Research Centre of Anusandhan Trust

CEHAT

Research Centre of Anusandhan Trust

Survey No. 2804 & 2805, Aaram Society Road, Vakola, Santacruz (East), Mumbai 400 055.

CEHAT/DHS/PIL/2011-12 Date : 4/10/2011

To,

The Joint Director Hospitals

Arogya Bhavan

St. George Hospital Compound

8th Floor

Mumbai- 400001

Dear Dr Archana Patil,

This is regarding the revised protocols and manual for examination of survivors of sexual assault. We would like to bring to your notice that the revised documents were sent to CEHAT just 2 days before the scheduled court hearing on 5th October 2011 in Nagpur. The committee has taken 2 months to revise and incorporate suggested changes since the 24th August hearing but we were not provided with even 24 hours to review the documents having consistently followed up (26th August and 28th September via letter, 6th, 15th and 23rd September via tele calls) to seek these documents.

Despite having provided email ids and telephones numbers of all concerned at CEHAT as well as the expert group that deliberated upon the government protocol an manual on 6 August 2011, the revised documents were sent only to one email id on after 5. 30 pm on Saturday 1stOctober which is a non working day for CEHAT and staff of CEHAT was busy holding a national conference for HCPs on comprehensive health care response to sexual assault in New Delhi. Not a single phone call was made to state that documents have been sent from the DHS or the committee. It was only on Monday morning at 10.45 am that a phone call from Aarogya Bhavan was received by Sangeeta Rege of CEHAT and we were asked to come for a meeting to discuss the revised proforma and manual at 12 noon. We were neither given adequate notice to review the documents nor time to reach the venue. On reaching the venue, the chairperson/convenor of the committee Dr Nanadkar was in a hurry and had to leave for another meeting. He said that he could only spend 5 minutes and in the limited time that we got to review the documents, CEHAT along with Dr Vaz, Dr Kamaxi Bhate and Adv Flavia Agnes tried to raise critical issues related to the proforma and manual, but the chairperson/convenor brushed them aside and stated that now these issues should be resolved in the court only. He and Dr Patil repeatedly said that they have made a lot of changes and that every suggestion from CEHAT cannot be accepted. They refused to provide any rationale for not accepting the recommendation of the 6th August meeting and the WHO technical opinion. This attitude of the committee members is seriously problematic and does not favour any dialogue

Dr Nagaonkar of the DHS office continued to discuss the matter and asked us to submit a letter to you- Dr Archana Patil stating all our concerns/problems with the revised documents. He said that the DHS will submit these concerns along with the revised documents to the High court. There are several lacunae in each of the documents, a gist of problems pertaining to each has been stated below. The overemphasis on looking for injuries on survivors, status of hymen, nutrition of woman continue in the revised documents despite having submitted scientific evidence against the use of these through direct experience and practice as well as WHO Technical opinion. The opinion to be provided by doctor should be based on scientific evidence and current proforma continues to perpetuate the earlier myths. Section on treatment is conspicuous with its absence as often the medicolegal examination takes precedence over treatment and care of the survivor which is a gross violation of her right to health.

Attached is the summary of concerns vis-a-vis revised proforma and manual submitted by the high court appointed committee.

With Regards,

Padma Deosthali

Following are the comments on revised proforma and manual submitted by high court appointed committee

Forensic medical examination report of alleged victim of sexual Assault

Informed consent- Refusal by the sexual assault survivor to any part of the consent has to be worded in a manner that enables the survivor to understand the benefits and consequences of providing partial or full consent to examination, evidence collection, treatment and providing information to the police. This is absent in the current format. We suggest this be included in the section on consent.

History and details of alleged sexual assault – The Roman section II lacks details related to the present sexual assault such as time, incident, place, number of assailants, forms of sexual assaults such as forced peno anal, peno vaginal sex, use of objects, masturbation, forced oral sex and the like. Though this was brought to the committee’s notice consistently these details have been constantly omitted. Not having such details can seriously compromise on the quality of documentation by the HCP.

Emotional and Mental status - In the section IV the section on “emotional and mental status “has to be deleted.This is because the commensurate manual page 15 clearly mentions that doctors are not capable of appreciating signs of emotional disturbance. If this is the case, doctors will invariably write woman doesn’t show signs of distress or appears calm etc. This can be counterproductive as it can be interpreted against the survivor too. It is important to understand that a woman who has reached a health facility would have coped to some extent with the abuse and therefore may not display such emotions in front of the HCP.

Personal history – the term “personal “has been retained in the proforma to denote medical, obstetric and surgical history. The committee had agreed to change the terminology in the meeting on 6th August, but this change has not been brought about. The term personal is misleading and need not be used at all in a proforma that is aimed at medical examination of sexual assault. The correct term would be “medical, obstetric and surgical history”.

General physical examination - In section IV on general physical examination, comment on “nutrition” continues to exist. This is despite consistent dialogue with the committee about high chances of misinterpretation that a well built woman can resist sexual assault. It is a well known fact that a survivor may be threatened; intoxicated by the accused and so on and therefore nutritional status would have nothing to do with the resistance that a woman may be able to put up during the assault. Comment on Nutrition should be deleted.

Injuries on the body- Section V on “Injuries on body” starts with “special reference to signs of struggle …..” It must be kept in mind that injuries will not be present in all cases of sexual assault; one of the reasons could be the time lapse between incident and examination. Research clearly shows that only 1/3rd of sexual assault cases demonstrate injuries and therefore it is strongly recommended that the wording be changed or else the HCP may be misled in to looking for injuries only. This has been repeatedly brought to the notice of the committee. This line in brackets should be deleted.

Local examination of genital/perineal areas- The section on “Local examination of genital/perineal areas” has a detailed section on “Hymen”. This continues to be present in spite of our repeated dialogue on the fact that a hymen can be torn dues to several activities such as horse riding, cycling etc. Stating the types of hymen and status of hymen such as old tear, no hymen etc in a sexual assault examination perpetuates the myth that hymen status determines virginity. Only fresh tears and bleeding or rupture f the hymen should be commented upon.

Provisional opinion regarding sexual assault -In the section IX, called” Provisional opinion regarding sexual assault “the term sexual assault should be deleted. This is because a HCP cannot determine whether sexual assault occurred or not as that is for the court to decide. He/ She has to opine only on

Evidence of sexual intercourse
Recent use of signs of force
Age

Provisional opinion -The enumeration in point IX from 1 to 6 has to be deleted and the section on provisional opinion has to be made an open ended response. It cannot be restricted to a just “Absent or Present” response. Though the manual talks about reasoned opinion and lists the conditions of absence of injuries and illustrates the draft of possible opinions which could be drafted by the examining doctor; all this will be a futileexercise,because on page 37 of the manual and on page 6 and page 2 of the victim examination proforma and final opinion form by inserting a section called “important note”, the HCP is asked to write only present or absent and give an ultra brief justification in support of their absent / present remarks.Such an opinion defeats the purpose of reasoned medical opinion. We propose that a blank space be provided for Opinion (Both Provisional and Final should be drafted referring to the illustrations in the manual after conclusion of the examination and noting the relevant findings)

Treatment: Despite repeatedly bringing to the notice of the committee the need to include section on treatment, they have ignored it completely and the current performa has no mention of it. We have already provided evidence of survivors being denied treatment as the doctors were preoccupied with medico legal examination.

Forensic medical examination of alleged accused for evidence of sexual Assault and potency

1.Informed consent- Even in cases of alleged accused, it is important to seek consent, it is unethical and illegal to do away with seeking consent for medical examination even if it is the accused in a sexual assault case. Therefore quoting the 53CRPC in this context is inappropriate as nowhere does it state that don’t take consent from the accused for medical examination.

2.Personal history – In the section on personal history, “Brief description of acts of penetration / ejaculation as stated by the victim “is impossible to know as often the victim and the accused are examined in different hospitals or by different HCP’s. Further this information can be sought from the accused itself. We suggest that this be removed from the section

3.General physical examination - The comment on emotional and mental status of the accused is irrelevant to the act of sexual assault.

4.Local examination : Perineum and Genitals – The size of the penis, its development etc is irrelevant to the medical examination of sexual assault, as the legal definition of Rape states that slightest penetration of the penis in the vulva ….., and for that the size and its circumference etc is not valid at all.

5.Potency – the point on penis and potency are connected as the slightest penetration by the penis in the vulva without consent is termed as rape, therefore ascertaining potency of the accused is completely irrelevant to the act of sexual assault.

Manual for forensic medical examination of cases of sexual assault

The manual excludes PHC on infrastructural grounds and at the same time says that. Sexual assault examination is a medico legal emergency which has to be cared 24/7. Both are contradicting as first contact would be a PHC for any survivor of rural area and asking them to go to designated hospitals other than PHC would cause loss of evidence due to delay. Maharashtra itself has several 24X7 PHC’s, therefore they must be included.

Page 17 of the manual states that in hospitals where services of both gynecology and forensic medicine are available, examinations should be conducted jointly.This is a welcome suggestion, however it is important to state the responsibility of each of the doctor involved and which doctor amongst them would be the examining physician responsible for drafting the provisional and final opinion and attending the court calls.

The entire section of information regarding the sexual assault related different acts on page 18 is stated in a biased and unscientific manner. The acts are described to be having elements of resistance and force which would create injuries to hymen, vulva, anus etc. However this is the most common myth that sexual assault leaves obvious signs of injuries. An adult woman (also in case of child/adolescent) may not be able to resist sexual assault because of use of threats, or she may be rendered unconscious or / intoxicated, there may be use of lubricants and so on, Thus there is no rationale or reason as to why the committee has not complied with presenting internationally accepted definition of sexual assault laid down by the WHO and has rather misguided examining doctors in to thinking that such signs and symptoms would be present on a survivor.

In the enumeration of different forms of sexual assault on page 19, one of the listed forms has been termed as “Indecent assault”, though this term is in keeping with the law, there is a need for the committee to evolve as well as look at international literature and term it as sexual assault as it brings under this term forced kissing, fondling and masturbation.

The section on Information regarding the sexual assaultacts on page 18 ends with a note stating that “ Absence of injuries ------“ however the section needs to start by saying that injuries may or may not present. Only 1/3rd of cases of sexual assault show injuries, thus injuries are not determinative of sexual assault. In the current format of the manual this is mentioned as part of “note’ at the end of the section which a doctor may read by the time he is already biased towards looking for only injuries due to the manner in which the section on sexual assault has been defined.

Role of informed consent – The section on page 22 on informed consent has to bring in the benefits along with the consequences of partial and complete consent as stated in the victim proforma for medical examination too.

The photography guidelines are well listed on page 23; however there are 2 crucial issues about taking photos which were discussed on the meeting held on 6th August 2011. The photos of genitals would not be taken and neither would the identity of the victim be revealed from the photos. However the manual asks the doctor to take facial photographs .This is seriously problematic and could invade the privacy of the survivor. We recommend that only pictures of usually exposed body parts where injury has occurred could be taken after seeking appropriate consent.

On page 26, the section on personal history has to be reworded to medical obstetric and surgical history the rationale is that the history from the patient is being sought on those accounts and therefore the term”personal“ should be deleted .

Similarly on page 26 the section on emotional and mental status is ambiguous. The examining physician is expected to opine on the emotions and mood of the patient in the course of her contact with the patient during seeking history, consent, examination, evidence collection and treatment, this doesn’t require a psychiatrist at all. Examples such as does the patientlook fearful, inability to speak, tired, weepy, sadness of mood are some of the ways to describe the emotional status. There is an urgent need to reword this as well as add a line that the patient should not be referred to the psychiatry department for just documentation of emotional and mental status. Referral to psychiatry will only further stigmatise the survivor.

On page 28, there is an entire section on Hymen. It starts by misleading the examining doctor into thinking that status of hymen can provide valuable information. However it doesn’t take in to account the fact that hymen may be lost or absent due to several reasons such as horse riding, cycling and other vigorous activities or a woman may not be born with it. Similarly the intactness of a hymen also doesn’t rule out chances of forced penetration. Therefore the overemphasis on the hymen has to be reduced.

In the section on specific examinations page 29, in the Wet mount slide, the section needs to begin with the limitations of the wet slide test results and that a negative result doesn’t rule out sexual intercourse. It should also be borne in mind that even if the examining doctor uses a microscope for observing motile sperms, the test results of the hospital are not admissible in the court and therefore the slide is sent to the forensic science lab. There is a need to weigh all these issues before directing doctors to conduct such tests.

There is confusion in the manual and the proforma about the use of vacutainers and bulbs leading to unnecessary as a infrastructural confusion.It should be mentioned as to what should be used for collection of blood and other body evidence

In the section on collection of samples on page 31, almost each point starting from 8 to 22 asks for DNA analysis. It is very well known that the Forensic science labs don’t have the required infrastructure to conduct even simple tests, therefore asking for DNA profiling for every single thing from blood group to hair is next to impossible, this would also lead to delays in investigations, in getting reports, increasing work load of already over burdened FSL etc. It is advisable to use DNA only when absolutely essential.

In the section on providing Provisional opinion on page 33, it starts with evidence of injuries to genitals .It further states the nature of injuries to expect in non penetrative sexual assault as well. There are serious limitations to formulating an opinion in this manner. Instead an opinion has to be given on the following –

Any evidence that the survivor is mentally incapable of giving consent or under the influence of alcohol/psychotropic drug/ narcotic substance.
Any means by which the assailant can be identified
In case of penetrative sexual assault, evidence of vaginal intercourse, anal intercourse, oral intercourse in detection of spermatozoa in wet oral/anal/vaginal smear detected by FSL
Whether there are signs of use of force based on genital , physical injures
Whether intercourse was a recent act or not
Actual age of the survivor in case of a minor

Page 36 has a section termed as “reasons for normal examination findings despite history and or positive circumstantial evidence ------. The entire section needs to be brought after the section on seeking sexual assault history. This is important for a doctor to read before she proceeds to examine and collect evidence .There are a few suggestions in the section in terms of the language. The sentence, “The victim is sexually experienced” needs to be replaced with sexually active.

On page 38 in the section on Pre-requisites at the health facility, the bias related to the built of the woman is again seen when equipments such as weighing scale and height scale are mentioned. Further these are any way available in the most basic health facilities, there is no requirement of a separate mention about the same.
In the section on treatment and follow up on page 38, referrals to social workers or oganisations and groups working on the issue of violence against women must be made in order to enable the survivor to cope with the trauma related to sexual assault, this has to be mentioned in the treatment guidelines.

In the section on brief guidelines on examination of accused page 40, there is a mention on seeking history from the accused in a manner that it is sought from the victim. This is problematic as the accused may or may not volunteer such information. The doctor should ask general medical and surgical history and sexual assault details to the extent to which the accused volunteers. Though information may be sought on surgical procedures or diseases of vas, it is important to remember that potency has nothing to do with the act of sexual assault as mere penetration of the penis is sufficient to constitute an offence of sexual assault.

With respect to the above point as well as the ones made in the proforma for medical examination of accused in sexual assault, it is important that the section on potency be deleted from the provisional opinion on page 11.