There are flaws in the rape compensation rule

Don’t link it with the medical examination since it can’t always conclude whether rape was committed or not

The Centre recently filed a review petition against the Supreme Court (SC) judgment in the Dr Subhash K Mahajan case to restore the original provisions of the SC/ST (Prevention of Atrocities) Act, 1989. There is one more facet of the Act that needs a relook: the rules that provide for compensation to rape victims.

The rule says that 50% of the compensation (Rs 5 lakh in cases of rape and Rs 8.25 lakh in case of gang rape) shall be paid to the victim after a medical examination and confirmatory medical report. Out of the balance, 25% shall be paid when the charge sheet is sent to the court and remaining 25% on the conclusion of trial by a lower court.

The first clause must be reviewed because it is inconsistent with other legal propositions.

First, the scope of the definition of rape was enlarged by the Indian Penal Code’s amendment in 2013 in accordance with the recommendations of Justice Verma Committee and other forms of assault (other than penile penetration) were brought in. These other forms may not require any medical examination or warrant any confirmatory medical test because of the nature of the offence itself.

Second, the law requires informed consent of the victim or of a person competent to give such consent (to be recorded) for a medical examination, which, in many cases is withheld, particularly by the guardians of minor victims. Neither the court nor the police can force the victim to undergo a medical examination. This may sometimes be necessary to prevent repeated trauma to the child but a visual examination may not reveal confirmation of any sexual assault.

Third, the Supreme Court has, in a number of cases, held that undue emphasis cannot be placed on a medical examination report to prove rape charges. Married women often do not experience injuries. Also, if rape is reported after a delay of about three days, the probability of presence of sperm becomes minimal. But these cannot rule out justice to the victim. Even a statement of the prosecutrix is sufficient to hold the accused guilty. Therefore, the medical examination cannot be a mandatory step in the course of investigation.

Fourth, a medical examination per se cannot conclude whether rape was committed or not. It can, at the best, reveal either the marks of resistance or injury or signs of a recent intercourse. Even if the forensic examination (and not the medical examination) reveals the presence of DNA of the accused, it does not confirm the non-consent automatically. The health ministry has advised doctors not to use the word ‘rape’ in medical reports on sexual assault victims. Rape is not a medical diagnosis, but a legal definition. It is for the investigating agency to prove whether the offence of rape was committed and this conclusion can best be drawn in the end.

Therefore, the provisions that link payment of compensation with medical examination and confirmatory medical report must be suitably amended and made non-pathological. In case the medical examination does not reveal presence of injuries or marks of résistance and forensic examination (does not find) the presence of DNA of the accused, 75% of the total compensation must be paid after filing charge sheet in the court.

It is worth mentioning that in most of the offences, the Atrocities Act provides for giving part of the compensation, ie, 10 to 50% of total compensation to the victim after filing the FIR, including cases in which there are no visible injuries or damage. However, in the case of rape, as the provision of recording a statement of the victim by judicial magistrate has been made mandatory in Section 154 of the CrPC, a part payment may be made after recording of such statement by a judicial magistrate.

To this extent, the provisions of providing compensation to rape victims under the Act may be reviewed and a pro-woman view, not totally based on the medico-legal opinion, can be taken to extend help at the right time.

THE SUPREME COURT HAS HELD THAT UNDUE EMPHASIS CANNOT BE PLACED ON A MEDICAL EXAMINATION REPORT TO PROVE RAPE CHARGES. MARRIED WOMEN OFTEN DO NOT EXPERIENCE INJURIES