BLAST-SAFE Project-Medical Evidence 0 MEDICAL EVIDENCE IN RAPE

BLAST-SAFE Project-Medical. Evidence 0 MEDICAL EVIDENCE IN RAPE CASES BLAST

Outline 1 1. Context Incidence of Rape/Incidence of Reporting / Common Concerns re Prosecution 2. National Laws and Policies Legislative/ Constitutional Framework / Women’s Policy 3. International Laws 4. Focus on Laws on Medical Evidence 5. The Reality …. 6. International Perspectives BLAST-SAFE Project-Medical. Evidence

1. 1 Context 2 Rape is the 2 nd most commonly reported form of violence against women Percentage of rape cases between 2001 -2010 has varied from 20 -25% of all cases on violence against women registered with the police NGO compilations of news reports indicate declining media reportage of rape cases Although the overall crime rates have increased, cases reported on violence against women have remained constant (25 -20%) BLAST-SAFE Project-Medical. Evidence

1. 2 Police Statistics 3 Note that these are not total figures for rape, simply total cases reported to police BLAST-SAFE Project-Medical. Evidence

1. 3 Factors impeding access to justice 4 1. 2. 3. 4. 5. 6. 7. 8. Rape myths (‘loose character’/ woman’s dress/ behaviour/ character was the cause) Social stigma (blaming the victim) Lack of support services Lack of protection for victims and witnesses Inadequate investigations by the police Problematic medical examinations Gaps in the law Protracted court proceedings BLAST-SAFE Project-Medical. Evidence

2. 1 Legislative Framework • • 1860 Penal Code 1872 Evidence Act 1898 Code of Criminal Procedure 200 Nari o Shishu Nirjaton Domon Ain (NSND) Definition: (Section 375 Penal Code) Sexual intercourse by a man with a woman in any of the following five circumstances: 1) against her will, or; 2) without her consent, or; 3) with her consent when her consent has been obtained by putting her in fear of death or hurt, or; 4) with her consent when the man knows he is not her husband but she has given consent because she believes him to be another man to whom she is lawfully married, or; 5) with or without her consent when she is under fourteen years of age. As expanded in NSND: (Section 9 (1)) (i) sexual intercourse with a woman over the age of 16 years, to whom the accused person is not married, without her consent, or despite the fact that she shows fear, or by gaining her consent through fraudulent means and; (ii) sexual intercourse with any woman below the age of 16 years. 5 BLAST-SAFE Project-Medical. Evidence

2. 2 Legislative Protection Nari o Shishu Nirjaton Domon Ain (NSND) 2000 • Safe Custody: Section 31 provides for the safe custody of women and children during the trial if the tribunal is of the opinion that it is necessary. • Protection from publication of names or identity: Section 14 provides that any news or information about the offence in relation to a woman or child can only be published in such a way as not to disclose the identity of the woman or the child. 6 BLAST-SAFE Project-Medical. Evidence

2. 3 Constitutional Rights • Equality of women before the law (Article 27) • Prohibition of discrimination on the basis of sex (Article 28) • Positive obligation to take special measures for the advancement of women (Article 28 (4)) • Protection of the right to life and liberty and to be treated in accordance with law (Articles 31 and 32) • The right to a speedy trial (Article 35) • The right to freedom from cruel, inhuman and degrading treatment (Art. 35) • The right to enforce a fundamental right (Articles 44 and 102) 7 BLAST-SAFE Project-Medical. Evidence

2. 4 National Action Plan for Women’s Advancement • Following the Beijing Declaration and Platform for Action (1995) the Government of Bangladesh adopted the National Action Plan for Women’s Advancement: Implementation of the Beijing Platform for Action (PFA). • The ‘General Action Plan’ includes a commitment to revise existing policies to incorporate women’s needs and concerns in each ministerial sector. Under the Action Plan, the Ministry of Law and Parliamentary affairs, for example, are committed to creating public awareness on gender issues, and addressing the response to violence against women within the judicial framework. 8 BLAST-SAFE Project-Medical. Evidence

3. Relevant International Obligations • Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women (Article 12(1)) • International Covenant of Economic Social and Cultural Rights (ICESCR) Article 12 protects the right to the highest attainable standard of physical and mental health, including sexual and reproductive health • Convention Against Torture and other Cruel Inhuman and Degrading Treatment (CAT) Prevention of treatment which is cruel, inhuman or degrading, even when it doesn’t amount to torture, if committed by one acting for the state or in an official capacity (Article 16) • International Covenant on Civil and Political Rights (ICCPR) • Convention of the Rights of the Child (CRC) 9 BLAST-SAFE Project-Medical. Evidence

4. Provisions relating to collection of medical evidence 10 NSND 2000/ Section 32 : (1) medical examinations shall be done in a Government hospital or private hospital recognised by the Government for the purpose; (2) shall be completed “very quickly”, and the medical centre shall furnish the concerned person with a certificate of medical examination and inform the local police station about the commission of the offence. Government Circular (issued by the Ministry of Health and Family Welfare, 2002) (a) Women and children … are to get the required treatment, diagnosis, have the filing of the case done by the District Commissioner’s office, the nearest police station, issue and receive a copy of the medical certificate; (b) The medical officer and his assistants are to give the best possible treatment. At the same time, a Standard Form for recording medical evidence was issued. BLAST-SAFE Project-Medical. Evidence

5. The Reality…Problems relating to collection of medical evidence Facilities • Facilities are mainly available at the district levels • Tests are conducted during office hours only • Lack of female doctors and staff Evidence collection • Many of the ‘tests’ are not relevant to proving the legal casee. g. the ‘two finger’ test • Some of the ‘tests’ have no medical value • Forms used to collect evidence include a space for noting past sexual history - and standard form not used • Insensitive treatment of survivors at health facilities 11 BLAST-SAFE Project-Medical. Evidence

… Broader issues • Government guidelines not being followed • Lack of funding, leading to corruption • Health professionals are reluctant to fill out forms due to fear of being held accountable • Suspicion and myths surrounding rape 12 BLAST-SAFE Project-Medical. Evidence

… Q: Is the 2002 Government Circular being followed? A: “No-one pays any attention to them because of all the constraints - staff shortages, lack of funding etc” Q: How is the two finger test carried outside of Dhaka? A: “We don’t really know what district hospitals do…” 13 [BLAST Interview with Dr Md Habibuzzaman Chowdhury, Associate Professor and Head of Department of Forensic Medicine, Shaheed Suhrawardi Medical College, Dhaka, 5 July 2012] BLAST-SAFE Project-Medical. Evidence

… “Rape is an accusation easily to be made and hard to be proved and harder to be defended by the party concerned” [Quotation from archaic English case law, cited with approval in- Sobuj v State 11 MLR (HC) 2006 (284)] “Rape is a very serious allegation”, as a result “women must withstand these tests” [BLAST interview with Barrister Anisul Huq, Dhaka, 10 July 2012] 14 BLAST-SAFE Project-Medical. Evidence

5. 1 What Medical Evidence is used in rape trials? • • • Age of victim Evidence of force used on the body - scratches, bruising etc Evidence of force used on genital area Stains of blood or sperm on the clothes of the victim or accused Presence/absence of blood/semen in vagina Rupture of hymen- Findings from Two Finger test Indications of penetration Indications of venereal disease passed from accused DNA: 1) To establish paternity, 2) To examine fibres etc ( 1) Is used, but not often, 2) Is, according to Barrister Anisul Huq, not used- DNA testing not advanced enough at the moment in Bangladesh) Tests carried out on the accused (not often)- incl capacity of accused to commit rape [From Modi’s Medical Jurisprudence p. 923, and from interviews with Barrister Ainsul Huq and Dr Md Habibuzzaman Chowdhury] 15 BLAST-SAFE Project-Medical. Evidence

5. 2 The Two Finger Test A medical examination in which the examining doctor notes the presence or absence of the hymen and the size and so-called laxity of the vagina of the rape survivor and comments about whether she is “habituated” to sexual intercourse (Human Rights Watch) 16 BLAST-SAFE Project-Medical. Evidence

5. 3 Why is it a problem? (1) (2) (3) (4) (5) (6) (7) 17 Virginity and or “habituation” cannot be “tested” by per vaginal examination The results are not legally probative The result are not logically probative The test causes additional trauma The test causes additional stigma The test is in breach of national and international obligations The test goes against international standards for the collection of medical evidence BLAST-SAFE Project-Medical. Evidence

(1) Scientific myth… “It [the two finger test] is all a myth. Nothing- no scientific evidence to show that if two fingers pass or don’t pass it has anything to do with being “habituated” to sexual intercourse or penetration at all” [Human Rights Watch interview with Head of leading forensic medicine department, Delhi] “The size of the vaginal introitus has no bearing on a case of sexual assault, and therefore the two-finger test of admissibility must not be conducted” [CEHAT, Manual for Medical Examination of Sexual Assault] 18 BLAST-SAFE Project-Medical. Evidence

… Why? • Size of vaginal opening varies between women • The hymen is a flexible membrane- it can be ruptured before sex; or not ruptured during sex • In cases of gang rape the fact that finding of “habituation” may be as a result of the rape itself • There are too many variables -Size of doctor’s fingers -Perception of “easily admitted” -Experience of doctor (“If the doctor is new he may make disproportionate assumptions” - Dr Md Habibuzzaman Chowdhury) 19 • Because of the variables, reports contain contradictions which lead to acquittals BLAST-SAFE Project-Medical. Evidence

(2) Not legally useful The findings of the test have no bearing on whether the legal test is made out: • Sexual history has no relevance to issue of consent – This is accepted internationally – E. g, section 41 Youth Justice and Criminal Evidence Act UK- judge can only give permission for defence to cross examine on sexual history in very specific circumstances (e. g. where the defence alleges very similar behaviour to a previous incident) AND where the judge thinks that not asking would render conviction unsafe. – Rationale is that sexual history is not probative, but is highly prejudicial • Partial penetration constitutes rape - State vs Shahidul Islam alias Shahid and others 58 DLR (HCD) 545 2006 and Moinul Haque (Md) and another v State 56 DLR (AD) (2004) 81 20 BLAST-SAFE Project-Medical. Evidence

(3) Not logically probative If the survivor “passes” the test- i. e. she is found to be a virgin, the defence may suggest she was not raped. If the survivor “fails” the test- i. e she is found to be “sexually habituated”, the defence will attack her credibility. It is lose-lose situation for the survivor: the ‘results’ can be used either way. 21 BLAST-SAFE Project-Medical. Evidence

(4) Additional trauma • The two finger test mimics the original rape • It is incredibly traumatic for survivors • The World Health Organization’s guidance on the medical examination of rape survivors highlights that even a speculum examination of the vaginal walls to locate injuries “may be particularly difficult for the patient, as it may remind her of the assault” • It is particularly traumatic when carried out by a male doctor with no female attendant. Dr Md Habibuzzaman Chowdhury stated that lack of female doctors was a real problem- there are currently no female doctors in the forensic department of the Shaheed Suhrawardi Medical College, Dhaka 22 BLAST-SAFE Project-Medical. Evidence

(5) Additional Stigma A finding that a woman is “habituated” to sex, and that as a result her credibility is in doubt, perpetuates myths that surround rape: – That an unmarried woman who has had sex has “loose” morals – That she is therefore more likely to have “encouraged” her attacker or consented to sex – That a woman who is “habituated” cannot be raped The language associated with the test further perpetuates the myths: “Habituation” is pejorative. The description of a woman “passing / failing” is also damaging. 23 BLAST-SAFE Project-Medical. Evidence

(6) Breach of national and international obligations Former UN Special Rapporteur, Sir Nigel Rodley condemned the practice of virginity testing rape survivors as a form of “gender specific…torture” … “The State should ensure that its domestic laws, as much as possible, provide that a victim who has suffered violence or trauma should benefit from special consideration and care to avoid his or her retraumatization in the course of legal and administrative procedures designed to provide justice and reparation” 24 BLAST-SAFE Project-Medical. Evidence

… Article 26 of the ICCPR guarantees equal protection before the law. The Human Rights Committee found that a state’s subjection of a 15 -year-old rape survivor to a virginity test, amongst other treatment, and to the use of results of this test in court proceedings, was in breach of its obligations under Article 26. L. N. P. v Argentine Republic, Comm. No. 1610/2007, UN Doc. CCPR/C/102/D/1610/2007 (2011) Human Rights Law Centre, HRLC Bulletin, Rights Agenda, Vol. 67 November 2011 25 BLAST-SAFE Project-Medical. Evidence

(7) Against international standards for medical evidence collection The World Health Organization has issued guidelines in relation to the medico-legal examination in the case of rape survivors. [WHO ‘Guidelines for medico-legal care for victims of sexual violence’. Geneva, 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 (STIs)” The Guidelines refer to ‘virginity tests’ as a form of sexual violence in and of themselves. 26 BLAST-SAFE Project-Medical. Evidence

International Perspectives India The two finger test was banned in India in 2012. The ban built upon a shift in judicial thinking… According to the Indian Evidence Act (Amendment) 2002, in a prosecution for rape or attempted rape a woman shall not be cross-examined as to her “general immoral character” Before the ban, the Supreme Court had ruled: • That the test couldn’t be used against a prosecutrix in court (Narayanamma v. State of Karnataka with State of Karnataka v. Muniyappa and others, (1994) 5 SCC 728; State of Punjab v. Ramdev Singh, (2004) 1 SCC 421) • That any evidence that a woman is “habituated” to sex was inadmissible State of Uttar Pradesh v. Pappu (2005) 3 SCC 594 : 27 “Even if it is hypothetically accepted that the victim had lost her virginity earlier, it did not and cannot in law give licence [sic] to any person to rape her. BLAST-SAFE Project-Medical. Evidence It is the accused who was on trial and not the victim”

6. International Perspectives… United Kingdom In 1979 there was a national outcry when it was discovered that officials at the UK border had used a virginity test on an Indian national in order to determine whether she was a virgin, and therefore unmarried, for the purposes of immigration. “Of course you can’t prove virginity by sticking a finger up a vagina - not every woman has a hymen” (Spare Rib, UK Feminist Magazine, 1979) A former Home Office minister admitted that “such gynaecological examinations had been performed in Dacca” and that “they did it fairly frequently in Dacca to discover whether a woman was a virgin or not when she was claiming to be a wife”. The UK Equal Opportunities Commission called such virginity testing “nothing short of victimisation of women. . . which we would have thought totally alien to our national attitude and way of life”. 28 BLAST-SAFE Project-Medical. Evidence

… The issue came to the fore in the UK in 2011 when ministers were called on to apologise for the tests which had been carried out up to the late 1970 s. A spokesman for the UK Border Agency stated: “These practices occurred 30 years ago and were clearly wrong. This government’s immigration policies reflect the UK’s legal responsibilities and respect immigrants’ human rights” 29 BLAST-SAFE Project-Medical. Evidence

… Egypt In 2011 Egypt banned ‘virginity tests’ following the highprofile cases of virginity testing on female protesters after arrest in Tahir Square A General of the Egyptian army told CNN: “We didn’t want them to say we had sexually assaulted or raped them, so we wanted to prove that they weren’t virgins in the first place. ” The tests were condemned by a three-panel judge in Egypt as: 30 “A violation of women’s rights and an aggression against their dignity. ” Project-Medical. Evidence BLAST-SAFE

…Yet it’s still being used • The test is still used throughout Bangladesh • It remains on the syllabus of medical schools and is taught in the major Obstetric and Gynaecology Departments in Bangladeshi teaching colleges • It is referred to as “absolutely necessary” in certain cases in Modi’s Medical Jurisprudence which is still in use” “In cases where the hymen is intact and not lacerated, it is absolutely necessary to note the distensibility of the vaginal orifice in the number of fingers passing into vagina without any difficulty. The possibility of sexual intercourse having taken place without rupturing the hymen may be inferred if the vaginal orifice is capacious enough to admit easily the passage of two fingers”. 31 BLAST-SAFE Project-Medical. Evidence

7. The Study 32 Analysis of case records Analysis of judgments Interviews with stakeholder- lawyers, prosecutors, forensic experts, field practitioners Interviews with survivors BLAST-SAFE Project-Medical. Evidence

7. 1 Case Records 33 64 cases (BLAST: 53, Mohila Porishod: 2, Nijera Kori: 9) All cases ongoing at the NOS tribunal Districts covered (16): Bagerhat: 1, Barishal: 5, Chittagong: 2, Comilla: 3, Dhaka: 2, Dinajpur: 4, Faridpur: 4, Khulna: 4, Lakhipur: 1, Mymensingh: 5, Natore: 2, Noakhali: 6, Rajshahi: 4, Rangamati: 4, Rangpur: 1, Tangail: 16 BLAST-SAFE Project-Medical. Evidence

7. 2 Materials analyzed 34 Case records: Complaint FIR Medical Record Charge Sheet S 161 depositions BLAST-SAFE Project-Medical. Evidence

7. 3 Sample 35 64 cases in total FIRs available in 47 cases Medical records in 36 cases Charge sheets filed in 47 cases filed under section 9(1) BLAST-SAFE Project-Medical. Evidence

7. 4 Age 36 Victims mostly in the age group of 11 -15 Accused mostly in the age group 20 -30 High number of minors may be an indication of: Fact that cases are reported more frequently when involving minors The NGOs have taken on more cases involving minors BLAST-SAFE Project-Medical. Evidence

7. 5 Comparison of Age of Victim and accused 37 BLAST-SAFE Project-Medical. Evidence

7. 6 Time of incident 38 BLAST-SAFE Project-Medical. Evidence

7. 7 Place of incident 39 BLAST-SAFE Project-Medical. Evidence

7. 8 Relationship with accused 40 • Majority of victims knew the accused • 45% lived in same village • 17% were related, including 2 cases of a father raping his daugher BLAST-SAFE Project-Medical. Evidence

7. 9 Nature of incident 41 Mostly forced sex (36), rape after rejected proposals (8) 13 cases of intercourse with promise to marry 8 cases where multiple incidents of rape 10 cases of gang rape (involving more than 1 accused) 3 cases where the victim was killed by the accused after the incident (of which one involved a 6 year old victim) and one where the victim was not found after the incident BLAST-SAFE Project-Medical. Evidence

7. 10 Shalish 42 Attempted in 37% of cases Including 5 involving rape of minors (though generally not attempted in these cases) In 3 cases, shalish attempted more than once In 2 cases, the victim and accused were married following shalish or filing of FIR In all except one day, FIR filed after delay when shalish attempted Has serious implications for medical evidence collection, as evidence usually only taken after FIR filed In 10 out the 23 cases where shalish was attempted, no medical evidence was collected BLAST-SAFE Project-Medical. Evidence

7. 11 Filing of FIRs 43 BLAST-SAFE Project-Medical. Evidence

7. 12 Filing Chargesheet 44 • Chargesheets filed in 37 of the cases • In a majority of these cases (67%) chargesheets were filed within two months of the FIR • Only in one case was the chargesheet filed 10 months after the incident. This indicates investigators are generally able to meet time frames prescribed in the NSA. BLAST-SAFE Project-Medical. Evidence

7. 13 Medical examinations 45 Mostly at district levels though 9 have been conducted at the upazila level Consent of the victim taken Attending medical professionals Few cases record physical injuries Very few cases record mental state Sexual injury found in 20 cases BLAST-SAFE Project-Medical. Evidence

7. 14 Comparing time of incident and time of medical examination • In many cases victim is kept in custody overnight until medical examination can be carried out • Often custody will be in police station • Availability of examination only during office hours may dissuade women from seeking help 46 BLAST-SAFE Project-Medical. Evidence

7. 15 Location of medical examination • In majority of cases (20) examination carried out at district level • 7 examinations carried out at upazila level • In 6 out of 7 of these cases, FIR lodged within 2 days of incident • Shows that examinations are more effectively administered at local level 47 BLAST-SAFE Project-Medical. Evidence

7. 16 Consent • In all except 2 cases it is recorded that consent has been granted • There is of course no indication as to whether this was fully informed and freely given • Practitioners indicate that consent is not particularly important, as filing an FIR is deemed to entail any necessary examinations • The standard form only asks for blanket consent- not consent for each procedure carried out • In a number of cases a minor has signed the consent form herself • In the form has been signed by the woman’s legal guardian even though she is an adult and there is no indication of disability 48 BLAST-SAFE Project-Medical. Evidence

Person conducting examination • In all except one case examination carried out by a man • However, in all except 3 cases there was a female attendant at the examination 49 BLAST-SAFE Project-Medical. Evidence

Recording of mental state • Concerns as to the accuracy of these assessments- particularly considered the complex emotions experienced by rape survivors • Concerns as to the clinical relevance of these assessments 50 BLAST-SAFE Project-Medical. Evidence

Recording of physical injuries • Physical injuries only recorded in 7 cases- even thought physical force alleged in majority of cases • In 50% of cases no physical injuries were found • In 7 cases nothing was recorded • This may well be a result of delay in conducting medical examination– In all except one of the cases where injuries were found the examination was carried out within 2 days of incident – Whereas in cases where there was delay no injuries were found 51 BLAST-SAFE Project-Medical. Evidence

Obstetric/ Gynaecological examination and marital status • In more than half the cases, the medical examiner has not mentioned details of menstrual history • Examination of breasts, hair and abdomen of the victim is routinely conducted • Only 3 of the cases did not record examination of genital organs 52 BLAST-SAFE Project-Medical. Evidence

Results of two finger test • In only 9 cases were details of these kind not recorded • In one case, the finger test was conducted on a victim found to be 26 -27 weeks pregnant. 53 • The test was also carried out even where there had been BLAST-SAFE Project-Medical. Evidence significant delay

Medical Examiner’s Opinion • Standard form provides space for examiner’s opinion • In all but 6 cases (most of which were after a considerable delay) an opinion is recorded • In 9 cases the opinion is that “no sign of forced sexual intercourse has been found” • In 5 out of the 6 cases where “sign of forced intercourse” was found, the incident was reported within 2 days of happening 54 BLAST-SAFE Project-Medical. Evidence

… • Other opinions recorded: – “habituated to sex” - incident recorded after 9 months – “no sign of recent forceful intercourse but intercoursed” - case where 14 year old alleged gang rape – “Sign of recent sexual intercourse is found” (case of a 15 year old victim) – “The victim is not consistent with sexual intercourse” (case involving the alleged rape of an eight year old) – “R has signs of recent sexual intercourse and age is about 12 years” 55 BLAST-SAFE Project-Medical. Evidence

Medical evidence and investigation • Strong indication that medical evidence is the most crucial evidence relied on in rape trials - and that medical evidence is important to advance a case: – 25 out of 37 cases where chargesheets have been filed, the medico-legal examination report is also furnished – This means that chargesheets have been filed in 25 of the 28 cases where the medical examination is complete – In a majority of these cases (26 out of 37) no additional evidence was collected or mentioned in the charge sheet 56 BLAST-SAFE Project-Medical. Evidence

Proposals re Further Action • Completion of Study and Publication • Memorandum based on Study for Ministry of Home/ Health/ Law / Mo. WCA/ BMDC • Possible Public Interest Litigation 57 BLAST-SAFE Project-Medical. Evidence