M´etodo de las tensiones en los nudos

Definition

Rape in India is defined (under Section 375 of the I.P.C.) as an unlawful sexual intercourse by a man, 1. With his own wife under the age of 15 years,

or

2. With any other woman under the age of 16 years with or without her consent, or 3. With any other woman above the age of 16

years, against her will, without her consent, or 4. With her consent—when her consent has been obtained by putting her or any person in whom she is interested in fear of death or hurt, or

5. With her consent—when the man knows that he is not her husband and the consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married, or

6. With her consent—when at the time of giving such consent, by reason of unsoundness of mind, intoxication or the administration of any stupefying or unwholesome substance, she is unable to understand the nature and consequence of what she has given consent to.

Explanation

Penetration is sufficient to constitute the sexual intercourse necessary to the offence.

Punishment for Rape

Section 376 of the I.P.C imposes a minimum term of 7 years imprisonment and a maximum of life imprisonment for the offence of rape. However, a judge at his discretion can award lesser sentence. Custodial Rape

It has been sometimes observed that women are sexually abused in jails, remand homes, hospitals or where the woman is in custody and she is not in a position to render sufficient opposition to the act. In such cases, provisions of custodial rape are attracted under Section 376C, 376D of the I.P.C. Section 376-D I.P.C

Whoever, being in management of a hospital, or being one of the staff of a hospital takes advantage of his position, and has sexual intercourse with a

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woman in that hospital, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment for a term extending up to 5 years and shall also be liable to fine.

So, to constitute the offence of rape it is not necessary that there should be complete penetration of penis. Partial penetration within labia majora, or even an attempt at penetration is quite sufficient for the purpose of law. So, it may be possible in a rape case, that there is absence of injuries or seminal stains. Ideally, doctors should refrain from using the word “rape” as it is a legal entity and not a medical condition. The doctor should only mention facts and condition of the victim and state if there is any evidence of sexual activity or not.

In cases where rape cannot be proved, it may be tried under less serious charge of indecent assault on a female committed with intent or knowledge to outrage her modesty. It is punishable under Section 354 of the I.P.C. by a term, which may extend up to 2 years, or a fine, or both. A woman may be accused of an indecent assault on a man but not rape.

Consent

According to the law in India, a woman of 16 years and above is capable of giving consent to the act of sexual intercourse. But the consent must be conscious, free, voluntary and given when she is mentally fit.

In certain sections of custodial rape [under clause (a) to (g) of subsection (2)] of Section 376 of the I.P.C. where sexual intercourse is proved and the question arises whether it was without the consent of the woman alleged to have been raped and she states in her evidence before court that she did not consent (Section 114A, Indian Evidence Act). Thus, the onus of proving consent shifts to the accused from victim in such limited cases. Prevalence of Rape

According to National Crime Records Bureau Report (1998), there were 15,033 rape cases reported in India. Madhya Pradesh reported the

highest incidence accounting for 22.3 per cent of total cases. Among the cities, Delhi and Mumbai recorded more crimes numbering 365 and 118, respectively. In rates, Mizoram [9.3] led the table followed by Madhya Pradesh [4.3], Dadra and Nager Haveli [3.9] and Delhi [3.4].

Victims of rape were maximum in the age group of 16–30 years accounting for 8,414 out of 15,033 reported cases.

Age

No age is safe for rape. Children are easily abused as they can offer less resistance. Small infants even at the age of 4–6 months have also been abused. Even older women are not safe from rape. For committing rape, the law of India does not presume any limit under which a boy can be considered physically incapable of committing rape. In such cases, the development of child along with development of sexual organs has to be taken into consideration while deciding if he is capable of performing rape or not.

Socio-economic Status

Incidences of rape is reported more from lower socio-economic strata, as they tend to live in unsafe and crowded areas.

Examination of the Victim

The examination of victim should be done carefully as per provisions of law as they are different from one state to another in India. As per the recent judgement of Punjab and Haryana High Court, it is mandatory to get the rape victim examined only by a female doctor. In Delhi, only a gynaecologist does the medical examination of a rape victims. The examination of a rape victim should be under the supervision of a female medical practitioner. Consent

The consent to examine a rape victim should be taken before commencement of examination. It should be in writing. As per the provisions of law,

126 Concise Textbook of Forensic Medicine and Toxicology police or court has no power to compel a woman to submit private parts for examination to a medical practitioner, male or female.

Examination of the Victim

After taking consent, the medical examination should be started in presence of a female attendant or witness if a male doctor examines the patient. No attempt should be made to undress the woman. She should be politely asked to remove clothes. The exact time of examination, name of the person who brought the victim, a short factual summary of incidence should be recorded in medico-legal report in the register, which has been approved by the state administration.

Two marks of identification of the victim should also be noted. A short description of the place of occurrence of the event, details of the act, relative position of parties, whether ejaculation occurred or not, pain during the act, loss of consciousness during the act or efforts to resist should be recorded. The general behaviour and mental state of the victim should be noted. The detailed examination should begin in the following order:

1. Clothes: If clothes are same as ones worn by her at the time of sexual assault, they should be carefully examined for the presence of blood or seminal stain or any other discharge. The clothes especially undergarments should be preserved for examination by Forensic Science Laboratory.

2. Injuries: The physical examination of the body especially forearms, wrist, face, breasts, chest, inner aspects of thighs, and back should be done to look for scratches, abrasions or bruises caused as a result of struggle/compression. Teeth marks if any may be observed on breasts, nipples, lips, or cheeks. Swabs from teeth bite should be taken for the presence of saliva.

3. Genitals: The examination should be

pubic hair should be examined first, if they are found to be matted, they should be cut off with a pair of scissors to look for spermatozoa. They should be preserved in a dry bottle for examination at Forensic Science Laboratory. Dried seminal stains on external genitals/thighs can be scrapped carefully, or moistened with normal saline and slides may be made for microscopic examination. If bloodstains are present, they should also be preserved in a similar manner. Bruise or laceration, if any, on external genitalia may be carefully noted. The examination of hymen should be carefully done now. In a case of rape, hymen may have fresh radiate tears (more in posterior half), the edges of which may be red, swollen or painful if the examination of the victim is done within 24 hours. These tears heal within 5 or 6 days, and look like small tags of tissue after 10 days. Frequent sexual intercourse/delivery destroys hymen completely. There may be cases where hymen may be found to be intact and not lacerated. In such cases, the distensibility of hymen can be recorded. The fourchette and posterior commissure are not usually injured in cases of sexual assault. The degree of injury is dependent on the force used. In small children, the hymen usually escapes injury, as it is deep seated but becomes red and inflamed.

The vaginal secretions from the posterior fornix should be taken either by introducing a plain sterile cotton swab or by introducing 1 ml pipette and sucking the contents. The contents should be immediately transferred to a microscopic slide in the form of a thin film, and should be fixed. The slide can be viewed for spermatozoa (Table 19.1). In married women, spermatozoa may be present because of previous sexual intercourse. The

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vagina after the last sexual intercourse. Even if spermatozoa are not present, the estimation of acid phosphatase level can be done in fluid obtained from posterior fornix to detect presence of seminal fluid. Sexually Transmitted Disease

A woman can get venereal disease as a result of sexual assault, if the person who committed sexual assault was suffering from such a disease. A discharge may be observed in cases of gonorrhoea. A thin film from the discharge may be made, fixed and stained with Gram’s stain to look for gonococci under the microscope. The incubation period of gonorrhoea is about 2–8 days, therefore in case of suspicion, another smear may be taken after a few days to confirm,. If syphilitic sores are seen or suspected, serum for dark ground examination for

Treponema pallidum and blood for serological

examination should be collected. The incubation period of syphilis varies from 9–90 days, so samples at a later date may be taken for confirmation. The sores on genitalia may be due to chancroid, which can also be confirmed by making smears to demonstrate Ducrey’s bacillus, which is a Gram- negative streptobacillus with rounded ends. The other common infections that are transmitted, are chlamydial vaginitis and viral STD like herpes.

The most important sexually transmitted disease is AIDS, which can be transmitted by sexual assault. The chances that a victim may get HIV infection in a single encounter are varied (3–5 per cent).

If it is suspected, relevant tests like ELISA or western blot may be done at repeated intervals to confirm. If sodomy has been attempted or performed, then anal swabs from around the anus and anal canal may be collected and looked for spermatozoa/seminal fluid.

Examination of the Accused

In India, the examination of the accused is done on a written request of the police. The person is brought, under the custody of police, to a medical officer for examination. As per the law, whenever a person is arrested for committing sexual assault, a doctor should medically examine him as early as possible. In most states in India, the examination of the accused is conducted either by medical officers working in emergency services or a dermatologist and venereologist is called upon for examination. In some centres where forensic experts are available, such cases are referred to them. The examination of the accused should be recorded in medico-legal register duly authorised by the state government. The police constable who has brought him should identify the accused. This should be recorded in the report. The consent of the accused is not necessary for examination as per the provisions of the law of India. In fact, a reasonable amount of force can also be applied to collect evidence from this person. The marks of identification should be noted and left thumb impression of the accused may be taken on medico- legal report itself. The medical officer should record preliminary data and then proceed for complete Table 19.1 Persistence of spermatozoa after sexual intercourse

Sites Maximum length of time after intercourse

1. Endocervical swabs 144 hours 2. Internal vaginal swabs 120 hours 3. Rectal swabs 65 hours 4. Anal swabs 46 hours 5. Lips of mouth 9 hours

6. Oral swab 6 hours

128 Concise Textbook of Forensic Medicine and Toxicology examination. The examination of clothes should be done to detect semen/bloodstain or tears. Undergarments should be especially looked for stains and should be preserved for examination by Forensic Science Laboratory. A complete physical examination involving all systems like cardiovascular, alimentary, respiratory and nervous should follow.

The complete body, especially inner aspects of thighs should be examined for mud, blood or seminal stains. The genitalia should be examined. Pubic hair, if matted, should be cut and preserved. The penis should be examined for injury or some stain, circumcision, presence of smegma or discharge. The cremasteric reflex may be elicited to rule out neuronal loss. If it is suspected that a person is suffering from STD, relevant evidence may be collected.

After the examination is over, the doctor has to give opinion on two accounts:

1. Whether the person is capable of performing sexual intercourse or not?

2. Whether there is an evidence of recent sexual intercourse?

The capability to perform sexual intercourse depends on erection of the penis. It is naturally assumed that all normal males who have well developed sexual organs are capable of erection, thus can perform sexual intercourse. So, the opinion about capability to perform sexual intercourse is given in a double negative form like “there is nothing to suggest that this person is not capable of performing sexual intercourse.”

If it is suspected that the person may have some erectile dysfunction, he should be examined for chronic diseases like diabetes, hypertension, chronic alcoholism, neuropathies, or some psychic reasons. The opinion about recent sexual activity can be given if some stain/injury/redness is seen on the penis/scrotum. Previously, it was thought that absence of smegma could indicate recent sexual activity. Now it is not relied upon, as smegma collection depends on personal hygiene and

Samples may be collected of vaginal epithelial cells, which adhere to penis during sexual intercourse, by taking a wet swab around penis and making microscopic slides. These vaginal cells are rich in glycogen and stain readily with iodine and can easily be inspected microscopically.

Previously, it was common to preserve semen in accused for which accused used to be asked to provide sample by masturbation. In non- cooperative accused, it was obtained by doing prostatic massage. Now, this is not done. Sample of blood obtained from finger is preserved on a gauze piece, and is dried and then sealed for examination by Forensic Science Laboratory.

Incest

Incest is defined as sexual intercourse between man and woman who are related by blood or by marriage, i.e. within forbidden degrees of relationship like a daughter, granddaughter, sister, stepsister, niece, aunt or mother. In India, incest

per se is not a crime unless it attracts provisions of

rape. However, in many western countries, incest is recorded as a crime and is punishable.