Despite a High Court judgment doing away with the need to conduct a potency test for those accused in a sexual violence case, an RTI petition reveals that in four months since the 2023 order, in 38 instances, potency tests were performed on boys under 18.
While a special bench of the High Court of Madras passed an order in August 2023, ruling that the court would have to proceed with the presumption that a male arraigned in a case of sexual violence is potent. Describing the potency test as archaic, they said it must not be done routinely, only if the accused seeks to hide behind a potency argument, and then the burden of proof will be upon him to prove that he is impotent. A potency test need be conducted only in such instances, the bench of Justices Anand Venkatesh and Sundar Mohan J. ruled.
The RTI petition was filed by Deepika Murali, an advocate who sought to know how many potency tests were conducted in 2022, and in two periods in 2023 – before and after the order (January to August 2023 and September to December 2023). The query was to all the teaching, tertiary medical college hospital in each district, where these tests are usually performed. While responses were received from hospitals in 23 districts, several hospitals are yet to provide data.
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“It is unfortunate that this is happening despite the order of the court. Do people realise the impact of conducting a potency test on a young boy – the trauma, humiliation, embarrassment and shame he will face,” says Vidya Reddy of Tulir - Centre for Prevention and Healing of Child Sexual Abuse.
The court relied on the expert opinion of A.Nagendra Kumar who categorically stated that a potency test is not at all required in a case of sexual violence. Matching the semen that may be traced in the victim or in her garments with the DNA of the offender would suffice, he said.
“The potency exam is outdated, and is not required, as the court has ruled,” says Manikanda Raj, head, forensic medicine and toxicology, Chengalpattu Medical College and Hospital. “However, it is still happening in a routine manner, in cases of sexual violence, with the police following the procedure that they have been following for years. The entire potency test is based on reflexes, stimulus-based reaction. When we do give an opinion, the phrase we use is: ‘There is nothing to suggest that the person is incapable of sexual intercourse.’ Unless there is, as in rare cases, where there is a physiological defect of the penis where we certify impotency.”
Experts stress that the outdated procedure of conducting potency tests be given up, based on the court order, thus saving a lot of trauma and unnecessary humiliation for the children under 18 who are subject to it.
