Amend the rules testing sexual potency of rape accused, say Indian forensic experts

India should amend the rules on testing the sexual potency of rape accused, a group of the country's top forensic experts has urged in an international journal, underscoring a crucial legal contention in a nation where violence against women is common.

The examination is meant to establish that the accused is physically capable of committing the alleged sexual acts. Well-known people who underwent it include spiritual leaders Asaram Bapu and Swami Nithyananda, journalist Tarun Tejpal and actor Shiney Ahuja. However, experts say Indian laws are ambiguous on what exactly constitutes "potency" and how to determine it.

CHANGED DEFINITION OF RAPE

Every rape accused in the country has to undergo the test, but the article suggests that to rule out impotence, experts only say "sexual dysfunction" as potency depends upon various anatomical, physiological, pathological and psychological factors.

As per the changed definition of rape after Criminal Law (Amendment) Act, 2013, potency test stands irrelevant in rape cases, therefore, medical experts are of the opinion that the test should be scrapped as in the rest of the world, a potency test does not even exist in medical literature.

In Indian medical text books, it is described as ability in males to perform sexual intercourse.

Also Read: Tehelka rape: 50-yr-old Tarun Tejpal taken for sexual potency test
http://indiatoday.intoday.in/story/tehelka-tarun-tejpal-rape-sexual-potency-test-after-arrest-goa/1/327392.html

Forensic experts (Prof) Dr Sudhir Gupta, (Add Prof) Dr Abhishek Yadav from All India Institute of Medical Sciences (AIIMS), Dr Shashank Pooniya from Lady Hardinge Medical College and Dr Md Shadab Raheel from FH Medical College in Firozabad (Uttar Pradesh) have said in the article that unlike sterility, potency is not permanent and it depends on various factors. Besides organic causes, diseases and psychological causes are also responsible for impotence. The article has been published in the International Egyptian Journal of Forensic Sciences.

One of the authors, Prof (Dr) Sudhir Gupta, head of the forensic department at AIIMS, told Mail Today, "Whenever an accused is apprehended on charges of sexual assaults, he should be subjected to necessary medicolegal examination for collection of trace evidences without any reference to potency testing." He added that if the accused is apprehended for committing rape under clause a, b, c and d of section 375 IPC, the person should be exempted from undergoing potency test. Another author, (Add Prof) Dr Abhishek Yadav, said, "When a person has been apprehended for committing rape under clause a, of section 375 IPC and he does not claim impotency, then there should be no reason to believe that the man is impotent and should be exempted from undergoing potency test. If the accused claims to be impotent, only then should he be subjected to potency test by a court order when the magistrate has assessed the necessity of the potency test."

Also Read: What is a potency test?

WHAT THE EXPERTS HAVE TO SAY

Experts have argued that in a developing country like India where the health sector is already struggling due to the lack of funds and manpower, there is no need for spending huge resources on such an issue which ultimately does not have any substantial impact over the fate of a case in a court of law.

In civil courts, questions of potency arise in cases like adoption, disputed paternity, nullity of marriage and divorce.

Recently, a fast-track Court in Delhi raised objections to the manner in which potency examination of an accused is done and "double negative" opinion is given after the test. The court also asked the Union Health Ministry to frame guidelines for potency tests of accused, if necessary.

"The current opinion of potency tests is double-negative and generally written as, 'There is nothing to suggest that the person examined is incapable of performing sexual intercourse under normal circumstances'," Dr Yadav said.