Hathras case: This is what is wrong with the ‘no sperm, no rape’ line being pushed by UP Police

Police officials in Uttar Pradesh and Bharatiya Janata Party leaders have repeatedly insisted that their investigation has revealed that there actually was no rape in the Hathras case in which a 19-year-old Dalit woman was allegedly gangraped and killed by four upper-caste men.

The police officials have cited the lack of sperm in a forensic analysis – despite the fact that samples were taken 11 days after the incident. Meanwhile, the head of the BJP’s IT Cell shared a video of the woman while falsely claiming that she did not speak of rape, even as he publicly revealed her identity while doing so. Under Indian law, this is illegal.

On Monday, several news reports seemed to buttress their arguments, running headlines like “Hathras case: No signs of intercourse, says forensic report”, and “‘Physical assault’ but ‘no signs of intercourse’: Forensic report.”

What do these reports actually tell us and what is their significance?

Victim’s testimony sufficient

First, the significance.

It is a “well-settled principle in Indian law” that the victim’s testimony alone is enough to form the basis of both a rape investigation and even conviction of the culprits. In other words, the victim’s allegations of gangrape are more than sufficient for the police to investigate the rape claim, and courts can even convict on the basis of just this evidence, if it is convinced of the truth of the victim’s testimony.

This has even more significance in the current case because the allegation of gangrape came as part of the victim’s dying declaration, given before a magistrate. The woman reportedly named the four accused in her declaration. Courts tend to give significant weight to a dying declaration, under the presumption that someone who is about to die is unlikely to lie. In fact, the December 2013 Delhi gangrape-murder case relied on this principle to ultimately convict the accused.

Corroborative reports

Next come the reports.

When the victim was first admitted to the Jawaharlal Nehru Medical College Hospital in Aligarh, the Medico-Legal Case examination concluded that there had been “penetration by penis”, “complete penetration of vagina” and indications of the use of force.

However, a Forensic Science Laboratory report, based on samples taken 11 days after the incident, then concluded that there was no presence of sperm. The Additional Director General of Police Prakash Kumar has cited this as the reason for him to conclude that this was not a case of rape.

In fact, that Uttar Pradesh government even relied on a PR agency to send out a statement that offered a conclusion in the case even before a court had any say in it. It insisted that “the Forensic Science Laboratory report on the vaginal sample of the 19-year-old girl of Hathras has revealed that she was not raped”.

However, government guidelines mandate that samples in these cases have to be taken within 96 hours of the incident. In this case, since they were taken well after, the Chief Medical Officer of the hospital where the victim had been admitted has himself said that the Forensic Science Laboratory
report “holds no value” as far confirming or denying rape.

On Monday, several news organisations highlighted the final report from Jawaharlal Nehru Medical College Hospital in Aligarh on the victim, which said that “there were no signs suggestive of vaginal/ anal intercourse. It, however, said there was evidence of physical assault (injuries over the neck and the back).”

These have again prompted many to push the “there was no rape” line.

Yet again, as Hamza Malik, president of Aligarh Muslim University’s Resident Doctors’ Association told the Hindu, this denies intercourse, not rape.

Again, it is important to remember: medical reports can corroborate evidence provided by either side, but courts will take into account also the testimony put forth, and give particular weight to a dying declaration.

As the Union government’s guidelines say, “The examining doctor should clarify in the court that normal examination findings neither refute nor confirm whether the sexual offence occurred or not. They must ensure that a medical opinion cannot be given on whether ‘rape’ occurred because ‘rape’ is a legal term.”

Questionable comments

All of this is important context when considering the comments mady by the police, in particular ADG Prakash Kumar, who later told the Wire that he “only stated a fact about the FSL [Forensic Science Laboratory] report: that sperm was not found. I insisted that the investigation is still ongoing, who are we to give a clean chit to anybody.”

In fact, Dr Hamza Malik, the president of the Resident Doctor’s Association of Jawaharlal Nehru Medical College told NDTV that “the ultimate confirmation or denial will be in a court. Many aspects of the investigation will be placed before the court. The court should take suo motu cognizance of the ADG Law and Order’s statement and initiate action against him. He cannot make statements like this. I want to say that neither the FSL report nor an autopsy, or an MLC (medico legal case) can prove or disprove anything concrete. This is all proof that a court will evaluate.”

The comments by the police seem aimed at furthering the line pushed by the Bharatiya Janata Party that the attention commanded by the case is a “conspiracy” meant to stir up caste tensions, rather than a genuine response to a violent crime and callous treatment by the Uttar Pradesh government.