P3 forms in the spotlight as women are denied justice

Dr Ketra Muhombe of the Nairobi Women’s Hospital believes it will be a long time before women who have been raped are assured of speedy justice.

Successful prosecution of rape cases requires clinical evidence, which is often elusive in adult women. By the time they are examined by the police doctor, who is supposed to confirm reports from registered medical practitioners, any soft tissue injuries they may have sustained in the attack will have healed.

The prosecution has to rely on incidental and corroborative evidence — “because if you go by clinical evidence, the case is thrown out,” Dr Muhombe says.

According to the doctor, whose hospital was the first to set up a gender violence recovery centre that has since been replicated by a busier one at Kenyatta National Hospital, the best way is to do a DNA test where the rapist is known and samples can be taken for analysis.

Overworked doctor

‘Circumstantial evidence’ tends to be unfair to women, “because it is the victim’s against the perpetrator’s word,” she says.

Given the situation in Nairobi, where rape victims have to rely on one overworked police doctor, Dr Muhombe says: “Sometimes our medical report gives different evidence from the P3; I wonder if the police doctor really examines these people properly. The only time our reports seem to coincide is when it is a child who has had bad tears sewn up. There is no way the doctor can avoid seeing that.”

Mothers who have given birth to several children suffer the most. They may not have any physical evidence in the vagina, so their cases tend to be thrown out, Dr Muhombe says.

According to Dr Gathara Ndirangu, an obstetrician and gynaecologist linked to KNH’s recovery centre, as a reproductive health and technical advisor, even where it can be ascertained that there was sex, proving that force was used can be tricky.

“It’s her word against yours; the rapist can insist it was consensual.”

Male victims

Dr Ndirangu also pitches for male victims of sexual abuse, who, according to statistics from KNH, accounted for some 20 per cent of the 111 cases reported in the January-March quarter.

Because of the stigma of appearing to be effeminate in a macho society, there is a tendency towards under-reporting by sexually abused men.

Most sexual abuse victims report to hospital within 72 hours, but they could see the police doctor even after three months, Dr Muhombe says. It would help if there were more police doctors, she says.

In an interview with Saturday Nation, police spokesman Eric Kiraithe ruled out hiring more doctors until reforms are carried out to increase funding for the Police Force. Currently, police doctors earn between Sh30,000 and 40,000 per month compared to Sh70,000 to 150,000 that the average doctor in Kenya earns.

Dr Muhombe has issues with the requirement for the police doctor in Nairobi, when upcountry rape victims can be examined by any government doctor, which speeds up rape cases there.

Even where there is enough evidence to nail a rapist, the examining doctor may not be available to testify in court.

Court delays

“Doctors don’t like to go to court because of time waste,” the doctor explains.

While the doctor may be bonded to appear in court at 9am, the magistrate may not appear before 10am — and then only to start with petty offences.

“By the time they get to real cases, it’s 11.30am to noon. You can also go to court only for the case to be postponed,” she says.

“Sometimes, the magistrate is not even there, or he wants to give judgments first. It means you have to leave court after 2pm… A lot of time is wasted in the court process,” Dr Muhombe says.

The situation is complicated for Nairobi Women’s Hospital doctors, who, because of their unique mission for gender violence victims, may be called to testify in cases outside the city.

The logistics of travelling to far-flung places like Molo, Nakuru and Gilgil means that doctors are likely to skip testifying in such cases, thus denying justice to rape victims.

Police, Dr Muhombe says, expect doctors to be there five days a week, “which is not practical.” The number of cases has also gone up — a factor she attributes to greater awareness of the free services available at the women’s hospital and police being more proactive in prosecuting rape cases. According to her, it is no longer possible to negotiate with the perpetrator as “it’s the Republic versus the perpetrator.”

Also, having children’s cases tried in camera, means there are more cases. Thus, doctors find themselves spending more time in court than treating patients.

Former nominated MP Njoki Ndung’u, a lawyer and member of the Justice Effie Owuor-led Government Task Force on Sexual Offences Act, told Saturday Nation that part of what frustrates rape cases is doctors’ reluctance to testify in court.

Magistrates

Is it possible for doctors to testify in court on a specific day of the week? This, Ms Njoki says, calls for training of magistrates to be sensitive to doctors’ concerns so as not to undermine gender violence cases.

Dr Muhombe, who is currently unable to testify in court, says she used to spend at least three days a week in courts in Kibera, Makadara, Kikuyu, Kiambu, as well as the High Court and Juvenile Court.

Makadara, the busiest of them all, “has eight courts, and you may be needed in all of them; by the time you are through, you are tired. There were times I lost my voice testifying,” she told Saturday Nation.

Dr Ndirangu says our courts should be witness-friendly. He is concerned about cases that fail to come up — even after doctors put aside other business to be in court.

“We have been wishing to see how we can work with judges to make it easier for doctors to testify. Maybe doctors should be allowed to give evidence early and go, because, if you tie down a healthcare provider, you affect others’ health.”

Inasmuch as the odds are weighed against women seeking justice in cases of rape, they, too, are not blameless when it comes to seeking justice for their children, Dr Muhombe says.

“Mothers do the right thing to report husbands who sexually molest their children, but then back out because they are threatened with being thrown out of home by their husbands.”

But even where they are not threatened, mothers find themselves in a dilemma.

The doctor says: “‘How do I explain to other children why their father is in the police station?’ they ask me. Others beat up the child to have her change the story.”

Because most sexual assault against children involves incest, with fathers, brothers and live-in relatives as culprits, it is often neighbours who report to police.

Dr Ndirangu shares the concern about mothers who shield their abusive husbands.

“We’ve seen cases where although it’s known that the husband is molesting the child, because the couple want to save their marriage or to avoid embarrassment, mothers prevail upon the child to withdraw the case,” he says.

Mother’s economic empowerment is important if the child, who is sexually abused, is to get justice, because, often, mothers worry about ‘what happens to the rest of the family if the father is jailed?’

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