No doubt that in rape cases, DNA evidence can strengthen investigations and prosecutions. DNA tests are often considered as conclusive evidence in rape cases where a suspected accused needs to be identified, or where the accused person's involvement in the crime needs to be determined. As such, in investigations of rape cases where the DNA of the victim or the accused is available, the investigating police officers commonly collect and send the samples to the DNA laboratory. With the enactment of the Deoxyribonucleic Acid (DNA) Act 2014, legal provisions for collection, preservation, destruction of sample, liability for misuse of information, etc had been outlined. Under the DNA Act, the DNA report is also made admissible as evidence in the court proceedings. However, despite the already existing procedures for DNA test, the much-debated amendment to the Women and Children Repression Prevention Act 2000 (WCRPA) had added a further provision (section 32A) requiring DNA testing in all offences under the WCRPA.
Section 32A requires that in case of all offences committed under the WCRPA, DNA examinations have to be done for both victims and the accused persons irrespective of their consent to such examinations. However, DNA evidence cannot come to the assistance of the court or investigation authority in all cases of rape. For instance, one of the most disputed issues in a rape case is whether sexual intercourse between the victim and the defendant was consensual. While DNA evidence can help conclusively to decide whether the accused person was involved in the act in question, it cannot prove consent of the victim when both parties admit that the sexual intercourse did take place.
The new section, in fact, makes the requirement of DNA examination applicable not only in rape cases, but in all other offences committed under the various provisions of the WCRPA. Needless to say, DNA tests may not be necessary in all offences filed under the WCRPA, and would perhaps vary on a case-by-case basis. Such a mandatory provision requiring DNA test in all cases may delay the investigation process even further and create superfluous pressure on the resources of the DNA laboratories.
Importantly, in the majority of the rape cases filed under the WCRPA, the victim has no DNA samples to provide, either because of the delay in filing the case or because she herself may have destroyed all relevant samples by bathing, urinating, washing the clothes etc. There are also cases where no DNA samples could be found from the vaginal swab of the victim as the offender might have used a condom or might not have discharged any DNA. In all such cases, the investigating officers would commonly rely on other relevant evidence. However, after the addition of this new section in the WCRPA with clear emphasis on collecting DNA evidence in all cases, the trend of dependence on DNA test reports for conviction may be more rigorously practiced. This would mean that in cases where DNA test reports cannot be produced or the reports do not find accused's DNA, there is a potential danger that the accused may be exonerated from the charge altogether; or during trial, the prosecution case could be weakened substantially despite other evidence supporting conviction. The similar tendency of over-reliance on medical evidence is already present in existing rape cases, which commonly undermines the evidentiary value of the victim's testimony.
There is also the risk of mishandling of the test reports by the investigating authorities, as collection and preservation of DNA samples are extremely crucial for keeping the evidence free of contamination. A contaminated DNA report undoubtedly has dire consequences as it can either exonerate a guilty person of the charge or can implicate an innocent person. If DNA tests are to be done in such huge numbers irrespective of whether or not a particular case requires them, the chances of mishandling of the samples and reports will naturally be higher. The ultimate consequence would again be a further burden of corroboration imposed upon the victim of rape.
Section 32A of the WCRPA also does away with the requirement of obtaining consent of both the victim and the accused before taking their samples for DNA profiling. However, the DNA Act required obtaining of such consent, as it is a standard rule that an individual's DNA sample cannot be used without his/her authorisation. Under international human rights law norms, no one can be subjected to medical and scientific experimentation without their free consent. In case any person is not willing to give consent, the DNA Act provided that the authority can then seek permission from the court. However, under the new amendment, doing away with the requirement of obtaining consent, especially of the victim, is rather problematic. There may be sensitive information that the victim may not prefer to share with the police knowing that this information may be used against her or become part of the public record and may be subjected to scrutiny by the defence side in open court (for instance, it may disclose information about a consensual sexual partner of the victim). Allowing the investigating officers to compel the parties to give DNA samples without any court intervention is a dangerous proposition that needs to be reconsidered.
Besides, before adding such a mandatory provision in the WCRPA, extensive training of police to properly collect, preserve and transport the DNA samples to the laboratories had to be ensured, as well as ensuring training of lawyers and judges regarding the standard of admissibility of the DNA evidence in rape cases. At the same time, the DNA laboratories needed to be equipped with modern technologies and resources—their capacities to preserve and examine such a massive number of potential DNA samples needed to be thoroughly assessed. Inclusion of this provision in the WCRPA thus needs to be carefully reconsidered, keeping in mind that the reforms in the rape laws are meant to benefit the victim, not to increase her ordeals.
Taslima Yasmin is a legal researcher and teaches in the Department of Law, University of Dhaka.