Two-finger, or per vaginal examination, is the inspection of the female genitalia to determine if the individual hashed or has been habituated to sexual intercourse The two most common techniques are inspection of the hymen for size or tears, and two-finger vaginal insertion to measure size of the introits or laxity of the vaginal wall. Both techniques are performed under the belief that there is a specific appearance of genitalia that deem castrates habituation to sexual intercourse. The prevailing social rationale for testing is that an unmarried female’s virginity is indicative of her moral character and social value, whether in the context of marriage eligibility, sexual assault assessment, endeavor to provide a lucid account of the current state of law and procedure of medical test bimanual test/finger test/DNA test of the sexual assaults. It makes an effort to churn out the present situation of India. At the outset, the paper dapples with brisk details of Two Finger Test of rape victims. After that the paper provides a compact scenario of medical test of rape victims in tandem with the available laws, case decisions and commission reports.
Keywords: Bimanual Test, Two Finger Test, Rape Victim, Medical Exam.
Two finger test or Per Vaginal Test is done on a rape victim. In this test, two fingers of an adult are inserted in the vagina of a female. If the two fingers of the doctor easily penetrate the vagina of a woman, then it is concluded that the rape victim is habitual of having sexual intercourse and vice versa is concluded if the two fingers do not penetrate, or penetrate with difficulty. This test is also done to determine the extent of damage caused to genitalia of a woman.
The habitually of a woman to have sexual intercourse is used by the courts to determine the “quality of her consent”. It means, if a woman is habitual of having intercourse, then courts may infer that she might have consented to the act of rape.
This test has been hailed as barbaric by many NGOs. Justice Verma committee; which was set up pursuant to the Nirbhaya rape incident to suggest amendments to the law relating to rape, sexual assault; in it’s report has assailed this test and suggested it’s discontinuance. This test is absurd because the act of rape will remain a rape. By not giving her consent to the act of intercourse she has clearly manifested her intention and this lack of consent does not lose it’s weight merely because she is sexually active. Terms like “quality of consent” are evidence of the deep rooted myth still prevalent in our criminal justice system that it is the woman who invites such violence on her( for eg, it is believed that a prostitute cannot be a victim of rape because she is sexually active. The perpetrator of rape is considered to be not at much fault because he raped a prostitute and he might have believed that her consent does not matter).
The earliest known set of laws that governed societal and organisational structure in India are The Laws of Manu, the legalised text of maintaining the status quo and attributing identities to groups or individuals, such as caste and gender identities and roles. As pointed by writer and social historian V. Geetha in her work, Gender from her series, Theorizing Feminism, where she refers of the quote of Manu that, “Knowing their (women’s) disposition, which the lord of creatures laid upon them at the time of creation (i.e. their reproductive power, their sexuality, their essential nature), every man should most strenuously exert himself to guard them.” As far as the characterization of women as Goddess is concerned, which has been heavily regarded as one that empowers women, is in reality the exact opposite, since only women who are virgin, who have ‘controlled’ their desires, are all powerful and wrathful, and thus goddesses. The case of Sita giving the famous ‘Agni Pariksha’ is an illustration of the same chaste-virgin norm, which has continued from the colonial period till today.
Now the concept of “quality of consent” has been done away with by the recent amendment to the indian penal code. Now it is forbidden to adduce evidence regarding past sexual encounters of a woman and a lawyer is also forbade to ask a rape victim, in her cross examination, questions as to her previous sexual experience.
II. HOW CAN THE RESULT OF TWO FINGER TEST CAN BE USED IN THE COURT?
If the rape victim is an unmarried virgin, maximum punishment is given to the criminal.
If the rape victim is a married woman, somewhat lesser punishment is given to the criminal.
If the rape victim is a unmarried non-virgin, very less or no punishment is given to the criminal as the defence lawyer makes the argument that the victim was physically in agreement of the act.
This is a retrograde act done by the police and must be banned immediately as there are reliable tests that can show evidences of rape.
The two-finger test performed on rape victims for checking their virginity has finally been outlawed by the Indian Health Ministry. The test has been declared unscientific and a demeaning procedure performed on the already brutalized rape victims.
Also termed as the virginity test, it allows the doctors to closely inspect the private parts of the rape victim, particularly the hymen of the woman who claims to have been raped. The test also checks the vaginal laxity and hence allowing the doctor to decide whether the victim is habituated to intercourse or has been forced for sex.
The procedure has been condemned by medical practitioners all across the world and believed to be unreliable.
Adding details to this new ban, Indrajit Khandekar, the head of Clinical Forensic Medicine Unit and an associate professor at Mahatma Gandhi Institute of Medical Sciences, stated, “It has been observed that the rape victims are usually put under a horribly judgmental microscope from the moment they call the cops.” He further added, “They are often subjected to judgmental attitudes by doctors and other medical staff in the hospital. The new guidelines include that every hospital must have a designated room to deal with cases of sexual assault to provide privacy to the victim and must have essential equipment listed in the guidelines.”
Based on these guidelines, the rape victims should be supplied with fresh clothing and treated with great sensitivity. Doctors and the entire medical staff dealing with such conditions should attend sensitivity training classes prior.
During the medical examination of the victim, no one apart from the doctor and the team should be present in the room. However, a female can attend the examination if the doctor examining the victim is a male.
The World Health Organization has said that forensic examinations of women after rape “should be minimally invasive” and has advised that “manual examination is rarely medically necessary after sexual assault.” India’s central government banned the two finger test on rape victims in 2014.1-3 Experts and human rights organizations have expressed their support for the ban. Durga Nandini, a spokesperson at Amnesty International India, told The BMJ, “Amnesty International India’s position is for a complete ban on the two finger test to assess rape.” Abhishek Sharma, a researcher at the department of global health at Boston University School of Public Health, USA, said that he welcomed the Delhi government’s move to revoke the “unacceptable suggestions” of conducting the two finger test. “TFT [two finger test] is a virginity test more than anything else. It is a way to determine if the rape survivor is habitual to sexual intercourse. The observations of TFT—presence or absence of hymen—does not even translate to any evidence regarding the rape/crime at all,” Sharma told The BMJ. “In other words, if just the absence of hymen could establish the incident of rape, then rape of a non-virgin woman would not even be considered a crime. The test is simply unscientific.” 
The doctor should not use the word ‘Rape’ as it is not a medical condition or a legal definition for the condition.
These guidelines have been designed eight long months after the Supreme Court of India declared the Two-finger Test as a physical violation of the victim’s privacy.
The new medical guidelines were received shortly after the psycho-social impact of sexual violence and victim counseling guidelines were drafted by the Indian Department of Health Research.
III. JUDICIAL STAND ON THE ISSUE OF ‘TWO-FINGER’ TEST
In the case of [email protected] Rajesh and Vs. State of Haryana, the Supreme Court stated that the two-finger test conducted on rape victim violated her right to privacy, physical and mental integrity and dignity. Let’s take a look at the findings of the court
The bench of Justices B.S. Chauhan and F.M.I. Kalifulla asked the government to provide better medical procedures in order to confirm the victim’s claim of sexual assault. The bench said that the State is under an obligation to provide such services to the victims of sexual assault. They should ensure the safety and see that there is no arbitrary or unlawful interference with the privacy of the victim.
The bench said that if the result of the test is affirmative, it does not give rise to the presumption of consent on the part of the victim.
The bench referred to International Covenant on Economic, Social, and Cultural Rights 1966 and the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985 and stated that the rape survivors are entitled to legal recourse which does not result in re-traumatizing them or violate their physical or mental integrity and dignity.
The bench stated that medical procedure should not be cruel, inhuman and they should not degrade the treatment. The health of the victim should be given paramount consideration while dealing with this types of violence.
Furthermore, the court relied on the following cases namely, Narayanamma (Kum) v. State of Karnataka &Ors., State of Uttar Pradesh v. Munshi and in Narender Kumar v. State (NCT of Delhi) in which the Supreme Court had held that the admission of two finger that gives an insight into the history of rape survivor’s sexual intercourse does not give clear indication of her being used to sexual intercourse and even if she is habituated to it, that does not give a licence to anyone to rape her.
The Guidelines and protocols for Medico-legal care for survivors/victims of sexual violence
The Ministry Of Health and Family Welfare, Government of India issued certain Guidelines and protocols for Medico-legal care for survivors/victims of sexual violence. The Guidelines provided that:
The Per-Vaginum examination commonly known as the “two-finger test” should not be conducted.The size of the vaginal introitus has no bearing on the case of a sexual violence and the pre vaginum examination can be done only on adult women when medically indicated.
The guidelines also provide that the status of the hymen is irrelevant as it can also be torn due to other things such as cycling, riding among other things. An intact hymen does no rue out the sexual violence and the torn hymen also does not prove sexual intercourse.
Hymen should be treated like any other part of the genitals while documenting examination findings in sexual violence cases.
In the case of assault, only relevant findings such as fresh tears, bleedings, edema etc are to be documented.
The guidelines directed that in cases of sexual violence more focus should be on the testimonies of the victim and the witness rather than the physical examination to check for injuries to the genital area.
he finger test and the medical evidence are used in courts to “objectively” and “scientifi cally” demonstrate a woman’s habituation to sexual intercourse. Despite the repeal of Section 155(4), past sexual history continues to be introduced into evidence through means other than direct questioning of the rape victim about her past sexual history, particularly through the report of the medical examination of the rape victim. Medical examiners in their reports frequently and explicitly note the habituation of the victim to intercourse. Court judgments frequently take note of how the medical examination demonstrates the rape victim’s habituation to sexual intercourse.Parliament’s objective in repealing Section 155(4) is subverted through the deferral to opinion of the medical examiner on the evidence of women’s habituation to sexual intercourse. Defence counsels across the world are known to introduce evidence about a woman’s character using her demeanor, clothing and class to demonstrate the falsity of her claims . In India, however, the finger test provides a scientific veneer to what actually is a prejudiced assessment of a woman’s sexual history. The blind acceptance and the egregious use of the finger test by the medical community and consequently by courts is starkly exhibited in several cases. In our research, we discovered many instances where the finger test was conducted on very young and pre-pubescent girls, such as in Syed Pasha vs State of Karnataka,  where a five-year old girl was subjected to the test. In most of these cases, the doctor noted that the finger test caused pain to the child and it was difficult to insert the finger/s. Even in cases where victims were adults, the medical examiner noted that the insertion of two fingers into the vagina caused the victim pain. In one case, the doctor not only inserted two fingers, but also “tested” the elasticity of the vagina by inserting three fingers into the vagina of the woman. In another case, the rape victim underwent two medical examinations and both doctors conducted the finger test. The test is also conducted on married women,for whom virginity and habituation is not contested. Pregnant women are also not spared. For instance, in Vishram vs State of Rajasthan, the victim was five months pregnant when she was raped. The doctor noticed that the hymen was absent and that there was a recently stitched wound on the lower part of the vagina.
In spite of this, the doctor conducted the finger test and noted “blood was coming out of the stitches”.The routine nature of the test is apparent in Raju @ Rajendra Prasad vs State of Uttarakhand.  In this case, the victim was 32 weeks pregnant at the time of medical examination. Nevertheless, the doctor conducted the finger test and noted that the vagina could only admit one finger easily and that the girl was not habituated to intercourse, despite her pregnancy.medical evidence is used as a tool to assess the truthfulness of the woman’s claim of being raped. For instance, in Ratan Das vs State of West Bengal, the court held that “false charges of rape are not uncommon and medical evidence may assist in finding the truth or otherwise of the accusation”.Even the Supreme Court of India, as recently as 2007, cautioned courts about the tendency of women to falsely allege rape, stating that “courts should…bear in mind that false charges of rape are not uncommon”.This judgment of the Supreme Court has been regularly cited in subsequent high court decisions. Noting the cautionary advice of the Supreme Court, high courts have tended to rely heavily on medical evidence in determining whether the woman is falsely alleging rape.
IV. HOW A BANNED TEST CONTINUE TO TRAUMATISE RAPE SURVIVIORS IN INDIA
The suffering nearness of the test is infringing upon of the Supreme Court, however of focal government rules issued in 2014, in the outcome of the Nirbhaya case, ordering specialists to show affectability while looking at assault survivors.
In Madhya Pradesh’s Dewas region, about five hours from Bhopal, Kannubai*, 36, depicts how she was assaulted at blade point while her significant other was away and her kids snoozing. At the police headquarters, when she went to document the report, she was approached to swear by on the water of the heavenly Ganga that she wasn’t lying. “He (the policeman) asked, do you realize what assault is, do you realize what sex is? I said I have four kids, three young men and one young lady. He at that point began saying some appalling things,” she reviewed. The assault, and that discussion occurred in 2013, that year the Supreme Court had pronounced that the two-finger test, in which specialists and medical caretakers inspect assault survivors’ vaginas for flexibility, is violate to ladies.
But then, at the neighborhood government medical clinic, the specialist embedded two fingers into her vagina. Kannubai’s therapeutic report, audited by news channel, states that she is “utilized to sex” other than referencing that her vagina “effectively concedes two fingers”. Kannubai lost her case in court. The suffering nearness of the test is infringing upon of the Supreme Court, however of focal government rules issued in 2014, in the consequence of the Nirbhaya case, commanding specialists to show affectability while analyzing assault survivors. One of the key changes that the new convention brought was a prohibition on the two-finger test, the discoveries of which frequently remark on the survivor’s past sexual experience, making questions about their grievance. Just a bunch of Indian states received the rules; Madhya Pradesh, where Kannubai lives, is one of them. Yet, a TV report examination found that in Madhya Pradesh and Uttar Pradesh – another state which received the new convention – the horrible routine with regards to the two-finger test on assault survivors still proceeds, now and again with injurious impact on their cases. In any case, a TV reports examination found that in Madhya Pradesh and Uttar Pradesh – another state which embraced the new convention – the awful routine with regards to the two-finger test on assault survivors still proceeds, some of the time with injurious impact on their cases.
As with Kannubai, Karishma*, 29, likewise from Dewas region lost her case. Assaulted by a kindred resident in 2014 when she was going towards her fields, she was exposed to the two-finger test.
“The specialist simply put two fingers in my vagina and composed it in the therapeutic. It was anything but a decent therapeutic. It might have driven me to lose my case”, Karishma told TVchannel.
Asif Sheik, Director of Jan Sahas, a NGO that works for assault survivors and gives them legitimate guide in four Indian states says “If the two finger test is referenced in the (medicinal) report in such cases it will be of no assistance and does not prompt any conviction.” Survivors who are exposed to the test are uninformed of the boycott, and of the effect it may have on their cases till it is past the point of no return. Routinely, wedded ladies with youngsters are depicted as “habituated to sex” by inspecting medicinal staff. Altogether tv reports assessed eight therapeutic reports crosswise over three locale of Madhya Pradesh – Dewas, Khargone, and Ujjain. Numerous studies have shown the inspection of hymen cannot every one of the cases, the assault survivors were hitched and had youngsters, but then were portrayed as “habituated to sex”, or “vagina concedes two fingers effectively.” The report stated the textbooks not just vividly taught student. 
2014 Indian guidelines
In 2014, India’s Ministry of Health and Family Welfare issued rules for medico-legitimate consideration for overcomers of sexual viciousness to institutionalize social insurance experts’ examination and treatment of rape survivors. The rules incorporate procedures outfitted to regard ladies’ and kids’ rights to security, pride, making a non-undermining condition, and educated assent.
The Ministry of Health and Family Welfare, in a joint effort with the World Health Organization, has directed five provincial workshops throughout the most recent two years to energize selection and execution of the rules by the states. Be that as it may, up until this point, as indicated by wellbeing rights gatherings, just nine states have received the rules. However, even in these states, the execution has been uneven, with no oversight instruments set up.
The rules look to address unavoidable fantasies and corrupting practices around assault that have been fortified by regular medico-lawful practices. In particular, the rules dispose of what is usually known as the “two-finger test,” a training where the looking at specialist noticed the nearness or nonappearance of the hymen and the size thus called laxity of the vagina of the assault survivor, to survey whether young ladies and ladies are “virgins” or “habituated to sex”.
This proof has been utilized amid preliminaries to state that the assault survivor had “free” or “careless” ethics. The new rules limit inward vaginal examinations to those “therapeutically demonstrated, for example, when it is done to analyze contamination, damage, or nearness of a remote body.
Indeed, even before the rules, the Supreme Court held that the aftereffects of the test can’t be utilized against assault survivors and further that whether she is “habituated to sex” or not is insignificant, establishes a self-assertive and unlawful impedance with the survivor’s notoriety. The 2015 version of Modi’s Medical Jurisprudence, a key reference instrument for restorative and legitimate experts, has likewise endeavored to direct specialists from the informal “two-finger test.”
End oppressive “two-finger testing”
Nonetheless, Human Rights Watch has discovered that specialists keep on leading the obtrusive, embarrassing, and unfeeling finger test to make debasing characterisations. The specialists additionally neglect to clarify the procedure or motivation behind the finger test to assault survivors, making them be additionally damaged. The test can likewise cause torment. The specialists do this independent of whether the survivor is under 18 or a grown-up, single or wedded.
The utilization of the finger test can likewise hurt the examination procedure since police, as well, may depend on medico-legitimate reports. Sameena (not her genuine name), 25, from Bharatpur in Rajasthan was pregnant at the time she revealed being assaulted in March 2016. Rather than taking note of that the police did not bring her for the medicinal test until a few days after the fact, bringing about loss of basic proof, the specialist directed a “two-finger test” and saw that it was “without torment,” and that “she is habituated to intercourse”. In October 2016, the police documented a charge-sheet against the five denounced for attack, expectation to shock her humility, and for lewd behavior, however discounted assault. As a component of purposes behind the choice, the police refered to the medico-legitimate report to state that Sameena did not have any wounds on her body and “was constant of intercourse”.
Human Rights Watch likewise discovered that specialists much of the time offer need to the gathering of criminological proof, and spend pretty much nothing, assuming any, time on fundamental helpful consideration. The 2014 rules spread out psychosocial care for survivors saying that wellbeing experts should themselves give first-line support or guarantee another person prepared at the office can give it. This incorporates tending to the survivor’s prosperity, urging her to express her sentiments and look for emergency advising, making a security evaluation and wellbeing plan, and including family and companions in the mending procedure. Yet, the state social insurance frameworks have to a great extent fizzled with regards to giving restorative consideration and directing to survivors.
Gayatri, who had been assaulted over and over by her dad, did not realize she was three months pregnant until the medico-lawful examination.
This model is encouraging and could be replicated more widely. The number of highly publicised rapes in India since the Delhi gang rape of December 2012 shows that discussions must shift from simply increasing prison sentences for perpetrators to ensuring that systems are available to support the victims. The current focus on sexual violence in India provides a unique opportunity to improve services for women who have been raped; we must not let this opportunity go to waste.
With this range of factors standing between rapists and their conviction, often leading women to abandon testify ing in the trial of their own cases, it is not surprising that rape convictions are low. Extensive reforms are required so that sexually assaulted women do not feel that they are the “accused” when they submit themselves for medical examination and trial. Urgent reforms such as setting up humane rape crisis centres, where women can directly approach women counsellors or nurses to tell their story, lodge a complaint and get the required examinations done at one place are needed to improve the situation. The other urgent necessity is to ban the two-finger test.
India has favourable and sometimes even more progressive laws for women than so-called developed countries, but their implementation is where all is lost in vain. Jan Sahas, a social development society, studied the records of 200 group-rape trials and found that the two finger test was used to determine rape or otherwise in 80 percent of them. In fact, Amit conducted a micro survey in Lucknow, where he spoke to 10 rape survivors, including five minors. He found that all of them had the two-finger test conducted on them. His investigation led him to doctors at three different hospitals, where, off the record, they told him that they conduct the two-finger test to determine rape. It is this transgression of the law – either consciously or unconsciously – at the grassroots level that needs to irritate our collective conscience for far-reaching change to take place. The two finger test is devastating for victims’ health and for prosecution outcomes; however, recent legal developments may bring about some change. In March the union health ministry formally introduced a set of guidelines and protocols for the medical examination and for care of victims of sexual violence
The Criminal Amendment Act 2013 was passed, and the Supreme Court banned the two-finger test to ascertain rape in order to protect the survivor from further harassment and violation of dignity. The test was banned because not only does it violate a woman’s right to privacy, but also because it is unscientific. It relies on examining the laxity of the vaginal muscles to determine whether the survivor is habituated to sexual intercourse, and thus to ascertain rape. However, a survivor’s sexual history should not even enter the realm of rape examination because it is the lack of consent that is at the core of sexual violence.
The SC had in 2013 banned use of the two-finger test on rape victims. Maharashtra was one of the first states to implement the ban and change medico-legal preforms. Recently, the state introduced gender integrated modules in five disciplines. The Centre for Enquiry into Health and Allied Themes (CEHAT), along with the Directorate of Medical Education and Research (DMER) and Maharashtra University of Health Sciences (MUHS), worked on the modules across five disciplines, including forensic medicine, to bring in gender perspective in medical education.
Two fingers test is inhuman and an unscientific test and no rape survivor should have to go through it in order to prove their claim of rape. Medical specialist and social workers say that it amounts to Re-Rape of the victim. It not only violates the right of privacy of the victim but it also affects her mental, physical and ethical status. The two-finger test is even performed on young and pre-pubescent girls who do not have any idea about what’s going on with them. it is important that all new state guidelines match the standards set by the central government. Implementing the guidelines in health facilities is the next challenge: this will require increased practical training on rape examinations as a part of the medical curriculum, as well as the revision of textbooks in accordance with the new government protocols. Arguably the most important challenge, yet perhaps the most difficult, will be to eliminate gender prejudices in the medical profession and remind doctors that their over-riding priority lies in providing healthcare, rather than in looking for evidence that rape occurred. Certain alternatives can be used instead of the two fingers test, for example, the DNA test can be used to find the evidence in case of rape. Both U.S.A and the U.K use Sexual Forensic Evidence (SAFE) kit and only a Sexual Assault Nurse Examiner (SANE) is allowed to collect DNA evidence from the victim’s body.
When classes are conducted to teach medical students, they are taught to be distant and objective – to reduce all knowledge to scientific distillations. Their textbooks make up some of the bedrock from which their worldviews spring. For them, medical textbooks are right because they have dispensed with the messiness of social life in favour of ‘facts’. But have they? Contrary to their own self-perception, medical students are not taught to ignore the social world in favour of everything scientific. Instead, they are taught to perpetuate a particular social vision in which women often appear as yet-to-be-proven liars with potentially dubious sexual histories. The two-finger test is a problem that needs to be dealt with at many levels, beginning with the judicial system. There are efforts being made by various people and organisations in the medical fraternity and outside to change this system. If brought to the court, the question of a woman’s sexual history needs to be resolutely ignored. If there was willingness, a law could be passed banning the test from medical and judicial practice. And while that will probably take time, doctors should be responsible for spreading negative awareness about the test.
A battle is on get rid of the two-finger test. But scrubbing it out of minds of medical students will not be easy. Changing the outdated the social vision lurking behind their textbooks, tests and protocols will be a good start.
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Author Details: Riya Rathore and Shivanshi Dixit are students at University of Petroleum & Energy Studies.
The views of the author are personal only. (if any)
Source: Juscholars Journal Volume 1, Issue 4.