MEDICAL EVIDENCE IN RAPE CASES

MARCH 2012

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Table of contentsAbbreviations...........................................3Acknowledgments.........................................4Background..............................................5Legal Framework.........................................7Constitutional equality rights........................7Statutory provisions on rape..........................7

Procedure to be followed in rape cases..................9Provisions on medical examinations.....................11Practical challenges in collecting medical evidence....14Interpretation of rape provisions by courts............16Study of case records..................................21Description of the sample studied....................21Findings and analysis................................22Age of the victim and the accused...................22Time and place of incident..........................23Relationship with the accused.......................24Nature of the incident..............................25Proceedings.........................................26Shalish.............................................28

Medical examination records..........................30MLC and FIR.........................................31Time of conducting medical examinations.............31Place of Medical Examination........................32Consent to medical examination......................32Personnel involved in conducting medical examinations....................................................33Recording of physical injuries......................33Recording of mental state...........................34Obstetric/Gynecological Examination and Marital Status....................................................35Treatment Prescribed................................37Victim’s age........................................38Medical Examiner’s Opinion..........................38Medical examination and investigation...............39

Conclusions and recommendations........................42

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Abbreviations

VAW Violence against women

CrPC Code of Criminal Procedure

NSA Nari O Shishu Nirjatan Daman Ain, 2000

NSA Tribunal Tribunal constituted under the Nari O Shishu Nirjatan Daman Ain, 2000

Victim Victim/survivor of rape

Minor Girls under 16 years of age. 16 years is recognized as the age of consent to sexual intercourse under Section 375 of the Bangladesh Penal Code.

Evidence Act Evidence Act 1878

FIR First Information Report

MLR Medico-Legal Report

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Acknowledgments This short research study is part of the SAFE project, which seeks to highlight issues of choice as critical parameters in asserting women’s rights and liberties, in particular the right to freedom from violence. The authoris grateful to ICDDRB for its support.

The research was conducted in the BLAST office. Showvick,Susmita, Maria and Sharmistha entered data from case reports for analysis. The author is deeply grateful to office bearers and staff members of BLAST for their support, especially Sara Hossain (Honorary Director, BLAST) for her guidance and invaluable inputs to this study. Thanks are also due to Farida Yeasmin and Rezaul Haq for their support.

This study builds on the BLAST’s work on the issue of violence against women and sexual assault and is informedby research previously conducted in this field by Sylvie Rougerie and Dina Siddiqui, as well as insights provided by legal aid lawyers associated with BLAST. Other than members of BLAST, practitioners from the field were also consulted. Naripokkho’s Kamrun Alam and Rita Das deserve special mention for sharing Naripokkho’s rich experience on this issue. Nijera Kori and Mohila Porishod provided case records for analysis. Preliminary findings of this report were presented at a workshop organized by BLAST on December 26, 2011. The author would like to acknowledge and thank all the workshop participants for their valuable inputs. (LIST ofparticipants needed)

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Background

“Sexual violence is ubiquitous; it occurs in every culture, in all levels of society and in every country of the world. Data from country and local studies indicate that, in some parts of the world at least, one woman in every five has suffered an attempted or completed rape by an intimate partner during her lifetime. Furthermore, up to one-third of women describe their first sexual experience as being forced. Although the vast majority of victims are women, men and children of both sexes also experience sexual violence. Sexual violence can thus be regarded as a global problem, not only in the geographical sense but also in terms of age and sex.”

WHO Guidelines on Medico-Legal Care to Victims of SexualAssault; 2003

In Bangladesh, police statistics on cases registered on violence against women (VAW) show that rape is the secondmost commonly reported form of violence against women,1 following dowry related harassment. Rape cases have constituted 20-25% of all VAW cases filed with the policein the period 2001-2010.

Table 1Cases Registered by the Police on Violence Against Women

(Information Collated by Naripokkho, 2011)Year Dowry

related

Acid Attack

Abduction

Rape Rape and Murder

Trafficking

Murder

Injuries

Other*

2001 2986 153 1691 3178 20 63 82 63 47222002 4922 209 2236 4095 22 74 90 83 67002003 5869 258 2262 4442 28 74 73 120 71522004 3081 208 1594 3097 17 68 62 134 45682005 3130 206 2069 2796 22 138 97 49 29492006 3417 146 2089 2566 14 107 109 95 25582007 4186 177 2936 3495 33 113 142 74 33742008 4487 163 2874 3387 65 105 131 87 30322009 4061 129 2772 2900 39 100 139 94 26932010 5331 97 3391 3328 25 117 196 120 3768Total 41,43

01746 23,71

233,284

285 959 1101 899 41,512

*This category is not defined.

1 Approximately 23% of all cases of violence against women reported in the period 2001-2010

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However, these figures reflect only those complaints thathave been registered with the police, and not the actual number of rape incidents that may have occurred.2

NGO compilations of news reports on rape incidents indicate declining media reportage, although police records show that rape complaints have remained more or less consistent with the overall rate of other reported forms of VAW.

2001 Bangladesh Mahila Parishad’s Compilation“Comparative Frequency of Different Forms of Violence by Year”

1996 1997 1998 1999 2000 2001Rape 194 434 230 502 465 639

2010 ASK Compilation inHuman Rights in Bangladesh Report

2003 2004 2005 2006 2007 2008 2009Rape 948 618 585 515 436 486 446Gang rape 433 359 250 226 198 127 158

Overall crime statistics on “cruelty against women” compiled by the police show that after a decline in the years 2004-2006 and then in 2009, there is an increase innumbers of registered cases on ‘cruelty to women’ in 2010.3 However, as these statistics are not disaggregated according to individual offences it is difficult to tracktrends in rape cases per se.

Police Crime StatisticsNumber of Registered Cases (2001-2010)*

2001 2002 2003 2004 2005 2006 2007 2008 2009 2010Crueltyto Women

12958 18455 20242 12815 11426 11068 14250 14284 12904 16210

Total No of Crimes

114191

127616

125639

119323

123033

130578

157200

157979

157108

162898

2 Other than police reports there is lack of public availability of information on pendency and disposal of rape cases in court. 3 It must be noted that NGO statistics may not be entirely accurate based as they are on news reports and not their own case records or original police or court records.

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* http://www.police.gov.bd/index5.php?category=48

While it is difficult to ascribe reasons for these fluctuating numbers, it must be noted that while the overall crime4 rate has increased, crime rates for ‘offences of cruelty against women’ has remained more or less constant. In so far as the crime of rape is concerned, the highest numbers were reported in 2001, when it constituted 25% of all cases reported under ‘cruelty to women’ and the lowest in 2010, when it constituted 20% of all cases reported under the same category.

Though it is also difficult to draw conclusions based on these statistics, there is a probability that rape reportage has declined, albeit marginally, over the yearsinstead of rising, as appears to be the trend observed inother countries.5 This aspect requires to be further explored.

There may be a number of reasons for declining reportage.Although the law provides for stringent punishments, including the death penalty, in rape cases, activists identify gender-insensitive/ inappropriate medical procedures as one of the main reasons behind women being dissuaded from seeking justice.6 Other reasons include thelack of support services or provision of protection for victims and witnesses, social stigma associated with rapeand prevailing patriarchal attitudes, protracted court proceedings, inadequate investigations by the police, lacunae in the law, particularly the absence of rape shield provisions, etc. Addressing the latter causes callfor holistic long-term interventions. However, an aspect that may have a significant and immediate bearing on facilitating women’s access to justice is improving the manner in which medical evidence is collected—since

4 Crimes reported include – dacoity, robbery, murder, speedy trial act, rioting, child abuse, kidnapping, police assault, burglary, theft, arms act, explosive act, narcotics, smuggling, others. 5 India, NCRB; United Kingdom, Stern Review; United States 6 Moni Jharna; Bangladesh: Why Dhaka’s Rape Survivors Give Up on Justice: Women’s Feature Service; February 8, 2010 http://periodicals.faqs.org/201002/2035982201.html

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medical evidence is considered pivotal in the adjudication of rape cases.

Legal Framework

Constitutional equality rightsEquality guarantees are contained in three separate provisions in the Bangladeshi Constitution. Relevant to the context of women are:

Article 27 guarantees, which equality before law andthe equal protection of laws.

Article 28 (1) prohibits discrimination on grounds of inter alia sex. Article 28 (2) guarantees equal rights for women in all spheres of public life

Article 28(4) allows the State to make special provision for women and children

Article 29 guarantees equality of opportunity and prohibits discrimination in matters of public employment.

Internationally, all forms of gender-based violence, including rape, have been recognized as a form of discrimination against women and violative of women’s human rights.7 The broad guarantees of equality provided in the Constitution, therefore, impose both positive and negative obligations on the State to protect rights of rape victims.

Statutory provisions on rapePenalties for the offence of rape is provided for in Section 9 of the Suppression of Violence against Women and Children Act, 2000 or the Nari O Shishu Nirjatan Daman Ain, 2000 (NSA). This law uses the definition of rape provided in Section 375 of the Bangladesh Penal Code7 CEDAW Committee, General Comment 19 “The Convention (CEDAW) in Article 1 defines discrimination against women. The definition of discrimination includes gender-basedviolence that is, violence that is directed against a women because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty…”

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-- under this gender specific provision, a man is said tohave committed rape if he as ‘sexual intercourse’ with a woman

(1) against her will (2) without her consent (3) with her consent when her consent has been obtained by putting her in

fear of death or hurt (4) with her consent, when the man knows that he is not her husband or

whom she is or believes herself to be lawfully married (5) with or without consent, when she is under 16 years of age.

For the purposes of Section 375, sexual intercourse is defined as requiring penetration and marital rape is specifically exempted, unless the wife is under 13 years of age. To this definition, the NSA adds a further explanation:“If a male person without marital relationship has sexual intercourse with a woman above 16 years of age without her consent or with consent obtained by putting her in fear or by deceitful means or with a woman below 16 years with or without her consent he shall be presumed to have raped such a woman.”

Penalties provided are: life imprisonment and fine for those committing rape

on any woman or child (child being defined gender neutrally as any person under 16 years of age)8

death penalty and fine for causing death during or as a consequence of rape 9

death penalty or life imprisonment and fine for eachmember of a gang for causing death of the woman who has been gang raped.10

Penalties for attempts to cause death or hurt by committing or attempting to commit rape,11

Penalties for custodial rape, particularly for persons failing to ensure proper custody. In cases of custodial rape, the onus of proving safe custody

8 Section 9(1) NSA9 Section 9 (2) NSA10 Section 9 (3) NSA11 Section 9(4) NSA

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is placed on the person who had custody of the rape victim/survivor.12

The inadequacy of this definition of rape is that it doesnot recognize other forms of sexual assault not involvingpenetration. Such forms of assault may be addressed usingSection 10 of the NSA on ‘penalty for sexual oppression’.However, this provision, used primarily in cases of sexual harassment, imposes less severe punishments.13

Further, Section 17 of the NSA imposes penalties (rigorous imprisonment) for filing false complaints with the intent of causing harm to the accused or without lawful cause. This provision may have the effect of deterring women from filing complaints, as failure to prove a case may attract penalties under this provision. Here it must be noted that failure to prove case may be due to the inadequacy of evidence presented and not, in all cases, because the case was inherently false.

Procedure to be followed in rape cases14

Once an incident of rape takes place, any person may makea report of it to the Officer-in-Charge (OC) of the police station, and this report will be recorded in a “First Information Report” (FIR)15. In some cases, women put in an application to the police in writing and the contents of the application may then be recorded as an FIR.

12 Section 9(5) NSA13 Section 10- “Any person with a view to illegally satisfying his sexual lust by any of his organ or matter touches genital organ or any other part of body of a woman or child or violates her modesty, such act of that person shall constitute offence of sexual oppressionand he shall be liable to rigorous imprisonment for a term not exceeding 10 years but not less than 3 years and shall also be liableto fine.”14 The procedure is prescribed both under the Code of Criminal Procedure as well as the NSA. 15 Section 154 CrPC

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If the police refuse to file an FIR, the complainant may file a petition directly with the court16, which in cases of rape will be the Tribunal established under the NSA (NSA Tribunal).17 This is known as a complaint case. In such cases, the court may take cognizance of the case only if the petition reveals the likelihood of the commission of a crime (the level of enquiry being slightly higher than a prima facie enquiry.

In cases where an FIR is recorded, the OC designates an officer as Investigating Officer (IO). One of the first things that the IO must do is to get the complainant medically examined by an authorized Medical Officer. The medical examination should be done within 24 hours of theincident. The paper work involved includes putting together the order of the court, passport-sized picture of the victim, consent form, medico-legal report form, etc.

The IO is required at this stage to locate the accused record the evidence of witnesses under Section 161 of theCode of Criminal Procedure (CrPC), prepare site plans of the place where the incident occurred, confiscate weapons, and collect other physical evidence as part of the investigation.18

Upon completion of investigation, the IO may submit a report ("charge-sheet")19 if the investigation indicates that an offence has taken place, or file a Final Report (‘FRT)’ if s/he finds there is no merit to the case.20 Thecharge sheet has to be prepared or the investigation completed within 60 days.21 This period may be extended byan additional 30 days if required. The IO has a duty to inform the complainant of the submission of the charge sheet or the FRT as the case may be.

16 Section 200 CrPC 17 Section 2(d) NSA18 Section 4(1)(l) CrPC 19 Section 272 of PRB and Section 173 CrPC 20 Rule 275 P.R.B.21 Section 18 NSA

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In either case, the complainant may file an objection petition or a “naraji” petition”. In case of a charge sheet, the complainant’s objection may be against the accused being charged under incorrect provisions or the dropping of the names of any accused person/s originally named in the FIR or otherwise involved, from the chargesheet. In the second instance the complainant may object on grounds that the FRT - and the discontinuance of the process - is unacceptable. If the court finds merit in the complainant’s naraji petition, then it may take suo moto action and order fresh investigations to be completed within 30 days or summon the IO for further details. Further enquiries under Section 202 of the CrPC may be conducted by the police or any other reputed person, or person related or by the panchayat.

If there is an adverse report filed on the basis of further enquiries, the court will have to inform the complainant who may then file another naraji petition. If, on the other hand, the court finds merit in the case upon further enquiries then it may take cognizance.

Once the charge sheet is admitted or the case is admittedafter re-investigation, a case docket is prepared and thetrial commences. The court then issues process, which in cases of rape mean that a warrant will be issued. 22 If the warrant procedure is not honored or the accused does not make an appearance, the police may either issue a proclamation or attach the accused’s property. The trial begins thereafter.

The trial is to be concluded within 180 days from the date of ‘the receipt of the case.23 If the trial is not complete within this time then the accused may be released on bail and if not released, reasons recorded for non-release.24 The trial may also be held in the absence of the accused if summons are not responded to orwarrants not complied with.

22 Part III Chapter VIIA CrPC 23 Section 20 (3) NSA24 Section 20(4) NSA

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The NSA is a stringent law that does not allow for release on bail and provides for the imposition of severepenalties, including the death penalty. This leads to many observing that NSA provisions are misused as a tool for harassing or detaining political opponents or settling personal vendettas. For instance, the 2010 Mainstream Law Report (MLR)- a standard compendium of reported cases, in its commentary on rape, cautions: “Instances are not rare in our society that innocent persons are implicated in false cases of rape with a view to satisfying grudge out of enmity to harass under stringent provision of law relating to bail, trial and punishment. The tribunal in such circumstances is required to exercise great care and caution against false implication of innocent person and exuberance unrelated with the reasonable standard of proof, probability and improbability fairly based on the facts and circumstances of each and every case so that the real culpritsare punished.”

However, there are few statistics or studies to support this claim. A judge and a public prosecutor interviewed in the NSA tribunal claimed that bail is not impossible under NSA and is granted, particularly in cases of simplehurt, by exercising of the inherent powers of the court.

Although the procedure to be followed in rape cases as described above is theoretically adequate to secure justice for the survivor/victim, in practice a number of hurdles make the process ineffective.25

Provisions on medical examinationsRelevant to the context of medical examinations, Section 32 of the NSA provides that medical examinations of victims of offences are to be conducted either in government hospitals or any ‘private hospital, recognizedby the Government for the purpose’.

Under this provision, a medical officer, when approached by a victim, must ‘quickly’ perform the medical examination,furnish a certificate to the victim and notify the police25 See Naripokkho report; Supra N 1. Also see infra discussion on ‘practical challenges’ in the next section.

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station of the commission of the offence. This means thatthere is no mandatory requirement to record an FIR before a medical examination is conducted.26 This provision further provides that the failure to conduct medical examinations within reasonable time is deemed to be inefficiency/ misconduct, punishable with appropriate penalties and sanctions set out in the provision27

Pursuant to Naripokkho’s28 consistent campaign, the Ministry of Health and Family Welfare, in 2002, issued guidelines by way of a circular (poripotro) to be followed while conducting medical examinations in cases of violence against women - particularly in cases of rape and acid attack. Of relevance to the issue of rape, is the following:

When any woman or child victim of rape approaches a government health facility or a government designated health facility without police reference, doctors of such facilities are duty bound to conduct the necessary examinations immediately. After completion of the examinations, the doctor shall forward the medical certificate to the district administration, nearest police station, as well as give a copy to the victim. Doctors and clinic assistants must provide necessary medical services to the woman or child.

The effect of the guidelines is that all government and recognized, whether at the district or upazila levels may conduct medical examinations on rape victims. The second significant aspect of the guidelines is it clarifies thatthere is no need for a victim to first file an FIR or complaint -- i.e. initiate criminal proceedings-- before an examination is conducted. The practice in this regard has developed over the years. Prior to 1998, a court order was a mandatory before such examinations were conducted. This was subsequently changed to allow the conduct of such examinations upon filing a police complaint. These guidelines mark a further step ahead.

Along with the guidelines, the Ministry of Health also issued a standard form for recording medical evidence in

26 This is further clarified in the guidelines discussed next.27 Section 32 NSA28 A women’s collective working inter alia with women victims of violence.

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rape cases. This form is to be used by all government and government designated health facilities for recording evidence for both acid attacks and rape. The form provides space for recording:

Personal history of the victim. Name and address of the accused. Informed consent of the victim to the examination,

which is to be attested by two witnesses. Date and time of examination Name and address of woman assistant Specifics of the incident – namely: the place, date

and time, and a brief description of the incident Results of physical examinations- including bodily

structure, weight, height, dental specifics. Other physical signs for identification Signs of physical force

Evidence to be recorded specifically for rape victims: Details of menstrual cycles. Marital status Number of children Description of pubic/underarm hair and breasts Description of abdomen Detailed description of sexual organs, including

“vaginal canal” – for which the finger test is used. Other examinations – x-ray, ultrasound tests,

pathological tests, DNA tests and others. Date of release Referral to other hospitals for treatment Opinion of the examining doctor Signature and registration number of the examining

doctor.

An important aspect of this form is that a woman’s consent has to be taken before any examination is performed – it s assumed that such consent has to be informed and free, which means that the medical officer should accurately inform the victim of the nature of the tests to be performed and reasons thereof prior to conducting the tests.

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It is also noted that the format allows for recording information not only of the incident of sexual assault but also the sexual history of the victim. The latter information may be used to discredit the victim’s testimony, in line with Section 155(4) of the Evidence Act, which reads as follows:

“When a man is prosecuted for rape or an attempt to ravish, it may be shownthat the prosecutrix was of generally immoral character.”

However, neither the guidelines nor the format are being strictly followed in the country. Medical examination facilities are mostly available only at district levels and not lower at the upazila levels; and recording formats are not always uniform. Naripokkho, which has consistently advocated for the uniform adoption of both the guidelines and the format, points out that in 2009 only 3 medical examinations were conducted at the upazilalevel.

Further, even in cases where the aforementioned recordingformat is used, the following issues arise:

There is no space to record any other forms of sexual violence except rape.

The recording of information on hair and breasts haslittle bearing on aspects of consent.

There is no space to record activities such as bathing, washing, urinating, etc., which may result in the loss of evidence.

The use of the two finger test in conducting examinations of the vaginal canal is highly contestable and problematic, not only due to inherent inaccuracies associated with this test but also the manner in which such findings are used to discredit women’s testimonies.29

A significant lacuna in collecting medical evidence is the absence of a uniform protocol to be applied by medical officers and practitioners while attending to victims of sexual abuse. 29 For further information see infra

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Although medical evidence is required only to corroboratethe victim’s testimony, it is often given principal importance in rape trials. This is despite Supreme Court judgments allowing convictions based on the sole testimony of the victim.30 It is therefore, essential thatmedical evidence be recorded in a manner, which is efficient, accurate and gender sensitive. Other than these substantive challenges, there are also a number of practical challenges that impede accurate recording of medical evidence.

Practical challenges in collecting medical

evidence

Before listing the practical challenges that arise in thecontext of conducting medical tests, two aspects observedby practitioners bear mentioning. First, a significant number of reported rape cases could be broadly categorized as follows:

Cases involving sexual intercourse without consent (usually accompanied by force or other forms of intimidation and coercion) and Cases involving sexual intercourse based on a promise to marry that has later been breached.31 (Siddiqui2011)

However, in both types of cases it has been observed thatparties may initiate or be pressurized to participate in mediations (shalish) for compensation and/or marriage. It is only when the mediation fails that the formal justice system is approached. This aspect of mediation has been

30 Md. Abdul Mannan v State 51 DLR (1999) 154 Abdus Sobhan Biswas v State; 54 DLR (2002) 556, Misti v State 6 MLR (HCD) 2001(412); Monir Hossain v State 59 DLR (2007) 41631 A number of cases brought to NSA tribunals involve cases of sexual intercourse based on a promise to marry. See Abdul Kader v State 11 MLR HC 2006 (196); Sohel Rana v State 57 DLR (2005) 591; Zitu v State Id.

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acknowledged and recorded in some higher court decisions.32 This means that the medical examination is not conducted until the shalish is completed - thus significantly delaying the medical examinations, which ought to be collected within 72 hours of the incident.33 On the other hand, some practitioners observe that minorsor children, who are victims of rape, are usually broughtto medical facilities earlier than adults, as they sustain injuries that require immediate medical treatment.34 A further question arises here regarding whether invasive tests conducted on children immediately after an incident, in the absence effective psycho-socialsupport for them, adds to the trauma of rape.

While the option of mediation in rape cases raises significant ethical issues, it also indicates a lack of faith in the formal justice system. Structural deficiencies in the justice system, preventing women fromaccessing medical examinations, fuel such concerns. Some of these are35:

Women lack access to necessary services: medical examinations routinely take place at district level, which are often at insurmountable distances from where the incident occurs or where the victim resides. Although government and other designated health facilities at the Upazila levels are authorized to conduct this test, they do not do so either because they are not aware of this fact or because they lackthe necessary equipment, particularly that which is required for chemical or pathological tests.36

Tests are conducted during office hours: If the incident has taken place at night or during after hours, the

32 Roni Ahmed Liton v State 14 MLR (HCD) 2009, Md. Abdul Quader v State 11 MLR 2006 (196); Zitu Ahsan v State 59 DLR (2007) 528; Khairul v State 13 BLC 2008 (303)33 See Infra N 39. See also http://www.nhs.uk/chq/Pages/2482.aspx34 Interview with Naripokkho staff, October 201135 Excerpted from BLAST Exploratory Study by S.M. Rougerie; September 201136 However, the latter reason can be overcome if samples are collectedat the upzila levels and sent for analysis to higher levels.

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victim is usually retained in police custody overnight before the facility opens in the morning. This raises concerns of the victim’s safety while incustody.

Unavailability of female doctors: This is an important reason for women being dissuaded from submitting to medical examinations, particularly since the tests are extremely invasive.

Doctors are reluctant to testify: Health professionals are reluctant to conduct these tests as it means that they will subsequently be called upon to testify in court. Given the delays endemic in the legal system,health professionals may be required to attend courton multiple occasions without reimbursements of costs incurred or any compensation.

Relevant personnel may be induced or pressurized not to examine victims There are also widespread reports of corruption, particularly when the perpetrator is socially, economically and politically powerful.

There are no facilities or staff: Inadequate staffing and infrastructure in existing health facilities, with no appropriately trained doctors, or no doctors at all.

Insensitive treatment of victims at health facilities: This leads to harassment, humiliation and further trauma, in addition to violating the victims' rights to dignityand privacy.

Other than these structural deficiencies, lack of awareness amongst women and girls regarding the steps to be taken in the event of sexual assault to safeguard evidence also results in behavior that reduces the evidentiary value of the examinations. Such behavior includes bathing, washing clothes, rinsing mouths, etc. Inadequate knowledge of the legal system and procedures, therefore, also place major hurdles in accessing justice.

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Interpretation of rape provisions by courtsDespite the prevalence of sexual assault, responses of the criminal justice system to rape victims are problematic. Not only is the access to justice fraught with the challenges above mentioned, poor treatment metedout to victims of sexual abuse, prevailing patriarchal attitudes and inadequate infra-structure for collecting good quality medical evidence may be major reasons for under reporting or low conviction rates in rape cases.

Patriarchal attitudes are perpetuated by leading medical jurisprudence textbooks, which rarely reflect progressivecourt judgments and legal developments and ‘create a picture that women falsely allege rape and therefore doctors should exercise caution while conducting such examinations.’37 These attitudes are also reflected in case law cited in reported judgments of the higher judiciary. For example, the following principles from English case law have been repeatedly quoted with approval in a number of cases: 38

“Rape is an accusation easily to be made and hard to be proved and harder tobe defended by the party concerned, though never so innocent.”

Medico-legal evidence is needed to corroborate the victim’s account in a court of law and, in some cases, iscrucial in securing convictions. However, globally, thereare few studies that correlate legal outcomes in sexual assault cases with medical evidence used.39 A study of reported judgments on rape of the higher courts in Bangladesh show that the higher judiciary at least, has not taken a consistent approach in this regard.40 Hence in37 Flavia Agnes; “To whom do experts testify? Ideological Challenges of Feminist Jurisprudence”; EPW (40) 18: 1859-1866. To demonstrate the article quotesfrom Modi’s Medical Jurisprudence – the authoritative text used across South Asia from the colonial times: “Beware- A charge of rape, of attempted rape or of indecent assault may be made against the doctor or dentist- which may arise from a genuine misunderstanding of the nature of medical examination (especially of breasts and genitalia). A nurse or a female attendant/witness should be present while a male doctor examines a female patient.”38 Quoted in infra N 43; Sobuj v State 11 MLR (HC) 2006 (284)39 Du Mont and White: The Uses and impacts of medico-legal assault cases: A global review; WHO; 200740 The analysis in this portion is limited to only reported cases

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some cases, convictions have been based on the sole testimony of the victim while in others independent corroboration or corroboration based in medical evidence has been insisted upon.

On the issue of convictions based on the sole testimonies, the Evidence Act, under Section 134, provides that there is no particular number of witnesses required for the proof of any fact. The courts are, therefore, concerned with the merit of a particular witness’s statement.41 In so far as rape prosecutions are concerned, this provision was interpreted, in the landmark case of Al Amin v State,42 as follows:

“Law does not require any particular number of witnesses to prove a case and conviction may be well-founded even on the testimony of a solitary witness provided that his credibility is not shaken”

Hence, although in a number of cases, including the one cited above, convictions have been based on the victim’s sole testimony43, the court has also, in a number of cases, deemed the “rule of corroboration” to be a “rule of prudence” to be borne in mind by judges in dealing with rape prosecutions.44 Corroboration of the prosecutrix’s testimony under the rule of prudence is required for the ‘satisfaction of the court that the testimony has a ring of truth around it and the person arraigned of the offence is not falsely implicated.”45

41 See the Indian case of Raja v State (1997) 2 Crimes 175 (Del)42 Al Amin & Ors v State 51 DLR (1999) 15443 Id. In this case the court also held that “the testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the court should find no difficulty in acting on the testimony of a victim of a sex crime alone to convict an accused where her testimony inspires confidenceand is found to be reliable.” 44 Safazuddin v State 27 BLD (HCD) 2007 (321). In this case it was held that “There must be a satisfaction on the part of the Judge that on the uncorroborated testimony of victim of sex crime it is safe to record conviction upon an accused indicted for anoffence of rape.” Hence there must be an “indication in the course of Judgment that the Judge had this Rule (of prudence) in mind when he prepared judgment and if the judge finds that there is no need for such corroboration he is to assign reasons for dispensing with the necessity for such corroboration.” (Emphasis supplied) 45 Biplob v State 6 BLC (2001) 632

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In Jahangir Hossain v State46 the court clarified that decisions where the rule of prudence has been used if ‘read minutely, ( ) in each of these cases, firstly the evidence of the prosecutrix was disbelieved not only on the ground of it being uncorroborated, but on analyzing the evidence itself and distrust to that particular woman”.

“Distrust” towards a particular woman can be on a number of grounds. Section 155(4) of the Evidence Act, lays downits legal basis by allowing the victim’s testimony to be discredited if she is proven to be of ‘generally immoral character’. In some judgments ‘distrust’ appears to be based on the victim’s educational levels and economic status. To illustrate, here is the reasoning from a judgment that allowed a conviction based on the victim’s sole testimony:

“the evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable…But if the victim of sexual assault comes from an ordinary and lower strata and lower strata or she is proved to be a woman of ill-repute or easy virtue, corroboration must be sought as a rule of caution. In the instant case, the victim girl comes of a respectable educated family having good background as she is the daughter of a Professor of a college. She, as well as her father is not expected to lodge a false case outraging her modesty and dignity and honor of her family.”47

The above is merely an illustration and it cannot be saidthat the court has viewed the testimony of all persons belonging to the ‘lower strata’ with suspicion in all cases.48 However, aspects of easy virtue or chastity are recurring themes. Hence even when a woman’s sole testimony has been used to base convictions on, it is because the particular woman is not expected to make false accusations and therefore subject herself to the “ignominy and embarrassment of being raped by the accused.”49

46 BCR 1983 HCD 14447 Misti v State 6 MLR (HC) 200148 in Manirul Islam v State 8 MLR (HC) 2003 (27) the court observed, while assessing evidence in a case in which the conviction was based on thevictim’s sole testimony, observed that ‘ the victim, a helpless village woman istelling the truth about her shameful ordeal in the hands of the accused.” 49 Id

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Marital status and the age of the woman have also been considered as factors in determining the kind of corroboration required. To illustrate, in Biplob v State50 thecourt observed that:

“In the case of a grown-up and married woman it is always safe to insist uponcorroboration”

Theses illustrations are useful to demonstrate how rape is addressed within frameworks of morality, chastity and honor, instead of being viewed as a crime against an individual and a violation bodily integrity.51 These interpretations have a direct bearing on the scope of medical examinations in rape cases and the manner in which findings are recorded, particularly with regard to findings on the victim’s prior sexual history. To illustrate, defence counsel, to discredit the victim’s testimony often rely on the findings of “habituated to sexual intercourse” to disprove allegations of rape. Correspondingly, there are also numerous examples where the courts have acquitted the accused on this ground.52

Gender stereotypical notions also frame the manner in which courts have interpreted the definition of rape. Rape, as defined under Section 375 of the Penal Code is inter alia sexual intercourse without consent or against the woman’s will. However, the term ‘consent’ is not clearly defined. As a result, courts have in most cases required evidence of force to demonstrate lack of consent.

50Supra N 43; See also Hossian Shially v State; 8 MLR (HC) 2003 (355) 51 See also Sobuj v State 11 MLR (HC) 2006 where it is observed that “Rape,though a humiliating event in a woman’s life and an unlawful intrusion on the privacy and sanctity of a female and commission of rape upon women is on increase yet it is noticed that for ravishment upon a woman, along with real rapists and offenders, innocent persons are trapped and brought in with ulterior motive.’52 For example, see Firoz Chokdar v State 11 MLR (HC) 2006

Rape Myths

…Across cultures, there exist a number of pervasive and remarkablynegative beliefs that constitute the historical schema of rape mythology. Overriding this taxonomy of assumptions is the general suspicion of women’s claims of rape and an inclination to ‘down-play’ perpetrators’ responsibility and criminality while shifting blame towards the victim based on her behavior and personal characteristics. Examples of these common, prejudicial, stereotypical and false notions of rapes, raped women and rapists,as captured in a study of 478 Supreme Court decisions on rape in Philippines are: - Rape happens only to young, pretty or desirable women. - Rape is a crime of lust or passion- Men can have sex freely with women deemed to be of loose morals

because these women have nothing to lose. - Rape is committed by maniacs or perverts.

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Globally definitions of rape have evolved from requiring proof of force or violence to requiring proof of consent.53 However, experience has shown that there is secondary victimization of women when the prosecution hasto prove lack of consent beyond reasonable doubt. To remedy this situation, some countries54 allow evidence to prove ‘coercive circumstances’ rather than proving the lack of consent.55 Unfortunately, these trends do not appear to be reflected in rape provisions or its interpretation in Bangladesh. To illustrate, in Shahjahan v State ‘rape’ was explained as follows:

“The word ‘rape’ literally means forcible seizure and that element is characteristic feature of the offence. Therefore, it can be said that rape is the forcible ravishment of a woman without her consent. The simplest definition of rape it that it is having sexual intercourse with a woman without her consent.”56

The court has also relied upon dated texts of medical jurisprudence to support the need for evidence of violence and force- in Biplob v State,57 the court quoted with approval from Taylor, Principles and Practice of Medical Jurisprudence, Vol II for dealing with cases of rape on “a grown up woman”:

“A false accusation of rape may sometimes be exposed by marks of violence wholly inadequate or absent.

Bruises upon the arms or the neck may be considered to constitute some evidence of a struggle; and impressions of fingernails are also significant. Bruises or scratches about the inner side of thighs and knees may be inflicted during attempts to abduct the legs forcibly, and care must also be taken to examine the back, for the victim may have been pinned against the wall or floor. It is important to record these in detail, and to say, if possible, how fresh they are. The aging of the bruises is, ( ), a matter of some uncertainty in the absence of microscopy.

53 UN Division on the Advancement of Women; Handbook for Legislation on Violence against Women; July 201054 Combating Rape Act (2000) of Namibia and Sexual Offences Act (2003)of Lesotho. Id55 See also 56 10 BLC (2005) 196 57 Supra N 44

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Strong corroborative evidence of a struggle might be obtained from an examination of the accused for similar marks of bruises or scratches about the arms or face, and possibly even about his penis, though this is less likely.”

This case illustrates the emphasis placed on evidence showing physical injuries. On the other hand there have been cases where the court has acknowledged that the victim may have been prevented from offering any physicalresistance. In a 1983 case, the court opined that

“The absence of any injuries on the person of the complainant may not, by itself, discredit the statement of the complainant. Merely because the complainant was a helpless victim who was by force, prevented from offering serious physical resistance, she cannot be disbelieved. In this situation, the non-production of a medical report would not be of much consequence if there is evidence on record that is believable…58

A study of these judgments shows that the court seldom bases its decisions on a particular aspect; instead a number of factors are viewed together in arriving at a decision on whether rape has taken place. These factors include the nature of injuries found, whether or not a medical examination was done, sexual history of the women, age and marital status.59

Another factor that is considered in judicial deliberations is whether there has been a delay in lodging the FIR. There have been cases where a delay in fling an FIR has been used inter alia as a ground for acquitting the accused.60However, courts have clarified, in a number of cases that if a delay in filing an FIR is adequately explained then it is not be fatal to the outcome of the trial.61

58” 1983 Cr.LR (SC) 413 59 See Sohel Rana (Md) v State 57 DLR (2005) 591- “When the victim woman was habituated to sexual intercourse with the appellant and it is found from the evidence on record that she did not resist or raised any outcry and as seemingly a willing partner, there is no offence of rape committed.”60 Firoz Chokdar Supra N 51; Abdul Kader Supra N 31; Hossain Shially Supra N 4961 See Misti Supra N 30- “Delay in lodging of FIR can be due to a variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honor

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As mentioned earlier case law in rape cases is not alwaysconsistent. In some cases medical evidence is considered to be pivotal in proving a case, whereas in others it hasbeen given a go-by. In still others, the court has accepted that the victim may have been prevented from offering any physical resistance. But one aspect that bears mentioning is that none of the reported cases studied either mention or analyze medical evidence collected from the accused. This indicates that medical evidence is in most cases collected only from victims andthat the courts do not insist upon medical evidence to becollected from the accused.

However, this analysis does not aim to present trends in court decisions, as not all court decisions are reported.Instead, it attempts to indicate issues that are considered by courts in the adjudication of rape cases.

In the next section, case records of rape cases are studied to discern commonalities in rape cases and the kind of evidence that is recorded.

Study of case records In this section information from case files maintained bylegal aid organizations is examined to understand practices followed in existing rape cases. The objective is to discern common threads that can be further exploredand issues that need to be addressed to ensure efficient collection of medico-legal evidence. As this study examines records in cases that are ongoing, there is no attempt to correlate legal outcomes with the documents examined.

of her family. It is only after giving it a cool thought that a complaint of sexual assault is generally launched.” In this case the delay was thus considered to be satisfactorily explained and hence not considered to be fatal.

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Description of the sample studiedThe sample consists of 61 case records from across 15 districts62 sourced from BLAST (51), Nijera Kori (8) and Mohila Porishod (2)– organizations that provide legal aidto inter alia rape victims. The maximum number of cases (15) has been collected from BLAST's offices in Tangail district.

All these cases have been filed under Section 9 of the NSA and are pending before the NSA tribunal. A majority of these cases (42) have been filed under Section 9 (1). Other provisions that have been used include other sub-sections of Section 9 as well as Sections 5, 7 and 30 of the NSA.

The cases involve incidents that have taken place in the past 10 years (2001-2011), with a majority(42) taking place in the period 2008-2011. Although the files do not mention the current status of the proceedings, in more than half the cases (37) chargesheets have been filed.

Records examined in the case file include: Complaint FIR Medical Records Police Report (Charge Sheet) S 161 CrPC depositions

Findings and analysisAge of the victim and the accusedThe age of the victims range from 6 to 48 years. In nearly half the cases (46%), the age of the rape survivoris less than 16, which is the age of consent. Of these, in 8 cases, the age of the rape survivor is below 10 years. The high number of rape cases involving minor girls (aged under 16) may indicate that there is more

62 Barisal (5), Chittagong (2), Comilla (3), Dhaka (2), Dinajpur (4), Faridpur (4), Khulna (4), Lakhipur (1), Mymensingh (5), Natore (2), Noakhali (6), Rajshahi (4), Rangamati (3), Rangpur 91), Tangail (15)

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reportage of such cases. However, as the data has been collected from NGO sources, it is also possible that NGOshave taken on more cases of rape involving minors.

Age of Victim

>1011--1617-22<23Not mentioned

The age of the primary accused range from 14 to 50 years.In nearly 40% of the cases, the primary accused is between 18-25 years of age. In nearly half the cases (46%), the age difference between the accused and the victim is between 2-10 years.

Table 1Comparison of Age of Victim and Accused

Age Range (in years) No. of Victims No. of Accused>10 8 011-16 20 117-22 16 1323-28 3 1529-34 3 935-40 0 641-50 1 8Not mentioned 10 9

Time and place of incident As is evident from Table 2, a majority of the incidents (68%) occurred late at night.

Table 2Time of Incident

Time of the incident No.Morning (7 a.m- 12 p.m.) 13Afternoon (12 p.m.- 5 p.m.) 9Evening (5 p.m.- 9 p.m.) 15Night (9 pm- 7 am) 20

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Not recorded 4

Time of the incident

Morning (7 a.m- 12 p.m.)Afternoon (12 p.m.- 5 p.m.)Evening (5 p.m.- 9 p.m.)Night (9 pm- 7 am)Not recorded

In more than half the cases (68%), the incident took place either in the victim’s place or in a place near thevictim’s home. Table 3 provides details on the places where the incident allegedly took place.

Table 3Place of Incident

Place of Incident No.Victim's house 26Near Victim's house 14Accused's house 5Other (agricultural land, bazaar, etc) 14Not recorded 2

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Place of incident

Victim's house Near Victim's house

Accused's house Other (agricultural land, bazaar, etc)

Not recorded

Relationship with the accusedIn a majority of the cases, victims knew the accused, because they lived in the same village (45%), or were related (17%, including 2 cases where the father raped the daughter) or were neighbors (18%). There are very fewcases where the victim was not related to the accused or where the victim did was not acquainted with the accused.

Table 4Relationship with the accusedRelation with victim No.

Living in the same village 27Relative 10Neighbor 11Employer, professional, service provider 3No relationship 4Boyfriend 5

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Relationship with Victim

Living in the same village

Relative

Neighbor Employer, professional, service provider

No relationship Boyfriend

Nature of the incident

In 8 cases there were multiple incidents of rape, 10 cases of gang rape (involving more than 1 accused), and three cases where the victim was killed by the accused after the incident (of which one involved a 6 year old victim) and one where the victim was not found after the incident.

The cases can be broadly categorized into three, first – cases involving non-consensual sexual intercourse with the use of force (violent rapes), second - cases involving minors (under 16 years of age) and third - cases where sexual intercourse took place based on a promise to marry, which was later reneged upon, in many cases after the woman was found to be pregnant.

Table 5Categorization of IncidentNature of incident No.

Non-consensual sexual intercourse 19Sexual intercourse with minors (with or without violence) 26

Sexual intercourse with promise to marry 16

Other than cases in the third category (involving sexual intercourse based on the promise to marry), all the casesmention various forms of intimidation and force. In a couple of cases, rape was committed after the rape survivor had refused relations with the accused.

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In many rape cases involving minors, the victim was acquainted with the accused. A number of such cases involve allegations of kidnapping in addition to rape. The mean age difference between the accused and the victim in these cases is the maximum of the age differences observed (16 years) in all cases.63

Proceedings

Comparing the date of the incident and the date of the FIR, it is found that in a number of cases (37%), the FIRwas filed within 3 days of the incident, with 4 cases in which the FIR was filed on the same day. On the other hand, there were major delays in 11% of the cases, where the FIR was filed anywhere between after a couple of months to more than a year after the incident.

Of the 35 cases where the FIR was filed without delay, a majority (46%) involved rapes of minor victims. The comparatively large proportion of such cases, when compared to higher age groups in cases where there has been delayed reportage, indicates that rapes involving minors/ children are reported more speedily than others involving older victims. Here again, it is possible that,as these cases are handled by NGOs, which have a particular focus on working with children, a larger proportion of such cases are being pursued, or are given priority. It also may indicate that there are fewer women

63 The least mean age difference is in cases involving sexual intercourse based on a promise to marry.

Conclusions- It is possible that cases involving rapes of

minors are reported more than cases involving victims above the age of consent.

- The accused are mostly older than victims- Incidents of rape occur mostly at night. - Most of the incidents occur either in the

victim’s home or near the victim’s home.- Victims are likely to be either related to or

acquainted with the accused.- Rape cases can be broadly categorized into those

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above the age of consent (16 years) who are seeking criminal redress from the formal justice system.

Table 5Time between incident and FIR

Time between incident and FIR Nos.Same day 4Within 3 days 19Within 10 days 610 days to a month 9More than a month but less than 6 months 10More than 6 months but less than a year 5More than 1 year 2Not recorded 6

Time between incident and FIR

Same day

Within 3 days

Within 10 days

10 days to a month

More than a month but less than 6 months

More than 6 months but less than a year

More than 1 year

Not recorded

Chargesheets have been filed in 37 of the cases. In a majority of these cases (67%) chargesheets were filed within two months of the FIR. Only in one case was the chargesheet filed 10 months after the incident. This indicates investigators are generally able to meet time frames prescribed in the NSA.

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Time between FIR and Chargesheet

Less than a month More than a month but within 2 months

More than 2 months but less than 4 months

More than 4 months but less than a year

Whether or not the investigation is duly conducted cannotbe assessed from this data, even if it appears that investigation reports are filed in time. It is observed that none of the chargesheets contain any information that is not already present in the FIR. The chargesheets also mention names and numbers of witnesses interviewed. In this sample, the number of witnesses mentioned varied from 7 to17.

As may be expected in rape cases, there are hardly any direct witnesses to the incident and most of the witnesses interviewed are family members, neighbors and others to whom the victim the victim or her family may have reported the incident (e.g. police officers, magistrate, examining doctors).

ShalishAlthough rape is a cognizable, non-compoundable, and non-bailable offence, in a relatively large number of cases (37%), of which 5 involve rapes of minors shalish was attempted before legal proceedings were initiated. More positively, it was found that in most rape cases involving minors, shalish is not attempted.

In three cases it is mentioned that shalish was attemptedmore than once (between 3-6 times). In most cases, shalish was attempted by the village elders or matbors. In three cases, the shalish was conducted by members of the Union Parishod and in one case by the lawyer. In a majority of these cases, the shalish did not result in any outcome. This indicates that shalish may be attempted in

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a significant number of cases, with legal proceedings being initiated only when the shalish does not result in any resolution. Significantly, in two cases, it is mentioned that the accused and the victim were married after the shalish or after the FIR was filed.

Comparing the date of the incident with the date of the FIR in cases where shalish has been conducted it appears that, except in one case, FIRs were filed after some delay. In some cases, the FIRs was filed within 15 days while in some others the FIR was filed after the lapse ofanywhere between 6 months to a year. This indicates that cases, where shalish is attempted, are rarely filed soon after the incident occurs. This has substantial implications for the collection of medical evidence. Since medical examinations are, in practice, usually conducted only after FIRs have been filed, any delay in registering FIRs seriously affects the quality of medicalevidence collected. In fact, it is recommended practice that medical examinations of rape survivors should take place within 72 hours of the incident.64

It is observed that in a majority of such cases (10 of 23), no medical examination was conducted at all. This ishighly problematic as medical evidence is of crucial import in rape trials. However, it must be noted that of these, a number of cases involve sexual intercourse with a promise to marry, which was subsequently breached. In such cases, the aspect of medical examination is not as important since the act of sexual intercourse is not in question. However, there are some cases of violent rape and rape involving minors where shalish has been attempted, in which delayed medical examinations may be fatal to trial outcomes.

64 See N 33

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Conclusions - FIRs appear to be registered more speedily in

cases involving rapes of minors than in cases involving rapes of older victims.

- Fewer complaints filed by victims who have attained the age of consent, (16 years and above) may indicate that fewer women in this agegroup are seeking redressal from the formal justice system

- On filing the FIR, investigators are generally able to meet time frames prescribed in the NSA. This indicates that time prescriptions in the law encourage speedy investigations.

- Evidence in rape cases is mostly collected from the victim’s family members or others whom the

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Medical examination records In this section, findings of the study of medico-legal records (MLR) are presented.

Medical reports were available in 28 of the case records examined. Of these, 18 cases involve rapes of minors. This indicates that medical examinations are more likely to be conducted in such cases than in others.65 There maybe two reasons for this – first, there is less stigma attached in such cases to the victim, who is a child. 65 There may be many reasons for missing medical examination reports. However, it is noted that all the cases where medical reports are missing involve women over 16 years of age. This too, might indicate that it is more likely that medical examinations are conducted in cases of minor rape.

Purpose of Medical and Forensic Examination(Excerpt from the CEHAT Manual for Medical

Examination of Sexual Assault 2010)

The purpose of the medical and forensic examinationof the survivor is to establish the following:

Whether a sexual act has been attempted or completed. A sexual act may not only be penetration by the penis but also slightest penetration of the vulva by the penis, such asminimal passage of the glans between the labiawith or without emission of semen or rupture of the hymen. Sexual acts include genital, anal or oral penetration by the penis, fingers, or other objects as well as any form of non –consensual sexual touching.

Whether such a sexual act is recent. Whether such an act was forcible. Signs of

resistance to the assault are documented through examination. The history of resistanceand/or evidence of struggle and injuries inflicted on the survivor by the accused and the survivor on the accused provide evidence

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Second - it is possible that minors sustain greater injuries due to rape, and hence are brought to health facilities for immediate medical attention and care, at which time medical examination reports are also filled in.

MLC and FIRIn all except three cases, the medico-legal examination was conducted after an FIR was filed. The existence of these three instances shows that it is possible to get a medical examination done without filing an FIR.

In half of these cases (14), the FIR was registered within 3 days of the incident. Since most of the cases inthis section involve rapes of minors, all the cases wherethe FIR is recorded, and consequently medical examinations done on time, involve victims who were less than 16 years of age. From this sample it appears that the earliest a medical examination is done is within 2 days after the incident. Considering that these cases are being closely monitored by NGOs, this is perhaps an indication that 2 days is theshortest time within which medical examinations are conducted.

In other cases, (where information is complete), there were major delays between the incident and registering the FIR, ranging from a couple of days to months. The longest delay in this regard was of 3 years. It must be noted that in most these cases (where there were considerable delays in filing of the FIR), the medical examination was conducted within a day or two after the FIR was filed. There are only a few cases of delayed FIR filings where the medical examination was conducted much after the date on which the FIR was filed. This indicatesthat medical examinations are conducted as a matter of course in rape cases. Although there appears to be littlepoint in conducting medical examinations after such long delays, as much of the evidence is most likely to be lostin the intervening months.

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Predictably, in all the cases where there has been a delay of a month or more, shalish has been attempted. Shalish has also been attempted in most of the cases involving delays of less than a month but over three days. On the other hand, no shalish, except in 1 case, has been attempted in cases that have been filed within acouple of days of the incident. This indicates the conduct of shalish delays reporting and consequently medical examinations.

Time of conducting medical examinationsIn a majority of the cases (19 of 28) medical examinations were conducted in the afternoon between 12:00 p.m. to 5:00 p.m.—i.e. during office hours. However, as has been observed earlier, the incidents takeplace predominantly in the evenings and at night. Table 6below compares the time of the incident with the time at which the examination was conducted.

Table 6Comparing time of incident and time of medical examination

Time Incidents MLEMorning (7 a.m- 12 p.m.) 13 2Afternoon (12 p.m.- 5 p.m.) 9 19Evening (5 p.m.- 9 p.m.) 15 -Night (9 pm- 7 am) 20 -Not recorded 4 4

This means that in many cases, the victim is kept in custody till the medical examination takes place. Some practitioners report that in certain cases, the victim isretained in the custody of the police station, which in turn raises issues of ensuring her safety. The non-availability of medical examinations after office hours, when the incident is most likely to take place, may be a major deterrent to victims seeking legal redress.

Place of Medical ExaminationIn a majority of the cases (20), medical examinations were conducted at the district level. However, it is alsonoted that 7 of the examinations have taken place at the

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Upzila level.66 Although there is a delay of a month in one of these cases, in all the other 6 cases, the FIR waslodged within a day or 2 of the incident. Further, there are 2 cases involving victims over 16 years of age. This indicates that medical examinations are more efficiently administered when facilities are utilized at a local level.

Consent to medical examinationIn all except 2 of the cases, consent has been taken either from the victim herself or her legal guardian. Theform itself provides minimal details of what the victim consents to or notes whether such consent is truly free and informed.

Practitioners observe that the victim’s consent is not considered to be particularly relevant, as initiating legal action by filing an FIR necessarily entails such action. Hence the fact of initiating legal proceedings isdeemed to amount to an omnibus consent to all investigative and evidence collection processes. Further,the MLR form itself, does not provide space to allow the victim to consent to certain aspects of the procedure or to decline consent to any part of the procedure.

There appears to be diverse practices followed in recording consent. In a number of cases, minors have signed the consent section themselves. However, in most of the cases, consent was obtained from the minor’s legalguardians. It is also surprising to note that in two cases, adult victims’ legal guardians have signed the medical examination forms, although there are no allegations of the victim’s mental incapacity in either case.

Obtaining the victim’s free and informed consent to undergoing specific forms of medical examinations is an aspect of ethical practice - it is perhaps essential to incorporate specific instructions on how consent is to be

66 Referred by Modhupur Thaa, Dhonbari Thana, Char Jabur Thana (2), Kotwali Thana, Bakalia Thana, and Begumganj Thana.

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obtained by the examiner prior to the conduct of such tests.

Personnel involved in conducting medical examinationsIn all except three cases (where no details were recorded), a female attendant was present at the time of the medical examination. On the other hand, with the exception of one case, medical officers conducting the tests are all male.

The medical board constituted for this purpose has not certified most of the forms. However, it is apparent fromthe few certified form that both male and female medical officers constitute medical boards. This indicates that though female medical officers are available, they are not present in adequate numbers since male medical officers primarily conduct examinations on rape victims.

Recording of physical injuries There are only seven cases where descriptions of physicalinjuries have been provided, although coercion and force has been alleged in most of the cases. In another seven cases, no signs of physical injuries have been recorded, while in the remaining (50%) of the cases, no signs physical injuries have been found.

One of the reasons for this could be the time lapse between the incident and medical examination. It is observed that in all the cases (except one) where physical injuries have been found, the medical examination was done within 2 days of the incident, whereas in all the cases where the examination was conducted after long delays, no physical injuries were found. This finding highlights the need for medical examinations being conducted immediately after the rape incident. However, it must be born in mind that not all rape is committed with the use of physical force, as other forms of coercion and intimidation may also be

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used. In fact research shows that injuries are seen only in one third of cases on sexual assault.67

The form also allows the medical officer to record his/her finding on the nature of injuries sustained. It is found that in 15 cases, the medical examiner did not record anything under this entry. One of the reasons for this may be that the medical examiner has already recorded a description or the signs injuries sustained. Another reason may be that this portion is left blank when no sign of injury has been found. However, there aresome cases where the medical examiner has recorded both the description of the injury as well as the nature of the injuries. These diverse practices indicate that thereis a lack of clarity on how findings on physical injuriesshould be recorded in MLR forms. It may also indicate a lack of uniform understanding among medical officers on how such entries are to be made.

In cases where the medical examiner made a recording, there are two findings of simple injury, three findings of grievous injury and nine cases where no injuries were found. The nature of injuries found corresponds to the findings on signs of injury mentioned above.

One possible conclusion that can be drawn from the low finding of physical injuries could be that not all rape is committed with the use of force and instead, coercion and intimidation is been used to vitiate consent, especially in cases of rape involving minors.

67 Bower, Dalton; Female victims of rape and their genital injuries; Br J Obstet Gynaecol 1997 May; 104 (5): 617-20, quoted in CEHAT; Review of SexualAssault Examination Forms and Manuals Prepared by the Appointed High Court Committee; Mumbai; 2011 http://www.cehat.org/go/uploads/SexualViolence/Critique.pdf. See alsoMcGregor et al; Sexual Assault forensic medical examination: is evidence related to successful prosecution? Ann Emerg Med. June 2002; 39: 639-647 where it was found that genital injury is absent in more than 50% of cases of sexual assault, even among victims presenting to a hospital based service. Quoted in CEHAT; Manual for Medical Examination of Sexual Assault; Mumbai; 2010

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Recording of mental stateThe form provides space for recording the mental state the victim. In more than half the cases, no information is recorded under this entry. The observations recorded are presented in the Table 7 below.

Table 7Observations on “Mental State”

Observation Numbers“Worried” 2‘Normal’/ ‘sound’ 8Insane 2Not recorded 16

There may be a number of reasons for this kind of reporting. First, the victim may not manifest any recent trauma due to the delay in reporting. Second, not all victims may manifest any signs of trauma but appear calm and composed. Finally, it is possible that the medical examiners, being physical practitioners, are not equippedto identify mental trauma accurately. To demonstrate, ‘worried’ cannot possibly be an accurate representation of what, as in these cases, 12 and 14 year-old rape victims may be experiencing. Also the terms ‘insane’ havelittle clinical relevance, as it does not indicate the nature and extent of mental illness, if any.

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Obstetric/Gynecological Examination and Marital StatusIn more than half the cases, the medical examiner has notmentioned details of menstrual history. On the other handall MLRs, except one, mention the victim’s marital statusand the number of children she has. (Unsurprisingly, given the predominance of rapes of minors in the sample, a large majority of victims are unmarried). It may then be inferred that this data is routinely collected from rape victims. Similarly, results of examinations of breasts, hair and abdomen of the victim are routinely conducted, although only a few MLRs provide details of injuries sustained to these parts.

Another aspect routinely recorded (only three of the reports did not contain any details of such examinations)is the findings of examinations of genital organs. Findings pursuant to an examination of the mons pubes, labia majora, labia minora and vestibule are mostly noted as ‘normal’, ‘healthy’ or ‘ok’. Only two MLRs recorded injuries. Similarly results of examining the fourchette and cervix and rectum, which appear to be conducted routinely, are mostly ‘healthy’ and ‘normal’, with only afew recordings that are different. Although required, results of rectal examinations are mostly not recorded (in 19 cases).

Rape Trauma Syndrome(Excerpt from CEHAT Manual for Medical Examination of Sexual Assualt)

‘Rape Trauma Syndrome’ was first described by Burgess and Holmstrom in the year 1974. The identification of this syndrome by them was based onthe analysis of 92 adult women rape survivors whom they interviewed andfollowed up. They delineated the symptomatology of this syndrome into two phases.

Phase 1, the acute phase, is one of disorganization. The survivor feelsshock and disbelief regarding the rape. They may initially react in twoways:

(1) In the expressed style, patients display anger, fear and anxiety and often cry and

(2) In the controlled style, the patient remains calm and composed and displays little outward emotion. Often, the controlled patient needs permission to express her emotion. This phase can last from 6 weeks to a few months...

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Details on the hymen examination are, however, slightly more descriptive. These are:

Table 8Findings of hymen examinations

Recording No.Old tear 8Healthy 5Ruptured 3Ill Defined 1Thick, fleshy, elastic and tough 1Not recorded 10

It is clear that the examiners use the finger or the 2-finger test to examine the vaginal canal. In this test, the medical examiner

‘notes the presence of the hymen and the size and so-called laxity of the vagina of the survivor. This test is widely used in efforts to assess whether unmarried girls and women are ‘habituated to sexual intercourse’.68

Only in nine cases have these details of the 2-finger test not been recorded. In others observations recorded are as follows:

Table 10Observations recorded for examinations of

the vaginal canalDescription No.

Admits 2 fingers 4Admits 2 fingers easily 3Admits 2 fingers loose 3Admits 2 fingers tightly 1Admits 3 fingers easily 4Healthy 2Admits 1 finger loose 1

Only in one instance is there an additional recording that the genital area was ‘reddish, tender and blood-

68 Human Rights Watch; Dignity on Trial: India’s Need for Sound Standards for Conducting and interpreting forensic examination of rape survivors’; www.hrw.org

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stained’. It must be noted that in 12 cases the finger test was conducted on minor/child victims. In one case, the finger test was conducted on a victim found to be 26-27 weeks pregnant. It is also noted that finger tests arealso conducted in cases where there have been significantdelay in reporting the incident. This indicates that finger tests are routinely conducted on all rape victims.

There appear to be no commonalities in the nine cases where findings from this examination have not been recorded. These MLRs do not record reasons for not conducting the finger test. However, it is observed that in six of these cases, medical examinations were conducted in the shortest possible time (i.e. within 2 days) and involved minor/child victims. In three of thesecases, the examining officer found signs of forceful sexual intercourse, as well as signs of physical injuries. This indicates that although finger tests are routinely conducted, such tests are not necessarily required by medical examiners to arrive at a finding of forced sexual intercourse.

Excerpt fromBLAST Exploratory Study by S.M. Rougerie

The finger test, which is a standard practice at the OCC-DMCH, (One Stop CrisisCenter) is a practice that involves the doctor inserting one or more fingers into therape survivor’s vagina, to note the presence of absence of the hymen, the laxity ofthe vagina, and vaginal tenderness. Where a medical report submitted to the courtnotes that the victim was “habituated to sex”, that finding is generally based on theso-called laxity of the victim’s vagina, as measured by the finger test.

The finger test is problematic in many ways. First of all, it has been denounced bydoctors around the world as having no scientific value. An obvious reason for this isthat doctors’ fingers may be of different sizes, meaning that the perception of laxitywill differ from one doctor to the next. A number of other concerns have beenraised about the finger test’s forensic value, with the general conclusion being thatwomen’s bodies come in different shapes and sizes, and that the insertion of afinger cannot lead to a conclusion about a woman’s sexual past. Doctors have alsoindicated that the presence or absence of the hymen is not necessarily a conclusivesign that penetration has or hasn’t taken place.

Aside from being scientifically untenable, the finger test is also painful and invasivefor rape survivors, particularly young girls. One interviewee confirmed that the testhad previously been used on one of her ten-year old clients, who cried and

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Treatment PrescribedIt appears that medical examinations are conducted on rape victims with the sole purpose of collecting evidenceto be used in court and no treatment or care is prescribed to the victims following the examination. Thisis inferred from the fact that in almost all the cases, spaces provided for advice and referral have been left blank; even in the few cases where grievous injuries havebeen discerned. The possibility of treatment being provided without documentation is not ruled out. However,there is a risk that such treatment may be given in an informal manner, thus making it difficult to ensure the accountability of the treatment/service provider to the victim, given that no recordings are made of the same.

It is also found that in a majority of the cases (28) no further tests have been advised or recorded. In others the most common tests recommended are ultrasound, x-ray and pathological tests. There is one instance where the rape victim was rendered pregnant as a consequence of rape, in which a DNA test was advised.69

Victim’s ageAfter conducting the examinations, the medical examiner has to provide an estimate of the victim’s age. This has been done in 16 of the cases in this sample. In half of these cases (8) the ages tally exactly. In others (8), the age has increased by a minimum of 1 and maximum of 3 years in all but one case.70 Although there is a significant increase in the ages in the latter cases noneof these cases involve a lapse in reporting time of more than a couple of months.

The forms do not provide space for recording the methods used to determine age. It is also not known whether any age related documents (e.g. birth certificate, school leaving certificate) were presented to the examining officer for further verification. 69 The facts in this case involved sexual intercourse based on a promise to marry. 70 In this case the age of the MLC is 17-18 years, whereas the FIR mentions the age of the victim to be 12 years.

Excerpt fromBLAST Exploratory Study by S.M. Rougerie

The finger test, which is a standard practice at the OCC-DMCH, (One Stop CrisisCenter) is a practice that involves the doctor inserting one or more fingers into therape survivor’s vagina, to note the presence of absence of the hymen, the laxity ofthe vagina, and vaginal tenderness. Where a medical report submitted to the courtnotes that the victim was “habituated to sex”, that finding is generally based on theso-called laxity of the victim’s vagina, as measured by the finger test.

The finger test is problematic in many ways. First of all, it has been denounced bydoctors around the world as having no scientific value. An obvious reason for this isthat doctors’ fingers may be of different sizes, meaning that the perception of laxitywill differ from one doctor to the next. A number of other concerns have beenraised about the finger test’s forensic value, with the general conclusion being thatwomen’s bodies come in different shapes and sizes, and that the insertion of afinger cannot lead to a conclusion about a woman’s sexual past. Doctors have alsoindicated that the presence or absence of the hymen is not necessarily a conclusivesign that penetration has or hasn’t taken place.

Aside from being scientifically untenable, the finger test is also painful and invasivefor rape survivors, particularly young girls. One interviewee confirmed that the testhad previously been used on one of her ten-year old clients, who cried and

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Medical Examiner’s OpinionFinally, at the end of the examination, the format provides space for the medical examiner to express his opinion. Opinions are not recorded in only 6 cases, most of which were filed after considerable delay.71

In a number of cases (9) it is opined that ‘no sign of forced sexual intercourse has been found’. In comparatively fewer cases (6) it is opined that ‘signs offorced sexual intercourse has been found’. There is no elaboration of the term ‘forced’ used in these opinions. As mentioned earlier, it is not necessary that all rape is accompanied by physical force. In many cases, duress is applied through coercion and intimidation, e.g. when aperson is threatened with injury or when an abuser is a position of authority vis-a-vis the victim as happens in cases of rape. Four of the cases where ‘no sign of forceful intercourse’ was found involved sexual intercourse on a promise to marry. In others various violent acts have been alleged, including one case where the victim has alleged gang rape.

In 5 of the 6 cases where ‘sign of forceful intercourse’ has been found, were reported within two days of the incident. This again indicates the importance of recording medical examination findings soon after the incident has taken place. Other opinions (6) that have been given are:

The victim is “habituated to sex” (there was over 9 months delay in this case. It is alleged that the victim was threatened with a bottle of acid and raped in her own house when her parents were away.)

There is “no sign of recent forceful intercourse butintercoursed (sic)” (case where a 14 year old has alleged gang rape)

71 In one of these cases there was a delay of 3 years between the incident and the registering of the FIR

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“No sign of recent forceful intercourse” (this is a case involving a 14 year old girl and the incident was reported within a day of its occurrence)

“Sign of recent sexual intercourse is found” (case of a 15 year old victim)

“The victim is not consistent with sexual intercourse” (case involving the alleged rape of an eight year old)

“R has signs of recent sexual intercourse and age isabout 12 years”

These varying opinions have significant implications for legal outcomes. For instance, legal practitioners point out that defence counsel often rely upon the phrase “habituated to sex” or “habituated to sexual intercourse”, to discredit the victim’s testimony . Another problematic aspect is the use of the word ‘forceful’, as the assessment is only of bodily injuries caused by physical force. In fact, it is noticed that in all cases where signs of forceful intercourse have been found are also cases where physical injuries have also been found (not in all cases to the genital organs). This, however, does not negate the possibility of using intimidation in cases of rape.

These cryptic recordings do not indicate the reasoning used by the medical officer in reaching his/her opinion. There are also no recordings of why certain sign or injuries were not discovered and a correlation of examination findings with the facts of the case as related by the victim.Medical examination and investigationThere is a strong indication that medico-legal certificates are the most crucial piece of evidence that courts rely on during rape trials. This is evidenced by the fact that in 25 out of 37 cases where chargesheets have been filed, the medico-legal examination report is

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also furnished.72 This indicates that medical examination reports are essential to the investigations that are conducted.

In a number of these cases (12), the chargesheet was filed in a month or less from the date of the medical examination. In the remaining, in 12 cases the chargesheet was filed within 3 months from the time of the medical examination and in only one case was the chargesheet filed after 3 months of the examination.

In a majority of these cases (26 out of 37) no additionalevidence was collected or mentioned in the charge sheet. In the remaining the following items were recovered:

clothes belonging to the victim and/or the accused (4 cases)

reports of DNA analysis (3 cases) Marriage registration certificate (1 case) Post mortem report (in one of the cases where the

victim was killed pursuant to the rape) ‘Bed, blanket and bed sheet’ (1 case) A video CD of the incident in a case where the

incident was recorded on a phone camera.

The relatively small number of cases where other evidencehas been collected by the investigators, when compared tothe large number of cases where the medical report has been filed along with chargesheets, indicates that the medical report is the most crucial evidence that is relied upon by State investigators and the court.73

72 This means that chargesheets have been filed in 25 of the 28 cases where the medical examination is complete.73 A comparison between time lapses in reporting and age show that there is no correlation between either.

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Conclusions It is likely that more medical examinations are

conducted on minor/children under the age of 16 than on women in higher age groups.

Although most medical examinations are conducted after the FIR is filed, it is possible to get an examination done even before an FIR is filed.

Medical examinations are conducted routinely in all cases, even if there is a considerable delay between the incident and complaint, when the likelihood of finding evidence is reduced.

Medical examinations are conducted during office hours although most incidents of rape take place at night, which means that victims may have to bekept in custody till such tests, are conducted.

Most medical examinations are conducted at the district level, which are in most cases, a considerable distance from where the incident occurs or where the victim lives.

Filing of an FIR is deemed to be consent to the all investigative procedures including medical examinations. Victims’ consent to specific aspects and forms of testing are not taken, nor is the victim given the option to decline any tests part of the medical examination procedure.

Medical examinations are mostly conducted by malemedical officers in the presence of a female attendant.

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Conclusions and recommendations It appears from this sample that cases involving minor/child victims are reported and attended to more than cases involving women in higher age groups. This means that these cases involving minors are reported shortly after the incident of rape, shalish or mediation is not attempted in most cases and medical examinations are done on time. In the absence of publicly available disaggregated statistics on police complaints and court proceedings this cannot be identified as a trend but rather as an indication that requires further exploration. However, the efficacy with which such cases are treated ensures that medical examinations yield reliable evidence.

On the other hand, this data indicates that in cases involving women in higher age groups, i.e. women above 16years of age, there are major delays in reporting. In a number of instances, this is due to shalish attempts to reach a settlement before recourse is sought under the formal justice system. Delayed complaints result in delayed medical examinations that may have deleterious impacts on trial outcomes. This gives rise to cause for serious concerns as the analysis of decisions of the higher judiciary shows that medical evidence is insisted upon in most cases involving adult women, particularly ifthey are married.

Medical evidence is considered pivotal in rape trials. Asthis study shows, MLRs are often the only piece of evidence furnished with investigation reports (chargesheets), which rarely add any further details to complaint filed. However, the process by which such evidence is collected gives cause for some serious concerns. These are:

A limited understanding of rape, which is centered on the use of force than on the absence of consent. Hence the emphasis is placed on discerning signs of injuries instead of correlating physical /mental

Conclusions It is likely that more medical examinations are

conducted on minor/children under the age of 16 than on women in higher age groups.

Although most medical examinations are conducted after the FIR is filed, it is possible to get an examination done even before an FIR is filed.

Medical examinations are conducted routinely in all cases, even if there is a considerable delay between the incident and complaint, when the likelihood of finding evidence is reduced.

Medical examinations are conducted during office hours although most incidents of rape take place at night, which means that victims may have to bekept in custody till such tests, are conducted.

Most medical examinations are conducted at the district level, which are in most cases, a considerable distance from where the incident occurs or where the victim lives.

Filing of an FIR is deemed to be consent to the all investigative procedures including medical examinations. Victims’ consent to specific aspects and forms of testing are not taken, nor is the victim given the option to decline any tests part of the medical examination procedure.

Medical examinations are mostly conducted by malemedical officers in the presence of a female attendant.

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symptoms with the victim’s account of sexual assault. This is particularly problematic as it observed that as the victim is acquainted with the abuser in most cases, it is possible that the abusermay use other forms of duress to vitiate consent, which may not involve the use of force.

A narrow definition of rape in law that is limited to acts of consensual penetration, does not take into account the myriad ways in which sexual assaultis perpetrated.

Use of the two finger test is not only unreliable but reinforces gender stereotypes and is hugely traumatic for victims. It must be noted that the cases studied in this paper show that injuries or signs of ‘forceful sexual intercourse’ can be discerned even without the conduct of these tests. However, victims are not given an option to refuse to undergo such tests as initiation of legal proceedings is deemed to be consent to all forms of investigative proceedings including medical examinations of all forms.

Delays in conducting medical examinations severely

reduce the value of evidence collected through medical examinations. Delays can be caused for a number of reasons, e.g. lack of awareness of legal rights and legal procedures, reluctance caused by trauma or fear of retaliatory violence or repercussions, stigma associated with rape, etc. However the MLR forms do not provide space for causes of delays or behavior that may result in reducing evidentiary value.

The availability of medical examination facilities at the district levels and during office hours severely impedes women’s access to such facilities. It may also compromise her safety and add to her trauma, as she may be retained in custody till such tests are conducted. There appears to be no method in place to collect medical evidence immediately, or

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record the victim’s physical and mental condition when she approaches medical facilities for treatmentat the upazila levels.

The lack of female medical officers to conduct such tests may also be a reason for women’s hesitation inundergoing such tests.

Medical examinations are predominantly conducted on female victims and almost never on alleged perpetrators.

The following recommendations may be useful to overcome some of these concerns:

Review the MLR form to reflect the manner in which sexual assault takes place.

Put in place protocols for medical officers that cover aspects of both evidence collection and provision of treatment and ensures uniform understanding on the role of medical professionals vis-à-vis victims of sexual assault.

Provide for or authorize medical professionals at the local (upazila) levels to conduct medical examinations and record the physical and mental state of women victims of sexual assault. Record creation immediately after the incident will yield reliable evidence that can be used whenever the victim is ready to initiate legal proceedings.

Prohibit the mandatory or routine conduct of the twofinger tests.

Repeal Section 155(4) of the Evidence Act that allows the victim’s testimony to be discredited if she is shown to be of generally immoral character.

Amend the definition of ‘rape’ in Section 9 of the NSA and Section 375 of the Penal Code to include different forms of sexual assault, which are not

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limited to only penetrative non-consensual sexual intercourse.

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