Potency test on Tarun Tejpal: Why we should be outraged

To titters and tweeted bawdy humour, the news has come that Tarun Tejpal, the once powerful and now much vilified former editor of Tehelka magazine, has passed a potency test.

There are multiple reasons this should bother us.

First, it is not clear that such a test is indeed mandatory. The Goa Police claims that anybody booked under Section 376 of the Indian Penal Code must be put through such a test. However, the latest amendment to the law ( the Criminal Law Amendment Act, 2013 ) does not include any such specific requirement.

The other law that could apply, Section 53 of the Criminal Procedure Code, states that when there is reason to believe that an examination of the person of an accused will afford evidence about commission of an offence, it shall be lawful for a registered medical practitioner, acting on the request of a police officer, to make such an examination of a person. No mention of a potency test. There is no amendment to this clause in the Criminal Law Amendment Act 2013.

The latest amendments have, however, made significant alterations to just who should be booked under Section 376 of the IPC. Under the  Criminal Law (Amendment) Act, 2013 which details the amendments to laws pertaining to rape, sexual harassment and sexual assault, the new definition of rape substitutes peno-vaginal intercourse with a wider array of acts including inserting “any object or a part of the body” into the vagina, urethra or anus of a woman.

In other words, the definition of rape now stands widened. In 2012, a similar act by Tejpal would have invited very dissimilar sections of law.

The new definition of what constitutes rape has been widely acclaimed; it was a critical and hard-fought win for women’s rights activists and also for women who were victims of serious sexual crimes but saw their attackers get away lightly.

Now, why should we be outraged at the potency test on Tejpal? The Goa Police, which displayed surprising fleet-footed thought in booking Tejpal under Section 376, has shot itself in the foot with the test. With the complainant’s statement having been consistent and clear, defence lawyers will have a field day accusing the police investigators of undue, motivated harassment through a potency test. Even if such tests are becoming accepted procedure by investigating officials –  the Mumbai gangrape accused were subjected to the tests too, reportedly, as have other accused in a clutch of recent cases – we will have to rue the fact that investigation procedures are still to catch up with amendments to law.

According to this report in the Wall Street Journal , the sexual potency test is conducted to establish that the suspect or accused is physically capable of committing the alleged sexual acts. However, the law can sometimes by fuzzy on what can be called ‘potency’. The report quoted doctors as saying the Nocturnal Penile Tumescence (NPT) and the Penile Color Doppler Sonography are two diagnostic tests that could be administered. The NPT measures the number of spontaneous erections at night, while the penile sonography measures blood flow to the penis.

For the prosecution team in Tejpal’s case. unlike in the Asaram Bapu case, or in hundreds of other rape trials in which an accused has pleaded impotency and innocence, the results of such medical tests on Tejpal will mean nothing. The test seriously discredits the Goa police’s image as an unbiased force busying itself with putting together unimpeachable evidence against Tejpal.

At a completely different level, the test on Tejpal should anger us because, in one shot, a police force obviously keen to humiliate a man who played a cat and mouse game with investigating officers for days has kicked aside what was the biggest cause for elation when the definition of rape was amended – legal sanction for the long-held argument that rape is not about potency.

Women across India are still to understand the new legal definition of what constitutes rape. This is an important process as women arm themselves better to complain correctly, without fear or guilt, without feeling slutty for demanding justice.

The Goa police’s face-palm inducing private giggle-fest at Tejpal’s expense should be roundly castigated.