Human Rights Watch has released a comprehensive report “Dignity on Trial” on the use of forensic evidence in rape trials. The report compiled by Aruna Kashyap has also been covered by the New York Times. The report critiques the criminal justice system for its perpetuation of morally loaded ideas of chastity, modesty and virginity, and argues that what is needed is not just law reform, but a change in mindset which sees violence as a violation of women’s dignity, equality, sexual autonomy and bodily integrity.
It also make a set of reccomendations to the Indian government which I am reproducing:
Recommendations To the Indian Central and State Governments:
In order to ensure that the current review processes bring about concrete change in how the health and criminal justice systems approach survivors of sexual violence in general, and rape survivors in particular:
Prohibit the finger test and its variants from all forensic examinations of female survivors, as it is an unscientific, inhuman, and degrading practice, and
o Instruct doctors not to comment on whether they believe any girl or woman is “habituated to sexual intercourse”.
o Instruct all senior police officials to ensure that police requisition letters for forensic examinations do not ask doctors to comment on whether a rape survivor is “habituated to sexual intercourse.”
5 Human rights watch | September 2010
o Communicate to trial and appellate court judges that finger test results and medical opinions about whether a survivor is “habituated to sexual intercourse” are unscientific, degrading, and legally irrelevant, and should not be presented in court proceedings related to sexual offences.
• Devise special guidelines for the forensic examination of child survivors of sexual abuse to minimize invasive procedures. Emphasize that tests that risk mimicking the abuse should be conducted only when absolutely medically necessary to determine if injuries need therapeutic intervention. Ensure that any test is only carried out with the fully informed consent of the child, to the extent that is possible, and the consent of the child’s parent or guardian, where appropriate.
• Develop, in a transparent manner and in consultation with Indian women’s, children’s, and health rights advocates, doctors, and lawyers, a protocol for the therapeutic treatment and forensic examination of survivors of sexual violence that adheres to:
o The procedural and evidentiary decisions pronounced by the Indian Supreme Court and international laws.
o Standards and ethics issued by the World Health Organization.
• Organize, in consultation with national and state judicial academies and experts on women’s, children’s, and health rights, special programs for trial and appellate court judges on proceedings related to rape and other sexual offenses, and on the rights of survivors.
• Organize, in consultation with state police academies, judges, and experts on women’s, children’s, and health rights, special programs for police related to investigating and prosecuting sexual offenses, and on the rights of survivors.
• Organize, in consultation with judicial and other officers in charge of prosecution services and experts on women’s, children’s, and health rights, special programs for prosecutors on proceedings related to rape and other sexual offenses, and on the rights of survivors.
• Develop, in consultation with women’s, children’s and health rights experts in India, multidisciplinary centers in at least one government hospital in every district of the country (or in an alternative appropriate population-to-distance norm), staffed with trained personnel and equipped to provide integrated, comprehensive, gender- sensitive treatment, forensic examinations, counseling, and rehabilitation for survivors of sexual violence.
Dignity on Trial
• Develop and introduce, in consultation with lawyers and experts on women’s, children’s, and health rights, a mandatory gender-sensitive training module for medical students on treating and examining survivors of sexual violence.
• Form a committee to review, update, and revise medical jurisprudence textbooks to ensure the inclusion of the latest positions in Indian law on procedure and evidence related to sexual violence.
• Consult with women’s rights and children’s rights activists and lawyers to ensure that their concerns regarding forensic examinations in sexual violence cases are addressed in the final version of the Perspective Plan for Indian Forensics. Before finalizing the plan, the government should also study lessons learned from other jurisdictions about how integrated medical and forensic services are provided in a gender-sensitive and timely manner.
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