in a clean dry sanitized pack which is sealed with a sticker to ensure the evidence is not contaminated or tampered with.

What happens if the survivor has cleaned away evidence?

Medical examinations are still possible even if the survivor has showered or cleaned themselves. However, if it is possible to avoid showering, combing hair, brushing teeth, rinsing mouth, urinating, defecating, changing clothes and cleaning up the genital area or other areas of assault as it may assist in collecting the evidence. The likelihood of finding evidence reduces after 72 hours (3 days). Usually evidence is collected up to 96 hours in case of unclear timelines.

What happens in cases where there is no forensic evidence?

A medical examination cannot ascertain the presence or absence of consent. That’s something only the survivor can really testify to. Consent is the most important aspect in determining whether an act was rape or not. If little to no evidence is found, this does not mean that the crime has not taken place. The police will still continue their investigation.

Legal Process

AT THE HEALTHCARE PROVIDER

The health professionals (Doctors, Nurses, and other Medical Personnel) have the following duties when a survivor come to hospitals/clinics for medical or other forms of support:

1. Explain to the survivor in simple and understandable language the rationale for various procedures and their respective steps

2. Follow special steps when dealing with a survivor from marginalized groups such as children, persons with disability, LGBTI persons, sex workers or persons from a minority community.

3. Ensure confidentiality and explain to the survivor that they must reveal the entire history to health professionals without fear. At this stage, survivors are encouraged not to hide any existing medical history or information.

4. Explain to the survivor that genital examination may be uncomfortable but is necessary for legal purposes.

5. Inform the survivor about the need to carry out additional procedures such as x-rays, etc which may require them to visit other departments in a medical facility

What are the duties of hospitals?

Every hospital must have a Standard Operating Procedure (SOP) for management of cases of sexual violence:

1. The absence of a female doctor should not deny or delay the examination. If a male doctor is examining, it must be in the presence of a female attendant. For minors/persons with disability his/her parent/guardian/any other person with whom the survivor is comfortable may be present.

2. In the case of a transgender/intersex person, the survivor has the choice whether they want to be examined by a female doctor, or a male doctor in the presence of a female attendant.

3. Police personnel cannot be in the examination room during the consultation with the survivor. If the survivor requests, her relative may be present during the examination.

4. There must be no delay in conducting an examination and collecting evidence.

5. Providing treatment and necessary medical investigations is the prime responsibility of the examining doctor. Admission, evidence collection or filing a police complaint is not mandatory for providing treatment.

6. The history taking & examination should be carried out in complete privacy in a private room set up in the hospital for examination of sexual violence survivor.

7. After the examination is complete the survivor should be permitted to wash up, using the toiletries and the clothing given by the hospital if her own clothing is taken as evidence. The hospital is obliged to give such clothing at no charge.

8. Admission is unnecessary unless the survivor requires indoor stay for observation or treatment.

Guidelines for when a survivor reports to the hospital without first going to the police.

Given below are some guidelines the health professionals need to keep in mind in such situations:

1. If the survivor has come to the hospital without the police, the hospital is bound to give treatment and conduct a medical examination with consent of the survivor/ parent/guardian (depending on age).

2. The hospital must treat the patient immediately without delay, irrespective of whether the police has arrived or not. Collection of medical evidence must take place as early as possible.

3. If a person has come on their own without FIR, they may or may not want to lodge a complaint but require a medical examination and treatment. Even in such cases the doctor is bound to inform the police as per law.

4. Neither court nor police can force the survivor to undergo a medical examination. Only in situations, where it is life threatening the doctor may initiate treatment without consent as per section 92 of IPC.

5. In case the survivor does not want to pursue a police case, a medico-legal case (MLC) is registered. The police or the medical professional should inform the survivor about the survivor’s right to refuse to file FIR. An informed refusal must be documented in such cases.

6. The police should record the medico-legal case and provide its case number to the survivor along with the details of the police station where the complaint can be registered. This Medico-legal case number is useful in case the survivor has a police requisition or wishes to lodge a complaint later.

7. In all three circumstances, it is mandatory to seek an informed on sent/refusal for examination and evidence collection. Consent should be taken for the following purposes: examination, sample collection for clinical and forensic examination, treatment, and police intimation. The consent form must be signed by the survivor, a witness, and the examining doctor.

Rights of a Survivor and Duties of their Caregivers

Given below are the rights of a survivor and duties of caregivers during investigation and trial of sexual offences committed against the survivor:

01. Right to Privacy of the Victim
No person can disclose the name of the rape survivor. If anybody discloses the name, the punishment is a term which may extend to two years and along with a fine. Further, there should be an incamera trial for all rape survivors. For instance, the media cannot release the name of the survivor. (Section 228 A IPC & Section 327(2) CrPC)

02. Right to Free Medical Treatment /Duty of Medical Institutions
This law fixes liability on medical institutions, both public or private to give medical treatment free of cost to survivors of sexual assault, together with a duty to inform the police of such incident. Failure to comply with the above provision is a punishable offence. (Section 357C CrPC & Section 166B IPC)

03. Right to Examination by a Female Doctor
Only a registered female medical practitioner can conduct the examination of a female survivor. Unless, there is no female practitioner available and the survivor consents otherwise to an examination by a male registered practitioner. (Section 53A[5] CrPC)

04. Right to a Detailed Examination of the Perpetrator
Legally, the perpetrator can be ordered to undergo a detailed medical examination by any registered medical practitioner, preferably employed in a hospital run by the Government or a local authority. This examination is done to gather other physical evidence that can corroborate the story of the survivor. (Section 53A CrPc)

05. Right to a Speedy Trial
Investigation should start and end within two months from the date on which the police officer recorded the information in charge of the Police Station. Special fast track courts have been set up for this purpose. (Section 173A CrPC)

06. Duty of a Public Servant
This law ensures failure of a public servant to record any information of such offences as a punishable offence, prescribing both rigorous imprisonment and fine for the guilty. (Section 166A IPC, Section 154 [1] CrPC)

07. Duty of Court to Presume Absence of Consent
The court during any trial for rape will presume the absence of consent by the survivor. (Section 114-A, Indian Evidence Act)

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