Medical examination norms for sexual assault cases await nod4 min read . Updated: 08 Mar 2014, 12:13 AM IST
Women's groups argue for a more humane approach to survivors that focuses on holistic treatment
New Delhi: News reports of a ban on the so-called two-finger test and the issuance of national guidelines on dealing with sexual assault cases by the ministry of health are wrong and misleading, say women’s groups.
The file on this has not yet been signed by health minister Ghulam Nabi Azad, three months after the recommendations were submitted by a committee set up by his ministry to look into all aspects of sexual assault, including medical examination.
“We had proposed that the two-finger test be outlawed nearly three months back and had sent our inputs to the ministry’s technical wing," said Jagdish Prasad, director general (health services) in the health ministry. “The proposal is still pending with the law ministry."
Headed by former health secretary Keshav Desiraju, whose controversial transfer recently made headlines, the committee finalized protocols and guidelines in such cases after consulting with women’s groups and medical professionals.
The committee set up by the health ministry recommended disallowing the routine two-finger test traditionally used by doctors on rape survivors to determine if they are “habituated to sex".
Women’s groups have condemned the unscientific and archaic two-finger test for years. Not only is the test humiliating, they say, it also perpetuates false and damaging stereotypes of the so-called moral character of a rape survivor.
The move to discontinue the two-finger test to determine vaginal laxity (and, therefore, establish sexual history) and establish a standard protocol for the examination and treatment of rape survivors gained traction after the 16 December 2012 gang-rape and subsequent death of a physiotherapy student in New Delhi. But the fight for a standard protocol in the treatment and care of victims of sexual assault goes back further.
Women’s groups have for long argued that a rape survivor’s sexual history is irrelevant. The Supreme Court has disallowed past sexual history of a rape survivor as evidence in rape trials since 2003.
Calling the test “degrading and unscientific", Human Rights Watch in 2010 urged the Indian government to ban the practice. Changes in the Indian Evidence Act have deemed the past sexual conduct of the survivor irrelevant in sexual assault.
Coincidentally, the first episode of the second season of the hugely popular TV show Satyamev Jayate broadcast on 2 March had actor Aamir Khan talking about the trauma faced by rape survivors. Among the points made in the show was that the healthcare system is often insensitive to survivors, subjecting them to further trauma.
Rape survivors are often made to wait for hours before a doctor is made available to examine them. Doctors also focus on looking for visible injury marks, an absence of which is often assumed to mean consent.
Women’s groups want a more humane healthcare approach to survivors that focuses not just on the medico-legal aspects of the crime committed against them, but holistic treatment that includes psychological counselling.
“The recommendations made by the committee include these aspects of healthcare. It would be a wonderful step forward if they were to be passed," said Padma Deosthali, coordinator at the Centre for Enquiry into Health and Allied Themes (Cehat), a research centre that works on health advocacy issues, and a member of the committee.
Cehat, in a study conducted in 2012, found that a large majority of rape survivors do not report the crime because of the social stigma associated with it. A pilot project conducted at three hospitals in collaboration with the Municipal Corporation of Greater Mumbai—the first of its kind in the country—found that the biggest constraint to the response by the health sector was the absence of guidelines for examination and evidence collection.
The study found that more than half the victims reporting to hospitals were children below the age of 12. In three of four cases, the victims knew the perpetrators. Only 21% had physical injuries, putting to rest the myth that rape could not be proved unless there were visible signs of injury. In many cases, fear, shock, intimidation and threats of violence were used to subjugate victims.
In 2012, the department of health research, which comes under the Indian Council for Medical Research, a government body, drew up its own set of guidelines. These guidelines were rejected by women’s groups for several reasons: It asked doctors to record the elasticity of the vagina or anus—in short, to continue with the two-finger rest; it also required doctors to record old tears—to indicate a rape survivor’s past sexual history. The protocols ignored the gathering of critical information such as forms of non-penetrative assault like forced kissing or fondling.
The importance of a standard operating procedure to be followed by healthcare professionals cannot be overestimated, particularly as the number of reported cases of rape goes up. Last year, the National Crime Records Bureau recorded 24,923 reported rapes, up from 24,206 in the previous year.
Maharashtra is the only state in India where a standard operating procedure has been in place since 2013 and where one-stop help centres are in place in five public hospitals. The state government also provides for financial compensation for rape survivors.
But, warns Flavia Agnes of the Majlis Legal Centre, a group of women lawyers working for social change, “Policy and implementation are two very different things."
Added Deosthali: “Many of the protocols adopted by Maharashtra are contradictory." For instance, she said, vaginal laxity continues to be examined even when it might not be relevant to treatment and care.
Some of the Maharashtra guidelines are just impractical, said Shailesh Mohite, head of forensics at BYL Nair Ch. Hospital and T.N. Medical College in Mumbai, which receives on average 10 cases of sexual assault every month.
For instance, he said, the proforma that must be filled out by examining doctors runs into over 30 pages. “In non-urban hospitals where there is just one attending doctor, it is impractical to expect him or her to spend two to three hours just filling out the form," Mohite added.
Mint’s Vidya Krishnan contributed to this story.