Bombay High Court permits Maharashtra Govt. to proceed with gender biased sexual assault protocols; warns of bias in favour of women

The case before the Nagpur Bench of the Bombay High Court, Dr. Ranjana Pradhi v. Union of India, PIL (Cr.) 1 of 2010, regarding the framing of sexual assault examination protocols concluded on 29thJanuary 2014. The Court allowed the Government of Maharashtra to continue to implement its revised guidelines for the examination and care of survivors of sexual assault that were notified in May 2013. CEHAT had intervened in the case through the Lawyers Collective, seeking gender sensitive protocols for rape examination and ensuring the respect for survivor’s right to health.

CEHAT had raised objections to the protocols of the Maharashtra Government on the ground that they required details like recording the height and weight of a survivor, the past status of a hymen and commenting on laxity of vagina and anus, which are biased against women, irrelevant and unscientific.  Appearing on behalf of CEHAT, Senior Advocate Anil Mardiker argued that none of these components have any scientific relevance to a rape examination and in fact only lead to comments on past sexual behavior. He further criticized the protocols for essentialising the belief that unless there are marks of resistance on the body of a survivor, no rape is established. He argued that the definition of “rape” itself has changed as per the 2013 Act and now covers non-penile sexual assault. Rape, he argued, may not result in injuries on the body of the survivor at all. The protocols are based on prejudices about what a medical examination can prove and disprove in instances of rape/sexual assault. 

However, the Bench observed that “height and weight” are crucial indicators to determine resistance put up by a woman and how she was overpowered. It also said that caution has to be exercised about being biased towards survivors of rape. Just as survivors of sexual assault, perpetrators too must be given benefit of doubt. It further observed that indicators such as height-weight, hymeneal status can in fact be instrumental in determining veracity of survivors reporting rape.

There is adequate evidence that a majority of rape survivors in fact have no injuries either genital or physical. Analysis of case records of 100 rape survivors brought to 3 Mumbai based public hospitals brought to light that 50% survivors reaching the hospitals were children and they too did not exhibit injuries and similar case was seen with adult women survivors, though most of them reached these hospitals in a period of 24 to 48 hours. WHO reports that world over, only 1/3rd of the cases of sexual assault have any injuries which means a large majority doesn’t sustain injuries. In Mumbai it was the use of gender sensitive examination protocol in 3 Municipal hospitals that brought to light circumstances in which the assault occurred. Documentation by trained health professionals brought to notice survivors narrations of being scared, numbed, shocked and threatened to resist the perpetrator and hence did not sustain injuries. It is therefore critical that damaging indicators such as height/ weight, and status of hymen be replaced with a gender sensitive protocol for sexual assault examination at the level of hospitals.