“Language is considered critical to the life of law. Words are the vehicle through which the values of the law are communicated,” says the Supreme Court of India. Taking its cue from it, the Madras High Court has embarked on an exercise to sensitise the police, government doctors and trial courts to the need to avoid findings such as the victim in a sexual assault case being a virgin or not and the hymen being intact or not in the medical reports submitted before courts.
A Division Bench of Justices N. Anand Venkatesh and Sunder Mohan sought the assistance of A. Nagendra Kumar, Associate Professor, Institute of Forensic Medicine, to find out if it was absolutely necessary to give such medical findings on virginity in every other sexual assault case. The forensic expert, in turn, told the court that findings related to virginity were provided in medical reports only because of the insistence of investigating officers.
Further, stating that the expression, ‘hymen intact’, was being used widely in medical reports only to mean that no injuries had been sustained in the hymen, the doctor said it would be advisable to avoid such an expression and instead use other appropriate words. After recording his submission, the judges directed the police department to come up with a Standard Operating Procedure (SOP) with respect to medical examination of sexual assault victims.
“Doctors who examine sexual assault victims should not conduct per-vaginal or colposcopy examination as a matter of routine unless it is required for detection of injuries or for providing treatment. In some medical reports, we find expressions/findings like ‘there are no signs suggestive of sexual intercourse’. These types of findings are completely irrelevant,” the judges wrote in their interim order.
Showing equal concern for the dignity of the accused, the Bench took exception to the police department’s “normal practice” of subjecting every other accused in a sexual assault case to potency/masturbation test by making him ejaculate in order to confirm sexual potency and sending the sperm for forensic analysis. The judges said it would be “boorish” to subject every other accused to such a test even if he had not claimed to be impotent.
On being asked for his opinion, Dr. Kumar, too, told the court that ‘impotency’ was a legal word synonymous with the medical condition called erectile dysfunction. He stated that a male would generally be considered to be potent from his intrauterine (inside the uterus) stage till his death and that impotency was only an exception. He further said that every man must be considered potent unless the contrary was proved and the burden of proof must only be on the accused person.The judges directed the police department to take this submission, too, into consideration before preparing the SOP and placing it before the court on September 25. “Even in a case where traces of semen had been found on the garments worn by the victim, it would be enough to collect the blood samples of the alleged offender and match the deoxyribonucleic acid (DNA). It would be absolutely unnecessary to draw semen from the accused for such matching,” the Bench observed.
The orders were passed while the court was dealing with a case related to a consensual sexual relationship between two minor children. After holding that a minor boy could not be prosecuted under the Protection of Children from Sexual Offences (POCSO) Act when he himself would fall under the definition of ‘child’, the judges decided to call for details of all such cases pending across Tamil Nadu and Puducherry and quash them if they were found to be against the interests of the children involved.
The court found that 1,728 such cases had been registered in Tamil Nadu since 2010 and 1,274 of them were pending. Therefore, it directed the Director-General of Police to identify the cases involving consensual relationship from among the 1,274 pending cases and prepare a separate list.
Accordingly, the DGP presented a list of 111 pre-trial cases in which efforts could be made to relieve the children of the trauma of facing a criminal trial. Appreciating the DGP for having undertaken the exhaustive exercise, the judges decided to interact with the parents of the victim girls, through videoconference, in those 111 cases before taking a final call on quashing them, on September 25.
