Two-Finger Test an Impertinent Approach

Source : http://www.legalserviceindia.com
Author : shankarmegha
Published on : September 23, 2014


  
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BA LLB, FIFTH YEAR FACULTY OF LAW MODY UNIVERSITY OF SCIENCE & TECHNOLOGY

Contemporary Issue - Two-Finger Test: An Impertinent Approach

“Were you raped..? Welcome to the two-finger test.” - Anonymous

In the thicket of harrowing procedures and prejudices that a woman in India must traverse to arrive at some semblance of recovery and justice after a sexual assault, is a medical examination called the “finger test”. According to the Human Rights Watch Report, the test continues to be carried out in India in spite of the Supreme Court ruling that such a test cannot be used against women and that a rape survivor’s habituation to sexual intercourse is immaterial.

Two-finger test, commonly referred to as the Virginity Test, is being carried out as a routine in many countries. The difference lies in the method of carrying out the same. In India, it is carried out by inserting two fingers in the vaginal opening so as to observe the expression of the female, that is, the laxity. This appears in the Indian Jurisprudence textbooks and is admissible as evidence in Court in cases of rape. India has failed in taking rape offenses seriously, often reproaching women for such offense. The Human Rights Watch said that it is lamentable that this test is acceptable courtroom evidence. This strengthens the belief that the rape survivors are “loose women”. A Report by Human Rights Watch highlights the use of this practice. The test is “unscientific, inhuman and degrading”, the report notes. “As long as the two-finger test remains, it will provide the defense with a ready-made line of argument. And rape trials in India will be dependent on the individual sensitivity of judges, prosecutors, and defense counsels. Why should that be the case? It is an archaic procedure and needs to go.


The Report draws on interviews conducted by Human Rights Watch researchers in Mumbai and Delhi with 44 people including doctors, health rights activities, women’s rights activists, lawyers and judges. Human Rights Watch also analyzed 160 judgments; of these 153 were from High Courts across the country and 7 were Supreme Court judgments, all passed during the last five years. The judgments were analyzed to determine how medical opinions based on the “finger test” were used in rape trials beyond Mumbai and Delhi. A former public prosecutor quoted in the report says, “Where the defense takes the line that there was consent to sexual intercourse, usually they also look to medical evidence for support. And if the medical report says anything about the two-finger test, then they draw it out in court—saying she was “habituated” so consented and is falsely implicating the accused.” Another prosecutor says, “The finger test is relevant for the defense…if the medical report says that two fingers have passed, the defense can show that she is habituated. This shakes the testimony of the prosecutrix (the girl or woman).”
This test is carried out in various ways. On the whole, this is the test where the female’s vagina is examined. The Vagina is examined to see whether the Hymen is intact or not. A doctor performs this test by inserting a finger into the female’s vagina to check the level of vaginal laxity, which is used to determine if she is “habituated to sexual intercourse”. Now, this is one of the filthiest tests one can perceive of. It is assumed that hymen can rupture only when a female undergoes sexual intercourse. But there are many doctors, who are of the view that hymen is not a sound and appropriate indicator of sexual virginity such as, a girl may have been born without a hymen or the hymen might get torn during certain physical activities or the same may be stretched open by the use of tampons . One can also call it a medical rape. It is a kind of punishment or say, maltreatment with the female who is being subjected to this test. It is really wrong to assume that the rupturing of hymen takes place as a result of sexual intercourse only. The other factors should also be contemplated.

Alas! But this is how we are heading towards an era where we will call ourselves to be civilized citizens of our country. The question arises as to who gives the permission to carry out such a test and why do people need to conduct such lewd and obscene test. Does this violate our fundamental rights? Truly, it does violate. It is a kind of vow that a girl has to give to validate her purity.
This test is widely performed across India. The rape victims or the victims of sexual assault are forced to undergo the two-finger test in order to authenticate that she was raped or assaulted. Here, one incident can very well be cited: In Delhi, two days after being raped, an 18 year old girl was asked to come to a public hospital. She lay with her legs spread on a white bed sheet without her salwar. Two doctors came and after examining her pelvic region, they inserted two gloved fingers into her vagina. She cried out in pain but nobody cared. The doctors wiped their fingers on the glass slides and went. They didn’t even take her permission before beginning the test. She wasn’t explained either regarding the same. This is nothing but medical rape. “There is no scientific basis to this test. The results change according to the size of fingers. There is also no defined scale for measuring vaginal laxity. Old tears on hymen and vagina also do not prove that a girl or women is “habituated to sex” .
The Supreme Court of India has condemned and deprecated the conducting of two- finger test as a basis to ascertain a female’s virginity especially, the rape victims. It held that such a test violates one’s right to privacy and strongly shows disrespect towards women. It has directed the centre to provide enhanced medical facilities to women which would respect her “right to consent” while confirming sexual assault. “Undoubtedly, the two-finger test and its interpretations violate the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent”.

Another instance of rape can be quoted here. A girl was raped in the capital of our country. After she made a complaint, she was told to come to the hospital for some test. She wasn’t told anything about the same. When she reached the hospital, she was asked to remove her clothes and the doctors carried out the two-finger test in the same manner. She was literally crying out in pain. But she could not even complain regarding the same. She felt as if she was raped twice: once in the dark, in the absence of any witness, and another with all the lights on, in the presence of two witnesses. Not only this, while conducting the test, the doctors continue to ask offensive and disgusting questions, passing comments on the answers given by the victims, which crushes them to the core. By this stage, they feel as if they have a sore heart.

The reports of the medical examinations of the rape victims are read aloud in Court. So, one can now guess that the reports of such a test is also read out loud in the Court where her most private details of her private parts are described point to point so that everyone sitting in the Court is not confused regarding any fact. But did anyone pay attention to one more thing? When such reports are read out in the Courtroom in front of her, she winces in shame. At least, one thought should be given to the point that she was already shattered when she was raped. And when she hears the same aloud in the Courtroom, she feels as if she has been raped twice.

The Indian society is built in such a manner that even though it is replaced by many new principles, some things never change. Despite the protests by the public, recommendations by various committees and decisions by the Apex Court, two-finger test is still in practice. The lawmakers and the law enforcement officials should take stringent steps to curb the same. Until and unless they work in this regard, sexual assault cannot be overhauled and the principle of justice will be miles away.
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[1] As available at http://infochangeindia.org/women/books-a-reports/the-two-finger-test.html visited on August 15, 2014.
[2] ‘Dignity on Trial: India’s Need for Sound Standards for Conducting and Interpreting Forensic Examination of Rape Survivors’.
[3] Rebecca Mammen John, a criminal lawyer in New Delhi, in an interview to Human Rights Watch.
[4] As available at http://infochangeindia.org/women/books-a-reports/the-two-finger-test.html visited on August 15, 2014.
[5] The female organ of sexual intercourse, the birth canal, as taken from http://www.biology-online.org/dictionary/Vagina visited on September 17, 2013.
[6] A thin membrane of skin that may stretch across part of the vaginal opening, as taken from http://www2.webster.edu/~woolflm/virginitytest.html visited on September 17, 2013.
[7] McNeil, Jr., Donald G. (13 September 2010). "Rape: Rights Group Calls Test to Determine Sexual Activity a ‘Second Assault’ in India", New York Times.
[8] A plug of soft material inserted into the vagina to absorb menstrual blood.
[9] Dr Indrajit Khandekar, a forensic expert and lawyer, Mahatma Gandhi Institute of Medical Sciences, Sevagram, in Wardha, Maharashtra.
[10] B.S. Chauhan and F.M.I. Kalifulla, Bench of Justices, Supreme Court of India