Unnecessary medical tests on POCSO survivors cause mental agony: Madras HC

Chennai: Expressing shock over reports of POCSO survivors being forced to undergo medical examinations even in cases of alleged groping or kissing, the Madras High Court directed doctors and hospitals to conduct such tests only based on the nature of the complaint after it observed that such stressful medical procedures without any legal justification, cause unnecessary mental trauma on the survivors.  

A special bench comprising Justices N Anand Venkatesh and Sunder Mohan, overseeing the implementation of the POCSO Act, strongly opposed conducting routine medical tests even in cases involving minor acts like kissing or groping. The court found that doctors had performed vaginal swabs in several cases where it was not warranted, leading to severe mental distress for the survivors.

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During the hearing, the bench stated, “Insisting on unnecessary medical examinations without considering the nature of the case, especially in non-penetrative sexual assault cases, causes mental agony and amounts to harassment of survivors. Hence it should be avoided, and instead, the procedure should be followed in line with section 27 of Pocso Act and section 164-A of CrPC. In such cases, no medical examination is needed unless it falls under sections 3 and 5 of the Pocso Act (offences of penetrative sexual assault)."

The court also directed doctors to exercise discretion in conducting medical examinations on children instead of mechanically following a protocol. It clarified that offences under Sections 7, 9, and 11 of the POCSO Act—relating to non-penetrative sexual assault—do not automatically warrant medical tests unless there is evidence of physical injury.

“There are cases where the child may get injured, but the offence may be one falling under Section 7, 9 or 11 of the Act. In such cases, a medical examination of the child may be necessary to explain the nature of the injury. We make it clear that the doctors examining the victim child shall decide upon the tests to be conducted based on the complaint of the child," said the bench as reported by DT Next. 

As per TOI news report, the order was passed after the court was informed that in several cases even when for offences such as kissing or groping, the children concerned are often subjected to medical examination, including vaginal tests. 

Providing a clarification in this regard, the bench said that "For offences under Sections 3 and 5 of the POCSO Act, which deal with penetrative sexual assault and aggravated sexual assault, respectively, a medical examination is necessary to substantiate the offence. However, for offences of sexual assault, aggravated sexual assault, and sexual harassment, there might not be an element of penetration. In such cases, subjecting the child to a medical exam, including collection of vaginal swabs, could put the child under more stress, especially when no use was served by performing such a medical examination."

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