I am proud to present a guest post by Ms Jinal Dadiya, a Fifth Year student of the B.A. LL.B. (Hons.) program at NLSIU, Bangalore
Given the amount of scrutiny faced by rape cases today, its interesting to consider how menstruation might affect such trials. I found it disconcerting that the judiciary continues to find it problematic to decide whether or not a woman can be raped during her menstrual period. High Courts vary in their consideration of menstruation being relevant, and their treatment of the question at times reflects the ignorant and confused societal conceptions about menstruation today. Here, I've tried to present a rational assessment of the approach adopted by courts in considering such facts relevant for deciding guilt or innocence, and whether the approach makes sense.
Proof of Rape and Menstruation
Before we proceed, it’s important to recollect how the Indian Evidence Act 1872 [IEA] works. The Act explains how evidence can be led to prove/disprove/not prove facts. Suppose we're dealing with a rape trial. The Prosecution must prove the allegation of rape as defined by Section 375 IPC, but how is this proved? The IEA explains a trial turns on proving/disproving the Facts in Issue, as defined under Section 3. For rape, it would primarily consist of proving/disproving whether (a) there was vaginal penetration, (b) against the victim’s consent, and (c) none of the general defences as present under Sections 76-106 IPC were applicable. To satisfy the burden of proving beyond reasonable doubt, the Prosecution would also need to prove the occurrence of other, relevant facts. The IEA through Sections 6-55 explains what is relevant to make evidence pertaining to those other facts admissible. So, we find that facts showing motive, conduct, relationships, cause/effect etc. are specifically made relevant through the IEA, and evidence may be adduced to prove these facts.
In rape trials, medical experts are called upon to prove the fact of vaginal penetration. Here, the Wet Smear/Vaginal Swab Test is an important component of the standard medical examination of rape victims to detect presence of semen or spermatozoa in the vagina. The test is regarded as a crucial piece of evidence in most trials, despite Section 375 not warranting any seminal presence as mere penetration has been made sufficient to commit the offence. In Sadhani Bai v. State of Madhya Pradesh (Criminal Appeal No 1222 of 1996 & Criminal Appeals No. 1326 and 2184 of 1996, delivered on 25.08.2012), B.K. Prakash v. State of Karnataka (MANU/KA/2201/2011) and Mangal Pahariya and Anr. v. State of Jharkhand [2007 (3) JCR 243 Jhr], the accused was acquitted as the smear test yielded negative results and the prosecution had little beyond this to prove its case.
Appreciating the Relevance of Menstruation
Importantly, the Instruction Manual for Forensic Medical Examination Report of Sexual Assault (Victim) issued by the Indian Council of Medical Research clarifies that a wet smear would test negative when the alleged victim of sexual assault was menstruating during the incident (there are other situations as well which could lead to negative results such as using condoms). This can lead to problems in a system where the smear test is given great importance to decide allegations of rape. In Bablu v. State of Chhattisgarh (2006 CriLJ 3732) the court observed, among other loopholes in the prosecution story, that the fact of the prosecutrix menstruating during the incident falsified her story; an observation neither justified nor of any consequence. Similarly, in Sundari v. State of Chhatisgarh [2006 (4) MPHT 49 CG], a reason for the court to reject the prosecution version was the victim having been menstruating during the incident. Most recently, the Delhi High Court in Meena Sharma v. State (MANU/DE/0944/2014) in 2014 noted that “it would be difficult to believe that a girl who is menstruating would be subjected to a rape”. Here the Court went further and observed that if rape occurred, menstrual blood would have been found on the undergarments of the accused and its absence became another factor for acquittal.
These observations, unnecessary and demeaning as they may be, are usually accompanied by a consideration of other reasons warranting an acquittal. But even so, how does the fact of menstruation ever come into the picture? If we look at the IEA, it’s clear that this is not a Fact in Issue, so it may at best be a relevant fact. If it’s not relevant, it’s inadmissible, so the question is relevant how? Scanning through sections 6 to 55 of the IEA, it seems one could make it relevant under Section 7 or Section 14, as either facts showing the “state of things” or existence of any “state of body or bodily feeling”. A Court may consider the victim's “state of body” relevant, thereby making her menstruation relevant under Section 14. Similarly, vaginal penetration being a fact in issue, the court may consider the state of the vagina relevant under Section 7. Does this make sense? I have my doubts. Rape under Section 375 makes the state of the victim’s body irrelevant to establishing the offence, rendering facts of this nature inadmissible for the trial. Even if we were to assume that menstruation was a relevant fact and such evidence was to become admissible; mere relevance does not warrant reliance, and certainly not such strong reliance in any case.
Where this fact is obviously relevant is the medical evidence. The doctor examining the victim is an expert called to testify under Section 45 IEA. Menstruation becomes part of facts which "support or are otherwise inconsistent with the opinions of experts" under Section 46. Courts have not been blind to this thought, as can be seen in Dharampal v. NCT of Delhi [Criminal Appeal. No. 567/2008 delivered on 02.02.2010 (Delhi High Court)] and Fanibhushan Behera v. State of Orissa [1995 CriLJ 1561 (Orissa High Court)]. In the former, the appellant-accused argued that absence of seminal presence in vaginal swabs cast a reasonable doubt on the prosecution story. The court reiterated that absence of semen does not rule out rape, highlighting how the fact of the prosecutrix menstruating at the relevant time greatly diminished the relevance of medical evidence. Consequently, the conviction for rape was upheld. In Fanibhushan, Pasayat J. took a similar stance: attributing the absence of semen on vaginal swabs to the fact of the girl’s menstruation during the incident, rather than no penetration. In both cases, menstruation was used to explain the absence of semen on wet smears, and the accused were convicted in the presence of other evidence.
Where this fact is obviously relevant is the medical evidence. The doctor examining the victim is an expert called to testify under Section 45 IEA. Menstruation becomes part of facts which "support or are otherwise inconsistent with the opinions of experts" under Section 46. Courts have not been blind to this thought, as can be seen in Dharampal v. NCT of Delhi [Criminal Appeal. No. 567/2008 delivered on 02.02.2010 (Delhi High Court)] and Fanibhushan Behera v. State of Orissa [1995 CriLJ 1561 (Orissa High Court)]. In the former, the appellant-accused argued that absence of seminal presence in vaginal swabs cast a reasonable doubt on the prosecution story. The court reiterated that absence of semen does not rule out rape, highlighting how the fact of the prosecutrix menstruating at the relevant time greatly diminished the relevance of medical evidence. Consequently, the conviction for rape was upheld. In Fanibhushan, Pasayat J. took a similar stance: attributing the absence of semen on vaginal swabs to the fact of the girl’s menstruation during the incident, rather than no penetration. In both cases, menstruation was used to explain the absence of semen on wet smears, and the accused were convicted in the presence of other evidence.
Conclusions
Statements which indicate the improbability of a woman being raped while menstruating are extremely dangerous. While it is one thing to acquit an accused in cases where vaginal wet-smears are not indicative of the presence of semen and adequate proof is unavailable from other sources, it is an altogether different thing to undermine a prosecution story because of the fact of menstruation during the incident. Not only does it deny justice through trial, but also ruthlessly negates the experiences of the several women who continue to be subject to rapes of the worst kind; while on their period.
Statements which indicate the improbability of a woman being raped while menstruating are extremely dangerous. While it is one thing to acquit an accused in cases where vaginal wet-smears are not indicative of the presence of semen and adequate proof is unavailable from other sources, it is an altogether different thing to undermine a prosecution story because of the fact of menstruation during the incident. Not only does it deny justice through trial, but also ruthlessly negates the experiences of the several women who continue to be subject to rapes of the worst kind; while on their period.
Useful article! Thanks!
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