By Neelanjana Paul, KLE Society’s Law College, Bangalore.
A lot of things can be done with two fingers. Eat, Whistle, Write, even the sign for Victory. But what definitely should not be done is to test someone for rape. For a rape survivor, it is a never ending nightmare which entails as the investigation is carried on. What mostly instils fear in the minds of the survivors is the controversial two-finger test. After years of protests from social activists and survivors’ groups, the government has finally put together a new series of guidelines for how to treat Indian rape survivors. In particular, the guidelines address the controversial Two-finger Test (TFT), a commonly-used procedure that survivors have described as incredibly traumatic, and critics have decried for being unscientific.
In this test, the examining doctor inserts one or two fingers into the victim’s vagina; on the basis of its elasticity and the state of the hymen, she states whether the woman was “habituated to sex” or not. Although it is generally accepted by the medical fraternity that such pronouncements are unscientific and inconclusive, the state governments of Maharashtra and Delhi continue to ask for it in their examination template for rape survivors. There are around 153 court cases across the country which mention two-finger test. The degrading nature of the test apart, the doctor’s statements can be used to cast doubts on the victim’s credibility and lack of consent
The test involves a doctor inserting two or more fingers in a survivor’s vagina to determine its laxity and decide if she is habituated to sex or not, thus introducing the element of past sexual history in rape trials. The two finger test aims at figuring out if the victim has had sexual intercourse and if she is habituated to it. However, even if she has, it proves no point. A lot of daily activities such as swimming, cycling or playing have been known to break a woman’s hymen. Also, the presence or absence of hymen or the vagina’s width has no relation to virginity or sexual activity. Information about past sexual conduct is anyway irrelevant. The victim has a right to protect her private life under Article 21 of the Indian Constitution and no one, not even the doctor, can question her in this regard.
In a case of rape the least relevant fact is whether the victim is habituated to sexual intercourse of not. The question lies in whether the one forced sexual encounter for which the complaint has been filed is valid or not. The two finger test only seeks to establish prior sexual activity and unlike other forensic medical tests doesn’t help establish rape. Also pause and just imagine the comments that will be passed if the woman has indeed had prior sexual activity. The child sexual abuse victims also have to undergo this test if the doctor who examines them deems it fit to conduct it.
There is no law, which says that doctors must insert two fingers (sometimes more, some even quibble about the size of the fingers in our courts) in the vagina to figure out whether the hymen is distensible or not. This then leads to the inference that the rape survivor is habituated to sex, introducing past sexual history into rape trials. Past sexual history was disallowed in rape trials since 2003. However, the two-finger test by medicalizing consent allows past sexual history of the raped survivor to prejudice her testimony.
This is true even in cases of aggravated rape where the burden of proof is reversed. An analysis of judgments pertaining to gang-rape and other instances of aggravated rape shows that there is an increased reliance on the findings of the two-finger test since the burden of proof is reversed and the onus is on the accused to prove consensual sex.
The Human Rights Watch report Dignity on Trial collated judgments; medical opinions and interviews with experts to recommend to the government that the two-finger test should be scrapped in 2010. This report makes several excellent suggestions about how the medical protocols need to be changed in order to move towards a therapeutic jurisprudence, which would extend care and empathy to the rape survivor rather than blame and stigma. Is it possible to campaign to get rid of colonial and misogynist practices of subjecting survivors to the obnoxious two-finger test? Surely women and children do not deserve the violence of re-rape under the guise of medicine?
For years social activists have been demanding a ban on this test, calling it unscientific and degrading, almost a second violation of the victim. The move to establish a standard protocol for the examination of rape survivors gained momentum in 2012 after the brutal gang rape of a medical student in Delhi. The Supreme Court of India banned the test in 2003 but formal rules were never publicized by the Ministry of Health, which is why the test is still standard procedure in many parts of India.
In 2013, the Justice Verma Committee suggested legal reforms for dealing with cases of sexual assault, and one of its recommendations was that the Ministry of Health put together guidelines for doctors examining survivors.
Though activists and medical experts welcomed the move, they lament the government has not done much to promote the “rape kit” which can make a substantial difference in convicting rapists. Prepared on WHO guidelines, a rape kit is a toolkit which includes sterile swabs and syringes. It costs Rs. 75-100. “Forensic samples are a crucial connection between the victim and the accused, and rape kits give better results. As per a January report by Justice J. S. Verma Committee, set up to make rape laws stronger in the country, a kit for collecting of sexual assault should contain:
- Detailed instructions for the examiner
- Forms for documentation
- Test tube for blood sample
- Urine sample container
- Paper bag for clothing
- Large sheet of paper for patient to lie down
- Cotton swabs
- Sterile water
- Glass slides
- Unwaxed dental floss
- Wooden stick for fingernail scrapings
- Envelopes or boxes for individual evidence samples
Other items needed that can be included:
- Drying rack of wet swabs
- Gown, blanket and pillow
- Med-scope and/or colcoscope
- Clean clothing and hygiene items for the victim after the exam
Until lawmakers and law enforcement officials do the hard but necessary work of overhauling the way sexual assault is both investigated and perceived in India, an endemic culture of victim-blaming will frustrate the pursuit of real justice — for victims and rapists alike — in rape cases.