Two- Finger Test – A Critical Analysis in Reference to India By - Srishti Khandelwal & Sankalp Vashistha
Two- Finger Test – A Critical Analysis in Reference to India
Authored By - Srishti Khandelwal
3rd Year B.A LL.B (Hons.)
Co-Author- Sankalp Vashistha
3rd Year BBA LL.B (Hons.)
ABSTRACT
On an average, 65 rape cases are lodged
daily in India. For examining the sexual habit of the victims of sexual
assault, the two-finger test was practiced in India. This test takes place to
cast doubt on the rape allegation, either to suggest the survivor lied about
the rape or the rape was not harmful. This paper deals with “per vaginal” also
known as two-finger test which is an explicitly intrusive physical examination
where a doctor inserts two fingers inside the vagina of a rape survivor
checking if hymen is intact or not. In May 2013, the Supreme Court
banned the two-finger test on rape victims as it violates their right
to privacy under Article 21 i.e Right to life and personal liberty of the
Indian Constitution and also this re-traumatizes the victim and violates their physical or mental
integrity and dignity. In order to eliminate violence against women, in 2018,
The United Nations (UN) Human Rights, UN Women, and the World Health
Organization (WHO) called for a ban on two-finger test. Even after the
Supreme Court in 2013 banned two finger test this practice was being followed
by many of the medical practitioners which came to light in 2018. Finally, on
October 31, 2022, the apex court of India reiterated the ban on the “two-finger
test and any person conducting the “two-finger test” on rape survivors shall be
guilty of misconduct.
Keywords –
Two-
Finger test, Per Vaginal, Physical or mental Integrity and Dignity, United
nations human rights, WHO, Right to privacy.
INTRODUCTION
Unsettlingly, sexual assault is becoming
more and more popular in India. According to the National Crime Records Bureau
(NCRB), which is responsible for collecting and analyzing crime data in India,
there has been a steady increase in the number of reported rape cases in the
country over the past few years. In 2020, there were a total of 24,000 reported
rape cases in India, an increase of 7.3% from the previous year. It is
important to note that many cases of rape and sexual assault go unreported in
India, so the actual number of incidents may be much higher than what is
officially recorded. The criminal justice system, which lacks a victim and
witness assistance and safety program and which can also cause additional
trauma, may deter survivors and their families from presenting their cases. The
"Two Finger Test," sometimes known as the "Virginity Test,"
is a procedure used to determine whether a victim of a sexual assault is a
virgin, that is, whether or not she has ever engaged in sexual activity.
The Two finger test—an exercise in
which the inspecting health practitioner notes the presence or absence of the hymen and the dimensions and so-known as laxity of the vagina of the rape survivor. The two
finger test is meant to
evaluate whether or not women are
“virgins” or “habituated to sexual intercourse.” Yet it does none of this.
Contrary to popular belief, the hymen is a
flexible membrane that partially encloses the vaginal entrance rather than
completely sealing it. Therefore, it is incorrect to assume that there was no
rape if there is no "broken" hymen. A hymen, on the other hand, can
have a "ancient tear" and its opening might vary in size for a
variety of causes unrelated to sex, thus looking at it doesn't offer any proof
for inferring "habituation to sexual intercourse, Furthermore, whether a
woman has previously engaged in sexual activity has no bearing on whether she
gave her agreement to the sexual conduct in question. Furthermore, the finger
test itself can cause trauma to the victim, whose dignity is frequently
disregarded. In essence, it's a tactic that, when used without informed
agreement, could amount to sexual assault.
The victim's vagina is probed with two fingers by the registered medical
practitioner in order to assess its laxity and learn more about the victim's
sexual activity, such as whether she engages in it or not. This test entails an
examination to ascertain laxity and establish whether the hymen is broken,
which would record the victim's history of sexual activity and also the medical
report given in such situations are utilised by the defence attorney to defend
his client, which can be unfair to the victim and unethical as well. One finger
forced into the vagina typically indicates that the victim was a virgin,
whereas two fingers inserted easily indicate that she was accustomed to sexual
assault.
This test was extensively utilized in India for figuring out the sexual
records of women however doesn't have any medical base and it's been in reality
dumped with the aid of using ministry of Health and own circle of relatives
welfare Government of India in its Guidelines And Protocols Medico-Legal Care
For Survivors/Victims Of Sexual Violence, In March 2014, Per vaginum exam may
be carried out handiest in grown up women whilst medically indicated. The
reputation of hymen is inappropriate due to the fact the hymen may be torn
because of numerous motives inclusive of cycling, driving or masturbation etc.
An intact hymen does now no longer rule out sexual violence, and a torn hymen
does now no longer show preceding sexual intercourse. Hymen ought to
consequently be handled like some other a part of the genitals at the same time
as documenting exam findings in instances of sexual violence.
Equality Now has
long advocated for a complete ban on ‘virginity tests’. Jacqui Hunt, Global
Lead – End Sexual Violence, says, “Every day, survivors are silenced,
threatened, and intimidated. They face discrimination and inaction from the
police and other legal authorities and are often coerced into settling or compromising
their cases even though this is not permitted under Indian law. Having to
undergo a humiliating and irrelevant test only serves to discriminate against
them further and makes it even more unlikely they will receive justice for
rape.” A 2020 report by Equality Now and Swabhiman Society[1] outlined
how Dalit women face additional discrimination from medical
professionals.
It highlights the urgent need for consistent
national standards for forensic examinations that respect survivors' rights to
health, consent, and dignity as well as for scientific, relevant information to
be presented in court instead of dated information gleaned from textbooks or
archaic medical procedures. To defend the rights of survivors, doctors, police,
prosecutors, and courts should collaborate to stop the finger test from being
used and to standardize evidence gathering.
RIGHT TO PRIVACY
It needs to be understood that during historic India women was taken into
consideration as a sacred woman of God and become reputable and guarded and
such heinous crime in opposition to women like rape, molestation and other are
shameful for a rustic like India and after such brutal act of any crook the
sufferer ought to be protected, reputable and rehabilitated rather carrying out
a test like Two Finger may be like Re- Rape for the sufferer if you want to
damage her Right To Privacy.
The right to privacy, recognised as a fundamental right arising primarily
from Article 21[2] of the
Constitution of India, was recognised in Justice K.S. Puttaswamy (Retd.) v.
Union of India 2017[3]. To give
meaning to this right, it is the duty of the state to create a data protection
framework that protects citizens from threats to informational
self-determination posed by state and non-state actors while serving the common
good. It is the understanding of the state's duty that the Committee must work
with in creating a Data privacy framework.
The Supreme Court of India in this case held that the two-finger test on
a rape sufferer violates the right to privacy, and requested the authorities to
offer higher clinical methods to verify sexual assault.
This practice has been widely discredited and condemned by international
human rights organizations and medical bodies, as it violates the right to
privacy of the survivor and is medically unnecessary and unreliable. This test
is;
1. Invasive: The
test involves the insertion of two fingers into the vagina, which is an
invasive procedure that violates the survivor's bodily integrity and privacy.
2. Traumatizing:
The test is often conducted without the survivor's informed consent and can be
traumatizing, re-victimizing, and stigmatizing for survivors of sexual
violence.
3. Judgemental:
The test is often used to assess a woman's sexual morality, and its results are
based on subjective and culturally biased interpretations of the examiner,
leading to victim-blaming and further harm to the survivor's dignity and
privacy
4. Inaccurate:
The test has no scientific basis and is not reliable in determining sexual history
or virginity. The results can be influenced by various factors such as age,
childbirth, and sexual activity, leading to erroneous conclusions and further
harm to the survivor's privacy.
The two-finger test violates the right to privacy of the survivor and is
a harmful practice that should be discontinued. Medical professionals should
uphold the ethical principles of informed consent, confidentiality, and
non-discrimination when conducting medical examinations on survivors of sexual
violence.
Keeping in thoughts the International Covenant on Economic, Social, and
Cultural Rights 1966 (ICESCR) 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 prison recourse that doesn't re-traumatise them or
violate their bodily or intellectual integrity and dignity.
JUSTICE
VERMA REPORT
The three-member panel acquired greater than 80,000
pointers for a whole overhaul withinside the criminal justice system`s remedy
of violence towards women because it changed into installation through the
authorities a month in the past to assist quell road protests sparked through
the rape.
"Failure of appropriate governance is the
apparent root reason for the modern risky environment, eroding the guideline of
thumb of regulation and now no longer the need of knee-jerk legislation,"
stated retired Chief Justice J.S. Verma, who headed the panel. Justice Verma
endorsed strict punishment to prevent sexual harassment and attacks towards
women and sought reforms in how police deal with rape sufferers. Activists and
legal professionals have criticized the prevailing legal guidelines on crimes
towards girls as so archaic and riddled with loopholes that they come to be
similarly traumatizing sufferers and permitting perpetrators to escape lightly.
It is critical to emphasise that the size of
the introitus vaginalis has no bearing on a case of sexual assault and,
therefore, a test to determine the laxity of the vaginal muscles, commonly
referred to as the two-finger test, may not be administered. No
observations/conclusions such as Habituated sexual intercourse' may be made
based on this test, which is prohibited by law.
Routine attention is paid to the
condition of the hymen. The "finger test" is also performed to
determine the extensibility of the hymen. However, it is largely irrelevant
because the hymen may be torn for a variety of reasons. An intact hymen does
not rule out sexual assault, and a torn hymen is not evidence of previous
sexual intercourse. Therefore, the hymen should be treated like any other part
of the genitalia when documenting examination findings in sexual assault cases.
Only those findings that are relevant to the assault should be documented
(findings such as fresh tears, bleeding, edema, etc.).
The committee was of the opinion
that the medico-legal examination report ought to note the date and
time of examination and be sent directly to
the involved work officer. To avoid surplus delays, the
report should be transmitted to the IO by method of, additionally to
causing by method of normal government post. It's during
this background that Section 164A was introduced to the CrPC. The Law
Commission, in its 84th Report, counseled the insertion of Section
164A.[4]
1.
In committee’s opinion, the report of the
examination of the victim in a case of rape should deal with-
i.
the age of the victim,
ii.
the question whether the victim was previously used
to sexual intercourse,
iii.
injuries to
the body of the victim,
iv.
general
mental condition of the victim,
and
v.
Other material particulars in reasonable detail.
2.
But Parliament enacted the said Section 164A
twenty- five years later as:
“164 A. Medical examination of the
victim of rape –The registered medical practitioner, to whom
the woman is sent shall promptly examine her and prepare an examination report
that includes the following information:-
i.
the name and address of the woman and of the person
by whom she was brought;
ii.
the age of the woman;
iii.
the description of material taken from the person
of the woman for DNA profiling;
iv.
marks of
injury, if any, on the person of the woman;
v.
General
mental condition of the woman; and
vi.
Other material particulars in reasonable detail
3.
The report shall state precisely the reasons for
each conclusion arrived at.
4.
The report shall specifically record that the
consent of the woman or of the person competent to give such consent on her
behalf to such examination had been obtained
The Criminal Law Amendment
Act (CLA) 2013 broadened the definition of rape to include all types of sexual
assault, including those that are non-penetrative (touching, fondling,
stalking, etc.) and penetrative (oral, anal, vaginal) and use objects, weapons,
or fingers. It also recognised the right to treatment for all survivors and
victims of sexual assault by both public and private health care facilities.
The law now makes it illegal to not receive treatment. The legislation
additionally prohibits mentioning the survivor's earlier sexual behaviour.
ARGUMENTS
The possibility of being subjected to a forensic investigation is not the
least of the deterrents to reporting abuse. Techniques for collecting evidence
are frequently challenging and by no means standardized. Too frequently,
survivors are forced to endure arduous journeys between hospitals or wards,
stopping at each location for numerous exams. Evidence is routinely improperly
or insensitively collected by medical personnel, and it may later be misplaced,
improperly maintained, or the subject of processing delays, making it useless.
Judges frequently lack the necessary knowledge to understand the medical
evidence at trial.
Justices DY Chandrachud and Hima Kohli's panel upheld the conviction in a
rape-murder case, saying, "The test is founded on the false presumption
that a woman who is sexually active cannot be raped. Nothing could be further
from the truth; it is irrelevant to whether the accused committed a rape to
determine the victim's sexual history. It is regrettable that it is still being
done today."
A lady is considered to be a false virgin if one, two, or more fingers
may readily enter her vagina while still leaving her hymen intact, according to
one of the most respected medical jurisprudences, Modi's Medical Jurisprudence.
If fingers can fit through the hymeneal aperture, he contends, "A body the
size of a penis in erection may very well pass through the orifice."
According to Modi, the finger test becomes essential for determining a woman's
virginity when the hymen is present. As a result, the finger test—which
involves sticking one, two, or even three fingers inside the vagina to gauge
its pliability—becomes the accepted method for determining a woman's virginity.
The finger test and the medical evaluation of the hymen are still standard
practices in India today, even though they are unrelated to the issue of
consent and shouldn't be raised in the context of the crime of rape. Even the
most recent version of Modi requires the finger test to be performed in every
case of rape.
According to forensic and medical professionals from India and elsewhere,
the finger test is unreliable, demeaning, and unscientific. It also has no
application in law enforcement. Additionally, it is not legally relevant: the
Indian Supreme Court, whose judgments are enforceable throughout the country,
has decided that a rape victim's "habituation to sexual intercourse"
is irrelevant to the question of consent at trial. Indian law amendments now
make it illegal to question survivors about their "general immoral
character." As a result of these advances, courts are less likely to infer
that a survivor has a "habituation to sexual intercourse" and the
number of finger test examinations has decreased. However, finger testing is
still widely used in many Indian hospitals, and more has to be done to change
India's perspective on sexual abuse generally and finger testing specifically.
There are several alternative methods that can be used to collect
evidence in cases of sexual assault without resorting to the two-finger test.
Here are some solutions:
1. Use non-invasive medical techniques: Non-invasive methods such as DNA
testing, swab tests, and visual inspection can be used to collect evidence in
cases of sexual assault. These methods do not require physical intrusion and
are less invasive than the two-finger test.
2. Use trained medical professionals: Medical professionals who are
trained in forensic examination can collect evidence using non-invasive methods
without resorting to the two-finger test. The medical professionals should be
trained in a victim-centered approach and should prioritize the well-being of
the survivor.
3. Provide comprehensive medical care: Survivors of sexual assault should
receive comprehensive medical care that includes counseling, treatment for
injuries, and testing for sexually transmitted infections. This approach
prioritizes the health and well-being of the survivor rather than collecting
evidence through an invasive and traumatic procedure.
4. Educate legal and medical
professionals: Legal
and medical professionals should be educated on the harmful impact of the
two-finger test and should be trained in using non-invasive methods to collect
evidence. This will ensure that survivors receive proper medical care and that
the evidence collected is admissible in court.
The two-finger test's origins lie in the misogynistic assumption that a
torn hymen is a sign that the survivor is habituated to sex and therefore
cannot be raped or is more likely to make false claims about being raped, even
though a hymen can be torn and its orifice can vary in size for many reasons
unrelated to sex. This "medicalization of consent," where women's
bodies are prioritised over their voices, is what legal expert Pratiksha Baxi
refers to. Recognizing this as an infringement on the privacy and dignity of a
survivor,
A simple two-finger test won't be able to determine a woman's virginity
in such cases, and such tests put the women under mental and physical stress,
which is against the law and unethical. Other causes of hymen breakage include
cycling, horseback riding, and penetrative masturbation. Some women have such
wide openings that their hymen stays intact even after becoming pregnant.
The Union Ministry of Health and Family Welfare[5]
advised that tests should not be performed on survivors in its 2014 guidelines
and procedure on medicolegal care for sexual assault survivors. The guidelines
also state that comments on sexual experience or sexual intercourse habit are
not to be made because they have no bearing on a case of sexual violence.
JUDICIAL INTERPRETATION
The Court observed that the trial court had examined the
issue of the age of the Prosecutrix and concluded that the Prosecutrix was 13
years 9 months and 2 days old on the date of the incident. This was affirmed by
the High Court. Against this background, the court found that it was irrelevant
whether the prosecutor had given her consent or not.
The court stated that "rape survivors are entitled to legal recourse
that does not re-traumatize them or violate their physical or mental integrity
and dignity" and cited the International Covenant on Economic, Social, and
Cultural Rights of 1966 and the United Nations Declaration of Basic Principles
of Justice for Victims of Crime and Abuse of Power of 1985 in support of its
ruling. The Court stated that the rape survivors had a right to medical
operations which are not cruel, inhumane, or degrading, but also respected
their right to informed consent and took into account their health. The Court further stated that there
should not be any arbitrary or unlawful interference with the privacy of
victims of sexual abuse and that the State was required to make such services
available to survivors of sexual violence.
"Undeniably, the two-finger test and its interpretation violate the
right of rape survivors to privacy, physical and mental integrity, and
dignity," the court declared in its decision. Therefore, even if the
report is positive, this test cannot ipso facto lead to a presumption of
consent, and the appeal was rejected for lack of merit. The "two-finger
test" violated the survivors of rapes' rights to "privacy, physical
and mental integrity and dignity," according to the Supreme Court.
The two finger test, which served as a benchmark for conducting and
interpreting the forensic examination of rape survivors, was thoroughly
examined by the court. It cited the decision in Narayanamma (Kum) v. State of
Karnataka & Ors[7], which
stated that "the factum of admittance of two fingers could not be
considered adverse to the prosecutrix" and that the test did not clearly
show whether the prosecutrix was accustomed to having sex.
The "two-finger test," which establishes if a victim is
habituated to sexual contact, was used by the Medical Board to examine the
victim, the Court observed in its closing remarks. The court strongly
recommended against conducting the investigation, calling it
"regressive" and "intrusive" and failing to scientifically
substantiate the allegations of rape and sexual assault.
Section 375 of the IPC states that whether a woman is "habituated to
sexual intercourse" is irrelevant, and her past sexual behaviour is
"wholly immaterial" in assessing whether she was raped, the court
noted. It stated, "Suggesting that a woman cannot be believed when she
claims that she was raped simply because she is sexually active is patriarchal
and sexist."
The court also cited Section 53 A of the Indian Evidence Act, added by
the Criminal Law (Amendment) Act of 2013, which states that in sexual offence
prosecutions, evidence of the victim's character or previous sexual experiences with someone are
not relevant to the question of consent or the quality of consent. It also made
reference to policies established by the Ministry of Health and Financial
Affairs for medical professionals dealing with sexual assault cases, which
state that such per vaginum examinations should not be performed to prove rape
or sexual assault.
The Court instructed the Union and State Governments, expressing regret
over the continued use of the "two-finger test," to distribute the
Ministry of Health and Family Welfare's guidelines to all public and private
hospitals, hold workshops for healthcare professionals to explain the proper
procedure, and review the medical school curriculum to ensure that the
"two-finger test" is no longer taught.
"Any person who conducts the "two-finger test" or per
vaginum examination (when evaluating a person believed to have been subjected
to a sexual assault) in contravention of the directives of this Court shall be
guilty of misconduct," the court ruled, holding anyone who does so
accountable.
CONCLUSION
After the exploration in
this area we came to the conclusion that Rape is heinous inhuman act which
condemns the chastity of Indian society and a Test like Two Finger Test is
another inhuman and unscientific process attacking the right to privacy and
it's a severe blow to her psychological, physical and ethical status and
similar tests should be condemned, rigorously banned by making amended laws
which are strictly applied over the country.
For a rape criminological
test, medical clinics should use assault units that include packs and paper
sheets for proof collection, a brush, documentation structures, envelopes,
directions, supplies for blood tests, and swabs. Given the rising number of sexual
assaults, each police station should have a rape cell, and a unique team of
female officers, orderlies, and specialists should be designated. Trial and
Appellate courts should never accept any form of clinical assessment on whether
the casualty is adjusted to sex and the quantifiable past of the young woman.
Specialists should not comment on whether the casualty was acclimated to sexual
activity. When tests are performed by male specialists, they should only be
directed by female gynecologists and assisted with the female nurses.
[1] Swabhimaan
Society, Justice Denied: Sexual Violence & Intersectional Discrimination –
Barriers To Accessing Justice For Dalit Women And Girls In Haryana, India,
, Equality Now, (November,20,2022),
https://www.equalitynow.org/resource/justicedenied/
[2] INDIA CONST. art.21
[3] K.S. Puttaswamy (Retd.) vs. Union
of India 2017, Writ Petition (Civil) No 494 of 2012; (2017) 10 SCC 1;
AIR 2017 SC 4161
[4]adrindia.org,
https://adrindia.org/sites/default/files/Justice_Verma_Amendmenttocriminallaw_Jan2013.pdf
(November,26,2022)
[5] Ministry of Health and Family
Welfare, Government of India, “Medico-legal care for survivors / victims
of sexual violence” (19 March 2014)
[8] State of Jharkhand vs shailendra
kumar Pandav rai, 2022, https://main.sci.gov.in/supremecourt/2018/36909/36909_2018_2_1501_39222_Judgement_31-Oct-2022.pdf