Can consent be determined by medical examination?

Let’s look at, can consent for the sexual act be determined by medical examination? One of the features, in the medical examination is to look for presence of injuries. Presence may be indicative of sexual violence, the presence of these injuries, but we have to be very clear that the absence of these injuries does not rule out sexual violence. Only one third of the cases, we have injuries. So the remaining two thirds, even though there are cases of sexual violence, we will not have the presence of injuries. This lack of injuries could be due to various reasons. One, it could be because the person was unconscious.

This could be either because of the situation of intoxication, wherein the person was like date rape drug situation. The person was given a drink laced with some drug or alcohol which incapacitated the person and the person is unconscious. Or it could be because of a head injury, so the person is unconscious. It could also be the lack of injuries could be because when the person is overpowered. This is what happens in many a time in gang rape or gang-penetrative sexual assault. In a gang rape situation, the person is overpowered, or put into a situation of fear. So there is no resistance offered.

Whenever a person is put into fear of either a harm onto themselves or death onto themselves or to someone they love, so they may not offer any resistance. The other suggestion would be if a lubricant is being used. So that also minimizes the injuries. Another aspect which has to be always kept in mind, that these injuries are possible even in consensual sexual act. It could range from micro injuries, which are very often present in every consensual sexual act to that of a severe injury, particularly when it’s a situation of say masochism. If somebody gains sexual gratification on getting pain. So for that situation, there may be injuries.

And if you find those injuries in on a medical examination, even though in case of a consensual sexual act. Resistance injuries could be present in the genitals, which we normally find, it could range from an aberration or a contusion. Though presence of such injuries is not a necessity. But these injuries could also be present on the rest of the body, what we normally contributed as physical injuries. So lack of physical resistance should not be construed as consent. And this goes with, again, Section 375 IPC explanation 2 which came into force from 2013, wherein it puts out just because somebody did not offer a physical resistance, it should not be construed that they have consented to the sexual act.

So medical examination may pick up injuries, but the absence of injuries does not rule out non-consensual sexual act or sexual violence.