The Supreme Court’s amplification and reiteration of the prohibition of two-finger test in rape cases and its stern warning that persons conducting the demeaning procedure would be held guilty of misconduct is of a piece with its recent progressive verdicts delivered in keeping with the times. According to the World Health Organization, the two-finger test is still being practiced in more than 20 countries across the globe.
The two-finger test, an out-and-out unscientific procedure, involves inserting two fingers into a woman’s vagina to determine the laxity of vaginal muscles. It is done under the presumption that it would help determine her ‘virginity’ or habituation to sexual intercourse. In some cases, it is done by inspecting the size of a woman’s vaginal opening and for tears in the hymen. In fact, neither of the methods can prove that a woman has had a vaginal intercourse or not. Still, ‘evidence’ from this abhorrent test has been used by defense counsel during trials to assert that the rape survivor is a person of easy virtue or one with ‘loose’ or ‘lax’ morals.This one possibility is enough to deter rape survivors from even reporting the crime.
The verdict of the SC has drawn attention to the deplorable fact that the Centre has done precious little to mend matters, though the two-finger test was banned in 2013.It is regrettable that two-finger test continues to be conducted even today, a bench comprising Justices DY Chandrachud and Hima Kohli observed, while restoring the conviction in a rape case.”This court has time and again deprecated the use of two-finger test in cases alleging rape and sexual assault. The so-called test has no scientific basis. Instead, it re-victimizes and re-traumatizes women.
The two-finger test must not be conducted…The test is based on an incorrect assumption that a sexually active woman cannot be raped. Nothing can be further from the truth”, the bench observed. “The probative value of a woman’s testimony does not depend on her sexual history. It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped merely because she is sexually active”, the bench declared.
However, the bench’s blanket directive to the Union Health Ministry, asking it to ensure that survivors of sexual assault and rape are not subject to the two-finger test, is a moonshot. The Bench directed the Union government as well as State governments to ensure that the guidelines formulated by the Department of Health and Family Welfare (proscribing two-finger test) are circulated to all government and private hospitals.
It also directed that workshops be conducted for health providers to communicate appropriate procedure for examining survivor of sexual assault. It directed review of curriculums in medical schools so that the two-finger test is not prescribed as one of the procedures to be adopted while examining survivors of sexual assault and rape.
All told, the Union Health Ministry’s guidelines leave much to be desired. As per the Guidelines & Protocols, Medico-legal care for survivors/victims of sexual violence, doctors must be sensitive to the survivor besides prescribing specific ‘no’ to PV test, saying: per vaginum examination must not be conducted for establishing rape/sexual violence and the size of the vaginal introitus has no bearing on a case of sexual violence.
Post the Nirbhaya case, in 2012 the Verma Committee recommended the banning of the two-finger test. “It is crucial to underscore that the size of the vaginal introitus has no bearing on a case of sexual assault, and therefore a test to ascertain the laxity of the vaginal muscles … must not be conducted… Based on this test observations/ conclusions such as ‘habituated to sexual intercourse’ should not be made and this is forbidden by law,” the Committee stated. Subsequently, under the Criminal Laws (Amendment) Act, 2013, the test was made illegal.
In May 2013, the apex court had held that the two-finger test violates a woman’s right to privacy and asked the government to provide better medical procedures to confirm sexual assault. Invoking the International Covenant on Economic, Social, and Cultural Rights 1966 and the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, the apex court said rape survivors are entitled to legal recourse that does not re-traumatize them or violate their physical or mental integrity and dignity. Several High Courts have since observed that the test is still being conducted, even on minors.
The scientific view is that the hymen is not a reliable source of proving vaginal penetration. In cases of sexual assault on young females, the hymen, being deep-set, often stays intact during penetration.The hymen can get torn from not just having intercourse but also exercising, using tampons, playing sports or riding horses. Not many know that some girls may be born without a hymen and yet be perfectly normal.
The hymen is no mirror of virginity, period. Cynics ask: ‘What about girls who get their hymen reconstructed surgically to project themselves as ‘virgin’?
Under the Criminal Law (Amendment) Act, 2013, rape includes ‘insertion, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or making her to do so with him or any other person’. Hence, even in the case of medical examination of the rape victim, if she denies or does not give her consent to the ‘two-finger test’, and the doctor continues and conducts the test on her; the act of the doctor would amount to the offence of rape under section 375(d) of IPC.
The bottom line is that a rape survivor upon whom the two-finger test is conducted by a doctor without her informed consent can file an FIR against such doctor, charging him under section 375(d) IPC.So, the easiest way out is to start booking doctors for rape under the amended law.
