Forensic and Legal Aspects of Sexuality, Sexual Offences, Sexual Dysfunctions, and Disorders.

CLINICAL PRACTICE GUIDELINES: INTRODUCTION

Psychiatry has always been multifaceted in nature, dealing with varying shades of human mind and behavior. As the law of the land governs human behavior in civilized society, the intersection of law and mental health is but obvious. Over the years of evolution of psychiatry as a field, it has developed several subspecialties of training and practice. One such intriguing field that deals with the above-mentioned construct of “human behavior, its disorders, and the law” is Forensic Psychiatry. Keeping in line with the growing “human rights” approach in mental health, this branch of psychiatry uses scientific and clinical treatise to deal with legal implications in civil, criminal, and legislative matters. Although still in adolescence and a developing stream, literature on forensic psychiatry spans across criminal responsibility in mental illness, civil rights, consumerism, suicide, juvenile justice, testamentary capacity, public interest litigation, and finally the various aspects of human relationships and sexuality.[1] These attributes are dealt with various other articles of this issue as this one specifically talks about the last aspect: human sexuality, relationships, related offences, and the law. Sex and sexuality form not only the basic facets of human interaction but also still a stigmatized and neglected aspect in relation to mental health. Sexual disorders and mental disorders often form an overlapping area that can create a myriad of complexities in the clinical and legal practice. These can be namely the role of mental health professional (MHP) in sexual offences, intellectual deficits of the victims and perpetrators of sex crimes, marriage, divorce, mental illness, and sexual disorders, the civil rights of the gender minorities, and finally paraphilias and their legal implications. Several such nuances will be reviewed and highlighted throughout these guidelines.

Pollack defined Forensic Psychiatry as a “broad field where psychiatric theories and principles can be applied to legal issues.”[1] In the area of psychosexual health and forensic science, though guidelines have been in place for the roles of a physician in sexual offences, the responsibilities of an MHP have not been clearly demarcated in the Indian context. This often leads to ambiguity in the roles of a psychiatrist, both as a physician and as an expert in the Court. Indian laws have been evolving over the past few decades with amendments in the Protection of Children from Sexual Offences (POCSO) Act, 2012, the Criminal Law (Amendment) Act, 2013, the evolved Mental Healthcare Act (MHCA), 2017, and finally the landmark decriminalization of consensual homosexual relationships (Section 377) by the Hon. Supreme Court in 2018. It is important for psychiatrists to stay at par both with the science and law, to deliver appropriate services not only in examination, documentation, and testification of medicolegal cases but also for providing justice and mental health aid to the mentally ill, the victims of sexual abuse, and the gender minorities such as the lesbian, gay, bisexual, transgender, intersex, and queer (LGBTQ/LGBTIQ) community.[2] An adequate knowledge of applicability of psychiatric aspects in the field of psychosexual health and forensic science will form an important pillar of Forensic Psychiatry. Keeping this in background, these clinical practice guidelines (CPG) provide a holistic overview of the issues mentioned above, guiding the psychiatrists in various dimensions where matters pertaining to psychosexual health cross paths with the law.

NECESSITY, SCOPE, AND AIMS OF THE CLINICAL PRACTICE GUIDELINES

Indian Laws related to sexual offences, sexual disorders, and gender minorities have strangely been ambiguous over the years, with obvious lacunae. Added to that is the stigma, discrimination, and prejudice related to mental health and sex, prevalent in India. Throughout the evolution of legal framework for mental disorders from the Indian Lunatic Asylum Act (1858) to the Indian Lunacy Act (1912) and finally the Mental Health Act (MHA, 1987), that got replaced by the MHCA (2017), restrictive approaches have given way to right-based and nondiscriminative legal standpoints for the mentally ill and disabled.[2] Conventionally, mental disorders have been linked with sexual offences, which obviously have been refuted multiple times. However, the defenses of sexual crimes are still often stated as “mental instability” and “intellectual disability,” which pose further challenges in charges, acquittal, and also the management of both the victim and the offender. The changing sociocultural landscape in India has witnessed not only increased awareness about mental health but also unfortunately the rise in sexual offences and gender/orientation-based discrimination.[3] Under such circumstances, the minimum standards of care need to be available for the legal justice, conserving human rights, assisting the Courts in legal matters of opinion, and delivering adequate psychosocial care to the affected.

Although forensic implications of psychiatry have been well discussed, the aspects related to sexuality and sexual disorders have mostly taken a backseat. There exists a huge gap in the medicolegal care provided in cases of sexual offences and in civil cases involving potency and sexual issues. Many victims and offenders are not adequately examined medicolegally, and MHPs tend to avoid medicolegal cases pertaining to psychosexual matters, to avoid complications. Recent laws such as POCSO Act (2012) and Criminal Law (Amendment) Act (2013) highlight the “dual” role of a psychiatrist, as an expert and also as a physician. The practical implementation of the law and these roles still appear to be suboptimal.[4] There have been various factors ranging from lack of adequate documentation, explanation for injuries, negative forensic reports, inconsistencies, and inconclusive examination in sexual offence cases that can significantly influence charges and acquittal.[5] Healthcare professionals are not well equipped with the practical expertise in most cases of sexual violence,[6] both due to lack of exposure and adequate training. There has been increased reporting of sexual crimes and public litigations related to sexual dysfunctions and disorders. These CPGs intend to fill this gap, by enabling the psychiatrists in better interpretation of legal information, and opine with confidence on the psychiatric perspectives.

With that intent, these CPGs aim to help psychiatrists, allied MHPs, even general physicians, and most importantly, the legislators in the following aspects:

Standard approaches for examination, evaluation, and management of sexual offences

Knowledge and skills with regard to sexual dysfunction and the law

Standards of care for the gender minorities, mentally ill, and the victims of sexual abuse

Rights-based psychosocial approaches in various types of sexual crimes (assault, rape, and harassment) across all age groups and genders

Transition of training to the general physicians and grass-root health workers

Adequate assistance to the Court on matters of expert forensic and psychiatric opinion

Multidisciplinary approach: Especially helping the health service managers and policymakers in further legislation related to psychosexual matters of legal importance.

THE CONCEPTS OF “WILL,” “CONSENT,” AND “POTENCY:” CLARIFICATIONS

Even though the terms of “will,” “consent,” and “potency” are used more often as colloquial terms, it is rather important to appreciate their legal meanings. In this entire section of CPG dealing with sexual offences, these concepts will be repeatedly mentioned, essentially forming the basis of “whether a sexual offence has been committed” and “whether the alleged perpetrator can be charged.” Medicolegally, it is important to understand will and consent separately. By default, any action against will is also against the consent but not vice versa.[7] To explain, sexual intercourse with a drugged victim is an offence, as it is definitely not with her “consent” (as she might not have been in a state to provide consent) but might be with her will. On the other hand, a child might have consented for sexual interaction with an adult against his/her will, but that consent is legally invalid.

A major debate surrounding consent is related to “marital rape” which will be discussed in detail in the later sections. The traditional view of “marriage itself implying sexual consent” is outdated, and in many cases, the common allegation is that the “promise of marriage” itself serves as an “unspoken consent” for sexual interactions. This is different from informed consent when adults agree to have sex either out of desire, love, or trust. Based on the Hindu Centre for Politics and Public Policy, legal ambiguity about “consent” in sexual violence within marriage is commonly decided by mediation and compromise rather than legal discourse.[3] For the medical professionals, each case of sexual violence needs to be taken tailored to their context. Legally, submission does not automatically imply consent. Passive submission for sexual intercourse again depends on the situation and relationship between victim and perpetrator. The Criminal Law (Amendment) Act 2013 shifts the burden of proof that “consent has been given out-of-free will” on the accused. The Indian Evidence Act Section 114-A explicitly mentions that if the victim (woman) reports in the Court that consent was not given, it shall be taken as the case. Similarly, free willed and informed consent needs to be obtained at every step for the examination of the victim (mentioned later), along with the assessment of competence to provide consent. In case of minors or those with intellectual disability, it is obtained from the parents or guardians.

POTENCY: TESTING AND CERTIFICATION

Potency is clinically defined as the ability to perform a sequential act of erection, penetration, and ejaculation: necessary for a successful sexual intercourse.[8] The request for certification of potency is common in civil cases (marriage, disputed paternity, and civil claims), criminal cases, and public litigation. The requisition is usually made from the Magistrate or the police officer, and written informed consent needs to be obtained. Vital to remember: Every healthy male individual is presumed to be potent. For females (since considered to be passive in an intercourse), the concept of “autopotency” (vera copula) exists, except in cases of vaginismus and dyspareunia. However, while certifying male individuals, a certificate directly stating the above cannot be stated as psychological impotency can be hardly ruled out even with a detailed physical examination. Hence, a double-negative is used in potency certification: “Nothing to suggest that the above person is incapable of performing a sexual act.”

Examination for potency needs detailed considerations of medical, sexual, and substance abuse history as well as an exhaustive physical and psychological evaluation. Potency certification has a standard format which needs to be carefully documented in detail with the subsequent opinion. The details will be mentioned later under a separate section.

SEXUAL VIOLENCE AND OFFENCES: INTRODUCTION

Sexual violence (abuse/assault) is a universal “social evil.” It is globally prevalent in all socioeconomic classes. It can occur in various settings such as residence, workplace, and educational places or in the community. As reported by the World Health Organization (WHO), one in five women has been a victim of attempted or completed rape by her partner during lifetime.[9] Furthermore, one in three women describes their first sexual encounter to be coercive. Sexual abuse has been gender biased in the literature; however, it can occur irrespective of the gender and social class. Global population-based research in various countries have reported 9%–37% of adolescent females and 7%–30% of males to have experienced sexual coercion at the hands of familiar people or strangers.[9] Besides the physiological risks of sexually transmitted infections, unwanted pregnancy, and physical injuries, the psychosocial impact of sexual abuse can be manifold and long-lasting, leading to serious mental health implications. Sexual abuse is one of the leading contributors to posttraumatic stress disorder, adjustment disorders, depression, and personality disorders. The “act” of rape has been explained using various cognitive and attributional theories. Few of the most prevalent myths that contribute to sexual offences against women by men are listed in Table 1.

Table 1

Myths and realities regarding sexual offences against women by men

Myths	Reality check
Women report rape when minimum force is used	Rape is reported only when the sexual act is perceived as nonconsensual and coercive
The main aim of rape is to have “sex”	Power hierarchy, aggression, need for dominance, and revenge are often the aims of rape
Women of “certain characteristics” are raped	Any woman has a risk to be raped, irrespective of the perceived “nature”
	Societal perception of a “woman’s character” has nothing to do with rape
Sexual assault is mostly done by strangers	Majority of the abuses are by familiar people
Rape can be proved by obvious injuries	Due to fear or threat, many times submission occurs during rape. Only one-third of the victims suffer from visible physical injuries
Even if the woman says “no,” she is consenting	Fostered by popular media culture and forced romanticism, this is a grave myth. The dissent of a person needs to be respected
CSW are not raped	Irrespective of the profession, any person can be raped if forceful and nonconsensual. Studies show that many CSW are sexually assaulted by their clients or law enforcing persons
Rape does not happen in marital relationships	The “closed-door” assaults are probably the most risky and under-reported. Indian jurisdiction has poor provisions for the same, making it a perpetual practice. Any forced sexual activity constitutes rape, irrespective of the relationship between victim and perpetrator

CSW – Commercial sex workers

In India, the mention of rape has been as ancient as in the Mahabharata, where the entire premise of the epic was based on Draupadi’s Cheer Haran (“forcible removal of clothes”). Current data from the country show an increase in sexual violence, especially against younger age group, which has doubled between 2012 and 2016. Moreover, the reporting rate is markedly low, and most cases are either neglected or are shadowed by threats or coercive measures.[10] Sexual offences form an important area of consideration for the medical professionals for the rigorous protocols of examination (both victims and perpetrators), documentation, and testifying in Court of Law. The psychiatrists serve these roles as well as that of understanding the mental state of the victim and the offender, along with providing psychosocial interventions for both of them.

Sexual violence can be in any form, though the circumstances vary. The terms “rape,” “sexual assault,” “sexual abuse,” and “sexual violence” are often used synonymously. However, any form of sexual coercion (or force) can occur with contextual variations depending on situations. For forensic purposes, sexual offences are sex-related acts that are “against” the provisional law of land. In all countries, the consensual heterosexual sexual intercourse is permitted by law and custom. In India, conventionally, sexual offence has been considered when it “departs from the permitted norm” such as a natural practice (rape, adultery, incest) or unnatural (other than penile–vaginal intercourse).[11] Eventually, after extensive debate, consensual homosexual sexual practices under Section 377 have been decriminalized in 2018; however, Section 377 still prohibits bestiality, sex with minors, and nonconsensual sexual acts. The various legal sections dealing with sexual offences in the Indian Penal Code (IPC) are summarized in Table 2.

Table 2

Sections of Indian penal code dealing with sexual offences

Nature of offence	Description	Legal section	Punishment
Kidnapping	Whoever kidnaps or abducts any woman with intent of compelling for marriage, illicit intercourse	366 IPC	367 IPC Imprisonment (simple/rigorous) for a term which may extend to 10 years and shall also be liable to fine
Kidnapping of minor girl	Kidnapping of girls below 18 years of age for the above said purposes	366A IPC	-do-
Importing girls	Import of girls into India from any country outside India or from state of Jammu and Kashmir aged below 21 years for the above said purpose	366B IPC	-do-
Buying and selling of persons	Whoever imports, exports, removes, buys, sells, or disposes off any person as a slave or accepts, deceives, or detains against his will, any person as a slave	370 IPC	Imprisonment (simple/rigorous) for a term which may extend to 7 years and shall also be liable to fine
Prostitution	Whoever sells, lets to hire, or otherwise disposes off any person under the age of 18 years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person Brothels are illegal	372 IPC	Imprisonment (simple/rigorous) for a term which may extend to 10 years and also shall be liable to fine
Rape with changes as per the Criminal Law (Amendment) Act, 2013	A man is said to have committed rape who (except in the case here-in-after exempted) has sexual interaction with a woman under any of the following circumstances	375C	375C
			Imprisonment (simple/rigorous) for a term which shall not be<7 years but which may extend for life and shall also be liable to fine
	Against her will		For aggravated situations, punishment will be rigorous imprisonment which shall be not<10 years, and shall also be liable to fine
	Without her consent
	With her consent, if it has been obtained by putting her (or a person of her interest) in fear of death or hurt
	In false belief that the person with whom she is having sex is her husband		New section 376A IPC: Sexual assault causing infliction of injury causing the death or persistent vegetative state of a person
	When she is intoxicated or is of unsound mind		Punishment: Imprisonment for a term not<20 years, which may extend to imprisonment for life
	With or without her consent when she is below 18 years of age
	** The sexual acts can are not limited to vaginal penetration (includes any act of penetration of penis into the vagina, urethra, anus or mouth; or any object or any part of the body to any extent, into the vagina, urethra or anus of another woman or making another person to do so)		Gang rape: Persons involved, regardless of gender, shall be punished with rigorous imprisonment for a term not<20 years, which may extend to life and shall pay compensation to the victim which shall be reasonable to meet the medical expenses and rehabilitation needs
	** Applying mouth or touching private parts (sexual assault)
	**Penetration means “penetration to any extent”
	** Lack of physical resistance has no role in constituting the offence
	** Changes in CrPC and IEA: “Character of the victim” is irrelevant for the offence, presumption of “no consent” if sexual intercourse is proven and the victim states that she did not consent
Statutory rape	Any sexual contact with a person under the age of consent for sexual intercourse in India (below 18 years of age)	375 IPC	-do-
Sexual intercourse with own wife without her consent (separated)	Sexual intercourse with his own wife who is living separately from him under a decree of separation or any custom or usage without her consent	376A IPC	Imprisonment (simple/rigorous) for a term which may extend to 2 years and shall be liable to fine
Sexual seduction taking advantage of official position	Whoever being a public servant takes advantage of his official position and induces or seduces any woman (who is in his custody) as such public servant or in the custody of a public servant subordinate to him to have sexual intercourse not amounting to rape	376B IPC	Imprisonment (simple/rigorous) for a term which may extend to 5 years and shall also be liable to fine
	Whoever being the superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution takes advantage of his official position has sexual intercourse not amounting to rape	376C IPC	Imprisonment (simple/rigorous) for a term which may extend to 5 years and shall also be liable to fine
Sexual seduction taking advantage of official position in hospital	Whoever being on the management of a hospital or being on staff of a hospital takes advantage of his position and has sexual intercourse with any woman in that hospital such sexual intercourse not amounting to the offence of rape	376D IPC	Imprisonment (simple/rigorous) for a term which may extend to 5 years and shall also be liable to fine

IPC – Indian Penal Code; CrPC – Criminal Procedure Code; IEA – Indian Evidence Act

Indian Psychiatric Society has already published detailed CPGs on Child Sexual Abuse and Management;[12] hence, that section will not be included in these guidelines. Sexual violence in adults will mainly be considered for discussion. The detailed forensic examination and reporting protocol for a medical examiner is beyond the scope of these guidelines, and only, the basic overview will be discussed with a focus on management of victims of sexual violence and assessment of sex offenders.

MARITAL RAPE

India is one of the 36 countries that have still not criminalized marital rape. Over the years, the exemption to an unwilling sexual intercourse between husband and wife (above 15 years of age) in IPC Section 375 has been widely debated and argued against.[13] After considerable increase in cases of “marital rape” and with repeated legal petitions in the Supreme Court and State High Courts, the legal validity of this exemption has been questioned and the age limit has been raised to 18 years from 15 years (however, the exemption as such still remains). It has been argued that the concept of “obligatory sexual interaction” by the virtue of marriage is against Article 14 (Right to Equality) and Article 21 of the Constitution. India has over the years seen legislations such as “The Protection of Women from Domestic Violence Act, 2005” and “The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act” for the enhanced protection and safety of women.[13] After the inhumane Nirbhaya incident in Delhi and the Criminal Law (Amendment) Act (2013) failing to address the issue of marital rape, the appeals from myriads of women - organizations, human rights associations, and finally the Justice Verma Commission recommendation of criminalizing marital rape - have set more fuel to the fire. As of now, the exemption still holds and “marital rape” is considered to be a gray area; it is to be assessed and understood in the individual context and in light of interpersonal relationship between the couple taking into account any history of domestic abuse.

SEXUAL OFFENCES: EXAMINATION AND EVALUATION

The health and welfare of the victims are the first priority. The examination of the victim has set standard protocols which need to be followed in a professional, ethical, and compassionate manner. Individual prejudices and biases need to be set aside while the examination takes place. Explicit informed consent needs to be sought before the forensic evaluation is conducted. Besides the general and local examination, the psychological and emotional reaction of the victim also needs to be understood, as that can affect the narration of the traumatic event and hence influence legal discourse of investigation. Lack of adequate exposure and training can often lead to incomplete examination and reporting, which have legal repercussions on the case of the assault, acquittal of the accused, the trial, and subsequently the psychosocial well-being of the victims and the family.[5] Few factors are universally considered to be important for medicolegal examination of sexual violence cases, as stated in the WHO guidelines. They are the setting and timing of evaluation, the local legal provisions, availability of the healthcare worker and their profiles, ethical perspectives, justice-based approach, and possible service provisions.[14] In all cases, a multidisciplinary approach is essential and adds value to the overall context. The prerequisite considerations to be borne in mind before conducting the examination are listed in Box 1.

Box 1

Considerations in cases of sexual offences

• What are the existing health facilities?

• How timely can the healthcare be provided?

• What are the immediate needs of the victim (physical/psychological)?

• Informing the family and support

• What diagnostic/medical facilities are available?

• Can gender-preferred help be provided?

• What referrals can be potentially made?

• Liaison with the law enforcement

• Protocols for forensic examination, reporting, and counseling of the victim

• Assessment of the offender

With respect to forensic examination of sexual assault cases, the basic requirements expected out of a medical professional are the following:

dequate knowledge and understanding of sexual anatomy, functioning, and physiology

Appreciation of local and medical terminology of sexual acts and organs

Communication and negotiation skills

Understanding the process and dynamics of sexual offences

Knowledge of laws (mentioned above) with relation to sexual offences

Contextual, sociocultural, and religious connotations of the offences

Empathy, nonjudgmental approach, compassion, and impartiality.

Once the victim presents to the medical examiner or the psychiatrist, the requisition is either from the Magistrate or the police following which sequential steps of action need to be adopted ranging from examination to care of the victim and assessment of the alleged offender, all the while taking care to carefully document the findings [Figure 1].

Figure 1

Flowchart depicting sequential steps taken in cases of sexual offence

Conventionally, sexual offences have always been discussed with reference to women as victims and men as perpetrators. However, the vice versa is not impossible. Same-gender sexual violence is common but often discounted in the literature. Men as victims of sexual abuse are often overshadowed by the societal perceptions of “patriarchy” and hence are under-detected and suboptimally managed. Forced masturbation of the perpetrator, passive partner for anal intercourse, and receptive oral sex are some common forms of violence in male sexual abuse. The psychosocial effects mirror that in women but are often repressed due to the fear of embarrassment and perceived “fear” of injury to the masculinity.[15] These often add to the myth that only homosexual men can face sexual abuse, for which many adolescent and young heterosexual males do not disclose repeated victimization. These guidelines specifically mention this to sensitize the MHPs about the gender neutrality of sexual abuse and the similar implications of sexual violence in men. Although Indian legislation does not consider any separate provisions for male victims of sexual abuse, it is yet another ambiguous area needing probable reform. The evaluation, documentation, and management of victims are almost the same in these cases, which focus on gender-based concerns and preferences.

The physician plays the dual role of an expert witness (if asked to certify in the court) and that of managing the victims of the offence as well as helping the law in acquittal of the accused, irrespective of his/her personal biases. The responsibilities expected out of a physician in that context are:

Management of the physical and psychological trauma

Medicolegal examination and evidence collection

Prevention of sexually transmitted diseases (STDs) and unwanted pregnancy

Taking care of physiological and psychosocial damage

Aiding in evidence and identification of the accused

Medical evidence is only a part of the investigation of sexual assault. It is the responsibility of the law to determine whether sexual assault has actually occurred and identify the perpetrator considering the objective medical evidence as a part of holistic evidence. Hence, it is important that the examination is thorough in sexual assault cases and the signs of trauma are not neglected.

Victims of sexual offences are often traumatized and in stage of initial shock. The offenders who are aware of the charges against them might tend to be hostile, manipulative, or in frank denial. Hence, before the actual physical examination commences, it is important to set the stage by explaining to them the procedure of evaluation, obtaining consent, and careful history-taking (which forms the essential part of documentation and testification of charges). These are summarized in Table 3.

Table 3

Initial assessment and history taking in cases of sexual offence

Requirement	Process
Effective triage	Immediate requirements of the victim
	Emergency medical/surgical care
	Safety, health, and psychological well-being of the victim
Requisition	From the police/magistrate
	If incidentally detected on examination, police need to be informed (Section 39 CrPC)
	No requisition needed, if already informed to police (Section 40 CrPC)
Initial assessment	Sociodemographics
	Identification marks
	Time of examination and details of witness
	Delay in examination: Physician might be charged for loss of evidence (Section 202 IPC)
Consent	Informed consent for evaluation, treatment, collecting evidence and releasing it to the authorities (in presence of witness)
	Consent of parents/guardians (if age<12 years, intoxicated, unsound mind)
	If No Consent Provided: To Be Recorded And Not Disclosed Till Asked By The Court
History
Medical	General health
	Recent consultations
	Past history (infections, going medications, allergies, immunizations)
Sexual	Menstrual history
	Recent sexual intercourse/use of contraceptives
	Sterilization procedures
Gynecological and obstetric	Any signs of pregnancy
	Details of childbirth/abortions
	Any pelvic surgery
	Genital infections and STDs
Sexual assault incident	Date, time, location
	Description of the assault (penetrative/nonpenetrative)
	Identification and number of the assailants
	Nature of physical contact and assault: As detailed as possible
	Restraints, weapons or threat used
	Medications or drug use
	Clothing use and removal during and after the incident
	Washing or bathing during/after the incident

IPC – Indian Penal Code; CrPC – Criminal Procedure Code; STDs – Sexually transmitted diseases

The general principles of a physical examination are as follows:

Explanation of all procedures in victim’s language

Family member/friend/gender-preferred person present throughout the examination

General appearance, self-care, and mental functioning (intoxicated or intellectual disability present)

Vitals

Head to toe detailed examination, especially the genitoanal area

Description of injuries in detail (photographing with consent, if needed)

Blood tests and imaging

Clothing, body specimens, etc., need to be carefully collected and preserved

Universal precautions to be observed

Nonjudgmental and compassionate approach

The overview of general physical examination for the victim and the accused are highlighted in Box 2.

Box 2

General examination and documentation for the victim and accused in sexual offences[16]

General examination for the victim and accused

Manner and dress

State of clothes

General physique

Physical weakness/deformity

Height/weight

Intellectual disability

Effects of drugs

Lesions indicating place of occurrence

Genital development

Search for injuries

Buccal mucosa/teeth (especially for dark complexion)

Marks of teeth in mouth/tongue (love bites/hostile)

Bruises/scratches/bites anywhere in the body

Defense injuries (in victim)

Bruising/abrasions/lacerations/incised wounds/stab wounds/gunshot wounds

Genitourinal injuries

Nails

Documenting the injuries

The age of the injury

Description of injuries

Likely mechanism of injury

Amount of force involved

Circumstances/contexts of the injury

Consequences

Associated injuries

LOCAL EXAMINATION

This forms a very important part. Dignity and consent of the victim are vital. Adequate lighting and sample collection need to precede local examination. Mostly, posterior fourchette, labia, hymen and perineal folds, and inner walls of thighs are the sites of injuries.

General principles of local examination

Condition of the local tissues (viz., size, state, lubrication, and texture)

Likely attributes of the penetrating object

Likely amount of force used for penetration

Degree of relaxation of the pelvic/perineal muscles

Likely position of the act.

It is important for the clinicians to remember that local examination might not be conclusive in all cases of sexual violence. It tends to be highly individualized based on sexual and obstetric history and individual anatomy. However, the common and possible findings in females in cases of sexual offences are listed in Table 4. Again, these are not exhaustive and clinical suspicion as well as contextual history should be given equal importance. The physical findings need to be interpreted in light of the medical and personal history.

Table 4

Possible findings on local examination in victims of sexual violence

Local examination site	Possible findings
Vulva	Bruising
	Inflammation and tender swelling
	Finger-nail marks
Hymen	Tears in clockwise position
	Rupture or bleeding
	Extensive hymenal tear (usually suggestive of force)
	Anterior hymenal tears (digital penetration/masturbation)
	Posterior tears (previous intercourse)
	No injuries might be present, if vaginal orifice is capacious
	For a virgin: Posterior rupture of hymen on both sides, torn margins are tender, posterior commissure, and fourchette are torn
Vagina	Wall tears (posterior>anterior)
	Discharge
	Consistency of uterus and adnexa (bimanual examination)
	Minor injuries (toluidine blue technique)
	Avoided in infants and children
	In sexually active women: Hymen is already destroyed, vagina dilated (no local evidence might be found). However, laceration and bruising of vulva can happen with excessive force
Examination of accused
Local anatomical deformity	Hypospadias, epispadias
	Hydrocoele
	Deformity of penis (e.g., Ram-horn)
	Prior surgery
	(If sexual assault was possible)
Glans penis	Presence of smegma (absence is not conclusive of sexual intercourse but presence of thick layer: Suggests lack of intercourse in last 1–2 days)
Frenulum	Tear and bleeding
Injuries sustained during forcible intercourse	Bruising of glans
	Abdominal, thigh, and perineal injuries
	Chest and back injuries (bite marks and scratches)
	Face and neck
Proof of contact/site of contact	Blood stains, vaginal discharge, feces, loose hairs, foreign particles, stains, etc.

Specimen collections from sexual offence cases are of two types, for diagnostic purposes and for forensic investigation. The types of specimens are dependent on the situation of the crime and facilities available at the diagnostic laboratory. Standard rape kits usually have the basic requirements for collecting the necessary specimens. The details of sample collection and preservation are within the purview of forensic science and are beyond the scope of these guidelines. The overview of the samples that need to be collected from the victim and accused is shown in Figure 2.

Figure 2

Forensic samples that need to be collected in sexual offence[7]

Documentation of reports and testification

The professional onus of documentation related to sexual offences lies on the examining health professional. Medical records are not only confidential but also provide important forensic evidence and diagnostic clue. They serve roles for legal charges, follow-up of the victim, and the offender and resources for epidemiological surveys that can enable policymaking. Documentation needs to be detailed, accurate, and legible. Descriptions should be evidence-based rather than dependent on memory and assumptions. Victim’s descriptions are to be documented verbatim, as they help assessment of his/her statement as well as understanding the context of the situation in his/her narrative. Relevant negative findings of physical examination are vital. Photography, if indicated, needs to be confidential and sensitive. Storage of all records related to sexual offences are of utmost importance, and it is the ethical responsibility of the medical and forensic authorities to restrict the access to people involved directly with the case and ensure confidentiality of the individuals involved.

The basic details of documentation need to include:[14]

Sociodemographics

Informed consent

Medical, psychiatric, and incident history (as mentioned before)

Physical examination (general and local)

Any structured scales if used for risk assessment/intellectual/psychiatric evaluation: Results and standard interpretations

Medication history and medications suggested

Information and details provided to the person

Relevant referrals.

Testification in the Court of Law by medical professionals can heavily influence the legal course of sexual offences and lacunae have been reported in the following areas: opinions based on individual biases, assumptions, incomplete evidence, beyond the expertise, or incorrect interpretation of scientific facts. Familiarization with the basic facets of Indian legal system and legal obligations of medical professionals with adequate training in forensic science and psychiatry can boost confidence in court testification, which is often a source of avoidance and professional discomfort for physicians. Few generic points of providing evidence are to stay prepared and informed, listen well and speak relevantly as well as to the point, and avoid “technical jargon” and limiting oneself to his/her field. Facts need to be spelt out rather than opinions and individual judgments or moral connotations need to be avoided.

Consequences of sexual assault/crimes for the victims and management

Sexual trauma has been considered to be one of the most damaging life events, physically and psychosocially. The myriad of effects that it can have on the victim and the family can have rippling effects that tend to affect their entire life. Moral and cultural repercussions along with stigma and prevalent prejudice “blaming the victim for the incident” can further increase the risk of social isolation, lack of adequate treatment, and suicidality. The lives of all involved in the victim’s family and their interpersonal relationships, all are at stake following the trauma. Box 3 summarizes the acute and the long-term effects of sexual abuse or assault.

Box 3

Immediate, short, and long-term effects of sexual violence/abuse on the victims

• Immediate effects

• Shock, acute stress, intense fear, numbness, denial, disbelief, helplessness

• Others

• Confusion, hyperarousal, flashbacks

• Short- and long-term effects

• Guilt, shame, fear, anxiety, crying spells, social avoidance, attention and concentration, mood swings

• General

• Physical injury and trauma

• Infections (pelvic, genitourinary, urinary tract)

• Unwanted pregnancy

• Sexually transmitted diseases

• Infertility

• Impairment of social trust and interpersonal relationships

• Stigmatized identity and taboo

• Social discrimination and chronic stress

• Increased risk of psychiatric disorders

• PTSDs (30%–50%)

• Depressive disorders

• Generalized anxiety, panic attacks, social phobia

• Adjustment disorders

• Obsessive–compulsive disorders

• Substance abuse disorders

• Sexual dysfunction, dyspareunia, sexual phobia, and aversion (anorgasmia)

• Rape–trauma syndrome

• A specific stress response pattern in victims of sexual abuse that can involve psychosomatic, cognitive and behavioral symptom dimensions. Following an initial period of confusion and disorganization, there can be masking of emotions and denial, that can lead to shame, guilt, embarrassment, hopelessness, anger and extreme fear, or desire for retribution. In long-term this can influence the sufferer in various ways based on their situations, contexts, age, and personality characteristics. It tends to influence the overall lifestyle patterns with the interpersonal relationships, social trusts, and individual choices. Symptoms can often overlap with that of PTSD

• Those with intellectual disabilities

• Sleep disturbances (nightmares and flashbacks)

• Deceased academic performance

• Poor concentration

• Selective mutism

• Enuresis, encopresis

• Aggression and emotional dysregulation

• Suicidal ideation

• Eating disturbances

PTSDs – Posttraumatic stress disorders

The management of such cases needs a sensitive, holistic, and empathic approach using the biopsychosocial model. The needs of each case are individualized and depend on the extent of trauma as well as physical injuries and the social support available. Vulnerable populations such as children, adolescents, those with intellectual disabilities, homeless and migrants, orphaned and destitute, and those with poor social network and lower socioeconomic class need additional attention and care.[17] The treatment of acute physical injuries is of the first priority, and the usual triage needs to be exercised like all other medical emergencies. Victims are often in a state of shock and acute stress, unable to process and comprehend information clearly. A nonjudgmental and compassionate approach from the clinician is very important to make him/her feel at ease and to enable the necessary procedures as well as care. Gender preference and sensitivity to local language and sociocultural norms can help the victim cooperate more both for the medicolegal purpose and for their own care. Prevention of unwanted pregnancies, emergency contraception, and assessment and prevention of human immunodeficiency virus (HIV) and other STDs are vital in ensuring overall well-being and emotional assurance. Long-term psychosocial concerns can far outlast the medical consequences, and adequate follow-up care is to be ensured. Management of rape–trauma victims needs a coordinated multidisciplinary approach, and all the necessary referrals are to be managed in a systematic manner with least stigma and discrimination of the victim and their families. The various facets in the management of victims of sexual violence are outlined in Figure 3.

Figure 3

Facets in the management of victims of sexual violence

Referrals

Shelter houses

Support groups

HIV/AIDS (ICRTC centers)

Psychotherapy and counseling

Legal aid clinics

Social service/women support agencies

Various medical specialties (as needed).

Sexual offenders: Assessment and approach

Mental disorders have been conventionally portrayed to be associated with sexual offences in popular media. The Forensic Faculty Executive of the Royal College of Psychiatrists has recommended improved standards of training in forensic psychiatry for the evaluation and management of sex offenders. It is vital to understand that most sex offenders do not suffer from mental disorders.[18] Affective disorders (mania, hypomania) and psychoses are by themselves not associated with sexual crimes, but such events might take place in the context of certain symptoms (disinhibition, increased sexual drives, delusion of love and persecution, etc.). Various other factors that can lead to sexual offences are listed in Table 5. Presence of comorbid mental disorders and intellectual disabilities is one of the many factors associated.

Table 5

Factors associated with sexual offences[18]

Risk factors	Details
Personal factors	Sexual abuse in childhood
	Repetitive sex offender
	Various types of sexual offences
	Criminal history
	Offences against children
	Violent/aggressive sexual fantasies
	Biased attitudes towards women
	Preference of sadomasochistic or pedophilic pornography
Psychological factors	Increased psychopathy
	Decreased self-esteem, anger dyscontrol, poor social cognition
	Chronic social isolation
	Cognitive distortions (perceiving women as sex objects, hostility bias, considering sex drive as uncontrollable, etc.)
	Attachment/intimacy deficits
Comorbid mental disorders	Substance abuse
	Organic brain damage
	Learning disability
	Schizophrenia and mania
	Paraphilias
	Sexual obsessions (usually severe with poor insight)
	Antisocial personality disorder
	Hypersexuality (debated as a diagnosis)

Assessing a sexual offender is always a challenging task. Besides establishing a sound therapeutic rapport, the risks of denial deception and manipulation in certain cases can always impair the interview. These individuals might need a different approach, and it is vital to have an understanding of both “what” and “how” of the behavior rather than jumping prematurely to a diagnosis, which might have legal implications on charges and acquittal. The assessment needs to be structured, with adequate knowledge and techniques, rather than just approaching it from a theoretical standpoint. The following features have been recommended for the assessor by Sarkar.[19]

Empathic and respectful

Nonjudgmental

Friendly and prosocial

Sincere and encouraging

Open to questions and asks open-ended questions

Directive and reflective

Holistic

Active participation.

Although the assessment of a sexual offender is a multidisciplinary approach, the psychiatrist might often be asked to comment on the intellectual ability and potency of the offender. The issue of potency and its certification is already discussed in the earlier sections. Lack of potency has often been cited as a legal defense against rape; however, to recapitulate, every healthy individual is considered potent, unless proven otherwise, and psychological impotency is very difficult to comment upon. Hence, any opinion needs caution and careful documentation. Indian legislations do not have any specific provision for sex offenders with intellectual disabilities. Based on age, they are either treated as juvenile delinquents or adult sex offenders. Besides standard intelligence quotient (IQ) assessments such as Binay Kamat Intelligence Test and Vineland Adaptive Behavior scale, other measures that have been used are the Hayes Ability Screening Index which consists of self-report questions and a spelling subtest to predict IQ and adaptive behaviors. The assessment to stand trial in the U.S. is measured by the Competence Assessment to Stand Trial–Mental Retardation. As many individuals with intellectual disabilities are suggestible for the leading questions which might lead to “false charges,” the Gudjonsson Suggestibility Scale (1997) has been used which measures suggestibility in terms of remembering a narrative story but has its own limitations in criminal justice system.[20] Future risk assessment instruments such as Risk Matrix, Static-99, and Sexual violence risks have been used. None of these scales are studied or validated in the Indian context. As a broad overview, the following assessments are summarized for the sexual offenders.

Clinical history

Personal history (early life experiences, education history)

Occupational history

Psychosexual health

Social circle/hobbies/interaction patterns

Forensic history

Personality and intellectual assessment

Barriers to treatment and noncompliance

Analysis of offence.

Psychological assessment (for static and dynamic factors)

Static (personal history, criminal history)

Dynamic (stable: personality characteristics and learned behavior)

Acute: Short-term and contextual factors).

Investigations such as penile plethysmography, hormonal assay, and polygraph have been used in the western context but usually do not involve MHP in India.

The ethical issues involved are paramount in these cases. While the principles of beneficence and justice are applicable to the doctor–patient relationship, rape itself does not signify a mental disorder. As the Section 84 IPC precludes conviction in case of psychiatric diagnosis, the detailed aspects are discussed elsewhere. The Royal College states four ways in which the ethical role of psychiatrists in assessing sex offenders can be justified. They are namely the traditional ethics model refusing to assess such individuals, opting to assess for the defense of the individual, act like a pure “forensicist” trying to substantiate the charges or to obtain standard evidence for the benefit of all.[14] In Indian scenario, the testification of psychiatrist in the Court as an expert witness and the documentation related to sexual offences have been discussed in-depth in other chapters and will not be repeated here.

These guidelines related to sexual offences attempt to provide a broad overview of the legal responsibilities of a psychiatrist both as a physician (examination and documentation of the evidence) and a mental health expert (assessing the mental state of the victim and perpetrator, offering the required professional help and psychosocial care for the victims and rehabilitation for the offenders). Both these roles in the context of legal system are emphasized upon. For all practical purposes, sexual offences have a multidisciplinary approach and psychiatrists are only a part of it. However, since logistics might involve a psychiatrist taking up multiple roles in rural areas and further the domain of psychosexual health is largely in the purview of MHPs, it is important that psychiatrists have a basic understanding of the “to do’s” in case of a sexual offence, with some knowledge of the legal contexts and implications.[16] As the Indian legal framework has obvious limitations related to these offences, especially in the areas of marital rape and intellectually disabled offenders, this guideline also serves a policymaking call to bring in more clarity on these issues for better justice and human rights advocacy in this field.

NULLITY OF MARRIAGE AND DIVORCE DUE TO SEXUAL DYSFUNCTION

India, being a diverse country, has marriage laws for people following different faiths. Full details about the marriage laws are described in a different chapter of the CPG. A brief account of the nullity of marriage and divorce due to sexual dysfunctions is highlighted here.

Hindu Marriage Act, 1955 and Special Marriage Act, 1955 enlist the conditions for marriage which are follows, failure of fulfilling which makes the marriage ‘voidable’:

Neither party should be incapable of giving consent

Even if capable, must not suffer from must not suffer from mental disorders of such a kind or to such an extent as to be unfit for marriage and the procreation of children

Must not suffer from recurrent attacks of insanity.

Under these Acts, Divorce or Judicial separation can be obtained if the person has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Under the Muslim Personal Laws, a Muslim who is of sound mind and attained puberty is qualified to marry. A Muslim woman can obtain a decree of divorce under “The Dissolution of Muslim Marriage Act, 1959,” if her husband has been insane for 2 years. Under Christian Law, marriage is voidable if either party is a lunatic or idiot. Christians can obtain divorce under Indian Divorce Act 1869 (as amended in 2001) on grounds of unsoundness of mind provided: (i) it is incurable and (ii) it is present for at least 2 years immediately preceding the petition. Divorce is not admissible on ground of mental illness under the Parsi Marriage and Divorce Act, 1936. However, divorce could be obtained if the spouse was of unsound mind at the time of marriage, but the aggrieved party was unaware of the same. The aggrieved party can then apply for a divorce provided that the spouse has been of unsound mind for 2 years preceding the application.[21]

However, in cases of relationship problems where the couple do not have a sexual relationship due to differences in compatibility, sexual preferences, sexual dysfunctions, etc., there is a gray zone in establishing the same before marriage and also nullifying the marriage. Although unsoundness of mind would translate to a mental disorder, it remains an important question to date as to whether sexual dysfunctions would also be given the label of mental disorder as they do impact relationships and overall well-being and have comorbid psychopathology.

Majority of the divorce cases in India today are on the grounds of adultery, physical and mental cruelty, desertion by the spouse, conversion to another religion, unsoundness of mind-like having schizophrenia due to which the person cannot live with the affected spouse (Amendment Act 1976), or diseases such as virulent or incurable leprosy and venereal diseases such as syphilis and gonorrhea, renouncement of the world by entering a new religious order, presumption of death, and noncompliance with a decree of judicial separation or decree of restitution of conjugal rights. It is important to note that leprosy and epilepsy have long been removed from legislations as grounds for divorce. A woman may have additional grounds of divorce if husband has more than one wife living, if husband is guilty of rape, sodomy, or bestiality, by decree or order of maintenance, if she had consented to marriage by force or marriage was done before attainment of 15 years.[22]

The HMA mentions about impotency; however, vaginismus, dyspareunia, aversion to sex, or avoidance of sex are not specified which could be the important causes of unconsummated marriage.

Erectile dysfunction or impotence refers to the inability to have a sustained erection for the purpose of penetration and becomes a ground for divorce as per Section (12)(1) of the HMA. As per the law, an inability to engage in sexual activity, refusal, or intentional avoidance of intimate relations or inability to produce a child due to spouse’s infertility does not constitute impotence. However, if the spouse has a physical, psychological, or other medical condition that makes it impossible to have intercourse, then it may constitute impotence and is grounds for divorce in many states. However, the laws vary from state to state as was seen in a ruling by the Gujarat High Court which had observed that specific medical proof was required to determine whether a husband was impotent, or his marriage could not be consummated when a wife sought divorce on that count.[23]

However, now, a spurt in the divorce rates is also seen in cases of impotency or if marriage has not been consummated. Couples who get married do expect emotional and physical intimacy in the relationship. If sexual relations are not possible due to partners’ impotency, then it becomes a ground for divorce. A study by Alpha One Andrology group in Mumbai in 2500 patients found divorce rates of 20%–30% due to erectile dysfunction in males whereas women cited mental health problems as affecting their sexual activity.[24]

In 2006, the Supreme Court had held that sexual abstinence and frigidity toward wife do constitute mental cruelty and are valid grounds for divorce where a woman had filed for divorce on grounds of mental and physical cruelty and insanity as her husband had schizophrenia and was unable to perform his matrimonial obligations. The Court had upheld the fact that nonconsummation of marriage itself would constitute mental cruelty to a married woman, where the spouse had mental disorder as per Section 3 (1) (iii) of the HMA where it was of such a kind and degree that the parties could not be expected to live together and hence can be a ground of divorce.[25]

POTENCY CERTIFICATION

A potency test is always asked for by the Criminal Courts of Law in cases of sexual assault, rape, molestation, or sodomy along with a general medical examination and collection of evidence. It can also be asked by the Civil Courts of Law in cases of nullity of marriage or divorce, adoption, or cases of disputed paternity. Potency of the male depends on anatomical, physiological, and psychological factors and hence requires a detailed evaluation of all the blood investigations and a detailed psychiatric evaluation with complete sexual history. Impotence is a sexual dysfunction which could have an organic or psychological cause. It therefore is classified as “failure of genital response or as erectile disorder” under sexual dysfunctions. The assessment for potency certification is standardized. In certain cases, special investigations might be warranted, which are summarized in Box 4.

Box 4

Special investigations involved in potency assessment

Blood investigations

• Hormonal assays: Serum testosterone and sex hormone binding globulin, thyroid function tests

• Blood glucose levels with HbA1c to rule out diabetes mellitus

• Serum cholesterol with lipid profile for underlying cardiac conditions

Other investigations

• Nocturnal penile tumescence test: Normally men have spontaneous 3–5 erections per 8 h of sleep

• Penile duplex ultrasonography: To measure blood flow through arteries and veins

• Intracavernosal testing with vasoactive substance like papaverine

• Cavernosometry is a procedure to test for venous leaks and measures the blood pressure in the penis

• Corpus cavernosography is helpful in diagnosis of organic causes of impotence

• Spongisography may be done to evaluate for urethral strictures

There have been instances when Courts have asked for potency tests to prove that the husband is impotent. A bench of the Chennai High Court had recommended that couples should undergo medical examinations to check for impotency or STDs before marriage in view of the increasing number of divorce cases on grounds of impotency and the fact that women were often blamed for the same. However, the suggestions were not considered appropriative by the lawyers’ group and the social activists.[26]

Ideally for criminal cases referred for potency test, there should be a medical board to assess the person. The board should comprise urologist, psychiatrist, general surgeon, radiologist, physician, and forensic medicine experts for the complete assessment as the causes of impotence could be organic or psychological.[27] A sample Potency Certification pro forma is provided in Appendix 1. Algorithm for potency certification and evaluation of erectile dysfunction are highlighted in Figures 4 and 5, respectively.

Figure 4

Sexual potency certification

Figure 5

Assessment and management of erectile dysfunction

The psychiatrist plays a very important role in elucidating the various nuances of the marital relationships, religiosity, psychosexual development, underlying psychopathology, and personality traits, all of which could contribute to the condition. Evaluation of the individual for psychiatric morbidities such as depression, anxiety, and substance use disorders is also necessary. As an expert, the psychiatrist also needs to tell the Court that:

A person can have situational impotency, i.e., may be impotent toward his wife but not toward other women

A person may have impotency for one gender but not for another gender

A person may have performance anxiety and so may not get an erection.

OTHER MARRIAGE-RELATED OFFENCES AND MEDICOLEGAL CONSIDERATIONS

Bigamy

Bigamy in India is prohibited and is punishable under the IPC, 1860. According to the Section 494 of IPC, “Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to 7 years, and shall also be liable to fine.” However, the Section does not extend to any person whose marriage with such person has been declared void. The Section is also not applicable if such husband or wife has been continually absent from such person for 7 years and nothing have been heard about the person as being alive within this period of 7 years and the person with whom the marriage is being solemnized is informed about the fact.

Section 495 of the IPC provides for punishment of the same offence as above, but with concealment of former marriage from person with whom subsequent marriage is contracted and provides even a greater punishment for period which may extend to 10 years and also liable to fine.

It has been held that Section 494 IPC does not discriminate between Hindu/Muslim/Christian and can be proceeded against any citizen who commits the offence of bigamy, irrespective of his/her religion, provided that ingredients of Section 494 are made out. Muslim Personal Law allows Muslims to have four wives. Therefore, if a Muslim man chooses to marry for the fifth time or a Muslim female marries for the second time in the lifetime of their spouses, they can be prosecuted under this section (2015 SCC Online Ker 798).

The Section 5 (i) of the HMA, 1955 and the Section 4a (i) of the SMA, 1954 prohibit the bigamy as a condition of the marriage and state “neither party has a spouse living at the time of the marriage.” Marriage in contravention of this condition is ab-initio “void” under Section 11 of the HMA, 1955 and the Section 24 of the SMA, 1954. Section 17 of the HMA, 1955 and the Section 44 of the SMA, 1954 provide for punishment of bigamy, and according to these sections, any marriage between two Hindus solemnized in contraventions of the condition is punishable under the Sections 494 and 495 of the IPC, 1860. HMA, 1955 is applicable to all persons following Hindu, Buddhist, Jain, or Sikh religion, whereas the SMA, 1954 applies to any citizen domiciled in the territories of whole of India, irrespective to the religion they follow. The Sections 494 and 495 of the IPC, 1860 are also applicable to any marriage solemnized under the Christian, Parsi, and Jewish religious tradition, which are also monogamous in nature.

Adultery

Adultery, i.e., having sexual intercourse by a man with a married woman, had been punishable under Section 497 of IPC, which said that “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to 5 years, or with fine, or with both. In such case, the wife shall not be punishable as abettor.” However, this Section has been declared unconstitutional and is no longer in force. In the case of “Joseph Shine versus Union of India” (September 2018), the Supreme Court annulled this section declaring it to be unconstitutional violating the Article 14 of the Constitution of India as it treats men and women unequally, because women are not subject to prosecution for adultery, and women cannot prosecute their husbands for adultery (2018 SCC Online 1676). Thus, the consensual sexual relationship between a man and a married adult woman is no longer a criminal offence for the man. However, the matter of cohabitation with any married man or woman may be a matter of civil issue as a ground of divorce, in which case it would be gender neutral.

Elopement

The elopement may be punishable under Section 366 of the IPC, which states “Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.” Criminal intimidation and abuse of authority or any other method of compulsion are also punishable under the section. However, if the Act involves two consenting adults above 18 years of age with free will of the girl without influence of any threat, intimidation, or application of force, the section would not come to apply. Section 498 of the IPC describes the offence of enticing or taking away or detaining a married woman with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman and makes it punishable. However, after striking down of the offence of adultery (Section 497), this Section may also be treated as unconstitutional as a corollary.

Harassment

Section 354 (4), IPC was enacted in 2013 to cover the offences of sexual harassment and its punishment. Any act of physical contact, advances, sexual overtures, demand for sexual favor, making sexually-colored remarks, and showing pornography against the will of the women are described as the offences. Punishment up to a period of 1 year or fine or both (for making sexually-colored remarks) and up to 3 years or fine or both (for other offences) has been prescribed.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 was enacted to protect women from sexual harassment at the workplace. The Act defines sexual harassment at workplace and creates a mechanism for redressal of complaints. In addition to other forms of harassment, promise of preferential treatment, threat of detrimental treatment, humiliating treatment, or hostile work environment occurring in these connections are also mentioned as forms of sexual harassment. It also provides safeguard against false and malicious charges. It covers all women irrespective of their age or employment status, covers organized, unorganized, and private or public sectors, and even covers clients, customers, or domestic workers. The Act also covers students in schools and colleges as well as patients in hospitals. Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees. The District Officer is required to constitute a Local Complaints Committee at each district and if required at the block level. The committees have the power of civil court to gather the evidence. The enquiry has to be confidential and the breach of confidentiality is punishable. The committee has to complete the enquiry within a period of 90 days and send the report. The District Officer or the employer has to take action within a period of 60 days. The Act also requires employers to conduct education, awareness, and sanitization programs. Awareness programs have to be implemented utilizing various modes of communication. Failure to comply with the provisions of the Act may invite penalty of Rs 50,000/-. Various other penalties have been imposed for the employer, and recurrent violation attracts greater penalties and even cancellation of license or permission to conduct the business.

Domestic violence

Section 498A, IPC was introduced in 1983 to protect married woman to protect married woman from being subjected to cruelty by the husband or his relatives. The Section covers any willful conduct that is likely to drive any woman to commit suicide or to cause her grave injury or danger to life. It also covers harassment of the woman which includes coercing her or any relative of her to meet any unlawful demand of any property or valuables or on account of failure to fulfill such demands. A punishment for period extending up to 3 years and fine has been prescribed.

The Protection of Women from Domestic Violence Act, 2005 was passed to provide relief to the women subjected to domestic violence in India. It covers the relationship between two persons living together in a shared household and related by consanguinity, marriage, through a relationship in nature of a marriage, adoption or are family members living together as a joint family. It encompasses all forms of physical, verbal, emotional, economic, and sexual abuse, including insults, ridicule, humiliation, name calling, abuse with regard to not getting male child, etc. The domestic violence also incorporates all forms of harassment, injury, and harms inflicted to coerce a woman to meet an unlawful demand for dowry. Protection Officers are to be appointed by the State Government. Duties have been assigned to the Protection Officer, Police, and Magistrate. Any person may inform the protection officer if he has reason to believe that the act of domestic violence is being committed. Common remedies available under the Act include:

Protection orders – Prohibiting a person from committing domestic violence

Residence orders – Dispossessing such person from a shared household

Custody orders – Granting custody of a child

Compensation orders – Directing payment for maintenance of the aggrieved person as well as her children.

The monetary relief may include an order under or in addition to an order under Section 125 of the Code of Criminal Procedure, 1973 or any other law for the time being in force. The monetary relief is to be adequate, fair, and reasonable consistent with the standard of living of the person concerned.

Live-in relationships: Legal aspects

Live-in relationship is defined as “Continuous co-habitation for a significant period of time, between partners who are not married to each other in a legally acceptable way and are sharing a common household.” As a normal custom, marriage is a legally and socially accepted form of relationships between the couple. In our country, the institution of marriage has conventionally been assigned even a greater importance, and cohabitation without marriage is considered a taboo. However, under the influence of rapid modernization and globalization, things are changing fast and instances of couples living together without formal marriage are frequently seen during recent times. It is argued that a “live-in relationship” not only gives the couple an opportunity to know the partner better without having to engage into a legally binding relationship but also provides for an easy break-up without the need of taking recourse to cumbersome legal procedures. However, such relationships have its disadvantage as these are relationship without obligations and not binding upon the partners. Women are often in a disadvantageous position in such type of relationships.

In the absence of any specific legislations, social rules, or customs for the purpose of regulating the matter, the Supreme Court has issued guidelines for dealing with the emerging phenomena of live-in relationships. So far as legal issues under Indian law is concerned, live-in relationship between consenting adults is not considered illegal as such if it involves two consenting adults. In “Lata Singh v. State of U. P” (AIR SC 2522, 2006), it was observed that a live-in relationship between two consenting adults of heterosexual sex does not amount to any offence even though it may be perceived as immoral. In “Khushboo versus Kanniammal” (5 SCC 600, 2010), the Supreme Court observed “Though the concept of live-in relationship is considered immoral by the society, it is definitely not illegal in the eyes of the law.” Living together is a right to life and therefore it cannot be held illegal.” If the live-in relationships continue for a significant period of time, and the couple present themselves as husband and wife to the society, they get recognized as legally married. In D. Velusamy and D. Patchaimal (5 SCC 600, 2010), the Court set certain conditions on the basis of which such relationship would come to be recognized as in the nature of a common law marriage.

(a) The couple must hold themselves out to society as being akin to spouses

(b) They must be of legal age to marry

(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

Woman in live-in relationships can claim maintenance from the man. The practice of granting financial benefit to woman in such relationship started from the famous celebrity divorce case of Marvin versus Marvin (1976) in California, USA, in which the word “Palimony” was coined. “Palimony” means grant of maintenance to a woman who has lived for a considerable period of time with a man without marrying him and is then deserted by him. In India, Malimath Committee Report on Criminal Justice (2003)[28] recommended that “the definition of the word “wife” in Section 125 of the Criminal Procedure Code (Cr. P. C.), which enables woman to claim maintenance from their husbands, should be amended so as to include a woman who was living with the man as his wife for a reasonably long period, during the subsistence of the first marriage. Although the amendments were not incorporated in the Cr. P. C, the Prevention of Domestic Violence Act, 2005 was enacted which covered such type of relationships in its purview. Section 2(f) the Act, 2005 says that “Domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. In various cases such as Velusamy versus Patchaimal, Ajay Bhardwaj versus Jyotsna (2016 SCC Online P and H 9707), Lalita Toppo versus the state of Jharkhand, and others (2018), alimony has been provided to the woman in live-in relationships. The benefit under the Act is not available to man.

Child born from the live-in relationships is not treated as illegitimate if the parents have lived under one roof and cohabited for a considerably long time for society to recognize them as husband and wife and it is not a “walk-in and walk-out” relationship (Tulsa versus Durghatiya, 4 ACC 520, 2008). Section 16 of the HMA, 1955 and Section 26 of the SMA provide legitimacy to children born out of void and voidable marriages and provide that children born out of marriage, which is null and void or where a decree of nullity is granted in respect of voidable marriage, shall be legitimate or deemed to be legitimate, respectively, and entitled to have a share in the property of the parents. However, according to Subsection (3) of the same sections of the Act, right of inheritance of such children is limited to the property of the parents only. Therefore, such children do not have the coparcenary rights in the property of the Hindu undivided family, if their parents were not legally wed to each other. Mother is regarded the natural guardian for such children. Children born out of such relationship are entitled to claim maintenance from their father under the section 125 Cr. P. C.

Paraphilias: Forensic aspects

There is always a controversy in definition of paraphilia concerning normal versus deviant behavior. The other dimension of paraphilia is that, in certain circumstances, diagnosis of paraphilia itself can be used to imprison an individual foreseeing the future harm to the society. Removal of homosexuality from classificatory system posed a lot of questions on inclusion of other, so-called deviant behaviors under paraphilias. Hebephilia, paraphilic coercion disorder, and hypersexual disorder which were proposed to be included under paraphilia in DSM-5 received a lot of criticism and were rejected.[29]

Laws regarding sexuality vary among different cultures as well as different countries. Prostitution is legal in some countries while it is not in others. Orogenital and genitoanal sex, fornication, adultery, and seduction vary from minor crimes to major crimes in different states. Many sexual behaviors are deemed to be illegal because of nudity in inappropriate places.

Voyeurism

Voyeurism included in IPC Section 354C describes the act as, “Viewing and/or capturing the image of a girl or woman going about her private acts, where she thinks that no one is watching her, is a crime. This includes a woman using a toilet, or who is undressed or in her underwear, or engaged in a sexual act.”

Under the provision of privacy act – watching in a place, where the circumstances expected to provide reasonable privacy is an offence. First conviction is with imprisonment for not less than 1 year which may extend up to 3 years. The convicts are also liable for fines. Subsequent conviction is punished with imprisonment of any description (can be extended up to seven years). Related offence of stalking is covered under Section 354D of IPC which is punishable with simple or rigorous imprisonment for up to 5 years or fine or both that can be extended up to 5 years for repetition.

Privacy rights are considered in the context of relationship between citizen and state by The Canadian Charter of Rights and Freedoms. The circumstances which generate a “reasonable expectation of privacy” by citizens are in Section 8 of charter. Individual’s reasonable expectation of privacy is determined based on whether the person had control or possession of the property, whether there was ability to regulate or access the property, and whether there were subjective expectation and objective assessment of reasonableness of expectation of privacy.[30]

Sections 7 and 8 of charter emphasize privacy as constitutionally protected right; basic right to privacy is an element of living in a free and democratic society. Various international agencies recognize right to privacy which protects individual from abusive and arbitrary interference with privacy, and it is expected to inform policy choices regarding right to privacy in domestic context. In some jurisdictions, individuals’ privacy rights are protected by provincial legislation.

From a policy perspective, voyeurism addressed as an offence helps to protect privacy of individual citizen and in turn helps in the prevention of sexual exploitation. It also helps in maintaining physical and sexual integrity of citizens.

Exhibitionism

Various states have different laws regarding indecent exposure. What constitutes indecent exposure has changed over time. Social and cultural concepts play a significant part in the definition of exhibitionism. Some cultures define exhibitionism as being nude in front of someone who is of opposite sex, who is not their spouse. Exhibitionism in front of minor always attracts criminal charges, more so if it is associated with masturbation.

Pornography

The Department of Telecommunication recommends reasonable restriction on pornography. Section 79 of Information and Technology (IT) Act deals with pornography. This Section also lays down circumstances under which internet service providers are not liable from culpability for offensive comfortable uploaded by a third party. The 2011 IT Act also mandated no to use computer sources for pornography and pedophilia. The Act also prohibits any content which harms minors in any way.

The meaning of obscenity and the penalization under Sections 292 and 293 of IPC 1860, Young Persons Harmful Publication Act, 1956, and Indecent Representation of Women (Prohibition) Act, 1986, comprehensively cover pornography. IPC and IT Acts state that expenditure of pornography is not an offence.

Cyber pornography

Cyber pornography is legal in some countries and it is not in others. The IT act, 2000 in India is a gray area, which states cyber pornography is not illegal but at the same time not legalized. Downloading or carrying child pornography carries punishment. Downloading or storing pornography is not an offence; however, if it involves minors, it is punishable. The punishment up to 5 years imprisonment and up to 10 lakhs fine has been prescribed. All over the globe child pornography is illegal. Downloading or making child pornography is an offence according to IT Act.

Pedophilia, diapirism, and paraphilic infantism

In the context of “Bondage–Discipline,” “Dominance–Submission,” and “Sado-masochism” (BDSM), the gratification is derived from dominating the partner or being submissive to the partner.[31] Pedophilia refers to sexual attraction toward children, diapirism refers fetishistic attraction about diapers, while sexual infantilism refers to paraphilic desire to be an infant.[3233] According to the DSM-V, pedophilia can be diagnosed based on three criteria: (i) sexually arousing behavior or urges or fantasies arising from sexual activity with children 13 years of age or lesser, at least for 6 months; (ii) it should cause significant distress to the individual in daily life; (iii) the individual should be more than 16 years of age and should be 5 years older to the child. DSM-V criteria for diaper fetishism include (i) recurrent and strong sexual urges arising from recurrent and strong sexual arousal from usage of nonliving object or focus on nongenital body part, as manifested by fantasies, urges, or behaviors for a period of at least 6 months; (ii) should cause significant social or occupational distress; and (iii) object should not be a clothing article or an article designed for genital stimulation. In DSM-IV, infantilism was classified under sadomasochism. As the feeling of humiliation could not be demonstrated consistently in partner, now infantilism is under not otherwise specified category.

Earlier, there were no laws or provisions to protect children from sexual harassment. The Parliament of India passed POCSO Act in 2012. This Act clearly mentions sexual harassment, sexual assault, and child pornography. Depending upon the grievousness of the criminal act, the Act prescribes punishment up to life imprisonment. Infantilism does not attract any legal consequence when performed with a consensual partner in a private room in their own premises. When it is associated with kleptomania of stealing diapers, the scenario is different.

OTHER MEDICOLEGAL ASPECTS OF SEXUALITY

Incest

The legal aspect of incest has been mentioned in The Incest Offences Bill, 2009. The Bill clearly states the terminologies not defined in the Bill but defined IPC will have the same meaning. Any person knowingly have sex with a close family member shall be guilty of incest. The punishment would be rigorous imprisonment for a period of not less than 10 years and also liable for fine. If the close family member is less than 18 years, the offender will be punished with life imprisonment. The Act also mentions that the Court is not cognizable for the fact that sexual intercourse or exploitation happened with the consent. The close family member means parent, grandparent, child, other linear decedents, brother, sister, half-brother, or half-sister. Trial of these cases would be done in special courts, mostly by a female magistrate.

Stalking

It is covered under Section 354 IPC. According to this section, punishment up to rigorous imprisonment up to 3 years has been prescribed, and if repeated, offence up to 5 years imprisonment has been prescribed. Cyber stalking is prevalent in both genders. Cyber laws in India do not address this issue. Specific sections are not there to deal with cyber stalking; Section 67 of IT Act, 2000 only came into picture when the stalker posts some obscene content.

Masturbation

Nowhere in IPC or Indian Law Public masturbation is a crime. Masturbation can be filed under IPS Sections 354, 509, and 268. Section 354 deals with “assault or criminal force to woman with intent to outrage her modesty”. Section 509 deals with “gesture or act intended to insult the modesty of a woman”. Section 268 handles cases of public nuisance.

Another interesting code, Sections 53A and 54 of criminal procedure code recommend the examination of rape accused. When a rape accused does not will to give semen, police are empowered to apply reasonable force to subdue the accused to obtain semen sample.

GENDER MINORITIES AND PSYCHOSEXUAL HEALTH: LEGISLATIONS AND RIGHTS

The LGBTQ population in India as per the 2011 Census is about 1210 million citizens and is expected to be growing. The landmark judgment of the Supreme Court in 2018 in decriminalizing adult consensual same-sex relationships in Section 377 has paved the way for the rights of the LGBTQ population.[42] Consensual sexual relationships between same sexes are protected under Articles 14, 19, and 21 of the Constitution of India. Right to choose one’s partner is manifest in Article 21. Thus, the historic judgment ruled that consensual adult gay sex is not a crime saying sexual orientation is natural and human beings have no control over it. It is therefore important that that the constitutional rights and empowerment of the LGBTQ people takes place instead of the discrimination that was seen in India. However, critics fear lack of implementation.[34]

The Transgender Persons (Protection of Rights) Bill was passed in the Rajya Sabha in November 2019 and received assent from the President of India in December 2019 and became the Transgender Persons (Protection of Rights) Act, 2019 which seeks to empower the transgender persons in social, economic, and educational fields. The Act defines transgenders and guarantees rights which include access to education, employment in public or private establishments, housing, medical care, right to movement, freedom from discrimination, and access to enjoyment of good facilities and opportunities available to the other citizens. The Act provides that the Central government would establish a National Council for Transgender Persons to monitor, evaluate, and review the policies and programs. However, there is some criticism against the act such as the definition of transgender is mixed with that of intersex person. By giving a certificate of transgender, the right to privacy is violated. There is a lack of organized structured protocol to look into the healthcare needs of the transgender community such as the rights of a transperson with regard to his/her fertility and inclusion in both artificial fertilization and surrogacy. There should be policy decisions on these issues.[35] The mental health problems of transgenders need to be looked into due to the chronic stigmatization and being ostracized by society. The psychiatrist’s role should be more than verifying gender dysphoria, and the MHPs should be there for continued support. In addition, if a transgender person is sexually abused, assaulted, or harassed, the maximum punishment is 2 years, whereas higher form of punishment is available for same offences against male or female. Hence, in its present form, the Act may not seem to be of much help to the transgenders as it does not take into account the various complexities, contributing to the psychosexual health of this community.[35]

Civil rights of lesbian, gay, bisexual, transgender, and queer

Although it has been nearly 2 years since the abolishment of Section 377, the basic rights of the LGBTQ community are still way behind than the western world and discrimination still persists. These rights include:

Legal recognition of same-sex relationships and marriage equality

The right to own and inherit property

Nominate their same-sex partners on hospital and insurance forms

Spousal recognition and benefits such as joint bank accounts

Right to adopt

Right to surrogacy

Serve in military

According to an Opinion Poll in 2019, there still is a significant amount of homophobia among the Indians with a strong objection to same-sex relationships. Among the various religions, the acceptance of same-sex couples was higher among Hindus as compared to Christians and Muslims.

Same-sex relationships

Same-sex marriages are still neither legally recognized in India nor are same-sex couples offered limited rights such as a civil union or a domestic partnership. A civil union is a legally recognized arrangement to provide recognition in law for same-sex couples. It grants most of the rights of marriage to the same-sex couple barring the title of marriage. A domestic partnership, on the other hand, grants only some of the rights of marriage. The LGBTQ campaigners view civil unions as a first step toward legalizing same-sex marriages.

In a first in India, a court in Gurgaon had granted legal recognition to a same-sex marriage involving two women in 2011.[36] Currently, there are several same-sex marriage petitions pending with the courts, which have cited lack of legal provisions. The Uttarakhand High Court in June 2020 has acknowledged that while same-sex marriages are still not legal, cohabitation and live-in relationships for the LGBTQ community are protected by the law.[37]

Sex offences in lesbian, gay, bisexual, transgender, and queer

The LGBT community has experienced abuse, violence, and harassment which could be physical and sexual. There have been several instances of gay and transperson rapes. Nonconsensual sex (rape) and bestiality remain as criminal offences for the LGBT community too. The Transgender Persons (Protection of Rights) Act 2019 does not give equal protection to the transgender community as per Article 14, in matters of sexual offences. It treats sexual offences toward this community as petty offences where the punishment meted out would be up to 2 years as compared to life imprisonment against a woman.[37] Due to this discriminatory policy, there has been a hue and cry against the Act. The existing law dealing with rape as per Section 375 of IPC reflects that the offence of rape can only be committed by a male perpetrator upon a female. There is a need to have gender neutrality with rape statutes as men, women, and transgender persons can be rape victims as well as perpetrators which should reflect the modern understanding of the dynamics of nonconsensual penetrative or nonpenetrative acts by an individual. The problems of transgender individuals being subjected to frequent sexual violence have been highlighted by the Apex Court in its NALSA judgment, but they still need to be addressed, and the sexual offences listed in the penal code should be considered gender neutral so as to protect the rights of the individuals, irrespective of the gender.[38]

Role of the psychiatrist

The context-specific needs of the LGBTQ community are still to be understood by the psychiatrists, and it calls for creating new paradigms in research and treatment protocols for improving their understanding and advocacy of mental health as well as abuse prevention.[39] Goals include:

Identifying gender dysphoria

Use of appropriate gender-neutral terms in history taking

Evaluation of depression, anxiety due to stigmatization, chronic life stress

Looking into psychosocial, interpersonal concerns

Psychological evaluation

Prohibition of conversion therapy as it is banned in the Indian legislature.

INDIAN LEGISLATIONS AND PSYCHOSEXUAL HEALTH: A SUMMARY

There are various laws in India which protect the psychosexual health of males, females, and the LGBTIQ community. Psychosexual health is closely linked with marriage, as in the traditional sense, marriage is considered to be legal permission for consensual sex. Marriage and live-in relationships can swing the psychological and sexual health of the individuals both ways. Sexual abuse of children, sexual assault of women and men, sexual harassment of either sex at workplace, and domestic and sex-based violence in a marriage, all can have severe emotional and psychological distress, leading to poor psychosexual health of individuals. Sex-based violence and domestic violence are quite prevalent in India, compounded by low age of marriage, poor education, and financial dependence on the husband.

Certain salient Indian legislations related to psychosexual health are summarized in Table 6. The laws related to sexual offences are covered in Table 2 and will not be repeated here.

Table 6

Indian legislations related to psychosexual issues (apart from sexual offences)

Legislation	Salient attributes
POCSO Act, 2012	UN convention on the rights of the child
	Article 21 Indian constitution: Protection to every child
	Child: <18 years
	Mandatory reporting of CSA
	Gender neutral
	Age of consent: 18 years (for both genders)
	Any case of abortion <18 years: Needs reporting
	CSA can have marked biopsychosocial effects on the child
Age of Consent Act, 1891 (Act X of 1891)	Age of consent raised to 18 years
	Consent of sexual intercourse as a minor is not valid
PCM act, 2007	Replaced the child marriage restraint act (Sarda Act), 1929
	Age of legally valid marriage: 21 years (males), 18 years (females)
	Supreme court criminalized sex with a child bride (2017)
	Emphasized the psychosocial problems in minor marriage
CEDAW, 1980	India signed in 1980
	Gender equality and protects against gender-based discrimination
	Article 16 deals with marriage and prevents child marriage
The sexual harassment of women at workplace (prevention, prohibition and redressal) act, 2013*	Right to equality (article 14, 15), right to life and live with dignity (article 21) for women
	Section 354A IPC: Punishment for sexual harassment of women
	No parallel law to prevent male sexual harassment at workplace
The criminal law (amendment) Act, 2013 (Nirbhaya Act)	Based on JS Verma committee’s recommendations following the infamous Nirbhaya gang rape incident at Delhi
	New offences: Acid attack, sexual harassment, act with intent of disrobing a woman, voyeurism, stalking (Section 326, 354 IPC)
	Assault on a woman with intent to outrage her modesty (Section 354 IPC): Essence of woman’s modesty is her “sex” i.e., being a woman*
	Intention of disrobing (Section 354B IPC)
	Voyeurism (Section 354C IPC)*
	Stalking (Section 354D IPC): Not a crime if a part of legal duty as ordered by the State
	Rape (Section 375, 376): Onus of proving consent is on the offender*
	Prevention of human trafficking (Section 370 IPC)
PITA, 1956*	Prostitution legal only if voluntary and at an individual level (brothels are illegal): Male prostitution is not mentioned
Transgender persons Protection of Rights Act 2019*	Attempts to prevent discrimination based on “third gender”
	Needs certification from district magistrate (district screening committee)
	Right to identify as man/woman/transgender, irrespective of treatment received
	Criticized for the term “transgender” itself, silence on the reservations for this group and lack of mention related to sexual assault on transgender people
	Punishment for organized begging
	Activists demanded a different term “Gender identity, gender expression, and sex characteristics:” Definition of both transgender and intersex people’s identity and sexual rights[40]
Decriminalization of consensual sexual intercourse and relationships between same-sex individuals	Landmark judgment of the honorable supreme court in 2018
	Section 377 still applicable to nonconsensual homosexual acts and unnatural sexual offences (like bestiality)
Gender neutrality sexual crime laws, 2019	Any gender category can be victim or the perpetrator[41]
Cohabitation in India*	Live-in relationship for long time and “in the nature of marriage”: Same laws as legal marriage
	Child out of live-in relationship can inherit parents’ property
	Not applicable if one of the partners are already married
	Live-in relationship is covered under the domestic violence act, 2005

*Mentioned earlier in respective sections. CSA – Child sexual abuse; IPC – Indian penal code; POCSO – Protection of children from sexual offences; PCM – Prohibition of child marriage; CEDAW – Convention of elimination of discrimination against women; PITA – Prevention of immoral trafficking act; UN – United nations

MENTAL HEALTHCARE ACT 2017 AND PSYCHOSEXUAL HEALTH

The MHCA, 2017 was a recent landmark legislation that replaced and revoked the last MHA, 1987. The Act adopted a right-based approach for the mentally ill based on the United Nations Convention on Rights of People with Disabilities, of which India is one of the signatories. The details of the amendments are beyond the scope of this article; however, the aspects related to sexuality and sexual disorders will briefly be mentioned. As per this Act, every person with mental illness (PMI) shall have a right to live with dignity, and there shall be no discrimination on the basis of gender, sex, sexual orientation, religion, caste/culture, disability, or sociopolitical beliefs. Sterilization of any PMI is prohibited. The issues of importance are summarized in Box 5. Subsequently, the various challenges encountered by the psychiatrist in the field of Forensic Psychiatry dealing with psychosexual health are covered in Box 6.

Box 5

The Mental Healthcare Act, 2017 and psychosexual health

• The MHCA 2017 was one of the major documents on the basis of which The Supreme Court of India held that Section 377 was unconstitutional as it discriminated against persons of the LGBTIQ community based on their sexual orientation and violated their fundamental rights guaranteed by the Constitution of India[40]

• The Court also held that members of the LGBTIQ community “are entitled to the full range of constitutional rights including the liberties protected by the Constitution” as other citizens

• The court observed that homosexuality is not a mental illness. The importance given to MHCA 2017 by the Supreme Court is significant because the same reasoning can be given against other laws which discriminate against the mentally ill (especially The Hindu Marriage Act 1955 and Special Marriage Act 1954)

• As per the Hindu Marriage Act 1955 and Special Marriage Act 1954, mental illness can be used as a ground for divorce or annulment of marriage. These provisions are discriminatory as (i) They single out mental illness from all other physical illnesses as a ground for divorce

• This violates Article 23 (i) of the United Nations Convention on Rights of Persons with Disabilities (ratified by India) (ii) They perpetuate a false stereotype that PMI lack capacity to support and nurture a family (iii) It discriminates against women on the basis of gender and sex if they do not conform to stereotypical and patriarchal notions associated with their gender roles

• The Court held that on the one hand the MHCA ensures the right to access mental healthcare without discrimination based on sexual orientation and on the other Section 377 criminalizes LGBTIQ persons which “inhibits them from accessing health-facilities” and violates their right to health. If LGBTIQ persons are eligible to mental healthcare without discrimination then they cannot be discriminated in any other aspect of their rights and liberties protected by the Constitution.

• The Supreme Court of India has held that in case of transgender persons (National Legal Services Authority of India vs. Union Of India: NALSA)[43] Section 377 violates: (i) Article 14 (guarantees equal protection of laws and protection from arbitrariness) (ii) Article 15 (which prohibits discrimination based on sex) (iii) Article 19 (1) (e) (which guarantees the freedom of expression) and (iv) Article 21 (which guarantees the right to life, right to dignity, the right to privacy and the right to health)

• Sexual orientation is integral part of one’s identity which in turn is integral part of right to life and dignity. The right to make choices about one’s personal life and expression of the same is an individual’s autonomous decision and the right to privacy. Discrimination based on stereotypes about gender roles amounts to discrimination based on sex

• Homosexuality is not a mental illness: The Supreme Court in the Navtej Johar case argued that homosexuality is not a mental illness. The provisions of MHCA are an unequivocal declaration of Parliament of the prevailing global consensus that homosexuality is not a mental illness or mental disorder

• The Court opined that the definition of “mental illness” (as per MHCA) is based on internationally accepted medical standards which makes it clear that homosexuality is not a mental illness

• The court further recognized that as per the MHCA, the notion of mental illness must “keep pace with international notions and accepted medical standards including the latest edition of the International Classification of Diseases of the World Health Organisation, under Section 3 (1) of the Act”. MHCA does effectively outlaw discrimination based on sexual orientation.

LGBTIQ – Lesbian, gay, bisexual, transgender, intersex, and queer; MHCA –Mental Healthcare Act; PMI – Person with mental illness; NALSA – National legal services authority

Box 6

Forensic psychiatry and psychosexual health: Challenges for the psychiatrist

• The treatment of psychosexual health of individuals is a complex issue due to the multifactorial etiology of the problem. The approach involves psychotherapy and pharmacotherapy

• To this if we add legal issues it becomes more complicated. The Psychiatrist will have to deal with the problem layer by layer similar to the layers of the onion

• Superficially it may seem a very small issue but during the detailed interview a lot of things are likely to surface up

• The Psychiatrist has to be familiar with the legal implications of the case. What are the rights of the client?

• Psychiatrist has to guide the client regarding psychosocial and relationship issues. There may be a case of child sexual abuse with a whole lot of emotional issues and poor academic performance. Moreover there are chances that a distant family member may be involved

• Guiding and counseling the parents along with treatment and explaining to them their legal rights are very important. All options should be given and let the patient or guardian decide the course of action

• Marriage, divorce, live-in relationships, domestic sexual abuse, sexual abuse at the work place all can lead to psychological stress where along with treatment proper legal guidance is required

• The psychiatrist needs to be aware and updated regarding various laws that protect and influence the psychosexual health of individuals. In particular are laws related to the LGBTIQ community and homosexuality

• The Supreme Court has noted certain duties for MHPs and the medical community.

• The verdict in Navtej Johar has implications for MHPs in clinical practice with LGBTIQ clients and implementation of MHCA roles (Mental Healthcare Professionals) for PMI

• The MHPs should re-examine their own views on homosexuality given “repercussions of prejudice, stigma and discrimination” faced by LGBTIQ persons. The counselors must focus on providing support to LGBTIQ clients

• The medical community must “share the responsibility to help individuals, families, workplaces and educational and other institutions to understand sexuality completely able to facilitate the creation of a society free from discrimination…”

• The Court’s observations are a definitive stand against the practice of “conversion therapies” and “religious healers” with the aim of “curing” homosexual persons. Any person giving such therapies can be punished under Section 108 of the MHCA[44]

LGBTIQ – Lesbian, gay, bisexual, transgender, intersex, and queer; MHPs – Mental Health Professionals; PMI – Person with mental illness; MHCA –Mental Healthcare Act

CONCLUSION

There have been traditional intersections between human sexuality, law, and the practice of psychiatry. As mentioned by Avasthi et al.,[45] the “road ahead” is understanding the Indian socioculture-specific attributes of sexuality and sexual disorders to provide a holistic psychiatric and forensic care in these areas. Training and multidisciplinary liaison are the pillars to achieve this. Ranging from sexual offences, sex offenders, marriage and grounds of divorce, the rights of gender minorities, paraphilias to workplace harassment, these CPGs cover the major grounds for the psychiatrists to deal with medicolegal aspects of psychosexual health in their daily practice. It also highlights the various facets of Indian legislations in contexts of psychiatric practice that fall in the purview of sexuality, sexual dysfunction, or disorders. The patient-centered biopsychosocial approach to management of sexual dysfunction is an overlapping area as it involves the forensic psychiatric aspects as well. However, as it has been detailed in a previous CPG, it has been not covered here to avoid repetition.[46] The gray areas of paraphilias, the civil rights of LGBTQ community, and assessments of sex offenders have always been an uncomfortable area for the physicians including MHPs, and hopefully, this CPG will guide them for better understanding and practice. As mentioned before, the psychiatrist plays the dual “role” of both an expert witness assisting the law in evidence and medicolegal examination in areas of psychosexual functioning and also for the treatment of the psychosocial offshoots related to sex offences and sexual dysfunction. The balance is crucial and needs to scientifically oriented, adherent to the prevalent local system, free of bias, systematic, and pragmatic. In that sense, this CPG intends to provide an overview of the available evidence and the lacunae at the cross-borders of forensic psychiatry and sexuality for better evidence-based psychiatric practice.

Financial support and sponsorship

This study was funded by Universitas Padjadjaran Research Grants.

Conflicts of interest

There are no conflicts of interest.