Saving Gudiya: Laws, Rights of Victim, Role of Government, Judiciary, and Society

In the countless cases of rape and sexual assault that we encounter as lawyers, victims often find themselves grappling with confusion and uncertainty. They’re unsure of what to do, what to expect, and the rationale behind each step in both the pre-trial and trial stages. This lack of legal orientation and guidance breeds immense anxiety, leaving victims vulnerable to exploitation as they seek even the most basic legal information. Essential rights—such as timely access to an FIR, support during testimony, compensation, and free medical treatment—are frequently withheld, compounding the trauma they’ve already endured.

To counter this exploitation, in this series of articles (Parts 1,2 & 3), the author will endeavour to inform in brief, the law regarding rape, how it has evolved through judicial decisions, legislative enactments and amendments, and executive instructions.

Part -1 – A Broken Silence: Advocating for Rape Victims’ Rights

Victim, FIR & Medical Examination

In a world where silence often surrounds the most harrowing of crimes, the voices of rape victims can be tragically muted. Their suffering extends far beyond the physical violation—they endure emotional, social, and economic turmoil that can echo through their lives long after the incident. This series of articles is a call to action for society and the legal system to do more than merely prosecute; it’s a demand to protect, support, and uplift those who have endured the unimaginable. Together, we must dismantle the barriers of stigma, offer unwavering support, and ensure that justice is served and felt.

The Victim

Rape victims deserve more from the legal system and society than just a prosecution. Rape causes a tidal wave effect on a victim’s life. The profound emotional, physical, economic, and social harm to the victim affects a broad range of life activities. The response to rape should be to

• Prevent the acute trauma of rape from triggering a long-term, downward economic and social spiral for the victim. and
• To preserve the integrity of the victim’s privacy and social relations.

28 studies of women and girls aged 14 and older who had had non-consensual sex obtained through force, threat etc found that 60% of these victims didn’t acknowledge that they had been raped.

The major reason for this is “fear of stigma” and also “the body’s automatic response to trauma”. The victim needs time to acknowledge what’s happened to them.

Many centres that are made for survivors note that the majority of the cases are reported much after the actual assault took place. Studies show that many victims, dropped the case, to protect their privacy, and ensure their emotional and physical safety.

The job of the responsible society is to support the victim and be sensitive to her mental and emotional needs throughout various stages of recovery.

FIR

The author wishes to give a brief outline of settled law regarding FIR and Medical Examination which are the first steps after the assault. This is a critical stage where the victim is vulnerable, traumatized, stigmatized, and in need of immediate support. This topic is the starting point, keeping in mind the alleged Shimla rape case and its present status.

The different processes in the pre-trial stage include the registration of the FIR,  the medical examination, arrest, S.164 statement to the Magistrate and cognizance, all must proceed promptly, one after the other.

Registering an FIR is the first step in the process of setting the criminal justice machinery into motion officially. Without an FIR, criminal redress cannot be obtained. This is done under S.154, of the Criminal Procedure Code of India.

The Law, Know Your Rights;

1.  It is mandatory for a police officer to file the FIR, failing which he may be punished with imprisonment for 2 years.
2. Police cannot blame the victim for her condition,
3. Police cannot encourage the victim to reconsider or compromise the case.
4.  In case the complainant approaches a police station within whose jurisdiction the offence does not fall, the police station can still not refuse to register the FIR. As per Advisory No. 15011/35/2013-SC/ST-W, issued by the Ministry of Home Affairs, they must take down the complaint as a ‘Zero FIR’, and then forward it to the relevant police station. The complainant is also entitled to a free copy of the FIR.
5. FIR, cannot,  in any condition be prompted by the police.
6. Victims have to be provided with a copy of the FIR, it is her statutory right.
7. Police have to record the Experience of victims on getting her FIR registered, the police’s dealing with her can be probed into by the courts at the appropriate stage
8. Police have the duty of Informing the victim, the procedure and her rights, at every stage and in all her dealings with them.

Medical Examination

The medical examination follows the registration of the FIR. The purpose of the examination under the amended law is to

1. Provide first aid to the victim,
2. Psychological counselling to cope with the trauma associated with the assault,
3. Recording bodily injuries and condition for evidentiary purposes.

The Guidelines and Protocols for Medico-Legal care for victims of sexual violence, provide comprehensive instructions for the medical practitioner, their families, and the justice system.

A rapport must be established between Health professionals dealing with the case and the victim. Further, the medical examination must also include psychological counselling to help her cope with the aftermath of the assault, including in relation to the social and cultural notions of stigma and shame, within her family or community.

The Law: Know your Rights;

1. An enabling atmosphere should be created and trust be established and the victim should be informed of all available resources, referrals, legal rights.
2. The first step is to obtain informed consent/refusal from the victim for every step of medical examination and provide first aid
3. The absence of signs of struggle DOES NOT signify consent.
4. In the case of adolescents, age also needs to be verified.
5. Whether a drug /alcohol was administered has to be tested.
6. If the victim is female, then female doctors are to be preferred. For a transgender, the choice should be given to the victim.
7. Police are not allowed in the examination room, however, a relative can be present if the victim so requests.
8. Medical treatment is the first priority. A special room must be made available to maintain privacy. The hospital should not insist on admission until there is a requirement for observation/treatment.
9. All services to victims should be free of cost, medicines prescribed must be available in the hospital, or the victim must be compensated.
10. A copy of all documentation must be provided free of cost.
11. While performing a forensic examination a medical opinion has to be formed on whether a sexual act was attempted or completed, whether it was recent and any harm has been caused to the victim’s body.
12. If the victim comes to the hospital on their own without filing a report, it is the duty of the doctors to inform the police and provide medical treatment.
13. A per-vaginum test or the 2- finger test should NOT be carried out and the status of the hymen is irrelevant to the factum of the sexual act. (More on this in subsequent articles)
14. A urine pregnancy test has to be performed and blood has to be collected for HIV status and other tests etc. The type of evidence would change depending upon: nature of sexual violence, time lapsed between the incident and the medical examination, whether the victim has bathed/washed.
15. Testing should be done for sexually transmitted infections.
16. Emergency contraception may also be given.
17. Victims should be informed of follow-up services and all follow-ups should be documented.
18. Psycho-social care must be ensured and first-line support is offered.
19. If the victim reports with a pregnancy resulting from an assault she is to be given the option of abortion and protocols of MTP are to be followed.
20. Stages of the examination should be explained.
21. To address the victim’s emotional wellbeing crisis counselling must be encouraged. Suicidal tendencies must be assessed. Friends and family should be involved in the healing process of a victim. Reactions and the range of feelings which are common after a traumatic experience must be explained.
22. Safety assessment must be done, and if the survivor is unsafe alternate arrangements to stay must be offered. If not, a safety plan must be made.

Health professionals should engage with family and friends to discuss ways of promoting a survivor’s well-being.

The medical examiner has to pack, seal and sign over the evidence to the police. One copy of all the documents has to be given to the victim. The hospital must ensure a designated staff.

Sexual assault victims should be understood as suffering from a myriad of brutal consequences that impact their civil wellbeing and they are at risk of re-victimization by the criminal justice process. Lawyers scholars, media must step forward and take up their struggle, and support them by sensitizing all relevant actors in society.

Justice Beyond the Courtroom

As we wrap up this discussion, it’s clear that the journey toward justice for rape victims is a marathon, not a sprint. While the courtroom battles may end, the real fight—restoring dignity, healing wounds, and rebuilding lives—continues long after the verdict is delivered. The law can lay down the rules, but it’s society that must break the silence and tear down the walls of stigma. So let’s not just aim for justice on paper; let’s ensure it resonates in the lives of those who need it most. After all, true justice is not just about the gavel—it’s about giving victims back the power that was unjustly taken from them.

The next part will deal with legislative reforms, stages of trial and court cases.