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In India, ‘Potency Tests’ of Those Accused of Rape Aren’t Very Scientific

In India, ‘Potency Tests’ of Those Accused of Rape Aren’t Very Scientific

Photo: Ashkan Forouzani/Unsplash

  • The ‘potency test’ is used to prove if an individual in question is “capable of sexual intercourse under normal circumstances”.
  • It has three major components: semen analysis, penile Doppler ultrasound and visual erection examination.
  • Specialists have recommended against the test because it is not entirely efficacious and violates the privacy and dignity of the individual.
  • Instead, they have recommended that the test be conducted only when the defendant claims sexual impotence.

Trigger warning: sexual assault and rape.

A minor girl was allegedly raped by several men, some of whom were also minors, at Jubilee Hills in Hyderabad on May 28. The police reportedly had the alleged perpetrators tested for ‘potency’ at a local hospital.

According to The Hindu, the ‘potency test’ is used to prove if the individuals in question “are capable of sexual intercourse under normal circumstances”, and whose results are admissible as evidence. It is prescribed under Sections 53 and 53A of the Criminal Procedure Code (Cr. PC).

In 2014, the Karnataka high court upheld the constitutionality of the ‘potency test’ – as did the Supreme Court in the same year. However, some of the test’s components are outmoded and it also violates the privacy and the dignity of the individuals being tested.

Section 53A of the Cr. PC 1973 states that the medical examination of a person accused of rape should be conducted when a person is arrested on the charge of having committed the offense of rape or having attempted to do so. Before the test, there needs to be reasonable ground to believe that examining the person could afford evidence about the commission (or not) of such an offense.

This ‘potency test’ has three components, depending on the availability of the testing equipment.

1. Semen analysis – The ejaculatory fluid is tested to determine sperm count and motility, and is an evaluation of male fertility. Beyond the medico-legal field, it is commonly used to assess infertility, the success of a vasectomy, and – among animals – for stud-farming and breeding. However, infertile men are fully capable of sexual intercourse, so the semen analysis component of the ‘potency test’ alone can’t be used to determine whether a man is capable of sexual assault.

2. Penile Doppler ultrasound – An ultrasound test is used to show the flow of blood into and out of the penis, and is used mainly with men with erectile dysfunction. Erectile dysfunction can have multiple causes, including an imbalance of arterial and venous blood flow, nerve damage and diabetes.

It is more common among older men due to the natural decline of testosterone levels. Among younger men, causes of dysfunction include performance anxiety, cardiac issues, obesity, hormonal problems and psychological factors.

3. Visual erection examination – A physician visually examines the penis in its erect and flaccid states for signs of dysfunction and for damage (like scarring). This examination is often susceptible to confounding factors, including failure of erection due to stress, inability to masturbate, etc.

Forensic medical specialists have noted that potency depends on many factors, including pathological and psychological ones – and accounting for which they have suggested other hormonal and imaging tests to aid in its determination instead. However, the performance and interpretation of these alternative tests requires a panel of specialists who will be difficult to obtain in India’s relatively resource-poor government sector.

Specialists have also noted numerous problems with the test itself – beyond procedural issues. These include a person being potent at the time of the alleged rape but impotent at the time of the examination (or vice versa), particularly if the two events are separated by a considerable amount of time. Potency itself may depend on the intended sexual partner, the person’s gender and the circumstances of the sexual act.

Together with the fact that the potency test – like the now-discarded two-finger test for female rape victims – violates the privacy and dignity of the individual, specialists have recommended that the medico-legal examination of a person should be restricted to the collection of trace evidence without any reference to potency testing. There is one caveat: the test should be conducted only if the person has claimed impotence. However, as the test could be normal in an impotent person and may prove unreliable in determining potency.

Overall, the rationale for testing for potency among those accused of sexual assault is not based on modern principles of ethics, science and medical practice, and has a not-insubstantial risk of being flawed in its implementation, even in its current form.

Because the amended definition of rape includes both penetrative and non-penetrative sex, the Cr. PC should consider replacing the potency test with the rigorous police procedure of collecting medical evidence. Under the National Human Rights Commission guidelines, a standard protocol exists for the medical examination of the accused, which includes a comprehensive physical examination and laboratory tests on blood and body fluid samples, including DNA profiling.  These are also consistent with international standards.

V. Ramana Dhara is a physician and a professor of public health who explores links between health and the environment. He tweets at @RamanaDhara.

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