SEXUAL MEDICINE

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SEXUAL MEDICINE LEGAL ISSUES
Dr. T.S.S. RAO Prof.
Head, Dept. of Psychiatry JSS Medical College
Hospital Mysore
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• The law is without doubt a remedy for great
  evils, yet it brings with it evils of its own
• - SALMOND

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Human Sexuality
What is Normal? - Penile Vaginal Intercourse
- Between a Man Wife Any thing which
departs
from this norm OFFENSE! and Contrary to law
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HUMAN SEXUAL BEHAVIOR

• Wide variation
• Time to Time, Culture to Culture.
• Normal overtly approved by society
  statistically common
  biologically desirable.
• LAW LIVING CHANGING
• Legal knowledge vital
• Personal / public

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Few topics evoke so much anxiety pleasure,
pain hope, discussion silence as the erotic
possibilities of our bodies. - CROOKS BAUR,
1996
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CLARIFICATIONS

• Law arises from courts
  COMMON LAW
• From parliament STATUTE LAW
• Common Law governs all patients
• Statute Law governs specific patients
• Ex MHA governs detained patients and a
  small no. of specified informal patients.
• 4. Statute Law trumps Common Law

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SOME MORE CLARIFICATIONS

• 1. Majority of patients treated under
  common law rules.
• - rules arising from courts and
  not from statute
• 2. A small minority of patients are retained
  under the Mental Health Act.
• - special legal rules apply to them
• 3. Varieties of legal and ethical aspects of
  treatment covering both criminal and civil court
  reports

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SOME MORE CLARIFICATIONS - 2

• 5. Courts and Tribunals administer law, sometimes
  assisted by psychiatric evidence.
• 6. Legal and Psychiatric constructs are clearly
  distinguished, even when apparently related
• Ex Psychopathy in Psychiatry
  
  vs. Psychopathic disorder in MHA
• 7. CRIMINAL LEGAL PSYCHIATRY
  involves the state
  against an individual.
• Ex a mentally disordered defendant
• 8. CIVIL LEGAL PSYCHIATRY
  involves one individual
  against the other
• Ex One or more may be mentally disordered.

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SEXUAL FAMILY RELATIONSHIPS

• European convention of human rights Article
• right of all to respect for private and family
  life.
• U.N Declaration of rights of M.R. persons (1971)
  Recognizes right to live in their family but says
  nothing regarding the right to develop sexual and
  family relationships for themselves.
• General terms
• delicate balance
• Need for patient protection
• Right of a pt. to normal sexual and family
  relationships

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SEXUAL RELATIONSHIPS

• Distinction between
• the capacity to consent to sexual intercourse
• the protection of the mentally disordered
• Patients protected by ordinary criminal law.
• (Sexual offences Act)
• In addition to protection from MHA.
• Capacity to consent judged at relatively low
  threshold activity well known,
• easily understood.

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SEXUAL OFFENSES

• Natural One
• Peno Vaginal
• Rape, Adultery. Incest
• An Unnatural One
• Other than Peno Vaginal
• Sodomy, bestiality, buccal coitus
  or Lesbianism.
• Rape gender neutral in many countries.
• Female person - but not in India.
• Homosexual rape, vibrater object

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SEXUAL OFFENCES IN IPC

• Offences against person
• Offences affecting mental order
• Offences against public tranquility
• Unnatural offences

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Offences relating to person mental order

• Dowry Death Sec 304 B IPC
• Where death of a woman caused by any burns or
  bodily injury other than normal circumstances
  within 7 years of marriage.
• Soon before death evidence of cruelty or
  harassment husband / relative.
• Connection to demand for dowry
• Such death dowry death
• Husband / relative deemed to have
  caused her death.

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OUTRAGE OF MODESTY

• Sec 354 IPC
• Assaults
• uses criminal force on woman
  intending to outrage
  
  knowing it to outrage her modesty
  punishment imprisonment 2 years fine
  or both.
• Sec 509 IPC
• Insulting the modesty of a woman.
• Any woman
• Utters any word
• makes any sound or gesture
• exhibits any object
  intending
  words or sound shall be heard.
• Gesture or object seen by such woman.
• Punishment Simple imprisonment 1 year fine

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KIDNAPPING

• 1. OF MINOR GIRL SEC 366A IPC
• Whoever by any means induces any minor girl lt 18
  year age.
• To go from any place
• To do any act with intent
• Forced or seduced to
• Illicit intercourse
• Punishment 10 years imprisonment fine
• 2. Sec 366 B IPC
• - Import into India from any country
• - Outside India or from Jammu Kashmir
• - Under the age of 21 years

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KIDNAPPING Contd

• 3. Sec 367 IPC
• Whoever kidnaps or abducts any person
• - may be so disposed
• - Put in danger of grievous hurt
• - Slavery
• - Unnatural lust
• Buying Selling of persons (Sec 370 IPC)
• Import, exports, removes, buys, sells or disposes
  of any person as Slave.
• Accept, receives or detains against will
• Punishment 7 years fine
• Excludes Buying or importing girls with a view
  to marriage.

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PROSTITUTION Sec 372 IPC

• Whoever sells, lets to hire
  
  otherwise disposes of any person.
• Intent for - prostitution
• - illicit intercourse
• Unlawful / immoral purpose
• Punishment of either description 10 year fine
• Prostitution
• Female lt 18 years
• Sold, let for hire or otherwise
  to
  prostitute or brothel
  held responsible until
  contrary proved
• Illicit Intercourse
• Between 2 persons not united by marriage

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Requirements for Sec 372 IPC

• Selling or letting to hire or disposal of person
• lt 18 years
• Intent or knowledge of likelihood of employing
• - prostitution
• - illicit intercourse with any person
• - any unlawful immoral purpose.
• Adoption of daughter by dancing girl purpose
• Devadasi Dasis
• Sec 373 IPC
• Whoever buys or hires or otherwise obtains
  possession.
• lt 18 years
• Prostitution / illicit intercourse as in 372
• Prostitution / person keeping brothel.

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RAPE SECTION 375 IPC

• A Man is said to commit rape
• Intercourse with a women
• 5 of the following conditions
• Against her will
• Without her consent
• With consent by putting her or person
  she is interested in fear of
  death or hurt.
• With consent
• - man knows he is not her husband.
• - because she believes
• Consent
• reason of unsoundness of mind
• intoxication
  use
  of stupefying or unwholesome substance
• Unable to understand the nature and
  consequences of that to which she
  gives consent
• 6. With or without consent lt 16 years

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RAPE

• Medical Evidence is necessary
• Both victim accused examined
• Evidence of
• - Recent sexual intercourse
• - Act against will of the woman
• - Age / mental state
  makes consent invalid
• immunity from punishment
• - male capable of sexual act
• - age mental state of male

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Medical Examination in rape

• Requisition must from police or magistrate
• If victim comes only with history without
  requisition, information has to be give to police
  (Cr. P.C. Sec 39).
• If already informed to police by victim herself
  or her relatives no need to inform again (sec 40
  Cr. p.c)
• Consent for Examination Offence or assault to
  touch any person without his / her consent
  lt 12 years / unsound mind
  mandatory to obtain consent from parents /
  guardian (sec 90 IPC)
• Examination must be carried away without any
  delay, failing which doctor may be changed for
  loss of evidence as per sec 202 IPC
• Special areas false charges,
  victim lt 16years (statutory
  rape), male rape.

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RAPE BY HUSBAND

• Doctrine of Marital exemption
• Wife as husbands chattel
• General consent as natural implication of
  marriage.
• Out moded view of marriage
  
• HOUSE OF LORDS WIDENED SCOPE OF CRIMINAL
  RESPONSIBILITY
• PUNISHMENT FOR RAPE
• Imprisonment of either description gt 7 years.
• May be for life or a term of 10 years fine
• Wife / not lt 12 years
• 2 years or fine or both.
• Special reasons 7 years.

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OTHER SECTION

• 1.Sec 378 A IPC Sexual intercourse with his own
  wife without her consent.
• Who is living separately from him under decree
  of separation any custom or usage
  punishment 2 years / fine.
• 2.Sec 376 B IPC Sexual seduction taking advantage
  of official position
• Under him or under subordinate, punishment 5
  years fine
• 3.Sec 376 C IPC Sexual seduction taking advantage
  of official position
• Superintendent or Manager of a Jail, remand home
  or other places of
  custody
• 4.Sec 376 D IPC Sexual seduction taking advantage
  of official position in Hospital
• Management, staff of a hospital, any woman in
  that hospital 5 years fine.
• More than one person each seemed to have
  committed rape.

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DETERMINANTS OF MEDICAL INFERENCES

• Genital injuries slight entry sufficient,
  rupture of hymen or insemination
  not necessary.
• Signs of struggle
• Semen in Vagina
• Seminal stains on clothes
• Blood stains
• Venereal disease
• Evidence in the male organs
• Impotency
• Age, insanity, intoxication
• False charges

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MARRIAGE

• Legal capacity to marry is not equivalent to the
  legal capacity to have (extramarital) sexual
  intercourse.
• Law
• Relaxed view of qualification for matrimony
• Preserving idea that it must be voluntary
  consensual union.
• Two grounds for annulment
• Lack of valid (competent) consent
• Sufferance from mental disorder within the
  meaning of MHA

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MARRIAGE -2

• Unfit for marriage, even though competent to
  consent to marry.
• Both grounds for VOIDABLE MARRIAGE
• Not automatically void
• The marriage exists until successfully challenged
  in the courts by one of the parties.
• AT REGISTRARS OFFICE Investigates the caveat
  rarely refuse to marry the person on the basis of
  unfitness of marriage
• Commonly can refuse in
• incapacity to consent to marriage.
• CAPACITY TO CONSENT TO DIVORCE
• Similar to consent to marriage

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Section 493 IPC Concubine

• Cohabitation caused by a man deceitfully.
  Inducing a belief of
  lawful marriage
• Punishment 10 years fine
  May
  be punished as rape under sec 375 IPC clause 4.
• Section 494 IPC Bigamy
• Marrying again during lifetime of husband or wife
  
• Exception declared valid by court former
  husband or wife.
• Sec 495 IPC
  Concealment of former
  marriage
  Both 10 years fine

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• Sec 497 IPC Adultery
• wife not punishable as abettor
  framers did
  not make adultery as offence
  II Law commission
• 5 years fine
• Requirements
• SI by a man with a woman who is he knows or
  has reason to believe to be
  the wife of another man.
• With out the consent / connivance of the husband.
  
• Not amounting to rape.
• CONNIVANCE
• Willing consent to a conjugal offence, culpable
  acquiescence.
• Legal doctrine Volents non fit Injuria- a
  willing mind.
• Figurative expression voluntary blindness.

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ELOPEMENT WITH AN ADULT UNMARRIED WOMAN

• Section 366 IPC 498 IPC
• 366 as defined in the code
• 498 No compulsion or deceit but woman must
  be married, aware and assenting.
• Mere elopement with adult unmarried woman is no
  offence.
• 366 intention to compel afterwards to marry
  against will force / seduce her for illicit
  intercourse.
• Punishment 498 minor compared to section 366.
• WIFE CANNOT BE PUNISHED AS ABETTOR.

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CRUELTY HARRASSMENT TO MARRIED WOMAN Sec 498
A IPC

• Husband or relative of husband
• Suspect to cruelty
• Imprisonment for a term 3 years fine
• CRUELTY MEANS
• Wilful conduct of such a nature likely to drive
  the woman to commit suicide / grave injury or
  danger to life, limb or health (mental /
  physical)
• View to coercing her or any person related to her
  to meet any unlawful demand property, valuable
  security.

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FRAUDULENT MARRIAGE

• Dishonesty / with a fraudulent intention
  goes through the
  ceremony of being married knowing that he is not
  thereby lawfully married punishment imprisonment
  7years fine
• DECEPTION FRAUDULENT ABUSES OF THE MARRIAGE
• Sec 493 496 IPC
• Somewhat alike
• 493 deception is requisite
  cohabitation, sexual intercourse
  consequent on such deception.
• 496 requires no deception
  cohabitation / sexual
  intercourse sine qua non.
• dishonesty / fraudulent abuse of marriage

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FRAUDULENT MARRIAGE Sec 494 / 496
IPC

• Both different
• 494 Valid marriage goes through ceremonies
  during the life time of other spouse
• 496 IPC Only a show of marriage dishonestly /
  fraudulently goes through marriage ceremonies
  knowing that he is not legally married

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OFFENCES RELATED TO PUBLIC TRANQUILITY

• Section 294 IPC
• Obscene behavior in public
• to annoyance to others.
• a. does any obscene act in any public place or
• b. sings, recites or utters any obscene songs
  ballad or words, in or near any public place.
• Imprisonment fine.
• Annoyance is an important ingredient

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INDECENT ASSAULT Section 354 IPC

• Outraging the modesty of woman

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Sexual Harassment

• Legal concept
• Originally for a type of sexual discrimination
• Sexual harassment is unwelcome behavior of a
  sexual nature that makes someone feel
  uncomfortable and unwelcome in the workplace by
  focusing attention on their gender instead of
  their professional qualifications.
• Currently both men women
• To adults children
• Important Unequal balance of power
  constantly redefined and extended in
  legislation.
• Not all sexual behavior in workplace is
  harassment.
• Also does not extend beyond workplace / school.

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What constitutes S.H?

• Unwelcome sexual advances
  requests for sexual favors
• Verbal/physical conduct of sexual nature
• When?
• Submission / rejection
• Explicitly / Implicitly
• Individuals employment
• - Work performance
• - intimidating, hostile or offensive work
  environment.

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CIRCUMSTANCES

• - Victim / harasser
• - Woman or a man
• - not necessarily opposite sex
• b. Harasser victim Supervisor,
  an agent of employer
  
  supervisor in another area,
  coworker Non
  employee
• c. Victim Not necessarily harassed person,
  anyone offended.
• d. Unlawful sexual harassment without economic
  injury.
• e. Harasser conduct unwelcome

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S.H. LEGALLY RECOGNIZED TYPES

• Quid Pro quo sexual harassment
• Hostile environment
• Quid pro quo
• Threat or economic loss
• Single sexual advance sufficient
• Employers strictly liable
• Hostile environment
• Liability of employers
• Know or should have known
• Failed to take appropriate corrective action.

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Offences Relating to Public Servants

• 161 171 IPC
• Get added along with other
  IPC Sections
• Example Rape
• 374 IPC and in this category

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UNNATURAL OFFENCES

• INTERCOURSE AGAINST THE ORDER OF NATURE
• any man
• woman
• animal
• Punishment 10years fine
• Penetration is sufficient
  but convicting evidence
• Sodomy, Buggery and Bestiality
• Buccal oral intercourse

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HomosexualityLegal and ethical questions

• The homosexual marriage
• The homosexual divorce
• Right to adopt and parent a
  child

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HomosexualityLegal and ethical questions

• Recent trends in the UK will we follow suit?
  Should we?
• Does homosexuality need to flaunt itself?
• Is the religious right going too far in
  condemning homosexuality as a moral failure?

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RECOMMENDATION OF A I. 1. Repeal laws. 2.
Condemn torture. 3. Provide safeguards in
custady 4. Prohibit forced medical treatment 5.
End impunity 6. Protect against violence 7.
Protect refugees. 8. Protect/support Human

Right Defenders 9. International Protection 10.
Combat Discrimination
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OTHER LEGAL ISSUES RELEVANT TO
PRACTICE

• CONSENT
• Written
• Exam / treatment without consent
• - assault or battery.
• Free willed
• Well informed
• Intelligent
• Specific
• Expressive
• Competent or guardian

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EXAMINATION OF FEMALE CLIENT

• Section 53 Cr PC Sub Sec 2
• Examination under supervision
  female medical practitioner.
• Therapist Female assistant
  to protect himself
  
  mere presence of husband
  or any male
  companion not sufficient
• Therapist Patient sexual interaction
  devastating
  breach of contract
  
  criminal sanctions.

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Basic principles of therapeutic interaction

• Rule of abstinence
• Duty of neutrality
• Fiduciary relationship
• Importance to patient autonomy
  and self
  determination.
• Respect for human dignity

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REPORT ON POTENCY

• Male
• In female usually refers to male.
• Female VERA COPULA passive agent
• She has no problems to partake in sexual act
• Indications
• Civil Nullity of marriage,
  disputed paternity
  compensation
  maintenance
• Criminal Rape, Sodomy, other

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CERTIFICATION

• Double negative
• No findings to suggest that the person is
  impotent
• Section 12(a) Hindu marriage Act, 1955
• Section 19(1) of Indian Divorce Act
• Section 24 of special marriage Act, 1956
• Incapacity permanent incurable
  from the time of marriage
  
  continuing subsequent to marriage
  sterility alone is not a sufficient
  ground from divorce

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OTHER ISSUES

• Child Sexual Abuse
• Prenatal diagnostic techniques
  (Regulation Prevention of Misuse Act 1994)
• Anomalous Sexual Behavior Sec 291 of the IPC
• SCATALOGIA Offence under telecommunication
  Act,
• INCEST Not considered offence in India
• STALKING Punishable
  wilful, malicious repeated
  following
• 4. Internet Pornography
• Cyber Laws
• 5. Homosexuality / Bisexuality

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