Describe the examination of a person accused of a sexual offence. Add a note on unnatural sexual offences.

Examination of the Accused

• Governed by BNSS sections 51 and 52 (formerly CrPC 53 and 53A). Examination is carried out at the request of a police officer not below the rank of sub-inspector, by a registered medical practitioner, and reasonable force may be used
• Consent is not required — this is the fundamental distinction from the examination of the survivor, and it is absolute. The examination of an accused is compelled by statute; that of a survivor requires her consent
• A female accused is examined only by or under the supervision of a female registered medical practitioner
• Article 20(3) does not protect against it — the taking of blood, semen, hair and swabs is not "testimony" and does not amount to self-incrimination, as settled in Selvi v State of Karnataka (2010); but the same case held narcoanalysis, polygraph and brain mapping without consent to be unconstitutional, since they extract the contents of the mind

• Consent is required from the survivor and is not required from the accused. This single asymmetry is the most examined point in the topic and the most consequential in practice. Examining a survivor without consent is an assault
• refusing to examine an accused for want of consent obstructs the investigation.
• BNSS 184 requires consent
• BNSS 51 and 52 permit reasonable force.

Unnatural Sexual Offences

• The legal position changed fundamentally in 2018. Section 377 of the IPC criminalised "carnal intercourse against the order of nature". In Navtej Singh Johar v Union of India (2018) the Supreme Court read down section 377 to decriminalise consensual sexual acts between adults in private, holding the provision unconstitutional to that extent
• The BNS 2023 contains NO equivalent of section 377. Consensual acts between adults are therefore not offences. Non-consensual acts and acts involving minors remain offences — under POCSO for children, under BNS 63 where the victim is a woman, and under the general provisions relating to hurt and assault; bestiality is likewise no longer separately provided for, and the position is governed by animal welfare law
• Sodomy (buggery) — anal intercourse. Where the act is non-consensual or with a minor it is an offence and requires medical examination
• Findings in the passive partner — in a recent act: pain, bleeding, tears and fissures of the anal margin, characteristically radial and at the 6 and 12 o'clock positions; bruising and swelling; a lax sphincter for a short period; and semen on swabs. In habitual passive sodomy the classical descriptions are of a funnel-shaped anus, loss of the radial folds, a patulous sphincter and thickened skin — but these are unreliable and have been discredited; they occur in chronic constipation, in disease and with age, and their absence is usual even in habitual practice
• Findings in the active partner — injury to the penis and frenulum; faecal staining or material on the glans and in the coronal sulcus; and lubricant

Applied Aspects

• Examine an accused on a proper written requisition from an officer of sufficient rank, and record its receipt; consent is not required but the statutory basis must exist
• Use only reasonable force and preserve dignity; the power to compel is not a licence to humiliate, and an examination conducted degradingly is both wrong and open to challenge
• Do not rely on smegma, and do not report the "classical" signs of habitual sodomy as diagnostic; both have been discredited and their use damages the credibility of the whole report
• Anal injuries heal within days, so their absence in an examination conducted late excludes nothing, and this must be stated
• Consensual acts between adults are not offences; a doctor should not treat a consenting adult's sexual practices as a matter for report, and doing so may itself be a breach of confidentiality
• Collect swabs from the glans and coronal sulcus in every accused; vaginal or rectal epithelial cells and blood recovered there are among the most useful evidence linking the accused to the complainant
• Record the time interval since the alleged act, which determines what can still be recovered from the accused

Findings and Samples in the Accused

• The opinion is confined to capacity and to the findings — whether the person is capable of sexual intercourse, and what was found. Capacity is presumed unless there is a specific disability, and a doctor should not be drawn into stating whether the accused committed the offence

Unnatural Sexual Offences

• The legal position changed fundamentally in 2018. Navtej Singh Johar v Union of India read down IPC section 377 to decriminalise consensual sexual acts between adults in private. The provision continued to cover non-consensual acts and bestiality
• The BNS 2023 contains NO equivalent of section 377, which has left a recognised legislative gap regarding non-consensual acts against adult men and transgender persons; children remain fully protected by the gender-neutral POCSO Act
• Recent passive sodomy — pain and tenderness, bruising, and radiating fissures or tears of the anal margin, particularly at the posterior midline, with bleeding; sphincter laxity; and semen may be recovered
• Habitual passive sodomy — the classical descriptions of a funnel-shaped anus, loss of the radiating folds and a lax sphincter are unreliable and much disputed, being non-specific and produced also by constipation, prolapse and neurological disease. They should be reported with great caution or not at all
• Bestiality, buccal coitus and necrophilia — necrophilia is not specifically an offence under the BNS and has attracted judicial comment

Applied Aspects

• Do not require consent from an accused and do not proceed without it from a survivor; the distinction is statutory and absolute
• A female accused is examined only by or under the supervision of a female doctor; this is statutory and not a matter of convenience
• Report smegma with its qualification or not at all; its value is limited and it is regularly overstated in Indian reports
• Be very cautious about the signs of habitual sodomy; they are unreliable, non-specific, and have been used to persecute people
• Take penile swabs and nail scrapings promptly; the complainant epithelial cells and DNA are recoverable only for a limited period
• Blood and hair may be taken by compulsion; the contents of the mind may not — narcoanalysis and polygraph without consent were held unconstitutional in Selvi
• Capacity for intercourse is presumed unless there is a specific disability, and the doctor does not opine on whether he committed the offence
• Record the interval since the alleged act, which determines what can still be recovered and what cannot
• Capacity for intercourse is presumed unless there is a specific disability, and the doctor does not opine on whether he committed the offence
• Check the current law on non-consensual acts against men; the removal of section 377 has left a gap, and findings should be recorded fully regardless