Potency Test

Source: Indian Express

Introduction

In the ongoing investigation into sexual assault allegations against a Member of Parliament (MP), a potency test is anticipated as part of the broader investigative process upon his return to Bengaluru from Germany. While the test may provide insights into his physical capability, it's essential to note that it does not constitute definitive evidence. In cases of this nature, the primary weight of evidence remains on the survivor's testimony, supported by other corroborative evidence.

What is a Potency Test?

• Potency tests have emerged as a contentious aspect of evidence gathering in sexual assault cases, prompting a critical examination of their relevance and reliability within the judicial system.
• Traditionally, these tests were employed to ascertain an accused individual's physical capability to engage in sexual intercourse, thereby countering claims of incapacity.
• However, legal scholars and practitioners now question the validity of such tests, considering their inherent limitations and ethical implications.
• A potency test is a medical assessment aimed at establishing if a male can initiate or sustain a penile erection required for engaging in sexual intercourse.
• In legal proceedings concerning sexual assault, divorce, and paternity suits, a potency test is conducted to assess a male's capability to achieve or sustain penile erection for sexual intercourse.
• This medical evidence is admissible in court to determine matters of sexual capacity and reproductive ability.
• In divorce and paternity cases, it is customary to conduct both potency and fertility tests to evaluate the individual's ability to engage in sexual activity and contribute to conception.

What is the Legal Provision Involved in Potency Test?

Legal practitioners advocate for a holistic approach to evidence gathering in sexual assault cases, prioritizing the survivor's testimony while supplementing it with corroborative evidence from various sources.

• Under Section 53 of the Code of Criminal Procedure, 1973 (CrPC), the examination of bodily substances such as blood, semen, swabs (in sexual offense cases), sputum, sweat, hair samples, and fingernail clippings is permitted for investigative purposes.
• It outlines the procedures and guidelines for conducting medical examinations of individuals involved in criminal cases. However, it does not specifically mention "potency tests."
• The section primarily focuses on the examination of an accused person by a medical officer at the request of a police officer or a magistrate.
• The purpose of such examinations is to ascertain the physical or mental condition of the accused, gather evidence relevant to the case, or determine the age of the accused when it is in question.
• This examination is conducted using modern and scientific techniques, including DNA profiling, as deemed necessary by a registered medical practitioner in a particular case.
• Such examinations may be utilized as evidence in legal proceedings, including cases involving sexual assault, divorce, and paternity suits, to assess the accused's capacity to develop or maintain a penile erection for sexual activity.

Why Potency Test is Importance in Sexual Assault Cases?

• In sexual assault cases, potency test reports may be used by the prosecution to refute claims of incapacity by the accused.
• Potency tests in the context of sexual assault cases, they are often conducted to determine the ability of the accused to commit the alleged crime.
  • The procedures for conducting such tests may vary, and they are not explicitly mentioned in Section 53 of the CrPC.
  • They might fall under the broader provisions for medical examinations in criminal cases.
• Potency is not permanent and can be influenced by various physiological and psychological factors, making test results inconclusive evidence of incapacity.
• Similar to the 'two-finger' test for assessing a woman's sexual history, potency tests are not definitive proof of sexual assault but rather provide corroborative evidence.
• Section 53 of CrPC permits the examination of biological samples for investigative purposes, including tests on the accused.
• Amendments to the Indian Penal Code, 1860 (IPC) in 2013 expanded the definition of rape, reducing the relevance of potency tests in determining the nature of the offense.
  • After the amendment expanded Section 375 of IPC the definition of rape to include various forms of penetration beyond peno-vaginal intercourse, reducing the relevance of potency tests in determining the nature of the offense.