Medical examination of accused

Resistance injuries may be caused due to a sexual act, however, not necessary in every case. Injuries could have been due to many other reasons. Presence or absence of injuries cannot confirm that it is a sexual violence. Do presence of injuries on penis prove a non-consensual sexual intercourse? This all depends on the victim offering resistance. Because the presence of injuries or possibility of you picking up is only in less than one third of cases. So that being the scenario. So we have to always look with caution. And again, the other aspect which has to be kept in mind, the presence of injuries on the penis could be as a result of even a consensual sexual act.

Every consensual sexual act could also lead to micro injuries. And in cases of masochism, wherein somebody derives sexual pleasure on getting inflicted pain, so there is a possibility of even a severe injury presented in such a situation. So presence of injury on the penis, though, would prove if in case of a resistance being offered as a non-consensual sexual act, it’s not necessarily that it’s a definitive evidence of every non-consensual sexual act. Is potency of the accused relevant for proving sexual violence? For this, we have to remember that the offence of rape or the definition of rape or penetrative sexual assault, when the POCSO came into force.

They do not require penile penetration because it’s an offence of rape or penetrative sexual assault, even if the penetration happens with the use of an object or a body part. So in such situations, the question of the penis, whether it is erected or whether the person is potent, has nothing to do with the offence of sexual violence. And again, even though it’s a case of penile penetration, if you look out the definition of section 375, it is penetration to any extent. So that means it’s mere touching the vulva, is also considered as an offense of sexual violence. So it doesn’t say that it should be an erected penis.

This examination is not warranted because Section 53A of the CrPC also doesn’t require a potency examination to be done. So this examination has to be stopped, because legally you don’t require it and medically, again, you are not going to prove that whether a person is potent or not with the definitive confidence. Does presence of smegma in the penis proves recent sexual intercourse? The answer would be no. Smegma is a white colored secretion that normally accumulates under the foreskin of the penis. So it’s absent if there is a completed sexual act. So a proper complete sexual act should remove the smegma which is accumulating on the foreskin of the penis.

But again, once it is removed, it requires around 24 hours to accumulate at that site. It could be absent if someone washes their foreskin of the penis or the glans area every day. So that means a mere absence does not say that it is a sexual act recently. That person has washed, so then it’s a false negative. And there are false positive situations also, if there is an incomplete penetration. Though, it’s an offense of sexual violence. We are touching, the vulva is also enough to constitute sexual violence. In such situations the smegma could be still present. So the age-old understanding that a completed sexual act removes smegma has to be looked with skepticism in today’s context.