Medico-legal Care of the Sexual Violence Survivor

Before you touch the survivor for any examination — whether to treat her injuries or to collect forensic evidence — you must obtain her informed consent. This is not a formality to rush through.

Under S 184 BNSS, an examination done without valid consent is unlawful, and neither the police nor a court can force it. Equally important: if she agrees to treatment but refuses the forensic examination, you must still treat her. Refusing evidence collection can never become a reason to deny medical care, and admission, evidence collection or filing a police complaint is not a precondition for treatment.

"Informed" consent means she genuinely understands what she is agreeing to. So, in a language she speaks comfortably, explain three things before she signs: what the examination will involve (including that you will examine her body and genitals), what evidence you intend to collect and why, and what treatment you can offer. Only after she has understood all of this do you take her written consent. If she has questions, answer them. If she wants a trusted person present during the examination, allow it — but police personnel must not be in the examination room.

Her consent does not have to be all-or-nothing. She may agree to some parts and decline others — for example, consenting to treatment and a general examination, but refusing genital evidence collection. That is her right. When she declines any part, explain why that part matters; if she still refuses, record it clearly as an informed refusal, witnessed and signed. The consent form itself carries three signatures: the survivor's, the examining doctor's, and a witness (any disinterested person). Consent obtained through fear or a misconception of fact is not valid consent (S 28 BNS).

Consent capacity — the two tiersThe age that matters depends on the risk of the act, not on how "personal" it feels

A common confusion is to think the genital examination needs a higher consent age because it feels invasive. It does not. In law, the consent threshold turns on how risky the act is — whether it is an ordinary act done in good faith for the person's benefit, or one that carries a real risk of serious harm. The routine medico-legal examination sits in the lower-risk tier; only genuinely hazardous procedures sit in the higher one.

A note on the sections: S 25/26/27 BNS state the good-faith-consent-benefit principle; the specific ages (12, 18) come from the surrounding legal scheme and the MoHFW protocol, not from the wording of those sections. Cite the section for the principle and attribute the age to the protocol. (Take care: S 27 BNS — guardian consent for a child — is a different provision from S 27 POCSO below, which is why every section here names its Act.)

When she cannot consent herselfWho may consent on her behalf

Some survivors cannot give valid consent on their own. You must know who may consent for them, and in every case that person acts in her best interest:

• An adult with capacity consents for herself.
• A child under 18 is governed by S 27 POCSO: a woman doctor examines, and a parent, guardian, or an adult the child trusts is present throughout. For consent, the parent or guardian consents on the child's behalf (the child's own assent is sought too). The MoHFW protocol confirms that for a child under 12, consent for examination is taken from the parent or guardian.
• A survivor who is mentally ill or has a disability: consent may be given by a parent or guardian, the Child Welfare Committee (if a child), or the court — using an interpreter or special educator as needed.
• A survivor who is intoxicated or unconscious cannot consent at that moment; a guardian may consent, and any genuinely life-saving procedure may proceed without consent. Re-take her consent once she is able to give it.

When no guardian is available, or the guardian is the problemTwo different situations — do not confuse them

The UNFPA/CFSL guidance mentions consent by a "panel of senior doctors" where a child has no guardian. In practice this is better handled as a clear line of institutional responsibility, so that one identifiable person is always accountable and care is never delayed waiting for a committee to assemble. The two situations are distinct:

1 · The guardian is simply unavailable. Escalate down a chain of institutional authority, each acting and documenting the decision in the child's best interest:

ProtocolThis chain is administrative best practice — neither POCSO nor the BNS names it. The MoHFW protocol supports the principle: where a child may be accompanied by the abuser, a female person appointed by the head of the institution is called in to be present during the examination.

2 · The guardian is present but acting against the child — as can happen in incest. Here the answer is not the hospital chain but the Child Welfare Committee (CWC), which holds the legal responsibility for the care and protection of the child. Statute

Who may examine herRead this by jurisdiction — do not assume a rule from one State applies in yours

The national protocol position and the local court directions form layers. Start from the national rule, then apply any stricter overlay for your jurisdiction or for a child.

Consent checklistAn aide-mémoire — tick on screen, or print it blank for revision

Take the history once, sensitively, without making her relive the trauma or repeat it to person after person. She may omit painful details; do not press. Your aim is not to interrogate but to understand enough to guide the examination and treatment — and to believe what she tells you.

The history has a specific forensic purpose: it tells you what evidence to look for, and it fixes the timeline on which your later opinion will stand or fall. So while you take it kindly, make sure it captures the following, because each point changes what you do next.

• The nature of the act. Was it penetrative or non-penetrative? Penile, or with an object or body part? Which orifice — vaginal, anal, oral, urethral? Was ejaculation noticed? Each answer points you to a different set of swabs.
• The time since the incident. This single figure decides what can still be recovered. Record it as precisely as she can give it — you will use it directly in Step 4.
• What she did afterwards. Did she bathe, douche, wash, change clothes, urinate, defecate, eat or drink, brush or rinse her mouth? Every one of these can remove evidence — and, just as importantly, each later explains a negative finding in your opinion.
• Whether she was menstruating at the time of the assault or now. Document it, and collect evidence anyway — heavy flow can wash away trace, so note it rather than skip collection.
• What you must NOT record: her past sexual history. It is legally barred and irrelevant to this offence (S 48 BSA; proviso to S 146 BSA). Asking about it is itself improper.

History checklistAn aide-mémoire — tick on screen, or print it blank for revision

Examine her in complete privacy, in the dedicated room, having explained each step first. Collect body and genital findings together — the same examination serves both her treatment and the forensic record. Work in a fixed order so you miss nothing, and write down what you see, not what you assume.

General examinationStart away from the genitals

Begin with her general condition — build and nourishment, mental state (calm, anxious, withdrawn), and secondary sexual characters. Examine and describe her clothing before it is removed: note tears, missing or torn buttons, and stains (blood, semen, mud, grass), because clothing is itself evidence. Then examine the whole body, front and back, head to toe, and mark every injury on a body diagram, recording for each its type, size, and exact site. Remember that most survivors have no body injuries at all — their absence means nothing on its own.

Local (genital and anal) examinationOnly where the history indicates — never routine, especially in children

Examine the areas relevant to what she has described, and simply describe what you find — presence or absence, and any injury, bleeding, discharge or stain, with its site and size. In children, genital and anal examination must not be done mechanically or routinely; examine when the history or specific indicators (pain on urination or defecation, bleeding, relevant symptoms) call for it. Structures to describe:

• External genitalia: pubic region, labia majora and minora, clitoris.
• Introital structures: fourchette, posterior commissure, hymen, and vaginal rugae — described factually, never interpreted as proof of chastity or "habituation".
• Perineum and inner thighs; the vagina, for injury, bleeding or discharge.
• Anus: anal mucosa (smooth or thickened), any tears (recent or old), sphincter tone (patulous or not), and stains.
• Mouth and oral cavity, where oral contact is alleged.

Carry out age estimation only where age is genuinely in doubt and no reliable documentary proof exists — not routinely.

Classifying injuriesSimple or grievous — and it is yours to decide

Where injuries are present, you must classify each as simple or grievous, and give your reasons. Grievous hurt is defined in S 116 BNS — its clauses include fracture or dislocation, permanent disfigurement, loss of a sense, and any hurt that endangers life or keeps the person in severe pain or unable to follow their ordinary pursuits for fifteen days. Voluntarily causing grievous hurt is S 117 BNS, and hurt caused by a dangerous weapon or means is S 118 BNS. This classification is the examining doctor's own responsibility — if you call an injury life-endangering, support it with clinical or operative notes.

What is worth collecting depends almost entirely on how much time has passed. Collect only what is indicated, with consent, and with the honest primary purpose of helping her — and remember throughout that finding no evidence does not mean no assault occurred.

The clock decidesWhat survives, and for how long

The order of genital swabsOutside-in, so one sample does not contaminate the next

When you do collect genital samples, the sequence matters. Take the outer samples before the inner ones, so that collecting a deeper sample does not drag material onto an outer site you have not yet swabbed:

1. Vulval swab first — separate the labia and swab the inner surface of the labia minora and the fossa navicularis, before any vaginal or cervical swab.
2. Vaginal swab next — from the anterior and posterior fornices, using a speculum.
3. Cervical swab — from the cervical os, collecting as much of the mucous plug as possible; the best DNA yield in late-presenting cases.
4. Anal / oral swabs where the history indicates; also nail clippings, pubic-hair combings, and any loose hair or foreign material.

Keeping evidence admissibleDrying, sealing, and the chain of custody

Collecting the sample is only half the job; how you handle it decides whether a court can use it.

• Air-dry, then pack, seal and label every item. Use paper envelopes or bags for biological samples — never polythene, which traps moisture and degrades DNA.
• Take a reference sample (blood or buccal) from the survivor for DNA comparison; DNA is the most decisive evidence when collected and preserved properly.
• Maintain the chain of custody. From the moment you collect until you hand over to the police or FSL, the samples are the doctor's and hospital's responsibility. A designated person keeps them secure, and every transfer is documented and signed. A break in this chain can make good evidence inadmissible.
• If she is menstruating at collection, document it, collect anyway, and arrange a repeat examination — heavy flow may have carried trace away.

On matters of medical science, the doctor gives evidence as an expert witness (S 39 BSA); on everything else, as an ordinary witness. Your job in the witness box is to uphold the science plainly and honestly — including stating, without fear, the limits of what medical evidence can show.

Prepare before you go. Know the case; keep short notes of the history, examination, evidence collected and the opinion you drew; carry the file, the FSL report and related papers; and meet the prosecutor (APP/PP) beforehand to understand what will be asked.

In the box, keep it simple and truthful. Use plain words — say "bleeding," not "haemorrhage." Answer the question that is asked; do not lecture the court or argue with counsel. If the honest answer is "I do not know," say so — that is a proper answer, and going beyond your knowledge only damages your credibility. Stay composed and do not appear to favour the side that called you.

On textbooks: do not accept a book as an authority unless you agree with every statement in it, and when a passage is read to you, insist on reading it yourself — together with the lines before and after — so its meaning is not distorted.

In child cases, do not reveal the child's identity unless it is in the child's best interest. POCSO trials are conducted in a child-friendly, in-camera setting, and the child is not made to face the accused.