A senior UP cop on Thursday said rape is ruled out in the Hathras case and cited a forensic report which said no sperms were found in samples. Lawyers and medico-legal experts disagree and say the absence of sperms cannot rule out rape.
Following the 2012 Nirbhaya case, rape laws were amended in scope. Apart from peno-vaginal penetration, the definition of rape now includes forcible penetration of the penis or any part of the the man’s body or any object even, into the vagina, mouth, urethra or anus of the woman. Even an attempt to penetrate is considered rape, so is applying the mouth to the vagina.
Says Geeta Sharma, a prosecutor who has been dealing with sexual assault cases in the Mumbai sessions court for the past six years, in most cases the prosecution does not find semen in forensic reports and the absence of sperms cannot rule out rape.
A medico-legal expert with the AIIMS, has handled many sexual assault cases, but did not want to be named, says no doubt the presence of sperms gives a 100% proof of penetration, but there are reasons why semen may not be found. The perpetrator could have ejaculated outside (the vagina) or used protection. Also, if over 72-96 hours have passed before collecting the samples, chances of finding semen is bleak, he says. Semen can be lost during bathing, due to vaginal secretions or passing urine, he explained. In the Hathras case, the gang-rape sections were added only eight days after the incident that took place on September 14. The report of the government hospital, Aligarh is dated September 22, enough time for the semen to be lost. The doctor pointed out since the victim was paralysed, medical interventions such as introduction of a urinary catheter and cleaning of the area to prevent infection can also lead to loss of semen.
Women’s rights lawyer Flavia Agnes who represented the victim in Shakti Mills gang-rape case questioned how a police officer can give a medico-legal opinion. A court accepts only the opinion of a doctor who has examined the victim. Leading lawyer Abha Singh said in the State of UP Vs Babulnath the SC has held to constitute the offence of rape it is not at all necessary there should be complete penetration of the male organ with emission of semen and rupture of hymen and even partial or slightest penetration with or without any emission of semen or even an attempt at penetration would constitute rape. “Such a senior officer making such a statement shows he doesn’t know the law on rape,” says Singh and questions, “If the police will rely on presence of semen to decide if or not rape happened, what about the Me Too movement in which cases are surfacing after years?”