THE LEGALITY OF TWO-FINGER TESTS BY - SWETHA MARIAM SAJI
THE LEGALITY OF TWO-FINGER TESTS
AUTHORED BY - SWETHA MARIAM SAJI
Designation - LLM
Student, Faculty of Law, University of Delhi
Abstract
The “Two-Finger Tests” are a
controversial and outdated medical examination that was historically used in
some jurisdictions to assess the laxity of a woman's vaginal muscles. This test
was often conducted as part of medical examinations on survivors of sexual
assault to determine if they had engaged in sexual activity or to assess the
likelihood of consent. The procedure involved inserting two fingers into the
woman's vagina to evaluate its size and elasticity. The virginity tests are
conducted on women to ascertain the pre-conception that women should be pure.
It is the product of cultural and social perceptions and lacks medical
evidence. The “Two-Finger Tests” are practised in various nations. The World
Health Organization and international non-governmental organization Human
Rights watch considers the test as discriminatory and derogatory. In India, the
Ministry of Health and Family Welfare released guidelines to ban the practice
of per-vaginum tests. The Supreme Court and various High Courts pronounced the
tests as violative of rights of privacy, physical and mental honour and
self-esteem. Every individual holds the right to live with dignity and right of
non-interference with their private affairs. Rape is an act of violence and
previous indulgence in sexual intercourse should not be considered a decisive
factor in discrediting the character of victim. The tests were held
unconstitutional by the supreme court and directed the central and state
governments to prohibit the same. But still the practice of conducting of “Two-Finger
Tests” continues. This paper focusses on the impact of “Per-Vaginum Test” on
victims, the international and national perspectives on the subject matter and
discusses the judicial interpretations.
Keywords: Per-Vaginum test, Two-finger test, Dignity,
Integrity, Derogatory etc.
I.
Introduction
The “Per-Vaginum Test” commonly
referred to as the “two finger test” or “Virginity Test”, is the procedure used
to determine the virgin status of a woman. It is most commonly used on the
survivors of sexual assault for the purpose of indicating whether she has
previously engaged in sexual intercourse or not. The notion that girls and
women should maintain their "virginity" is socially constructed. It
is important to note that the concept of virginity is a social and cultural
construct, and there is no reliable medical or scientific method to determine a
person's sexual history through a physical examination. The test is frequently
employed to label survivors of rape as "accustomed to sexual
activity." Medical proof of prior intercourse is utilized to raise scepticism
regarding rape allegations. This may involve insinuating that the survivor
fabricated the rape, implying that the assault was not harmful, or suggesting
moral impropriety on the part of the survivor, thereby questioning her right to
justice.
The per vaginum test, being invasive
and potentially demeaning, goes against the principles of human dignity and the
right to privacy. The test not only infringes the privacy and dignity of the
individual but also have negative effects on the mental well-being of the
individual. It is an act of retraumatising the survivor. Rape victims have the
right to seek legal and medical recourse without causing any injury to the
dignity of the survivor. The Supreme Court through its various pronouncements
condemned the practice of discrediting the morale of the survivors of sexual
assault by performing the act of two finger test on them. The ministry of
Health and Family Welfare provided guidelines for the prohibition of
per-vaginum test. Such practices derogatory to the self-esteem and well-being of
women are to be prohibited.
A complaint can be lodged with the
Medical Council of India against any doctor attempting to conduct the
two-finger test during the medical examination of rape victims. Rape is a grave
form of violence and creates mental and physical suffering to the victims.
Conducting two-finger tests will further alleviate their misery. The
Per-Vaginum test was condemned by courts across the nations on various
occasions. The government institutions as well as experts also advocates that
such practices should be prohibited. Even though guidelines and regulations has
been provided, in India, in some remote areas, this procedure is conducted by
the medical practitioners even now.
The rape victims face limited access
to support services, and doctors at the facility continues to perform the
two-finger test. Without giving importance to the Mental well-being, the
survivors are exposed to vulnerabilities and it creates trauma within
themselves. They even refuse to acknowledge the process of justice as their
rights are being violated. Two-finger tests should be strictly prohibited in India
considering the mental well-being and sufferings of survivors.
II.
Per Vaginum Test
The virginity status of a woman is
determined through this process. The test involves a physical examination in
which a doctor inserts fingers into a woman's vagina to assess the laxity of
the vaginal muscles and to check for the presence or absence of an intact
hymen. According to the Oxford Dictionary, the definition of laxity is
"(of the limbs or muscles) relaxed" and the definition of hymen is
"A membrane that partially seals the vaginal membrane and whose existence
is historically seen as a sign of virginity"[1].
Typically, if inserting one finger into the vagina faces resistance, it is
suggested that the individual is a virgin. On the other hand, the effortless
insertion of two fingers implies a familiarity with sexual intercourse. This
test lacks scientific and medical evidence and is mostly based on cultural and
social perceptions.
Intact hymen is not a proof for
discrediting the dignity of the survivors. Women engaging in athletic
activities, undergoing heavy and vigorous exercise have the chance of rupturing
their hymen. In sexual assault cases, the concept of consent has to be analysed
more critically than such tests that lack proper medical proof.
III.
Impact of Per-Vaginum tests on Victims
The “Two-Finger Tests” discriminate
again women and is unethical. A pre-conception that the sexually active women
cannot be raped is derogatory. The “Two-Finger Tests” that analyse the
virginity status of a woman is creating more misery in the minds of victims. The
two-finger test has been widely criticized for its lack of scientific validity.
It does not provide reliable evidence regarding consent, sexual activity, or
the likelihood of sexual assault. The
tests are deeply offensive and create re-traumatizing experience for survivors
of sexual assault. Being subjected to such an examination can worsen the
emotional distress and suffering that victims may already be experiencing.
These tests infringe upon the
survivor's right to privacy and dignity. The invasive nature of the examination
can make survivors feel vulnerable and violated, potentially hindering their
willingness to cooperate with the legal and medical processes. Medical experts
argue that as the test is not based on sound scientific principles, it can lead
to inaccurate and misleading conclusions.
The use of such tests can contribute
to societal stigmatization and victim-blaming. If the results are
misinterpreted or misused, they may perpetuate harmful stereotypes and
undermine the credibility of survivors, potentially influencing legal proceedings.
The two-finger are violative of human rights, and its use has been condemned by
international human rights organizations. Many countries and jurisdictions have
moved away from this practice, acknowledging the importance of respecting the
rights and well-being of survivors.
IV.
International Perspectives
The practice of "virginity
testing" has been documented in various countries globally. In 2004,
Naboth Makoni, a village chief in Zimbabwe, announced plans to implement
virginity tests as a measure to safeguard his community against HIV. In 2014,
the Human Rights Watch reported that female candidates applying to the
Indonesian Police force undergo routine physical virginity tests as part of the
job application process. Additionally, in Afghanistan, authorities routinely
subject women and girls accused of "moral crimes," such as
"running away," engaging in consensual sex outside of marriage to
undergo "virginity tests." Moreover, practices were conducted to
include virginity tests among girls in schools in Indonesia.
“Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of Power” adopted by the United Nations
General Assembly, in Article 4 provides that “Victims should be treated with
compassion and respect for their dignity”[2]. The
victims should be treated with utmost respect and dignity. Survivors of rape
are entitled to legal remedies that do not cause further trauma or compromise
their physical, mental, or integrity. They have the right to undergo medical
procedures only after giving their consent and ensuring that such procedures
avoid any form of cruel, inhuman, or degrading treatment. Prioritizing health
is crucial when addressing gender-based violence. The State bears the
obligation to provide accessible services for survivors of sexual violence,
incorporating measures to guarantee their safety. Additionally, there should be
no arbitrary or unlawful intrusion into their privacy.
As per prohibition against
"cruel, inhuman, or degrading treatment" outlined in Article 7 of the
International Covenant on Civil and Political Rights (ICCPR)[3]
"virginity tests" face condemnation and is considered to be in
violation of human rights of individuals. The UN Human Rights Committee,
overseeing covenant compliance, underscores in a General Comment that Article 7
aims to safeguard the dignity and physical and mental integrity of individuals.
Coerced virginity testing not only compromises the dignity of women but also
infringes upon their physical and mental well-being. Furthermore, the
Convention on the Elimination of All Forms of Discrimination against Women[4],
along with other human rights treaties, expressly prohibits discrimination
against women. The practice of "virginity testing" is deemed
discriminatory as it purposefully or effectively denies women their rights on
an equal basis with men.
The 2014 World Health Organisation,
"Health care for women subjected to intimate partner violence or sexual
violence,"[5] advises
against the use of "virginity tests." Emphasizing the importance of
respecting women's rights and comfort, the handbook underscores that any
physical examination must be carried out with informed consent and solely for
the purpose of determining necessary medical care. It explicitly states that
the offensive and humiliating "virginity test" or "two-finger
test," employed in certain regions to falsely ascertain a woman's
virginity, lacks scientific validity. The commonly held medical opinion that
"virginity tests" are useless is supported by the WHO guidelines. The
using of virginity tests is dehumanizing and discriminatory to the dignity of
women.
A collective statement from several
United Nations agencies has been released, during the World Congress of
Gynaecology and Obstetrics (FIGO) in Rio de Janeiro advocating for a
prohibition on tests aimed at assessing the virginity of girls or women. The
statement emphasizes that such tests are both scientifically unfounded and
causes violation of human rights. As part of a global initiative to eradicate
violence against women and girls, the UN Human Rights Office (OHCHR), UN Women,
and the World Health Organization (WHO) jointly assert that this medically
unnecessary practice, often marked by pain, humiliation, and trauma, must come
to an end. Human Rights Watch also condemns the practice of per vaginal tests
and continuously provides measures for permanently prohibiting such acts.
Many of the Nations declared “Two-Finger
Tests” as insulting. The decision by the Lahore High Court, as outlined by
Justice Ayesha A. Malik, marks a significant and progressive stance against the
use of so-called 'virginity tests,' including the 'two-finger test' and the
hymen test, on victims of rape and sexual assault. The court's ruling deeming
these tests unconstitutional reflects a commitment to protecting the
fundamental rights of individuals, particularly the right to life and dignity
enshrined in the constitution of Pakistan[6].
V.
National Perspectives and Guidelines
Previously, the Indian Evidence Act
contained a provision that allowed a victim's sexual history as a defence for
the accused[7].
Consequently, medical reports were employed to undermine the credibility of the
victim during the trial. When the defence claims consent to sexual intercourse,
they often seek support from medical evidence. If the medical report mentions
the two-finger test, and if it is proved, they present it in court, asserting
that she was 'habituated' and gave consent, and is falsely implicating the
accused. The said clause of the section was removed. Presently, judges cannot
permit lawyers to use sexual history during cross-examination since it is no
longer considered relevant.
A Human Rights Watch report published
in Mumbai in 2010 sheds light on the utilization of this practice, deeming it
"unscientific, inhuman, and degrading." The test is characterized as
a second assault on already traumatized women, raising serious concerns about
Indian courts incorporating views on the general moral character of rape
victims into their rulings. In January 2012, the Planning Commission's working
group, led by the secretary of the Women and Child Development Ministry,
recommended the elimination of this test to shield victims of sexual abuse from
additional mental trauma.
A government-appointed panel, led by
former Chief Justice of India J.S. Verma, submitted its report on January 23,
2013, after 50 days of deliberation[8].
The report aimed to expedite trials and impose stricter penalties for criminals
accused of committing sexual assault against women. The committee made crucial
recommendations on various issues, including rape, sexual assault, verbal
sexual assault, sexual harassment, acid attacks, offenses against women in
conflict areas, trafficking, child sexual abuse etc. Regarding the medical
examination of rape victims, the committee advocated discontinuing the Two
Finger Test, citing its infringement on the victim's right to privacy deeming
such a test ethically questionable. It was provided that the prevalence of the
Two Finger Test indicates a lack of understanding among professionals,
including doctors, police officers, lawyers, judges, and others, about what
constitutes rape. The Supreme Court, in various judgments, has emphatically
asserted that the Two Finger Test should not be conducted, and the past sexual
experiences of the victim should not be relied upon to determine consent or the
quality of consent given by the victim. Following the 2013 amendments to
criminal law, the definition of rape underwent substantial expansion to
encompass various forms of penetrative violations of a female's anatomy.
Consequently, the two-finger test could potentially be considered a form of
rape, unless it falls under exception 1 to Section 375 IPC. This exception
stipulates that "A medical procedure or intervention shall not constitute
rape.” By the same amendments, the Evidence Act was amended to include Section
53A. According to Section 53A, evidence of a victim's character or previous
sexual experiences is irrelevant to the issue of consent or the quality of
consent in prosecutions of sexual offenses.
The Government of Maharashtra passed
a resolution banning the practice of “Two-Finger Tests” and provided that the
test is non-scientific. It further indicated that the test interfered with
investigations and denied the justice to survivors of sexual assault. The Delhi
government initially issued an advisory to its hospitals allowing for the Per Vaginal
(PV) examination, also known as the 'two-finger test,' for rape survivors with
their consent. The advisory, based on a 14-page document from an expert panel,
argued against a complete ban on this examination, stating that it could be
detrimental to the survivor's health and may lead to injustice. However,
following criticism and controversy, the Delhi government decided to retract
the circular, banning the two-finger test entirely for sexual assault victims
in Delhi.
The Ministry of Health and Family
Welfare, Government of India, has released Guidelines and Protocols for
Medico-Legal care for survivors/victims of sexual violence in 2014. According
to these guidelines. The "two-finger test," is prohibited. It was
provided that the size of the vaginal introitus is considered irrelevant in
cases of sexual violence, and the per -vaginum examination is only suitable for
adult women when medically necessary. The status of the hymen is also regarded
as irrelevant, and provided that an intact hymen does not exclude the
possibility of sexual violence, and a torn hymen does not confirm sexual
intercourse. The guidelines stress that, in cases of sexual violence, greater
weight should be given to the testimonies of the victim and witnesses rather
than relying solely on physical examinations to assess injuries to the genital
area.
VI.
Judicial Interpretations
The Supreme Court of India and High
Courts of various states condemned the practice of two-finger test and held it
as violative of the privacy of rape survivors. The Supreme court in the case Lillu
@ Rajesh v State of Haryana[9],
pronounced that the “Two-Finger Tests” are violative of rights of privacy,
physical and mental integrity and dignity of rape survivors. It was held that
such practices are derogatory and thus adversely affected the right to dignity.
Therefore, even if the report is affirmative, the test cannot give rise to the
presumption that the victim consented to the act.
This case condemned the
discriminatory and humiliating practice of pre- vaginum test. Right to privacy
and live with dignity comes under the purview of right to life[10].
The right to privacy refers to an individual's entitlement to keep certain
aspects of their life, personal information, and activities private and free
from unauthorized interference. A survivor of a sexual assault undergoing the
two-finger test is again re-victimised and re-traumatized. It is the act of
interfering with the individual’s preferences and choices which she considers
to be private. Every individual possesses the right to lead a life with
dignity, free from both physical and mental stress. The criteria that a person
is sexually active cannot rule out the fact that she has not consented to the
sexual act.
The supreme court in the case of State
of Jharkand v Shailendra Kumar Rai @ Pandav Rai[11],
also observed that, the conducting of “two-finger test" by the Medical Board
to ascertain whether she was accustomed to sexual intercourse was demeaning the
dignity of the woman. The flawed assumption that a sexually active woman cannot
be raped, was deemed inappropriate. The Court emphasized that the probative
value of a woman's testimony should not hinge on her sexual history. It was
considered patriarchal and sexist to cast doubt on a woman's credibility simply
because she is sexually active. The court further directed union government and
state government to adopt adequate measures for the implementation of
prohibition on two finger tests.
In the case of Narayanamma (Kum)
v. State of Karnataka & Ors[12]
the Court established that the mere acknowledgment of the insertion of two
fingers and the rupture of the hymen does not necessarily imply that the
prosecutrix is accustomed to sexual intercourse. It was emphasized that the
doctor's opinion is crucial in determining whether the hymen had ruptured much
earlier or if the tear was of an older nature. The admission of two fingers
should not be automatically construed as adverse to the prosecutrix, as the
impact could vary depending on the size of the fingers inserted. The doctor is
required to provide a clear opinion on whether the experience was painful and
resulted in bleeding upon touch, particularly as these conditions directly
pertain to the condition of the hymen.
The Court in State of Uttar
Pradesh v. Munshi[13]
expressed its concern and asserted that even if the victim of rape had engaged
in sexual intercourse previously, it should not be the decisive factor. The
pivotal question remains whether the accused committed rape during the alleged
incident. The loss of the victim's virginity in the past does not grant
permission for anyone to commit rape. The focus of the trial is on the accused,
not the victim. Therefore, the issue of the victim's promiscuity is entirely
irrelevant in a rape case. Even a woman with a liberal lifestyle has the right
to refuse consent to sexual intercourse with anyone, as she is not an object or
target for sexual assault. It was emphasized that a prosecutrix holds a higher
standing than an injured witness because while an injured witness suffers
physical harm, the prosecutrix undergoes psychological and emotional distress.
In the case of Re: Assessment of
the Criminal Justice System in response to Sexual Offences[14],
the court expressed strong disapproval of the non-implementation of criminal
law provisions, including the 2013 and 2018 amendments following the Nirbhaya
case, concerning rape cases and other sexual offenses. It was provided that: “Section
53A explicitly states that any evidence pertaining to the victim's character or
past sexual encounters with any individual shall be deemed irrelevant in
matters concerning consent or the nature of consent. This provision signifies that
those previous sexual experiences and, consequently, familiarity with sexual activities
are now considered inconsequential for medical examinations. Despite this,
there are still instances where medical opinions claim that "the victim is
accustomed to sexual intercourse" and imply the potential for consent
based on her prior sexual history."[15].
A division bench consisting of then-Chief Justice of India S.A. Bobde and
Justices B.R. Gavai and Surya Kant requested a status report from all states
and union territories in the country, inquiring, among other things, whether
medical experts have discontinued the use of the 'two-finger test.'
The High Court of Tamil Nadu issued a
crucial directive in the case of Rajiv Gandhi v State [16].
The Madras high court held that the practice of “Two-Finger Tests” cannot be
continued and directed the State Government to immediately ban such procedures.
In the case of State of Gujarat v Rameshchandra Ramabhai Panchal[17],
the high court ruled that the obsolete practice of the two-finger test,
conducted to ascertain the virginity or consent of a rape victim, violates the
victim's rights to privacy, mental integrity, and dignity, and rendered it
unconstitutional. In the case Sr. Sephy V CBI and Ors,[18]
the Delhi High Court pronounced that the virginity test conducted on the female
captive, was unconstitutional and in violation of Article 21 of the
Constitution which includes right to dignity.
The courts through its various
pronouncements held that the per vaginum test violates the basic human rights
of survivors of sexual assault. The traumatized victim is forced to undergo
interference with her privacy and dignity. The practice of virginity test is
greatly condemned and steps are taken to ban the practice.
VII.
Conclusion
The two-finger test is a contentious
medical examination that was once employed in certain areas to evaluate a
woman's vaginal muscle laxity. In order to ascertain whether or not survivors
of sexual assault had engaged in sexual activity, or to gauge the possibility
of consent, this test was frequently used as part of medical evaluations.
Through such practices, the self-esteem and the privacy of a victim should not
be allowed to be undermined. Like any other individuals, they also possess the
right to live with dignity. There should not be unfettered intervention with
the survivors’ private affairs.
The procedure of “per-vaginum test”
is still ongoing in India. Jan Sahas, examined records from 200 group rape
trials and discovered that the two-finger test was employed in 80% of cases to
determine rape. A micro-survey conducted in Lucknow revealed that, out of 10
reported rape cases, including 5 involving minors, all victims had undergone
the two-finger test. In a report released by Human Rights Watch, it was
highlighted that rape victims in a hospital in Rajasthan faced limited access
to support services, and doctors at the facility continued to perform the
two-finger test. Despite the provision of guidelines by governments and
persistent emphasis on prohibition by the judiciary, the practice continues
unabated.
Stringent provisions are to be
adopted along with including guidelines in the curriculum of the medical
practitioners regarding the prohibition of performing “Two-Finger Tests” on the
survivors of sexual assault. Awareness must be provided to medical
practitioners, experts, government authorities, police officials regarding the
ban on such tests. A deviation from the rules and regulations should be
strictly punished. Moral character and sexual history should be disconnected
from the necessity of conducting internal examinations. There is an urgent
requirement for consistent nationwide guidelines for forensic examinations that
uphold survivors' rights to health, consent, and dignity. It is crucial for courts
to receive scientific, relevant, and accurate information rather than relying
on outdated material derived from textbooks or antiquated medical practices.
Collaboration among doctors, the police, prosecutors, and judges are essential
to cease the administration of such tests and to standardize evidence
collection, thereby safeguarding the rights of survivors. It is essential to
organize workshops for healthcare providers to discourage the administration of
the test on survivors of rape. Effectively addressing this issue requires
comprehensive sensitization and training initiatives for both medical
professionals and police personnel.
[1] Suzanne Leclerc-Madlala, “Virginity testing: managing
sexuality in a maturing HIV/AIDS epidemic” 15 Medical Anthropological
Quarterly 533 (2001)
[2] UN General Assembly, Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power, GA Res
40/34, GAOR, UN Doc A/Res/40/34 (November 29 1985)
[3] UN General Assembly, International Covenant on
Civil and Political Rights, GA Res 2200A (XXI), GAOR, UN Doc
A/Res/2200A(XXI) (adopted December 16 1966, entered into force on March 23
1976)
[4] UN General Assembly, Convention on the Elimination
of All Forms of Discrimination against Women, GA Res 34/180, GAOR, UN Doc
A/Res/34/180 (adopted December 18 1979, entered into force on September 3 1981).
[5] World Health Organisation, "Health care for
women subjected to intimate partner violence or sexual violence: a clinical
handbook, A clinical handbook published by WHO, WHO/RHR/14.26, (October 8
2014).
[7] The Indian Evidence Act,1872 (Act No.1 of 1872), s.
155 sub-cl. (4), omitted by Act 4 of 2003, s.3 (w.e.f. 1-1-2003)
[8] Justice J.S. Verma Committee, “Report of the Committee
on Amendments to Criminal Law”, (2013)
[9] (2013) 14 SCC 643
[10] Id. at 10
[11] 2022 SCC OnLine SC 1494
[12] (1994) 5 SCC 728
[13] AIR 2009 SC 370
[14] (2020) 18 SCC 540
[15] Id. at para 9
[16] 2022 SCC OnLine Mad 1770
[17] 2020 SCC OnLine Guj 114
[18] 2023 LiveLaw (Del) 127