Hathras gangrape: Cops citing forensic report as gospel truth could end up perverting justice

While medical and forensic evidence can help show how a crime may have occurred and identify the perpetrator, it is important to understand that they are riddled with limitations.

The alleged gangrape and tragic death of a Dalit woman from Hathras, Uttar Pradesh, who succumbed to her injuries on 29 September 2020, has shocked the nation. As four upper caste men are the alleged perpetrators of this crime, this gruesome act of sexual violence cannot be separated from the history of caste oppression.

After the uproar that followed the midnight ‘cremation’ of the deceased’s body in the complete absence of her family, the UP Additional Director General of Police Prashant Kumar declared that the forensic report proved that no rape was committed. The sole basis for this assertion was that “no sperm” was found in the samples collected from the deceased.

Given this conclusive declaration by the senior police personnel regarding the commission of rape, there is a dire need to educate the public debate on the forensic examinations that should be conducted in cases of sexual assault and the conclusions that can be drawn from them.

This article explains why it is extremely problematic, both legally and forensically, to draw any conclusion regarding the commission of rape from the absence of sperm in the samples collected from the deceased.

Understanding forensic evidence for rape beyond peno-vaginal penetration

Following the Criminal Law Amendment Act, 2013, the definition of ‘rape’ was amended to include offences beyond peno-vaginal sexual intercourse. It included penetration through an object or anything else into any part of the woman’s body, various forms of oral sex and any form of forced act with another person.

Given the wider ambit of this definition of rape, it is important to rethink the kinds of forensic evidence examined to investigate an offence of rape. It is completely fallacious to continue relying on the presence of sperm in vaginal samples as evidence of rape.

Forensic examination of victims of rape must be expanded to ensure timely collection of various kinds of bodily samples, including vaginal, anal, oral swabs, swabs from any injuries on the body of the victim, nail scrapings, pubic hair, entire clothing of the victim and any kind of trace evidence like fibres, soil, paint, glass, etc.

Proper medical and forensic investigation of rape requires a detailed description of all injuries found on the victim, followed by a thorough collection and examination biological and trace evidence that can be found on the victim’s body, clothes or belongings.

In order to ensure a proper forensic investigation, it is imperative to have forensically trained nurses and doctors to attend to rape victims as soon as such cases are reported. Supplied with forensic kits designed for collection of samples, such medical examiners can ensure that crucial evidence is preserved.

It is also important to have access to counsellors and case workers who can attend to the mental and emotional needs of victims of sexual assaults.

Timely documentation of injuries

As in other offences, there should be an immediate documentation of the injuries on victims of sexual assault as well. Such documentation is not only necessary for ensuring provision of appropriate medical care, it is also invaluable for investigation.

Timely documentation of injuries is essential since the appearance of different kinds of blunt force trauma such as contusions or bruises, abrasions and lacerations may change over a period of time. This is particularly evident in the case of bruises which are mainly analysed on the basis of colouration which has been proved to be highly variant.

In case of deceased victims, a thorough post-mortem examination should be conducted which covers external and internal examination of the body, with detailed descriptions in the autopsy report.

In either cases of victims or deceased, it is imperative that medical reports are supported by extensive photographs of the injuries, to assist an independent verification.

Forensic medical examination in sexual assault cases should include the examination of injuries on the entire body and not just the genital or anal region. Presence of injuries in other areas of the body can also be indicative of defensive wounds signifying a lack of consent. However, absence of any injuries cannot be misinterpreted as absence of sexual assault or rape.

Collection of samples

Medical examinations of victims and deceased require different protocols to be followed. In the case of victims, while treatment of the individual is paramount, it is equally important for medical examiners to collect forensic evidence.

Prompt collection of samples from victims is necessary as inherent biological functions like swallowing, urination, menstruation, excretion or even bathing may lead to a loss of essential forensic evidence.

Considering the example of vaginal swabs to check for the presence of sperm, studies have found that beyond 24-48 hours, the detection of sperm in vaginal samples may drastically reduce in case the victim is alive. In case of deceased victims, due to biological functions being terminated, the sperm deposited shortly before or at the time of death may be detected for a longer period, subject to environmental factors.

In case of delay in collection of intimate biological samples from living victims, forensic examination of other kinds of samples such as clothing or samples collected from crime scenes must be rigorously explored.

Therefore, there is a need for dedicated resource centres specially designed for victims of sexual assault, so that they are spared from the harrowing experiences in police stations or civil hospitals, and to ensure prompt and reliable collection of samples.

Different kinds of forensic examinations in rape cases

Usually, two types of forensic examinations are routinely conducted in rape cases, ie, serological analysis for the identification of bodily substance and DNA profiling to determine the presence of DNA. While serology may answer whether blood, semen, saliva, urine or any other kind of bodily fluid was present, it cannot identify the individual(s) who may have contributed to it. Therefore, DNA profiling is necessary for the purposes of individualisation as demanded by the trial process.

Serological analysis or the examination of body fluids is often done in sexual assault cases, to detect the presence of sperm or semen.

It is common practice in Indian forensic laboratories to do microscopic analysis to detect the presence of sperm or presumptive tests for presence of semen. However, both of these approaches suffer from limitations. At the outset, these tests assume an ejaculation by the male and that no condom was used. Further, microscopic analysis may be unable to detect the presence of sperm in case the male had an absence or low count of sperm.

Presumptive tests for the detection of semen have limitations as well. These tests may be unable to detect low or diluted amounts of semen and results of colour change may also vary based on the reaction time. Therefore, it is important to conduct confirmatory tests which are more sensitive and are also not prone to false positives like presumptive tests.

As DNA is present in all cells of the body, despite the absence of sperm, the samples collected from victims of sexual assault, ie, vaginal, anal, oral, swabs from other parts of the body/bodily injuries and clothing should be sent for DNA analysis.

However, presence of DNA also is not conclusive evidence of rape and does not prove the presence of sperm or semen. DNA examination is highly sensitive, therefore samples need to be collected and preserved properly.

Protocols aimed at avoiding degradation and contamination need to be followed to avoid inconclusive or false results. DNA reports should include statistical evaluation of the DNA profiles to explain the rarity of the profile generated and the weight of the DNA results.

While the presence of DNA does not support the conclusion of guilt, it can be extremely compelling evidence in cases of sexual violence.

The need for thorough, unbiased and timely investigations in rape cases cannot be overstated. Medical and forensic evidence in such cases not only assists in ascertaining how the crime may have occurred but also the identity of the perpetrator.

However, it is important to acknowledge the inherent limitations of these disciplines coupled with lapses or errors by investigating agencies and forensic examiners. Without such understanding, the risk of citing results of forensic reports as gospel truth would only pervert the course of justice.

Devina Sikdar and Devina Malaviya are part of the Forensics team, led by Shreya Rastogi, at Project 39A, National Law University, Delhi. This article first appeared at Firstpost and can be found here.