The Supreme Court on Monday, 31 October, while restoring the conviction of a rape accused, banned the “two-finger test” in rape cases, warning that those conducting such tests would be held guilty of criminal misconduct.
A bench comprising of Justice DY Chandrachud and Hima Kohli said it was regrettable that the two-finger test is still performed on rape victims.
“This court has time and again deprecated the use of two-finger test in cases alleging rape or sexual assault. The so-called test has no scientific basis and is an invasive method of examining rape survivors,” the court noted.
“It instead re-victimises and re-traumatises women. The two-finger test must not be conducted,” said Justice Chandrachud, while also noting the patriarchal connotations of the test.
The top court directed the Union Home Ministry to ensure that no rape or sexual assault survivor is subjected to the test and asked the states to ban it in their medical curriculum and hold those conducting such tests “guilty of criminal misconduct”.
What is the two-finger test? How is it done?
The two-finger test, also called the virginity test, checks whether the victim has had recent sexual intercourse. The test involves the inspection of female genitalia.
In cases of rape, this was earlier used to identify whether the victim had regular sexual intercourse. It is done on rape survivors to “confirm” their allegations.
The two-finger test is performed by a doctor, who inserts two fingers into the vaginal canal of the rape survivor to check the laxity of her muscles and determine if she has been sexually active or not.
It’s also done to check whether a woman’s hymen is torn or not, to ascertain her virginity.
Is it a valid test?
The test is completely unscientific, most doctors and activists South First spoke to said.
“Studies have proven that an inspection of the hymen cannot give conclusive evidence of vaginal penetration and, even without any sexual activity, abnormal hymenal features or an enlarged opening can be found,” said Dr Pushpalatha G, an independent gynaecologist from Chennai.
The test merely leads to gender discrimination and character assassination of a woman, she added.
Adding that it doesn’t add to evidence and is a violation of human rights and also insult to injury, Dr Shoba N Gudi, Professor and HOD St Philomenas Hospital, Bengaluru said the Apex body has hence reiterated the fact that conducting such a test should be punishable under the law.
Lawyer and bioethicist Rohin Bhatt does not mince his words, declaring it a “barbaric test, that should find no place in today’s times”.
The two-finger test is “not backed by science and is increasingly used to police women’s bodies and their sexuality”, he said, adding that the test “breaches every single principle of medical ethics, including that of non-maleficence”.
The science apart, the test is now actually redundant.
The two-finger test was based on the archaic patriarchal social belief that a woman was damaged if her hymen was broken, said Dr Shaibya Saldanha, co-founder, Enfold India. “The law presumed to ‘compensate’ the family for ‘damaged property’ by punishing the accused.”
This was on par with medical reports, which only decided on the intactness of the hymen, and section 376 of the IPC, which considered penovaginal penetration as the only crime.
“Everything else was lumped under ‘outraging modesty of a woman’,” Dr Saldanha added.
She pointed out that with the amendments to the rape law there is an understanding that sexual violence can cause long-term physical, psychological, emotional and social harm, irrespective of the type and severity of the assault.
“The two-finger test is hence redundant,” she told South First.
“It is a humiliating, erroneous, and unscientific test that does more of a character assassination of a rape victim than establishing evidence. The test needs to be banned on paper and in spirit,” said Dr Aqsa Shaikh of the Department of Community Medicine at Hamdard Institute of Medical Sciences and Research (HIMSR).
“Any report mentioning such a test should be held void ab intio by the courts and not taken into account as evidence or medical document,” she added.
2013 judgement and after
It was in the case of Lillu alias Rajesh Vs. State of Haryana in May 2013 that the court stated that the two-finger test conducted on the rape victim violated her right to privacy, physical and mental integrity, and dignity.
However, implementation of the ban has been a problem in all states.
“The judiciary now has to also look into judgements that have been passed allowing this test post-2013. If any, they have to be reversed,” said BT Venkatesh, founder of ReachLawyer, a network of lawyers and activists fighting for the human rights of marginalised.
“It is not enough that a judgement is passed; policymakers need to ensure that this reaches every single district in all states. Doctors dealing with rape survivors should know about this ban, forensic experts should be made aware, law colleges should be told about it, and medical curriculum, if not changed, should be changed,” he told South First.
What do doctors say
Instead of the two-finger test, the court suggested careful medical examination, documentation of wounds and scars on the body, swab collection, collection of saliva, urine and vaginal hair samples, according to Dr Satish KV of the Forensic Department at the Bowring and Lady Curzon Hospital in Karnataka.
“Trusting the rape victim’s statements is very important. Doctors have a duty to make the patient comfortable, get maximum evidence possible without stressing the survivor. Collection of samples is very important and necessary for evidence and consent of the person is equally important. The procedure needs to be explained well and then the test must be conducted in the presence of a woman attender,” Dr Satish added.
“The procedure has to be explained to the person… and if the survivor is a minor, consent of parents must be sought,” Dr Satish said, adding that detailed guidelines have been issued by the Ministry of Health and Family Welfare in this regard.
All the doctors recommended the use of rape test kits. These test kits are efficient and comprise a set of swabs, test tubes, bottles in which hair, saliva, urine samples can be placed, and chemicals for preserving these samples.
Test now out of medical curriculum
In 2019, Maharashtra became the first state to remove the chapters about the two-finger test from it’s medical textbooks.
“The test has already been removed from the medical curriculum. The National Medical Commission (NMC) directed that medical students should not be taught about the two-finger test on rape victims. The revised competency-based curriculum on forensic medicine has also removed this test,” Dr Aqsa Shaikh of HIMSR told South First.
However, there are doctors who still use the test.
“Some rural centers may be using it. There are many doctors who are ignorant. The NMC should ensure that it reaches out to rural doctors and updates them about the laws. If it is being practiced, then serious action must be taken against the doctors,” Dr Satish said.
“As of 2017, Human Rights Watch indicated that only nine states have adopted the 2014 guidelines on medico-legal care for survivors of sexual violence. Multiple courts around the world have deprecated the practice, and the Indian Supreme Court has itself banned it in 2013,” said lawyer Robin Bhatt.
“Any unconsented and unscientific medical exam like the two-finger test should rise to the level of sexual assault, and the doctors who do this should face criminal sanctions,” he added.