FIGURING OUT SOME FORENSICS: SYMPOSIUM ON TOOLS

AND PROCEDURES IN SEEKING JUSTICE AGAINST SEXUAL ASSAULT

Newsletter Sep - Dec 2010

Over the last decade, incidents of sexual violence have been a significant part of ongoing conflicts. The cases of Thangjam Manorama Devi in Manipur in July 2005, Surekha and Priyanka Bhotmange in Khairlanji, Maharashtra in September 2006 and Niloufer Ahangar and Asiya Jan in Shopian, Jammu & Kashmir in May 2009, among scores of other cases in Chhattisgarh, Andhra Pradesh and elsewhere, have led to the formation of the Women against Sexual violence and State repression, (WSS), a network of women’s groups and individual women in October 2009, of which Saheli is also a member.

A case watch of these and other cases in the recent past indicates that the police and administration are not only callous in their functioning but are more often deeply implicated in protecting the powerful, or state functionaries, especially the security forces. More important is the way evidence is collected and the charges registered to include the sexual violence. In the Khairlanji case for instance, the sexual assault of the women who were burnt to death was not even a part of the trial and in Shopian the evidence was wilfully not collected properly by the police, and standard procedures for gathering forensic evidence not complied with. This fundamental failure by the police in Shopian has been used by the CBI to unconvincingly advocate a theory of drowning—that is, dismissing allegations by the family of the victims and the people of Shopian of sexual assault followed by murder to cover up the assaults, even though the Justice Jan Commission had endorsed this finding in its report.

In view of the above the WSS felt the need to work towards strengthening our collective legal, medical and forensic understanding, and of monitoring evidence gathered, such that we may hold the state and the judicial system accountable and thereby help render justice. Thus a one day symposium with legal experts, medical professionals and a range of activists was organised on October 30th, 2010 in Delhi. Specific questions for medical professionals and lawyers to be addressed in their presentations were identified. On the medical front, we talked about what the “best practices” are in collecting evidence for sexual assault cases. What medical evidence is necessary from their standpoint to establish the fact of sexual assault? What is the time frame in which it has to be collected? Is it possible to establish if access to the evidence is delayed. After all, sometimes it might be six months or later before investigators have access to evidence (i.e. exhumation). On the legal front, the questions that arose included: What is the corroborative evidence needed or most often used to establish the fact of sexual assault? What are the acts of commission and omission for which investigating authorities can be held accountable in cases of sexual assault?

The day began with discussions on the issue of “physical evidence” in cases of sexual assault. Physical evidence has generally been understood as bodily injuries and/or presence of bodily remnants (traces) on the perpetrator or the victim’s body or person. The “common wisdom” held by the judiciary and law enforcement officials is that sexual assault will leave genital or bodily injuries. This may not often be the case. For instance, the victim may be physically or emotionally overpowered or unconscious at the time of the assault. Thus physical evidence has particular characteristics which need to be understood in order that references to the same are useful and accurate within the framework of investigative procedures and legal proceedings. The current level of education and training for personnel involved in the investigation and verification of crimes of a sexual nature is sorely inadequate due to social prejudices, patriarchal and religious biases and taboos around discussion such issues.

At the same time more attention to medical and forensic evidence is important because those wishing to deny a case often take a line that “no physical evidence, so no assault”. This understanding is popularised in society at large, and then shows up in the normative practices of authorities charged with handling cases of alleged rape, who end up only looking for very ‘obvious’ signs of the crime. The conception among the judiciary and law enforcement, that there has to be bodily and/or genital injury to confirm an allegation of rape, is deeply rooted, as are notions of the victim as a “the good girl” who “should show obvious signs of struggle and injury”.

Another issue raised was that given the overwhelming prejudice among law enforcement and judicial officers as well as the low level of education about, or compliance with, the prescribed protocols among ground staff for collecting, recording and handling physical evidence; popular demands for greater attention to “medical evidence” and medical procedures in the normative practices surrounding cases of sexual assault will actually go against prosecution and conviction. We often do not have enough access to push for the specific types of timely investigations and procedures that would be necessary at appropriate facilities, or the ability to ensure oversight of the same. In which case, those who want the case dismissed can use the added legitimacy associated with “certified scientific” medical examinations, which were in fact carried out inappropriately, in order to get claims dismissed.

On the one hand, newer technologies like DNA testing offer more precise “scientific evidence” and can be really useful in proving cases of assault, paternity and so on. Yet the fact remains that medical forms and the production of “medical evidence” is being done without enough education of, or instructions to, the medical personnel involved as to what is at stake, the context in which the “evidence” will be presented, and the expectations associated with their role. For example in a situation in which a victim was highly traumatised and unable to speak, the doctor noted that “patient is very silent and uncooperative”... obviously he was expecting her to be melting with tears – and trauma!

When such citations by doctors end up in court, they inevitably tend to then work against the victim. Similarly, there was much discussion about how even simple terminology like “there is no support for the case of rape” is much more damaging to the victim’s case as opposed to phrasing it as “the examination is inconclusive”. In the current set up, Medico-Legal Cases and “medical” discussions occupy too much space which in any case most court officials, let alone lay people, do not understand and which in effect ends up in mystifying the issues further.

Given the overwhelming biases against women and particularly in relation to women’s sexual behaviour, a progressive jurisprudence/legal practice has encouraged those who are seeking prosecution and redress towards focusing the issues on the behaviour and history of the accused – as opposed to the ‘conduct’, condition or sexual history of the victim. Similarly, progressive movements should be supporting a judicial outlook that views medical evidence as marginal to the facts of a case rather than essential or determinant, reflecting possibilities of commitment to the victim, or alleged victim’s long term health and well-being.

There were also issues as to what is the best way to deal with medical evidence in the case of a woman who is sexually active at the time of an assault? Would there be any chance of legal redress in such situations where the woman does not meet the “prescribed norms” and whose status and behaviour would, as it is, be considered unorthodox given the prevailing biases against women’s sexual freedom. Even more challenging were questions of how we would, in a world seeking more and more ‘scientific evidence’ of sexual crimes, deal with mass sexual crimes in situations of conflict when even filing an FIR may not be possible for weeks, if not months!

Some participants expressed the view that the use of good forensic medicine (i.e. DNA tests that can identify semen on clothes even after years) is simply too expensive and inaccessible a demand or tool in seeking the verification or redress of crimes of a sexual nature, especially for those who are coming across such cases in the context of other social struggles.

Bringing together medical, legal and grass roots level experiences from Kashmir to Madhya Pradesh, the symposium was an eye-opener for many of us... even if it was just for us to realise how much more we need to know about the world of forensics and medical evidence.