By Avesta Vashishtha*

Rape is a malice of intent before it is a crime of the body, and the various medical tests used to prove it seem to be completely oblivious to this important fact. During an investigation in a rape case, corroborative medical evidence is sought to determine the guilt of the accused. The Potency test is a mandatory assessment developed out of practice by courts due to rising numbers of rape cases, undertaken to ascertain whether the accused is capable of sustaining an erection long enough to indulge in sexual activity. I argue how the test is violative of certain rights of the accused in cases of ‘lack of consent’ and ‘breach of privacy’, which makes the whole examination unlawful and unjustifiable in some circumstances of rape cases.

The idea is imperative to be discussed due to the probability of false allegations of rape on the accused. Based on unscientific and outdated reasoning, he is subjected to extremely inhumane treatment for a crime he may not have committed. The impelling nature of the test causes needless intrusion into the life of the accused.

Irrelevance of the test vis a vis the Definition of Rape

In 2013, ‘Criminal Law Amendment Act, 2013’ was introduced, which expanded the definition of rape in India and included non-penetrative acts such as the insertion of an object in woman’s vagina, urethra or anus. This amendment made the earlier existing non-inclusive legislations more comprehensive by increasing the scope of sexual harassment acts that come under this definition.

Justice J.S Verma Committee, in it’s report, suggested the inclusion of all forms of nonconsensual penetration of a sexual nature. With the change in definition and insertion of non-penetrative acts in the interpretation of rape, the necessity of conducting a potency test has been rendered irrational since the involvement of penis in any kind of sexual abuse case is not required to term it as rape, as held in Santhosh v. State of Kerela.

Unreasonable Components of Potency Test

The potency test comprises three tests: a) semen analysis, b) Penile Doppler ultrasound, c) Visual erection Examination. A medical board is constituted by the court to see whether the accused is sexually competent. A man’s fertility is evaluated using a semen analysis. The test primarily tries to establish the biological competency of the accused rather than their intent or actus reus to commit such a crime, which goes against the entire definition of Section 375 of the Indian Penal Code, 1860 (“IPC”).

Penile Doppler Ultrasound tests the erectile dysfunctioning of a penis. This examination fails to take into consideration the psychological effect that environmental surroundings might have on the accused that can influence his ability to have an erection at that instant.

Lastly, a Visual erection examination is conducted in which the accused is compelled to masturbate before a medical practitioner. Compulsorily subjecting a person to such demeaning and derogatory conditions is highly unreasonable. It infringes on their constitutionally protected Right to Dignity and Privacy under Article 21 of the Indian Constitution. The conditions like psychological or pathological factors tend to determine the potency of a person, which might be different under varying circumstances, making the test fallible in certain cases. Further, the test is extraneous since it does not affirm or deny the occurrence of rape.

Judicial Outlook

It has been established in Baliraj Singh v. State of Madhya Pradesh that medical evidence is corroborative in nature. It actually does not strengthen any other evidence because of its lack of rationality. But, the Kerala High Court observed in the case of Swapna v. State of Kerala that a potency test is one of the key pieces of evidence for proving the offence claimed against the accused. Therefore its absence would seriously damage the prosecution. “When a person is arrested on a charge of committing offence of rape it shall be lawful for the prosecution to conduct tests of various nature as contemplated in the said provision. The potency test is capable of providing one of the most basic pieces of evidence to establish the guilt of the accused in this case.” Further, in the Nithyananda case, the court commented that negative inferences would be drawn from the accused’s reluctance to undergo such tests.

Such prejudices caused in the absence of potency tests can be detrimental towards the process of delivery of justice. The test, like medical examination under Sec. 53 of CRPC, is conducted in the preliminary stage of the investigation itself when the accused has not been granted the opportunity to be heard. The accused is subjected to inhuman treatment without allowing him to explain his stance. It is conducted based on the whims of police and investigating authorities. In the absence of any concrete evidence, the practice of this exercise is violative of the accused’s Right to Liberty.

Breach of International Provisions

The relevance attributed to a mandatory potency test that an accused is subjected to, violating his basic human rights, depicts a traditional orthodox mindset persistent in society. It stands against the basic rule of the Right to Life granted under Art. 3 of UDHR, when a person is made, and sometimes even compelled to stimulate his penis to conclude his sexual competence. This is violative of an essential component of Art. 3, i.e. Right to Privacy. Also, Art. 17 of the ICCPR explains how arbitrary or unlawful interference with privacy or unlawful attacks on one’s honour and reputation are violative of this provision. Article 8 the European Convention on Human Rights enshrines the right to one’s ‘private and family life’, ‘home’ and ‘correspondence’ unless interference is ‘in accordance with the law’ and ‘necessary in a democratic society‘ for public security, safety, economic well-being, preventing crime, protecting health or morals or rights of others.

The practice of potency test for extraction of medical evidence is violative of basic internationally recognised rights, which is detrimental towards India’s commitments towards such conventions and individual liberties.

A Way Forward

I suggest that a balance be established where the potency test is used for aiding the investigation and not for determining the result of the case. Erectile dysfunctioning is irrelevant because of the different degrees of rape mentioned in Indian Criminal law and the determination of punishment in aggravated cases where the knowledge of the accused’s sexual competence is not required, but the obligatory nature of the test makes it a pre-requisite.

Right to privacy of the accused should be put on the highest pedestal where his dignity is not sacrificed before the crime is even proven. He should be provided with an opportunity to be heard before conducting the test. A framework should be created that protects the socio-legal rights of the accused while at the same time having the practice of potency test in place, which can be required to be used in certain imperative cases for the delivery of effective justice.

* Avesta Vashishtha is a 2nd-year student at Dr. Ram Manohar Lohiya National Law University. She is interested in the area of International law.