Testing Chastity, Evidencing Rape

Through a detailed analysis of the history of medical jurisprudence textbooks and their use in case law, this paper argues that these textbooks undermine legal reforms in India. It establishes that medical manuals promote the collection of prejudicial and legally irrelevant evidence and reinforce the notion that Indian women frequently bring false charges of rape. Courts regularly cite these textbooks as authority in rape cases, based on the perceived objectivity of medical science as a form of evidence. For legal reforms to be effective, this article argues that changes must be made to textbooks of medical jurisprudence, medical syllabi, and to protocols of medical examination and assessment of rape victims. Further, courts must be more critical in their use and acceptance of these medical manuals.

The authors would like to thank the anonymous referee for detailed comments on the draft paper.

I n this paper, we argue that the continued use of medical knowledge and evidence in rape trials requires substantial reform of medical textbooks, medical education, as well as the standard protocol for collecting medical evidence in rape cases. We trace the origins of the use of medical evidence in rape cases and critically analyse the historical and contemporary role of medical evidence in the adjudication of rape cases in India. We also examine textbooks of medical jurisprudence1 that are widely used in India, which originated in the 19th century during the British colonial rule. Through a close analysis of historical and contemporary textbooks on medical jurisprudence, we consider the signifi - cant impact that colonial textbooks have had on authoritative textbooks that circulate today, and the continued importance of the history of forensic science in the perpetuation of stereotypes of women’s chastity and past sexual history in rape cases. Following a detailed reading of historical textbooks and their continued signifi cance as scientifi c authorities today, we examine the application of medical jurisprudence in case law on rape from 1950 until 2011. We consider how medical evidence, which relies on these textbooks, leads to the incorporation of biased ideas into court cases that tie women’s sexual history to false charges of rape, making the “scientifi c” assessment of women’s chastity key to judgments in rape trials. Despite recent movements calling for reforms of rape laws, there has been little attention paid to the much-needed reform of the wide range of forensic medical practices that violate women’s dignity and perpetuate biased uses of women’s sexual history in the adjudication of rape.2 We, therefore, suggest that reform of rape law and rape adjudication requires putting an end to the “fi nger test” as well as substantial overhaul of many other aspects of medical jurisprudence textbooks and medical protocols in the examination of rape victims.

Proving Rape under the Indian Penal Code

With the enactment of the Indian Penal Code (IPC) in 1860, India was brought under a uniform system of criminal law. Thomas Macaulay, the author of these laws, sought to produce a systematic criminal law that could be applied to all of India’s population (Macaulay 1838: vii-viii). The code ushered in a new era of governance in India, producing a standard set of rules that governed the behaviour and bodies of people in new ways. The penal code set forth legal standards that necessitated novel approaches to rules of evidence that could systematically prove criminal activity.