Three years ago, the Ministry of Health and Family Welfare issued guidelines and protocols on how unbiased and sensitive treatment should be provided to survivors of sexual violence. However, our experience based on interactions with doctors across India indicate that these medico-legal guidelines are still not being followed.
Rape survivors continue to be subjected to unscientific medical practices such as irrelevant and invasive swab collections, comments on their past sexual practices and comments raising doubts about their complaints. They continue to face humiliation, delays, insensitivity from health professionals, adding to their trauma. Despite the guidelines stating that survivors need to be given first-line psychological support, health providers continue to restrict themselves to forensic examination with no recognition of therapeutic needs of survivors.
The guidelines were formulated after the December 16, 2012, gangrape and murder in Delhi led to the formation of the Justice Verma Committee, whose report in 2013 highlighted the institutional biases about rape. Taking cognisance of this report, the health ministry took the first steps towards setting its house in order by framing these guidelines.
The health ministry’s guidelines were an outcome of an intensive process led by Keshav Desiraju, who was health secretary at the time. Discussions were held with stakeholders – administrators, forensic experts, clinicians, researchers, lawyers as well as representatives of the Ministry of Women and Child Development, the Home Ministry and the Ministry of Law and Justice. The guidelines were disseminated through a national workshop in collaboration with the World Health Organisation in March 2014 that was attended by senior health functionaries from of all states and union territories. Since then, the health ministry has conducted five regional workshops in collaboration with the WHO for doctors from various states to train them in the skills required to operationalise the guidelines.
The health ministry’s guidelines provide a clear directive to all health facilities to ensure that survivors of all forms of sexual violence, rape and incest – including people who face marginalisation based on disability, sexual orientation, caste, religion and class – have immediate access to healthcare services. They include immediate and follow-up treatment, post-rape care including emergency contraception, post-exposure prophylaxis for HIV prevention and access to safe abortion services, police protection, emergency shelter, documentation of cases, forensic services and referrals for legal aid and other services. They recognise the need to create an enabling environment for survivors where they can speak out about abuse without fear of being blamed, where they can receive empathetic support in their quest for justice and rebuild their lives after the assault.
These guidelines were circulated to all states in April 2014. In the case of Nipun Saxena and Anr vs Union of India and Ors, the Centre submitted to the Supreme Court that all states are expected to adhere to these guidelines. So far, only nine states have issued government orders or circulars stating that health facilities must follow the guidelines. Other states have not even taken this small step.
What is happening at ground level?
The Uttar Pradesh government was one of the first to adopt the guidelines. However, at a workshop organised by WHO and United Nations Population Fund in November 2016, senior Uttar Pradesh health officials said that they were still documenting past sexual practice by commenting on hymen and vaginal introitus (the entrance to the canal), collecting all evidence irrespective of nature of sexual assault or time lapse. Remarks on hymen and vaginal introitus are akin to making comments on the past sexual practices of the survivor and casts aspersions on her character. Such practice is unscientific, irrelevant and banned by law. The current practice of collecting mechanical evidence subjects survivors to unnecessary swab collections which are irrelevant, unnecessary and only add to the burden on forensic science labs with no value.
In Maharashtra, Orissa and Madhya Pradesh, which also claim to have adopted the guidelines, they are not available at health facilities since the state governments have not printed and circulated them.
Kerala’s health department has adopted the health ministry guidelines with modifications that retain unscientific and gender insensitive practices. Their protocol continues to ask doctors to document status of the hymen, status of pubic hair, the person’s height and weight and other characteristics that do not verify or negate the nature of the crime. The department’s manual does not provide guidance on history seeking procedures including documenting activities that lead to loss of medical evidence. The manual also does not say anything about getting informed consent or providing psychological first aid.
What is most disconcerting is the fact that central government hospitals too have not been following the guidelines in toto. The All India Institute of Medical Sciences in New Delhi is using its own protocol, which the institute claims to have been developed in 2014. The hospital guidelines have, in fact, left out the need for doctors to record their medical opinion based on the examination of the survivor.
As per the Criminal Procedure Code and the health ministry guidelines, the doctor’s interpretation of the findings or absence of findings has to be made available. This can assist a court in deciding the case of sexual assault or rape. The non-implementation of these guidelines also allows doctors to escape interpretation of the examination findings where they do not explain the presence or absence of medical evidence.
The Delhi debacle
While this is the reality in states that claim to have adopted the guidelines, other states and union territories have not made any change in their approach even in spirit. The Delhi health department confused the matter by setting up a committee in May 2014, which recommended that “two finger test is necessary in many cases of sexual violence”. The two finger test is a test in which a doctor inserts two fingers into the vagina of the person being examined to test for laxity of the vagina and therefore gauge whether the person is habituated to sex. The health ministry guidelines ban the two finger test as it is rooted in biases about the character of a rape victim and is not any indication of the nature of the crime.
The Delhi government committee had confused the two finger test with a per vaginal examination, which is allowed under the health ministry’s guidelines. A per vaginal exam is a clinical practice, which requires an internal vaginal examination, but is done for diagnosis of infection, injury and presence of a foreign body.
The Delhi government drew severe criticism for the report, which it immediately withdrew, but it has still not adopted the health ministry guidelines. This was evident in the training of doctors organised under the aegis of the Delhi High Court between April and September this year. None of the Delhi public hospitals provide psychological first aid but refer rape survivors to a non-government organisation that is available on call.
What needs to be done
The Criminal Law Amendment 2013 makes it mandatory for all private hospitals to respond to survivors of rape. But while some private medical associations may have conducted training related to the Protection of Children Against Sexual Offences Act, they have not taken any initiative to adopt the health ministry guidelines on sexual assault.
The responsibility of the state cannot end with issuing and circulating an order. Unless concerted efforts are made by state health departments to implement the health ministry’s guidelines in entirety, survivors will continue to receive deficient medico legal care which is a barrier in their rehabilitation as well as access to justice.
As an immediate step, all state governments need to adopt these guidelines and make them available at all levels of the health system. Secondly, health departments need to create action plans for implementing the guidelines and create state-level training plans along with facility level monitoring mechanisms to assess quality of the healthcare response to sexual violence survivors. Healthcare providers need to reorient themselves to an understanding that sexual violence is a critical health issue and good quality health services can enable survivors to heal from trauma and strengthen their resolve to seek justice.
Jagdeesh Reddy is a professor of forensic medicine. Padma Deosthali is an independent researcher and trainer. Sangeeta Rege is coordinator at Centre for Enquiry into Health and Allied Themes.