Petition to ban archaic/unscientific procedures during medical examination for sexual assault
Posting an email sent by Sana [CEHAT]
Greetings from CEHAT!
As you must be certainly aware, the ‘Delhi Gang Rape Case’ has drawn some attention to the role of health systems in responding to sexual assault and rape. In this light, some of us – CEHAT, Human Rights Watch, and academics from JNU – have drafted a statement on behalf of medical professionals, highlighting some of these problems, and calling for reform in the manner in which sexual assault survivors are responded to by the health system. We hope that it will put pressure on the government to change the way in which they are approaching health responses to sexual violence in the country.
For more information on why the practices mentioned in the petition are
problematic, please refer to:
Please do have a look and endorse if you agree, and also circulate it to any other doctors, medical students or other health professionals you might be in touch with.
Please send in your endorsement in the following format:
to firstname.lastname@example.org with the subject ‘PETITION’. The last date is 19th January.
Medical professionals demand the ban of archaic/unscientific procedures during medical examination for sexual assault
Move from evidence to care!
We, the undersigned medical professionals , would like to voice our strong protest at the continued use of the unscientific and inhuman “finger test”, the undue focus on hymenal status, and the overemphasis on genital injuries in cases of rape of women and girls in India. These procedures are still part of the current proformas being used in public hospitals in India and are contrary to the guidelines for medico-legal care of for victims of sexual violence issued by the WHO 2003.
When caring for victims of sexual violence, the overriding priority must always be the health and welfare of the patient. The provision of medico-legal services thus assumes secondary importance to that of general health care services (i.e. the treatment of injuries, assessment and management of pregnancy and sexually transmitted infections). Performing a forensic examination without addressing the primary health care needs of patients is negligent . As the WHO recommends, concern for the welfare of the patient extends to ensuring that patients are able to maintain their dignity after an assault that will have caused them to feel humiliated and degraded.
Although the finger test and related procedures are outdated and have been officially removed, this has not translated into changes in the medico-legal practice . The evidence act also has been amended and clearly states that survivor’s character/past sexual history is not be commented upon. Many doctors, police officials, defense lawyers, and judges use findings about the “laxity” of the vagina, the “elasticity” of the hymen, or “old tears” in the hymen to wrongly conclude that a girl or woman is “habituated to sex This practice should be banned with immediate effect, and all questions that allow such findings to be recorded should be removed from all medical protocols for the examination of victims of rape and sexual assault.
The finger test is legally irrelevant , as the Supreme Court ruling in 2003 has ruled that finger test results cannot be used against a rape survivor, and that a survivor’s past sexual history is immaterial to the issue of consent at trial .
The finger test and comments on old tear of the hymen have no forensic value , as it predicated on the assumption that an unbroken hymen is evidence that no rape took place. Actually, the hymen is a flexible membrane that only partly covers the vaginal opening. Conversely, a hymen may have an “old tear” for many reasons unrelated to sex, so examining it provides no evidence for drawing conclusions about “habituation to sexual intercourse”. In fact, only one-third survivors may report any injury. In any case, whether or not a woman has had any previous sexual experience has no relevance to the issue of content.
The finger test is inhuman and degrading, itself amounts to sexual assault. Most doctors and hospitals tend to seek blanket consent for the medical examination. Therefore rape survivors have little information about the actual medical procedure involved.
In addition to the banning of the finger test, there is also an urgent need for a collective proscription on comments on the hymenal status and position as well as on the degree of tears and the overemphasis on evidence collection at the cost of provision of care. Many countries have operationalised the WHO guidelines of 2003 and made changes in their practice. In India, the results of these methods are routinely used by defense counsel and relied upon by judges in rape trials to unscientifically determine a rape survivor as “habituated to sexual intercourse”.
We also reiterate the dual role that medical professionals should play in their response to sexual assault as health care providers and those who assist in medical evidence collection. As the WHO guidelines on medico-legal care of victims of sexual assault says, the therapeutic care for rape survivors should be the “overriding” priority when doctors respond. We are concerned that many hospitals and doctors in India do not provide adequate therapeutic care, including access to emergency contraceptives, prophylactic medications, counselling, and information about HIV and other sexually transmittable diseases lack of such care can lead to aggravated health consequences for the survivor
This practice cannot be eradicated until the central government intervenes and issues a uniform gender sensitive protocol that is made applicable across India, with adequate resources to train and monitor the use of this protocol.
We demand that the Indian Ministry of Home Affairs together with the Indian Ministry of Health and Family Welfare should:
- Ban the finger test and all its variants from all forensic examinations of female survivors, as this are unscientific, inhuman, and degrading practice
- Develop and institute in consultation with Indian women’s, children’s, and health rights advocates, doctors, and lawyers, a protocol for the therapeutic treatment and gender-sensitive examination of survivors of sexual violence , such as those has already used in Mumbai public hospitals and endorsed by several health professionals.
- The protocol must comply with the standards and ethics issued by the World Health Organization, including the right to provide or refuse informed consent for medical treatment and examination.
- The protocol should emphasis on the need to seek the history of the incident in order to collect only relevant medical evidence , correlate findings with the nature of sexual assault reported, record delay in reporting, and note other activities such as bathing, douching, urinating after the sexual assault that result in loss of body evidence.
- The protocol should exclude the following information: size of the vaginal introitus/hymenal opening/number of fingers admitted by the opening; comments on old tears of the hymen; comment on habituation to sexual intercourse; irrelevant obstetric history (such as history of past abortions); findings on women’s built, nutrition, weight and height
- The protocol should include clear directions for provision of Emergency Contraception, HIV/STI prophylaxis, treatment for immediate injuries, psycho social support to the survivors and her family, and follow up care .
- Devise special guidelines for the examination of child survivors of sexual abuse to minimize invasive procedures. Ensure that any test is only carried out with the fully informed consent of the child, to the extent that is possible, and the informed consent of the child’s parent or guardian, where appropriate.
- Instruct doctors not to comment on whether they believe any girl or woman is “habituated to sexual intercourse”.
- Instruct all senior police officials to ensure that police requisition letters for forensic examinations do not ask doctors to comment on whether a rape survivor is “habituated to sexual intercourse .” and/or whether rape has taken place or not
- Communicate to trial and appellate court judges that finger test results and medical opinions about whether a survivor is “habituated to sexual intercourse” are unscientific, degrading, and legally irrelevant, and should not be presented in court proceedings related to sexual offences.
- Update all medical jurisprudence textbooks to specifically exclude the finger test and its variants. Ban the use of medical textbooks that rely on the “finger test” and its variants by defense counsel to badger and humiliate the survivors of rape, sexual assault and child sexual abuse. Currently, forensic textbooks prescribe the finger tests and provide details on types of hymen. In their advice on how doctors should make observations in cases of alleged rape, there is a regrettable continuing overemphasis on injuries. Some textbooks teach students that “a health woman cannot be raped’, ‘working class women are muscular and so can offer resistance”, ‘if sexual intercourse is forced, then injuries must be present’, etc.
- Introduce a mandatory special curriculum on the dignified treatment and examination of sexual assault survivors as part of medical education.