Analysis of Medico-Legal Examination Certificate for Female Survivors of Sexual Violence
ANALYSIS OF MEDICO-LEGAL EXAMINATION CERTIFICATE FOR FEMALE SURVIVORS OF SEXUAL VIOLENCE
By Hina Hafeezullah Ishaq, Advocate, High Court, Lahore
The Government of the Punjab through Secretary Health issued a Notification No. SO (H&D) 7-2/2009 dated 3rd January, 2011 which reads: "In order to streamline and prescribe a standardized format for Medicolegal Reports to the female victims of violence, the Competent Authority is pleased to approve use of the enclosed proformas bearing No. SO (H&D) 7-2-2009(1) to SO (H&D) 7-2/2009(IX) for conducting Medico Legal Examination in such cases." Proforma bearing No. SO (H&D) 7-2-2009(1) is a 9 page form, titled 'Medico-Legal Examination Certificate for Female Survivors of Sexual Violence' issued by the Government of the Punjab, Health Department.
A perusal of the said form shows that certain unnecessary detail and privileged information has been made a part of the new format which was not included in the previous forms used and is a cause for concern, in view of its negative impact on the prosecution's case. It is a fact, worldwide, that cases of sexual violence are under-reported- Pakistan is no different. To hand over the prosecution's case to the defence on a silver platter is to the detriment of the victim / survivor. As per the data available (up to December 2012) 2606 cases of rape were registered in Punjab, 1547 of which were challaned while 243 were under investigation. 213 cases of gang rape were registered, 128 of which were challaned while 36 were under investigation. In year 2011 (data up to December) there were 2687 cases of rape registered in the Punjab out of which 1543 were challaned; 217 cases of gang rape were registered out of which 137 were challaned. Considering the high number of reported rape cases and may be even a higher one for unreported ones, it is imperative that the medico-legal certificate which is an essential document in the nature of corroborative one fulfils the legal requirements and does not prejudice the rights of the rape survivors/victims.
Page 2 of the new Form contains a section titled 'Statement on Oath and Consent'. While one can understand the 'consent' as most hospitals have Consent Forms for operations or special procedures, the requirement for the victim or her guardian to make a 'statement on oath' is nothing short of ridiculous and clearly a violation of their legal rights. Why should a victim of rape be required to make a 'statement on oath' in order to be entitled to receive medical examination or treatment when clearly there is no such requirement for other medico-legal examinations conducted in the Province. The provision is in contradiction to the right of equality, right to life, right to equal protection of law and the right to non-discrimination guaranteed by the Constitution. A medico-legal doctor does not have the authority to administer an oath to a victim which can only be done by the persons who are duly authorized under the relevant law. An 'oath' "includes a solemn affirmation substituted by law for an oath, and any declaration required or authorized by law to be made before a public servant or to be used for the purpose of proof, whether in a Court of Justice or not. Requiring a person to declare on oath that no physical examination has been conducted earlier is illegal. In many remote areas, and even otherwise, prompt access to medico-legal facilities is hard and the availability of a woman medico-legal doctor during night hours is almost non-existent, even in larger cities; to expect an assault victim not to receive medical treatment before appearing before a WMLO is preposterous and contradictory to the provisions of the prompt medical aid law which was enacted for removing "misconception about the law and procedure with regard to medical aid and treatment of injured persons before completion of medico-legal formalities; due to this misconception the medical aid and treatment of injured persons is very often delayed and many casualties have occurred because of delayed treatment" and it was deemed "necessary to make provisions for medical aid and treatment of injured persons to save their lives and protect their health during emergency". Another discrepancy in the said section is between the English and Urdu versions of the 'statement' both being contradictory to each other. The consent for a"sharai" examination defeats logic, as it is neither defined in the Form nor is the term provided for under any law in force. To bring a vague notion of 'shariat' into medico-legal examinations is again contradictory to fundamental rights of a victim and unheard of in medical practice/law. Further, the consent of a female guardian is required for examination of "victims below 12 years of age"; this again is contradictory to various laws. A child is defined as a person below the age of 18 by local law and international standards, however for the purposes of marriage a girl needs to be 16 years or above.
We are battling with a low conviction rate in Pakistan and gender bias in cases of sexual abuse. Page 3 of the new form has a section on "3. History", part 'i(d)' of which states "Previous such incidence? If yes, when (date, year)". This section is irrelevant to say the least and has no nexus with a medico-legal examination. The detriment to the survivor if the answer is 'yes' and then it transpires that there was no conviction in the previous case, will only serve to negatively impact the prosecution's case with the risk of the survivor being labelled as 'habitual'. If the previous incident happened and it was never reported, due to a variety of reasons, again the inference drawn would be negative. Either way, it is a double edge sword which one can do without. Subsection 'ii' states "Details from other parties (e.g. police, family, witnesses)"; again the relevance of this is beyond comprehension and that too, on a medico-legal examination. It is a well-settled principle of law that such statements fall within the ambit of sections 161 and 162 of the Criminal Procedure Code 1898, and are a part of police investigation and are inadmissible in evidence, to bring inadmissible evidence to form part of an admissible document (the MLC) is a negation of the law and the intent of the legislature. The medico-legal certificate cannot be tendered as evidence unless deposed to by the officer/doctor who conducted the examination. To include such details as previous incidents and statements of other parties places a needless burden on the examination officer, who is already over-burdened and reluctant to testify, as well as the fact that it falls within the purview of 'hearsay evidence'.
Subsection "iii" lists "Relevant Medical/Surgical/Psychiatric History" and "iv" "Relevant Gynaecological History"; again the relevance of including such privileged and confidential past information i.e. "history" in a document which is tendered in evidence and exhibited is beyond comprehension. The focus should be on current presenting symptoms and not on including past medical history of a patient in a document which is going to become a public record. Besides giving the Defence a field day in court, this information will adversely affect the survivor while deposing. In an empirical study of rape victims conducted in the United States it was found that including information not directly related to the rape was damaging in court which included history of previous pregnancy or abortion, psychiatric illness. In the absence of Rape Shield Statutes in Pakistan the pressure on the victim for forcible disclosure to her own detriment, through this section is immense. In the United States of America, there are rape shield statutes in all States, which govern the admissibility of a victim's past sexual conduct and relevance of past behaviour.
Though the Form pertains to 'sexual violence', unfortunately there is no recognizable offence apart from 'rape' and 'unnatural offences' in the P.P.C. which falls under this head. In 2002, the Law & Justice Commission of Pakistan recommended an amendment in the Pakistan Penal Code, by including a section 354-B, which would cover all cases of abuse and acts of molestation with a sexual motive- it was never implemented.
In 2009 the Federal Shariat Court declared Article 151(4) of Qanun-e-Shahadat Order, 1984 which allowed a man accused of rape or attempted rape to impeach the moral character of the female victim "discriminatory on the basis of sex" and a violation of "Article 25(2) of the Constitution as it purports to impeach the credit of a woman, and above all it negates the concept of "gender equality" as enshrined in the Holy Qur'an." The honourable Court observed "we have failed to comprehend what tide of wisdom had prevailed upon our law makers to add sub-Article (4) to Article 151 of Qanun-e-Shahadat Order, 1984, as it shall serve no useful purpose. Assuming that the prosecutrix was of generally immoral character, will a man accused of rape or attempt to ravish her be exonerated of the crime or will a rape cease to be a rape if the prosecutrix happened to be a prostitute or a woman of easy virtue? Again will the element of rape or attempt to ravish vanish away or convert into a lesser crime or punishment on the consideration of her being so. Our well considered reply is "No". Islam makes no distinction whether the subject of crime was of generally immoral character or not. Learned counsel for the State and the said three provinces have failed to justify inclusion of sub-Article (4) in Article 151 of Qanun-e-Shahadat Order, 1984 whereas we clearly see the same being in violation of Qur'an and Sunnah. The FSC in Shariat Petition No.7/I of 1998, decided on 11th February, 2009, directed the President of Pakistan to take appropriate steps to repeal the said section within six months failing which the provision would cease to have effect whatsoever; an Appeal is pending before the honourable Supreme Court. Arming the Defence with confidential and privileged information is a violation of the judgement of the FSC as well as the Constitution.
The new form, on Page 4, has a part "4. Examination" which further has subsection 'ii. Physical Examination"; clause "a. General" of this part gives a list of "Observations" which need to be made by the examiner. There are three observations which need to be modified: firstly, giving an option to classify the survivor as "confident" is going to present a negative overtone. The survivor will be subjected to degrading cross-examination which will imply that no rape took place as the survivor was not traumatized enough to suggest so. Secondly, the "size, shape, site and characteristics of the injury" presumes that in all cases of sexual violence there will be an injury and supports the stereotypical presumption that marks of violence are necessary to establish a claim of rape or sexual abuse. According to Rape in America study, 70% of victims reported no physical injuries; 24% of victims reported minor physical injuries; only 4% reported serious physical injuries. Approximately 1% of rape victims have moderate to severe genital injuries. Clause "b. Local/Specific Examination" contains columns regarding "2. Rupture of hymen, if present fresh or old", "3. Evidence of bleeding/staining with blood" and "4. Evidence of seminal stain". In this regard it is submitted that in older women, who have been married, the hymen will be ruptured with old tears, but does that mean that they cannot be raped? What significance does a fresh or old rupture have on the factum of rape apart from prejudicing the outcome of a trial? Again the presence or absence of blood would be immaterial as not all incidents of rape involve bleeding. Seminal stains can be avoided by use of condoms or by practising the 'withdrawal method' or if the accused had a vasectomy or is oligospermic, which may cause sperm to be absent, but an observation regarding the absence of such stains will negatively impact the victim's case. Clause "c-Systemic examination" is an "examination with reference to any particular history, e.g. of pregnancy, abortion or any particular disease etc." Any information about a victim's personal medical history is privileged and should not be a part of a public document. Any finding in this section can be used to discredit the victim in court and otherwise.
It is commonly perceived that "a "true victim" is one who sustains serious, visible physical injuries such as knife wounds, broken bones, severe lacerations, heavy bruising or vaginal tears", whereas the fact is "physical injuries apart from the rape itself are rare and sexual assault leaves no visible physical "evidence" different from consensual sexual activity."
The honourable Supreme Court of Pakistan in case titled 'Habibullah v. The State', has held "it may be kept in view that veracity of the prosecutrix's statement is the inherent merit of her statement because corroborative evidence alone could not be made a base to award conviction. Learned Advocate Supreme Court on behalf of appellant also mentioned that no marks of violence were found on the body of Mst. Anjuman (P.W.8) and on this score benefit of doubt may be extended in favour of appellant. The said contention appears to have been made in oblivion of the fact that rape has been proved on the basis of cogent and concrete evidence including medical evidence and more so the marks of violence are not essential to establish the" factum of zina bil jabar." Further reference in this regard can be made to the case titled Ghulam Sarwar v. State (PLD 1984 SC 218) and Haji Ahmad v. State (1975 SCMR 69).
Page 7 of the Form has a Part "8. Initial Opinion/Remarks" and Clause "a. Nature of Injuries (Under Criminal Amendment Act)". This is a vague and misleading categorization. The injuries are specified in the Pakistan Penal Code in Chapter XVI 'of Offences Affecting the Human Body/Of Offences Affecting Life and should be noted accordingly.
Operating Manual On Standard Operating Procedures
An 'Operating Manual on Standard Operating Procedures' for 'Guidance for Doctors: to perform medico-legal examination of female survivors of violence' prepared by the 'Women Protection Project, Punjab' is available on the web and 'Standard Operating Procedures for Medicolegal Examination of Women Victims of Violence' has been published by the Health Department, Government of the Punjab. A perusal of the Manual shows that some of the guidelines are in clear conflict with the provisions of the Form, which forms a part of the said document.
Section 2.1.1. of the Guidelines states "Without authority a medical personnel cannot proceed with MLE of such cases and authority in Pakistan, for MLE of female survivors of sexual assault granted by JUDICIAL ORDERS as per WOMEN PROTECTION ACT" (WPA). The lack of knowledge in this regard is apparent as no court orders are needed to conduct a medico-legal examination of a victim who is entitled by law to the same. Further, there is no such provision in the WPA. This section may have been due to misunderstanding of law regarding medical examination of women as provided in the Police Rules; the section specifically forbids the police not to get a woman examined without her consent and without written orders from a magistrate and it does not in any way bar a medical doctor from examining a victim of sexual assault. The 'Note' to this section directs doctors, who are not authorized to issue MLC, not to deny health services to victims who should be provided immediate help and treatment before she is referred to a relevant service provider. This section clearly contradicts the provisions for 'oath' in the Form which require the victim to declare that they have not been examined earlier.
Section 4.1.1.'Confidentiality' states that "the confidentiality of the patient must be ensured during the whole process. Medical Associations are of the view that any information obtained during the course of history taking/examination/treatment should not be divulged voluntarily without the consent of the patient." It is submitted that making the Form a public document admissible in court, the confidentiality of the victim is breached specifically with regard to the personal previous information which is not relevant to the current assault. The focus should only be on the presenting symptoms and current violence.
Section 5.1. 'Step 1: Ensure authority, jurisdiction and consent' states that 'the consent statement will be signed by the patient herself or by the guardian if the girl is under the age of 12 years ..' How a child of 12 years is legally able to give 'consent' and 'informed consent' to a medical examination is perplexing in view of the capacity of a child and the legal age of majority.
Section 5.8 'Step 8: Opinion and Referral' states 'In addition to that the doctor must confirm the accusations claimed and determine whether the sexual assault took place as stated'. It is the doctor's job to conduct a medico-legal examination on basis of his skill and education; however to direct him to 'confirm the accusations' and 'determine' whether the assault 'took place as stated' is beyond his legal purview because only a competent court can determine that after recording evidence in a trial. The nature of this direction is subjective in nature and allows the doctor to form a personal opinion instead of a medical one.
Section 5.12.2 states that the 'MLC should not be issued without Police Docket/ Court Orders. A Letter bearing Reference No. RDM/ 10537 dated 07-06-1992 issued by the District Magistrate Lahore to the Medico-legal Surgeon Punjab and the Medical Superintendents of Services, Mayo and General Hospitals, pertaining to 'copies of medicolegal/postmortem reports categorically directs that copies should be supplied without 'insisting for an order of the court'; it is submitted that due to the sensitive and confidential nature of a medico-legal certificate and the information contained therein, with regards to the identity and medical of the survivor/victim, a copy of the medico-legal certificate should only be supplied, without police docket or court orders, to the survivor/victim and the accused named therein (or their guardians/duly authorized representatives), and not to third parties or the public in general.
Section 5.13 'Step 13: Final Opinion' part 5.d. states that expert opinion shall be given on 'if patient was capable of giving consent at the time'. A medico-legal doctor who was not present at the time of incident and was not an eye-witness to the assault cannot possible give an expert opinion on the capacity to give consent at the time of offence, which in any case is beyond the scope of his/her authority.
The Glossary contained in the Standard Operating Procedure ("SOP") contains certain erroneous definitions. A term 'complete rape' which is defined as 'the sexual act carried out by force or under threat in which the man's erect penis is inserted into the woman's vagina, usually followed by the ejaculation of semen', finds no support from the law in force in Pakistan. Confusing medico-legal doctors with concepts of complete vis-a-vis partial rape is a negation of the legal definition contained in Section 376 of the Pakistan Penal Code ("PPC") which states that 'penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape', regardless of whether ejaculation of semen took place. The term 'rape' as defined in the Glossary is incomplete as compared to the full definition given in the P.P.C.
|'375.||Rape:- A man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions: (i) against her will. (ii) without her consent (iii) with her consent, when the consent has been obtained by putting her in fear of death or of hurt, (iv) with her consent, when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married; or (v) With or without her consent when she is under sixteen years of age. Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.'|
Generally, 'Consent' is defined as 'an act of reason, accompanied with deliberation, the mind weighing, as in balance, the good and evil, on each side. 'Free and Voluntary Consent' is active consent, as distinguished from that consent which is said to be implied by silence. 'Consent and Submission or Surrender', "Every Consent to an act, involves a Submission; but it by no means, follows that a mere Submission involves Consent," e.g. the mere submission or surrender of a girl to a carnal assault, she being in the power of a strong man, is not Consent. 'Will' is defined as 'the power of conscious, deliberate action; the faculty by which the rational mind makes choice of its ends of action, and directs energies in carrying out its determinations'.
The term 'minor' in the Glossary is defined as '(legal) in Pakistan male below the age of 16, female below age 18 years', which again finds no support from any law currently in force. The standard age of majority in Pakistan is 18 years (unless computed under the Guardians and Wards Act; then it is 21 years), anyone younger than that is a 'child'. However, the age of majority does not affect the capacity of any person to act in the matters of marriage, dower, divorce and adoption. The Child Marriage Restraint Act, currently in force in Pakistan, specifies the marriageable age as 18 years for a male and 16 years for a female. A female has the option of puberty to seek the dissolution of her marriage, if she had "been given in marriage by her father or other guardian before she attained the age of 16 years, repudiated the marriage before attaining the age of 18 years". The Pakistan Penal Code makes sex with a female under 16 years, whether consensual or not, an offence of rape.
The 'Preface' by the Secretary Health, Government of the Punjab states that "Department of Health, Government of Punjab stands reassured and highly privileged to collaborate with the German Agency for Technical Cooperation (GTZ) in an endeavor to fight against the menace of violence against women. The experts of Forensic Sciences and Medical Jurisprudence from the Health Department held a series of deliberations along with the technical assistance of GTZ, to formulate the Standard Operating Procedures (SOPs) and the Proforma to be used for Medico legal examination of all cases of physical and sexual assault. These SOPs are also accompanied by a special kit for evidence collection that will assist in bringing the perpetrators to justice." It is apparent that no legal experts were consulted during the process and in preparation of a document which is of intrinsic legal and evidentiary value. Keeping in view all the afore-mentioned, it would be in the interest of justice, if the Punjab Government immediately withdraws the said Form and prepares a fresh one in consultation with the concerned stake holders especially legal experts.