By: Salwa Mansuri. Graduate Candidate at the London School of Economics. Resident Intern, Princeton Foundation for Peace & Learning. smansuri@pfplus.org
Introduction
Under Section 376, one of the two exemptions for rape is Exemption 1 which states: “A medical procedure or intervention shall not constitute rape”. This exemption is starkly contradictory to empirical unfoldings & experiences of survivors of rape who have experienced rape. On the 3rd of June 2021, a patient accused four doctors who were part of the MLN Medical College who performed surgery on her when she was admitted to the Swaroop Rani Nehru Hospital. The brother of the patient stated that when her sister [the woman] was brought out of the operation theatre and wished to express something but was unable to speak. Through this article my goal is to uncover the assumptions that underpin the exemption of rape.
Unpacking Critiques of Consent-Based Approaches
By grappling with the key critiques consent-based approach which formulate the fundamental basis of rape law and medical law, I argue for the need to criminalize rape during medical procedures once again centering women’s sexual & bodily at the forefront. A consent-based approach as outlined by a is a “proprietary notion of selfhood derived from social contract theory”. However, as several feminist scholars have critiqued consent based approaches, has several misconstrued assumptions within a a heteropatriarchal society which violate and withdraw agency rather than ensure its provision. The fundamental thread which binds critiques to consent-based approaches women themselves lack the power to negotiate consent which is applicable especially in a medical professional-patient relationship.
Amongst the several debates and critiques that encompass consent, the focus is to bring assumptions of the exemption in the context of the unequal power dynamics and relationships not just between a man and woman experiences sexual activity, but rather the power dynamics between a medical professional with superior medical knowledge and the patient who is expected to passively agree. The traditional application (as well as critiques) of consent-based approaches is largely contextualised in the context of sexual activity, but applying it in the context of exemption only enables understanding of consent as an inherent a priori rather than one that gives into the traditional understanding of heteropatriarchy that consent is often critiqued to be.
Defining Medical Rape Knowledge, Gender & Power
Several scholars have thus far established that rape often involves unequal power dynamics and therefore before arguing for its criminalization, it becomes particularly crucial to understand the power dynamics that form the basis of the current context. For instance, MacKinnon (2016) for example well-establishes the fact that rape involves unequal power relationships. This is further highlighted by Humphreys & Herold (1996) further reinstates this fact that rape involves “unequal power distribution between women and men”.
In the context of criminalizing rape by a medical profession, it is however, necessary to gauge that power dynamics do not simply exist because of gender differences and unequal dynamics because of gender but also because of the disparity in medical knowledge between the medical professional and the patient. The patient is often reliant on the medical professional for expert knowledge and establishing the two-fold power dynamics due to gender as well as due to medical knowledge and dependency of the patient on that knowledge is also a key form of power differential which must be accounted for.
Assumption 1: Inconsistency, Partiality & Dichotomy
The first assumption under Exemption 1 under Section 376 of the Indian Penal Code is that once consent is given, consent cannot change. There is an underlying expectation for women’s consent to remain consistent through the procedure, once given it is likely to remain stagnant throughout the procedure. In other words, the exemption assumes that consent once given to medical procedures remains consistent till the end of the procedure.
An empirical example is the case of a 38-year-old woman who was allegedly raped by a doctor in Gurgaon. She went to his guest house, which also happened to be the clinic for the day. She was given a spiked drink after which she was raped. While the woman did consent for her treatment, she explicitly stated that the doctor raped her. This empirical incident is a stark example of partial, dichotomous and inconsistent consent which was violated and therefore must constitute as rape. Even though the doctor was charged with Section 376, whether or not he was a doctor was yet to be deciphered in the context of the exemption.
It also assumes that consent is applicable till its withdrawn characterizing it as a form of binary rather than a continuous spectrum. The exemption stems from the understanding of consent as one that cannot be altered as the nature and intervention of the medical procedure changes. In other words, it appears as though, consent is withdrawn through the medical procedure making no room for it to be violated and thus criminalized. My ideas are further supported by MacKinnon who suggests that often, women are subjugated to a dichotomous or binary form of consent where virginal individuals do not consent while wives, women and prostitutes always consent. Such binary notions are prevalent in the context of medical procedures that women who are patients can therefore be placed into the latter category who always consent or are expected to the medical procedure. Another aspect which better supports this understanding is the juxtaposition of violence and consent where if an act is not violent as presented by Loick (2019) it is deemed consensual.
Assumption 2: Consent cannot be violated by medical professionals or in medical environments
An empirical example is that on the 9th September 2016, a 21-year old woman was raped in a care unit in a hospital that was secluded in Ahmadabad. Much like the marital rape assumption, there is an underlying assumption that certain individuals as per their marital or professional status in this case do not withhold the capacity to violate a woman’s consent. Even though Akter (2011) highlights the need to “recognize sociolegal obligation for the medical profession”, this does not necessarily imply that medical professionals must not imply that medical professionals do not have the capacity to violate consent. The exemption is unable to draw a distinction between the expectation of medical professionals to adhere to ethical standards on consent and whether they are doing so in practice. Under such an assumption, the provision and associated violation of consent decenters a woman’s and is instead dependent on individuals in a position of power such as medical professionals, determining their ability or inability to violate it. A consent-based approach however, centers consent towards the individual, which constitutes a part of their personhood, which can be violated, regardless of who the violator is.
Just the way that contemporary rape scripts have myths about the type of environment in which an incident constitutes as rape, the same script appears to be applicable in the context of this exemption as well. Kahn & Mathie (1994) for example, highlight the traditional rape script of a violent stranger in a public environment that usually constitutes as rape. Such rape scripts about the environment of where the violation of consent, sexual and bodily autonomy more generally can constitutes as rape often leads to the ideal of an unacknowledged victim where she herself is unable to label.
An empirical example that helps debunk the above argument is that on the 28th of April 2023, “a doctor allegedly developed an affection for the complainant and conversed regularly with her and tried to establish intimacy with the victim. When the complainant resisted, he called her her to the clinic under the pretext of offering an apology. The complainant has come to the accused’s clinic to take an injection, after which the doctor raped her. This specific empirical scenario deviated from the traditional rape script on that occurred in a medical environment by a medical professional and was not in public. The above incident has proved how consent must be centered on the victim/survivor rather than the environment or the status or profession of the perpetrator.
Assumption 3: Patients are always able to provide valid & informed consent: the problem of Opaque Consent
The final assumption that that the exemption under Section 376 makes is that patients are able to provide valid and informed consent in the context of medical procedures and therefore, the presence of consent means that the intervention may not constitute it. The idea of informed consent is that all the information is revealed to the patient, but this approach dismisses the fact that the information but not fully be absorbed and perceived patients themselves. While contemporary understanding of informed consent is considered under patients who may not be in a position to provide valid and informed consent especially in a position of vulnerability, physical and bodily pain or other forms of disabilities which may inhibit consent.
This is not to say that taking consent from patients must not be a standard norm but that assuming that patients, especially female ones are always able to provide valid and informed consent and therefore medical procedures would not constitute as rape. In this context, we once again draw from Loick who brings in the idea of opaque consent. Opaque consent refers to the idea that sometimes patients themselves do not always understand their own needs and desires and therefore even if the consent is informed it may not necessarily align with the patient’s needs, ones which we cannot decipher.
Empirically, on the 14th of February 2023, the Times of India reported that one in every 10 individuals suffer from pre-surgical anxiety and such a statistic is particularly alarming when it comes to providing consent in this state. In short, this means as highlighted by Graham & Brookey (2008), “The most prudent approach is to always assume that your patient does not understand you or has a different perception of what you are saying” it also means that patients may land up agreeing to things that they do not necessarily or fully understand and perceive as accurate.
Recommendations for Healthcare Providers: Consent Loops
Thus far, the article focuses on highlighting the issue of consent itself is problematic and its associated critiques. This section provides practical recommendations for the ways in which such understandings of consent theoretically can be translated into practice. Drawing in from the recommendations provided b the one common recommendation is consent loops. Several recommendations in the past have been to ensure that professional standards are met through training on sexual boundary rules but have failed to consider how such trainings must be updated based on the critiques of consent. Often, what is missing is that if such standards are kept fixed, the idea of consent as standard, immovable and consistent remains intact. Bearing the critiques of consent, the associated standards of training should also be updated and adapted accordingly. Rather than viewing consent in binary form where once consent is taken, there is an assumption that no further consent is required, consent loops ensure that consent is drawn at every significant step of the process, especially when there is a significant change in the medical procedure. These consent loops serve as an opportunity for healthcare providers to reconsider whether all the new and required information has been provided to the patient but also for patients to reconsider the consent they give. In doing so, each of the assumptions can be grappled with to ensure that the complex issue of consent and acknowledge that it does in fact have scope for violation, which serves as a pathway to remove the exemption and criminalize medical rape.
Addressing Limitations & Recommendations
While it is crucial that the patients’ perspectives have been accounted for, at this juncture, the analysis would be incomplete if it did not include the perspectives set forth by medical professionals and healthcare workers as they grapple with the several critiques that consent brings with itself. It cannot go unacknowledged therefore that the various dilemmas that patients consent brings with itself makes healthcare professionals further vulnerable to implement such critiques in practice, empirically. One cannot help but ignore that the same evolving notions of consent that are must be applicable to healthcare workers and medical professions as well. As Nair & Zaidey (2022) have highlighted, India has witnessed more than 153 cases of violence against healthcare workers between 2007 and 2009 which constituted as 3.4% of incidents against healthcare workers worldwide. As much as we discuss consent with respect to patients and reimagine them as evident above, the same is applicable to healthcare workers as well.
It therefore becomes increasingly necessary to acknowledge that such standards of consent maybe violated more frequently towards patients but must still be in place for healthcare workers as well. At present the Ministry of Health & Family Welfare has outlined the issue of violence against healthcare workers in the Healthcare Service Personnel and Clinical Establishment Bill with associated penal implications for varying degrees of violence. However, viewing the issue through the lens of critiques offered by the consent-based approach will enable for solutions that account for the long-term impacts and aftereffects that violence has even on healthcare workers, which may not necessarily be compensated monetarily.
Conclusion & Pathway to Criminalization
It is evident from the assumptions that the exemption to ‘medical rape’ unpins misconstrued understandings of the notion of consent. Through this article, I have debunked three key assumptions which underpin the medical rape exemption. Bearing these assumptions in mind, a consent-based approach, highlights scope for criminalization. Firstly, it proves that the nature of consent itself can change and is not binary as consent is given and consent is not given. Infact, the nature and scope of consent can alter and change over time. Secondly, the nature of consent is rooted in an individual, regardless of nature and characteristic of the perpetrator. Thirdly, individuals seeking medical intervention may be informed of all the information but might now always be in a state to give full consent and, in such cases, rape is a possibility and therefore must be criminalized.
The first step in such a pathway to criminalization is to label the violation of consent as rape in the first place. The term medical rape must constitute the violation of consent and bodily autonomy even in the context of medical procedures on the basis of the assumptions characterized and debunked above. As Klingele (2020) have previously highlighted labelling violence becomes fundamental not only for survivors to validate and legitimize survivors own experiences but also ensure that the legal response is proportionate. Such an approach will reformulate the fabric of consent at the intersection of rape law and medical law in the Indian Context.
