From Violation To Validating: A Case For Eliminating Two Finger Test
The preservation of hymenal integrity has been a matter of familial concern,
with far-reaching implications, casting a shadow upon the woman's suitability
for matrimony, an imperative factor considered within the complex calculus of
marital compatibility. The expectation, steeped in an antiquated worldview,
dictates that a woman must maintain her virginity as a hallmark of virtue. Any
breach of the hymen before the solemnization of marriage or the loss of
virginity prior to matrimony incurs disdainful scrutiny and societal censure.
This deeply ingrained practice, prevalent in South Asian countries, colloquially
encapsulated as "no seal, no deal," demands a reevaluation.
The intransigence of this mindset must be dismantled, as it imposes insurmountable hurdles on the path to justice for rape victims. Central to this injurious practice is the degrading Two-finger Test, also known as the Virginity test, Per Vaginum test, or Bimanual test. This invasive gynecological examination infringes upon the fundamental rights of rape survivors, compromising their privacy, physical and mental integrity, and dignity.
The Two-finger Test involves a medical practitioner inserting two fingers into the victim's vagina to assess the elasticity of the hymen. This procedure, not only perpetuates an archaic and discriminatory perspective on female purity but also disregards the victim's autonomy and her right to be free from invasive, degrading examinations.
The Popular Belief:
The Two-finger test, despite its widespread use, lacks scientific validity; instead, it is an archaic examination conducted to ascertain a woman's sexual activity. This practice is unequivocally predicated on patriarchal assumptions that a sexually active woman cannot be a victim of rape. The enduring prevalence of patriarchal norms and societal expectations places an onerous burden on women and, in particular, survivors of sexual assault.
In contemplating the notion of "privacy," it is crucial to distinguish between "privacy as a physical right" and "privacy of one's mental processes."[i] Both facets are intrinsic components of Article 21 [ii]of the Constitution of India.
Regrettably, some survivors are compelled to subject themselves to this unethical test, thereby retraumatizing themselves and reliving the horrors of their assault. Conversely, others opt to remain silent, refraining from reporting the crime due to the ensuing stigma, which often leads to victim-blaming and the erosion of their credibility. Evidence derived from such tests is frequently exploited by the defense counsel to impugn the moral character of the survivors.
In light of these egregious injustices, there is an imperative need for legal reform and a broader societal shift towards the protection of women's rights, privacy, and dignity in the context of sexual assault.
Gender Outlook:
The Two-finger test, a deeply entrenched gender-biased practice, continues to persist in India, despite numerous legal precedents established by the Indian Courts. The preamble of the recently proposed competency-based medical education underscores its indispensable role in the broader objective of rendering medical education more "patient-centric and gender-sensitive." For an extended period, scholars in the fields of social science and gender studies have decried the inherent male-centric bias within the medical profession. Incorporating insights from this extensive corpus of knowledge may serve as the linchpin for eradicating numerous gender-insensitive medical procedures from medical examinations.
Scientific Evidence:
The two-finger test is the most unscientific method of examination used in the context of sexual assault and has no forensic value[iii]. It is crucial to acknowledge that contemporary scientific knowledge has definitively dispelled the erroneous assumptions regarding an intact hymen as sexual activity need not necessarily transpire solely through vaginal penetration; it can manifest through various means, including anal or oral intercourse, or even as a result of hymen repair surgery.
The vagina muscles serve as no evidence against sexual history of the victims as if the victim is tensed and afraid, the muscles appear to be tightened not because of the reason she wasn't raped but otherwise. Hence, vaginal laxity is nowhere indicator of habitual sexual intercourse.
The component of 'consent' played a huge role in defeating the claims of the victims as she may also had sexual intercourse many a times with the consent thereby aiding the defense counsel in interpreting the clause of 'habituated to sexual intercourse'[iv]. The hymen can also get ruptured during the playing of some sport like horse riding.
The fact of admission of two fingers and the hymen rupture does not give a clear indication that prosecutrix is habitual to sexual intercourse[v]. In rarest of the rare cases, not all women are born with the hymen. Furthermore, this evidence is useless in cases of the rape of child since the hymen is so elastic that it does not even rupture after the sexual intercourse and that it mocks the dignity of the child, which has been laid immense emphasis in the scheme of the POCSO Act and it should be stopped.
Guidelines And Recommendations:
After the Nirbhaya case in 2012, a committee was formed under the chairmanship of Justice JS Verma formed to examine 'rape' as an offence. They recommended the banning of the two-finger test. Soon in 2013 Criminal Laws (Amendment) Act[vi], it was banned consequently.
The amendments were made to Section 53A of Indian Evidence Act [vii]i.e., to include the irrelevancy of any information that is aimed at determining the character or the past 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[viii]
The Union Health Ministry released a document titled 'Guidelines and Protocols Medico-legal care for survivors/ victims of sexual violence' [ix]in 2014. It was observed by the Supreme Court that such test be made illegal and such guidelines be circulated to all the Hospitals being Govt. or private entities.[x] The established guidelines mandates doctors to examine the victims physically and treat her psychologically if deemed necessary but no comment would be made about the sexual history or the character of the victim as it has no bearing on the rape.
In October 2021, the National Medical Council issues an advisory for the Medical Universities and Institutes[xi] to comply with the Govt. guidelines and Court directives while allowing students to teach about the virginity testing.
In August, 2022 National Medical Commission made modifications to the curriculum for forensic medicine studies about the Two-Finger test.
A Human Rights Watch conducted a survey which indicated that two-finger test is still conducted on rape survivors even after the guidelines of 2014 by the Union Health Ministry[xii].
A study was conducted by the Centre for Enquiry into Health and Allied Themes, which highlighted that the medical textbooks are not updated with the new amendments, legislations and Court directives which leads to the lack of awareness amongst the future medical practitioners and consequently such practices are being followed by them even after they are banned.
Medical systems have historically sought to control women's bodies and this has resulted in the creation of medical knowledge that is deeply sexist. In part, it manifests as the multiple signs sought to assess virginity � size of vaginal introitus, or opening, laxity of vaginal walls, tags and tears in the hymen, gaping fourchette and more.
Laws:
The 'International Covenant on Economic Social and Cultural Rights 1966' and 'UN declaration of Basic Principle of Justice for Victims of Crime and Abuse of Power 1985'[xiii] lays down that such a method should be followed which does not question their dignity, adds on to the trauma to the victim, adds to her distress, subjects her character to scrutiny by various people or the medical practitioner, weighed down by the patriarchal outdated norms, maintains her integrity. Additionally, the test or the recourse adopted should be humane and non-victimizing.
The proviso to Section 146 of the Indian Evidence Act, 1872 [xiv] forbids the counsel from putting any such questions during the cross-examination as to her general immoral character in case of rape. Section 155 of the Indian Evidence Act [xv] forbids rape victim's credibility to be compromised on the ground that she is of 'immoral character'.
Despite the aforesaid provisions, this test leading to the formation of the medical opinion regarding 'consent' allows the past sexual history of the victim to cause prejudice to her testimony.
Conclusion:
The two-finger test is rightly banned by the Government which conspicuously hid the patriarchal mindset of the society. It instills profound trauma in the minds of the rape survivors which deters them from filing the complaints. It is disconcerting that it is used against the victims by the defense counsel to trace their titular sexual history during legal proceedings. The judgement offers a glimmer of hope to survivors that justice would be served by adopting humane methods.
Instead of perpetuating the patriarchal paradigm in their treatment, survivors should be afforded the respect and dignity they deserve. Despite ongoing efforts to update guidelines and regulations, the persistence of such tests continues to haunt survivors. To rectify this, comprehensive guidelines should be expeditiously disseminated throughout India's healthcare facilities.
The imposition of penalties for non-compliance should be left within the purview of the State Government, as public health and medical facilities fall under the State List. In the pursuit of justice, it is imperative that such regressive practices be unequivocally condemned and replaced with a more humane and rights-respecting approach
End-Notes:
The intransigence of this mindset must be dismantled, as it imposes insurmountable hurdles on the path to justice for rape victims. Central to this injurious practice is the degrading Two-finger Test, also known as the Virginity test, Per Vaginum test, or Bimanual test. This invasive gynecological examination infringes upon the fundamental rights of rape survivors, compromising their privacy, physical and mental integrity, and dignity.
The Two-finger Test involves a medical practitioner inserting two fingers into the victim's vagina to assess the elasticity of the hymen. This procedure, not only perpetuates an archaic and discriminatory perspective on female purity but also disregards the victim's autonomy and her right to be free from invasive, degrading examinations.
The Popular Belief:
The Two-finger test, despite its widespread use, lacks scientific validity; instead, it is an archaic examination conducted to ascertain a woman's sexual activity. This practice is unequivocally predicated on patriarchal assumptions that a sexually active woman cannot be a victim of rape. The enduring prevalence of patriarchal norms and societal expectations places an onerous burden on women and, in particular, survivors of sexual assault.
In contemplating the notion of "privacy," it is crucial to distinguish between "privacy as a physical right" and "privacy of one's mental processes."[i] Both facets are intrinsic components of Article 21 [ii]of the Constitution of India.
Regrettably, some survivors are compelled to subject themselves to this unethical test, thereby retraumatizing themselves and reliving the horrors of their assault. Conversely, others opt to remain silent, refraining from reporting the crime due to the ensuing stigma, which often leads to victim-blaming and the erosion of their credibility. Evidence derived from such tests is frequently exploited by the defense counsel to impugn the moral character of the survivors.
In light of these egregious injustices, there is an imperative need for legal reform and a broader societal shift towards the protection of women's rights, privacy, and dignity in the context of sexual assault.
Gender Outlook:
The Two-finger test, a deeply entrenched gender-biased practice, continues to persist in India, despite numerous legal precedents established by the Indian Courts. The preamble of the recently proposed competency-based medical education underscores its indispensable role in the broader objective of rendering medical education more "patient-centric and gender-sensitive." For an extended period, scholars in the fields of social science and gender studies have decried the inherent male-centric bias within the medical profession. Incorporating insights from this extensive corpus of knowledge may serve as the linchpin for eradicating numerous gender-insensitive medical procedures from medical examinations.
Scientific Evidence:
The two-finger test is the most unscientific method of examination used in the context of sexual assault and has no forensic value[iii]. It is crucial to acknowledge that contemporary scientific knowledge has definitively dispelled the erroneous assumptions regarding an intact hymen as sexual activity need not necessarily transpire solely through vaginal penetration; it can manifest through various means, including anal or oral intercourse, or even as a result of hymen repair surgery.
The vagina muscles serve as no evidence against sexual history of the victims as if the victim is tensed and afraid, the muscles appear to be tightened not because of the reason she wasn't raped but otherwise. Hence, vaginal laxity is nowhere indicator of habitual sexual intercourse.
The component of 'consent' played a huge role in defeating the claims of the victims as she may also had sexual intercourse many a times with the consent thereby aiding the defense counsel in interpreting the clause of 'habituated to sexual intercourse'[iv]. The hymen can also get ruptured during the playing of some sport like horse riding.
The fact of admission of two fingers and the hymen rupture does not give a clear indication that prosecutrix is habitual to sexual intercourse[v]. In rarest of the rare cases, not all women are born with the hymen. Furthermore, this evidence is useless in cases of the rape of child since the hymen is so elastic that it does not even rupture after the sexual intercourse and that it mocks the dignity of the child, which has been laid immense emphasis in the scheme of the POCSO Act and it should be stopped.
Guidelines And Recommendations:
After the Nirbhaya case in 2012, a committee was formed under the chairmanship of Justice JS Verma formed to examine 'rape' as an offence. They recommended the banning of the two-finger test. Soon in 2013 Criminal Laws (Amendment) Act[vi], it was banned consequently.
The amendments were made to Section 53A of Indian Evidence Act [vii]i.e., to include the irrelevancy of any information that is aimed at determining the character or the past 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[viii]
The Union Health Ministry released a document titled 'Guidelines and Protocols Medico-legal care for survivors/ victims of sexual violence' [ix]in 2014. It was observed by the Supreme Court that such test be made illegal and such guidelines be circulated to all the Hospitals being Govt. or private entities.[x] The established guidelines mandates doctors to examine the victims physically and treat her psychologically if deemed necessary but no comment would be made about the sexual history or the character of the victim as it has no bearing on the rape.
In October 2021, the National Medical Council issues an advisory for the Medical Universities and Institutes[xi] to comply with the Govt. guidelines and Court directives while allowing students to teach about the virginity testing.
In August, 2022 National Medical Commission made modifications to the curriculum for forensic medicine studies about the Two-Finger test.
A Human Rights Watch conducted a survey which indicated that two-finger test is still conducted on rape survivors even after the guidelines of 2014 by the Union Health Ministry[xii].
A study was conducted by the Centre for Enquiry into Health and Allied Themes, which highlighted that the medical textbooks are not updated with the new amendments, legislations and Court directives which leads to the lack of awareness amongst the future medical practitioners and consequently such practices are being followed by them even after they are banned.
Medical systems have historically sought to control women's bodies and this has resulted in the creation of medical knowledge that is deeply sexist. In part, it manifests as the multiple signs sought to assess virginity � size of vaginal introitus, or opening, laxity of vaginal walls, tags and tears in the hymen, gaping fourchette and more.
Laws:
The 'International Covenant on Economic Social and Cultural Rights 1966' and 'UN declaration of Basic Principle of Justice for Victims of Crime and Abuse of Power 1985'[xiii] lays down that such a method should be followed which does not question their dignity, adds on to the trauma to the victim, adds to her distress, subjects her character to scrutiny by various people or the medical practitioner, weighed down by the patriarchal outdated norms, maintains her integrity. Additionally, the test or the recourse adopted should be humane and non-victimizing.
The proviso to Section 146 of the Indian Evidence Act, 1872 [xiv] forbids the counsel from putting any such questions during the cross-examination as to her general immoral character in case of rape. Section 155 of the Indian Evidence Act [xv] forbids rape victim's credibility to be compromised on the ground that she is of 'immoral character'.
Despite the aforesaid provisions, this test leading to the formation of the medical opinion regarding 'consent' allows the past sexual history of the victim to cause prejudice to her testimony.
Conclusion:
The two-finger test is rightly banned by the Government which conspicuously hid the patriarchal mindset of the society. It instills profound trauma in the minds of the rape survivors which deters them from filing the complaints. It is disconcerting that it is used against the victims by the defense counsel to trace their titular sexual history during legal proceedings. The judgement offers a glimmer of hope to survivors that justice would be served by adopting humane methods.
Instead of perpetuating the patriarchal paradigm in their treatment, survivors should be afforded the respect and dignity they deserve. Despite ongoing efforts to update guidelines and regulations, the persistence of such tests continues to haunt survivors. To rectify this, comprehensive guidelines should be expeditiously disseminated throughout India's healthcare facilities.
The imposition of penalties for non-compliance should be left within the purview of the State Government, as public health and medical facilities fall under the State List. In the pursuit of justice, it is imperative that such regressive practices be unequivocally condemned and replaced with a more humane and rights-respecting approach
End-Notes:
- Selvi v. State of Karnataka, (2010) 7 SCC 263
- Indian Cons, Art. 21
- State of Gujarat v. Rameshchandra Ramabhai Panchal, 2020 SCC OnLine Guj 114
- Rose Mckeon Olson and Claudia Garc�a-Moreno, Virginity testing: a systematic review, 14(1) Reproductive health (2017)
- Narayanamma(Kum) v. State of Karnataka, (1994) 5 SCC 728
- https://www.iitk.ac.in/wc/data/TheCriminalLaw.pdf (Last visited on 3rd October, 2023)
- Indian Evidence Act, 1872, S. 53A, No. 1, Acts of Parliament, 1872 (India)
- State of Jharkhand v. Shailendra Kumar Rai @ Pandav Rai, 2019 SCC OnLine SC 2239
- https://main.mohfw.gov.in/reports/guidelines-and-protocols-medico-legal-care-survivors-victims-sexual-violence (last visited on 5th October, 2023)
- Lilu @ Rajesh v. State of Haryana, (2013) 14 SCC 643
- https://scroll.in/article/1036458/the-banned-two-finger-test-continues-because-medical-education-remains-blind-to-its-gender-biases (Last visited on 5th October, 2023)
- https://www.livelaw.in/new-guidelines-drawn-forensic-medical-care-sexual-assault-victims/ (Last visited on 5th October, 2023)
- https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-basic-principles-justice-victims-crime-and-abuse (Last visited on 5th October, 2023)
- Indian Evidence Act, 1872, S. 146, No. 1, Acts of Parliament, 1872 (India)
- Indian Evidence Act, 1872, S. 155, No. 1, Acts of Parliament, 1872 (India)
- Two Finger Test: An Infringement To individual's Privacy
- Doctrine Of The Two Finger Test
- Legality Of Two Finger Test And Issues Related
- Two Finger Test: Essential Reiteration Of The Ban In India
- Supreme Court Bans Two-Finger Test In Rape Cases
- Two-Finger Test an Impertinent Approach
- Desist From Undertaking Two Finger Test, Avoid Disclosing Rape Survivors Identity: J&K HC Directs Trial Courts
- Unconstitutionality Of Virginity Test: Conflict With Section 53 Of C.R.P.C.
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