Rape survivor's word is final, Kerala's new protocol sets model for world to end 'second assault' on women

Kerala's new protocol to end 'second assault' on women
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Kerala has infused what has been proudly called “a feminist sensibility” to the treatment of survivors of sexual violence.

Kerala Medico-Legal Protocol for Examination of Survivor of Sexual Offences, 2015, which already was considered one of the finest models for post-rape care in the country, has now been radically revised to give the survivor an even bigger say.

'Trust the survivor' has been adopted as the motto of the revised Kerala protocol, making it perhaps the most survivor-friendly protocol in the world. The biggest gain: There will be no unnecessary examination of the survivor's body.

Rape re-defined

Till now, local examination of all private parts of the survivor – pubic hair, genitalia, urethra, perineum, anus – was taken to be the general rule. Even if penetration had not taken place, these parts were unfailingly subjected to intense scrutiny, putting the survivor through a trauma as humiliating and painful as the original rape. No wonder the World Health Organisation (WHO) calls this the “second assault”.

Such a revision is perfectly in order as the Supreme Court and new laws like the Protection of Children from Sexual Offences (POCSO) Act had re-defined rape. Now, rape is not just penetrative sexual assault. The offence has been expanded to include the entire gamut of sexually predatory behaviour, from sexually-loaded remarks and indecent touch to pornography and penetrative assault.

Here is an instruction that the revised protocol gives medical practitioners. “Every registered medical practitioner should understand that the absence of injuries on any part of the body of the survivor does not rule out sexual assault on her.”

Keep quiet, doc

The revised protocol virtually asks the doctor who examines the survivor to virtually shut up. “Ideally, the survivor may be made to narrate the history herself without any interruption by the examiner who should exercise adequate patience in listening to the survivor,” it says.

Collecting the history of a rape survivor has on many occasions degenerated into a sort of harassment. Therefore, the new thumb rule: Desist from asking unnecessary questions, believe what the survivor says. “Questions which do not have any relevance to the stated type of sexual assault or stated time of occurrence or those to which answers were already covered in the narration by the survivor should not be asked,” it says.

And all this should be done in utmost secrecy. The presence of anyone other than the doctor and the survivor will be allowed only if the survivor finds it agreeable.

Survivor's word is sacred

The examination then begins solely on the basis of the survivor's narration. “Say, a survivor tells the medical practitioner that she was taken advantage of by someone inside a bus. The usual routine involves a vaginal swab. But what is the point when penetration has not taken place? The new protocol rules out any such unnecessary and irrelevant examination,” said Dr P B Gujral, the chief consultant in forensic medicine and police surgeon, and one of the chief architects of the revised protocol.

Again, if the survivor speaks only about vaginal penetration, the new protocol bars doctors from taking an anal swab. Even otherwise an anal swab and smears are useless after 24 hours, especially if the survivor had answered the call of nature.

What if the survivor comes before the doctor six months or a year after the rape. “A body swab in such cases is of no use,” Dr Gujral said. “But doctors are now compelled to do so. If at all the doctors try to be thoughtful and avoid irrelevant checks, the medical report will return to the desk of the doctor saying it is incomplete,” he said.

'Unbelievable' practice

It is a known medical fact that scalp and pubic hairs need to be collected only if the survivor had come before the doctor without washing the area. Since the system is so obsessed with routine, pubic hair is taken even if the survivor makes her appearance a year after the rape.

The mode of taking the hair has also been made more scientific in the revised protocol. Fans of the highly-acclaimed Netflix series 'Unbelievable' might have noticed how individual strands of hair are plucked painfully from the scalp of a white teenage rape survivor. “Even western countries still adopt this cruel method,” Dr Gujral said. “They say it is to get a DNA profile. But if it is for that, a buccal swab or even a drop of blood would suffice. So the revised protocol just says that the hair has to be cut close to the root,” the forensic expert said.

The new protocol will also allow the doctors to breathe easy. Rather than blindly follow a routine, doctors have been asked to apply discretion. “The examiner should consider the relevance of the examination of each private part with reference to the stated history (the testimony of the survivor) and then only proceed to examine the area,” the revised protocol says.

Nonetheless, in the case of survivors below the age of 18, the routine will stay. “It will be hard to get a proper history from children. We, therefore, need to be careful with them,” Dr Gujral said.

Docs saved by a whisker

The revised protocol has also removed a big trap that was unwittingly laid for doctors in the original 2015 protocol. The original, based on the Indian Penal Code, says that parental consent for medical examination is needed only for survivors 12 years or less of age. It somehow went unnoticed that the POCSO Act says parental consent is required for children below the age of 18.

According to the conventions of law, a special law like the POCSO Act will always prevail over a general law like the IPC. Blissfully ignorant of the danger involved, it was usual for doctors to examine a teenage survivor without the consent of his or her parents.

“If a doctor medico-legally examines a child survivor of rape below the age of 18 on the sole consent of the child and the parent of the child files a complaint against the doctor saying he or she has committed an offence under the POCSO Act, the charge will stand and the doctor will have to face trial. The punishment may extend to life imprisonment,” said lawyer Sandhya, who was part of the team that revised the protocol.

The revised protocol now says that parental consent is required to examine children who are 18 years and below.