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‘All Women Regardless Of Reputation Entitled To Protection,’ Says SC In Landmark Judgement

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In a landmark judgement, Supreme Court (SC) has strongly condemned the practice of recording sexual history of a rape survivor to determine her chastity, terming it ‘an affront to the reputation and honour of the survivor’ and a violation of the Constitution.

“Article 14 of our Constitution mandates that dignity shall be inviolable, therefore, reporting sexual history of a rape survivor amounts to discrediting her independence, identity, autonomy and free choice thereby degrading her human worth and offending her right to dignity guaranteed under Article 14 of the Constitution which Right to dignity under Article 14 of the Constitution is an absolute right and not subject to law,” the top court said in its verdict.

The detailed order in a review petition filed by two rape accused which was reserved earlier was released today. Justice Syed Mansoor Ali Shah, who authored the strongly-worded judgment, ruled that examination of a rape victim by the medical practitioners should be made only to determine the question whether or not the alleged victim was subjected to rape, and not to determine her virginity or chastity.

Here are the main points of the judgment.

‘Evidence related to sexual history not to be admitted’
The court further ruled that evidence relating to sexual history should not be admitted “in order to draw inferences supporting the ‘twin myths’, namely, that by reason of that sexual history, it is more likely that the complainant may have consented or become less worthy of belief”.

Status of hymen irrelevant
The court noted that modern forensic science thus shows that the two finger test must not be conducted for establishing rape-sexual violence, and the size of the vaginal introitus has no bearing on a case of sexual violence. “The status of hymen is also irrelevant because hymen can be torn due to several reasons such as cycling, riding among other things.”

The judgment adds, “An intact hymen does not rule out sexual violence and a torn hymen does not prove previous sexual intercourse. Hymen must therefore be treated like any other part of the genitals while documenting examination findings in cases of sexual violence. Only those findings that are relevant to the episode of sexual assault, i.e., findings such as fresh tears, bleeding, oedema, etc., are to be documented. “Rape is a crime and not a medical diagnosis to be made by the medical officer treating the victim…[T]he only statement that can be made by the medical officer is whether there is evidence of recent sexual activity and about injuries noticed in and around the private parts. The duty of the medical officer extends principally to provide adequate healthcare and comfort to the victim and secondarily to assist the prosecution with appropriate medical evidence.”

‘Medical language riddled with gender biases’
The apex court further noted that the medical language calls into question the character of the rape survivor.
“Medical language of MLC is riddled with gender biases and immediately calls into question the character of the rape survivor.
It is used to support the assumption that a sexually active woman would easily consent for sexual activity with anyone. The World Health Organization (WHO), the Office of the High Commissioner of the United Nations and the United Nations Entity for Gender Equality and the Empowerment of Women in “Eliminating Virginity Testing: An Interagency Statement” proclaim, “the practice is a violation of the victim’s human rights and is associated with both immediate and longterm consequences that are detrimental to her physical, psychological and social well-being.” In view of this firm and reliable Interagency Statement, examination of a rape victim by the medical practitioners and use of the medical evidence collected in such examination by the courts should be made only to determine the question whether or not the alleged victim was subjected to rape, and not to determine her virginity or chastity.”

‘All women regardless of their reputation are entitled to protection’

Further, the court said: “A woman, whatever her sexual character or reputation may be, is entitled to equal protection of law. No one has the license to invade her person or violate her privacy on the ground of her alleged immoral character. Even if the victim of rape is accustomed to sexual intercourse, it is not determinative in a rape case; the real fact-in-issue is whether or not the accused committed rape on her. If the victim had lost her virginity earlier, it does not give to anyone the right to rape her.

In a criminal trial relating to rape, it is the accused who is on trial and not the victim. The courts should also discontinue the use of painfully intrusive and inappropriate expressions, like “habituated to sex”, “woman of easy virtue”, “woman of loose moral character”, and “non-virgin”, for the alleged rape victims even if they find that the charge of rape is not proved against the accused. Such expressions are unconstitutional and illegal.”

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Naya Daur