The fallacy of potency tests

‘It’s time to stop doing these potency tests which, in the current sexual violence law, have no role, are medically impossible to state with certainty, and violate individual rights when forcefully done’

Vinod* is facing proceedings in the Juvenile Justice Board (JJB). His crime — being a teenager in love. While his experience with the authorities in the initial legal procedures was intimidating, it is the humiliation, shame and embarrassment while being tested for potency that haunts him.

What is a potency test, how is it done?

While there are many ways to do a potency test, the one commonly used includes reflexes and measurement of the male genitalia based on which the authorities form their opinion that the examined individual is physically not incapable of sexual intercourse. If necessary, the hormonal assay, injecting chemicals to produce erection, and colour doppler studies are done.

The tryst of Raja with his girlfriend led to his being subjected to a potency test which in turn has left him in a state of impotent rage. His reactions alternate between feeling violated with the procedures and hopeless resignation after his protests were overruled. Unfortunately, he and his parents were not aware that parental consent was necessary to proceed with the test.

During the course of Tulir’s engagement with teens navigating POCSO Act cases because of their romantic dalliances, we have seen action by authorities that doesn’t take into account the idiosyncrasies of the cases.

Exemplifying the lack of understanding of sexuality among authorities, an investigating officer, when asked why a teenager was sent for a potency test when he had only kissed a classmate on the cheek (sexual assault as per law), replied, “Only if he had potent feelings would he have attempted to show his affection.”

The lack of understanding of what a potency test is about is best epitomised by another investigator claiming, as vindication, that the potency test on a prepubescent boy was “positive”. To us, it was surprising that the age of the child was not a matter of consideration.

Law and relevance of potency test for child in conflict with law

Contrary to the earlier law, besides penile penetration, penetration by finger, other body parts or by objects into genital orifices is also included in the definition of penetrative sexual assault in the POCSO Act. Furthermore, penetration of penis, not necessarily erect, to any extent into genital orifices or mouth also constitutes a penetrative sexual assault. Also, Section 53 A of the Cr.PC, which specifically deals with the medical examination of a person accused of rape, does not insist on a potency examination.

“Medically, you cannot give a definitive opinion on whether a person is potent or not because of the limitation of not being able to rule out psychological impotence through physical examination. Thus, doing a routine potency examination of the accused is not acceptable or relevant. It’s time to stop doing these potency tests which, in the current sexual violence law, have no role, are medically impossible to state with certainty, and violate individual rights when forcefully done,” says Jagadeesh N., professor of Forensic Medicine & Toxicology, Vydehi Institute of Medical Sciences and Research Centre.

“If there is a better understanding of the distinction between sexual acts and sexual intercourse, the essence of time, and critical factors — physiological and psycho-sociological — the requests for potency examination for sexual violence cases will reduce considerably. This will save time and energy unnecessarily expended by the human resources involved,” says. G. Manigandaraj, Head of Forensic Medicine and Toxicology, Government Chengalpattu Medical College.

(*names changed)

(The authors are with Tulir-CPHCSA)