Two Finger Test

Abstract

The paper deals with the ban on two-finger tests across the Nation of the world. This paper makes an effort to churn out the present situation of India and Pakistan. The paper dapples with brisk details of the Two-Finger Test and the constitutionality of the Two-Finger Test in the medical exams of rape victims. After that, the paper provides a compact scenario of a two-finger test of rape victims in tandem with the available case laws and decisions of the cases.

Introduction

In a number of South Asian countries, the unscientific and traumatising two-finger test is still used as part of the medical examination. This test involves a medical practitioner inserting two fingers into the vagina of a rape survivor in an attempt to determine if the hymen is broken, as well as to “test the laxity of the vagina”.

The test is often used to declare rape survivors as “habituated to sex”. Medical evidence of previous intercourse is used to cast doubt on the rape allegation, either to suggest a survivor lied about the rape, to imply that the rape wasn’t harmful or to suggest the moral impropriety of the survivor and therefore her lack of entitlement to justice.

What Is Two-Finger Test?

The two-finger test, known as per-vaginal examination in medical jargon, it involves the examination of her vagina to check if she is habituated to sexual intercourse. The practice of inserting two fingers in the vaginal muscles and examine the hymen to check if she is habituated to sexual intercourse.

According to medical experts, the two-finger test is unscientific and does not provide any definite information. This is because of hymen and laxity of the vaginal orifice may occur for reasons that are not related to sex. Moreover, such information has no bearing on an allegation of rape.

Is The Two-Finger Test Is Scientifically Recognized?

The test has no scientific basis, as doctors have proven. The test is based on the archaic concept of a hymen, which determines whether a woman is sexually active or not.  However, a hymen, a thin membrane in the vagina, can also rupture from regular physical activity and exercise, and not necessarily because of sexual intercourse. 

Moreover, in children, the hymen being so deep-rooted stays intact during penetration and sexual assault. 

Problematic Of Two-Finger Test

According to doctors, the laxity of the vaginal muscle is also depends on the person’s psychological state. In the case of a distressed person, such as a rape survivor, the muscle will appear tensed. The test determines whether a woman is “habituated” to sex. As a result, it seeks to discredit her testimony by assuming that a woman with a sexual history cannot claim to have been raped.

On a moral and ethical level, the test is a clear violation of the woman’s privacy and dignity, where the woman is subjected to the pain of insertion even after going through a horrific experience. She is stripped of her consent.

The Supreme Court Made Observation In A Recent Case

A bench consist of two justice named D Y Chandrachud and Hima Kohli made the comments in their order to restore the conviction and sentence of a man for the rape and murder of a minor girl in Jharkhand in November 2004.The victim had been set on fire by the man after she tried to thwart his sexual assaults attempts[1]. Later in the hospital victim was undertaken to the two-finger test.

Saying that it is regrettable that the practice is still followed, the Supreme Court stated, “Whether a woman is habituated to sexual intercourse or habitual to sexual intercourse is relevant in determining whether the ingredients of Section 375 of Indian Penal Code, 1860 are present in a particular case.

Adding that the probative value of a woman’s testimony does not rely on her sexual history, the court said. “It is patriarchal and sexist to say that a woman cannot be believed when she says that she was raped. “Just because she’s sexually active.”

Supreme Court Comments On Two-Finger Test

After the Nirbhaya rape case, the Union Ministry of Health and Family Welfare updated the proforma for medical examination of rape victims to remove the two-finger test.

Soon after the Nirbhaya case in 2012, the Verma Committee, chaired by former CJI JS Verma, recommended the banning of two-finger test.

“It is crucial to underscore that the size of the vaginal introitus has no bearing on a case of sexual assault, and therefore a test to ascertain the laxity of the vaginal muscles, which is commonly referred to as the two-finger test, must not be conducted. On the basis of this test observations/ conclusions such as ‘habituated to sexual intercourse’ should not be made and this is forbidden by law,” the Committee stated.

In May 2013, the Supreme Court ruled that the two-finger test violated a women’s right to privacy and asked the government to provide better medical procedures to confirm sexual assault.

A bench of Justice BS Chauhan and FMI Kalifulla ruled that even if a woman is habituated to sexual intercourse, this cannot lead to a presumption of consent in the particular case.

Relying on the 1966 International Covenant on Economic, Social and Cultural Rights and the 1985 United Nations Declaration on the Basic Principles of Justice for Victims of Crime and Abuse of Power, the Supreme Court stated that rape survivors have the right to a remedy that does not re-traumatise them or violate their physical or mental integrity and dignity.

In 2013, the Supreme Court had banned the two-finger test.  However, its use is still common in society. Its presence in medical education syllabus has contributed to its continuity. Defence attorneys use an affirmative two-finger test to question the victim’s character and refute claims that the sex was non-consensual. This played a major role in many victims losing cases.

Government Guidelines

In 2014, the Union health ministry released a document titled ‘Guidelines & Protocols Medico-legal care for survivors/victims of sexual violence’. Section 53A of the Indian Evidence Act, 1872, states that previous sexual experience “shall not be relevant to the issue of consent or the quality of consent” in prosecutions of sexual offences.

The guidelines on the two-finger test are clear, stating: “The per-vaginal examination, commonly referred to by laypeople as the ‘two-finger test’, should not be performed to establish rape/sexual violence and the size of the vaginal introitus (orifice) has nothing to do with a case of sexual violence. Per-vaginal examination can only be performed on adult women when medically indicated.”

It directed health providers to conduct a medical examination in accordance with the detailed ‘proforma for medico-legal examination of survivors/victims of sexual violence’, a copy of which was mentioned to the guidelines. The guidelines state that a copy of the medical report must be provided to the survivor/victim promptly and free of charge. These guidelines were distributed to hospitals, but it appears that the doctors who handled medico-legal cases did not take the instructions seriously.

In fact, the guidelines state that the consent of the rape victim (or that of their guardian if they are minors or mentally disabled) is required for any medical examination. Even without consent, the victim cannot be denied medical treatment.

However, these are guidelines and not legally binding.

Other Recent Ban Of Two-Finger Test

In this year April, the Madras High Court directed the state to ban the two-finger test. The bench consist of Justice R Subramanian and N Sathish Kumar observed that despite the SC’s 2013 observations, the test is being conducted, including on minors.

In August of this year, the National Medical Commission (NMC), the country’s top medical education regulator, modified modules for forensic medicine, including the two-finger test guidelines. The modified virginity testing module states that students will receive training “on how to report to the courts the unscientific basis of these tests, if the court so directs.”

Two-Finger Test In Pakistan

The Supreme Court of Pakistan ruled that dragging a survivor’s sexual past by making comments like ‘vaginal opening admits two fingers readily’ or ‘ruptured hymen’ offends the survivor’s dignity and honour and violates Article 4(2)(a) of the Pakistan’s Constitution, which states that no action in derogation to a person’s body and reputation shall be taken except according to a procedure established by law. The Court also stated that words like “habituated to sex,” “woman of loose moral character,” and “non-virgin” should be avoided because they are unconstitutional and illegal. The Court also questioned the survivor’s character because the injury report in the case was riddled with sexism.

As a signatory to the International Covenant on Civil and Political Rights in 1976, Pakistan is required by Article 17 to protect a survivor from arbitrary inference into her private life. Similar contentions can be drawn from paragraph 20 of the CCPR General Comment No. 28 (2000) under Article 3 (equality of rights between men and women), which states that a survivor’s sexual history shall not be considered when determining her legal rights and protection against rape, as upheld by the UN Human Rights Committee in L.N.P. v. Argentina (2007).

International laws apply to Pakistan as long as they do not contradict domestic laws, and courts must interpret domestic laws in accordance with international obligations. Furthermore, criminal trial in rape cases, it is the accused who is on trial, not the survivor. As a result, in accordance with international human rights obligations, the Supreme Court declared the two-finger test unconstitutional.

Two-Finger Test Is Unconstitutional: Lahore High Court

Earlier, the Lahore High Court ruled that a two-finger test used to confirm a survivor’s virginity in cases of rape and sexual assault was unconstitutional, citing Indian precedent from the State of Gujarat v. Rameshchandra Panchal (2020). The Court also stated that such tests have no scientific or medical basis and are an insult to the dignity of survivors. It was noted that such a test is discriminatory and violates the right to life and human rights enshrined in Article 9 and 14 of the Pakistan’s Constitution.

Relevant Case Laws

Narayanamma (Kum) v. State of Karnataka

In the case of Narayanamma (Kum) V. State of Karnataka[2], the Court clearly stated that the Two Finger Test was a clear violation of the victim’s right to privacy, dignity, and integrity. In addition, the Hon’ble Court stated that no medical examination of the victim shall be unethical, inhumane, or cruel. The court also requested to maintain the victim’s dignity and privacy of the victim’s during the medical examination, and that it have no negative impact on her mental health.

State of Uttar Pradesh v. Munshi

In this case, In this case, the Hon’ble court while giving weight to a women’s consent held that ‘whether the victim was habitual to sexual intercourse cannot be a determinative question as it does not relate to the question of consent. It clearly implies that just because a woman is sexually active does not automatically determine that her consent was given in that instance. The court upheld the above viewpoint in the case of Narendra Kumar v. State of NCT of Delhi.

State Punjab v. Ramdev Singh

In this case[3], the court held the Two Finger Test as inconclusive proof to determine anything about the consent of the victim as required under Section 375 of the Indian Penal Code.

Lillu v. State of Haryana:

In this case[4], the accused was found guilty of raping a minor girl of about 14 years of age by the sessions court. On appeal, he claimed she had given her consent and was used to sexual intercourse. He also claimed she was not a minor. The appellant asserted his claims using the two-finger test. Respondents, on the other hand, contended that the Two-Finger Test is both unethical and unconstitutional. The apex court convicted the accused, citing the aforementioned case laws, and held that the test clearly violates the victim’s right to privacy and dignity. Furthermore, the issue of ‘habitual sexual intercourse’ is not a deciding factor in rape cases.

As a result, the Two-Finger Test was banned in India. The Virginity Test and related topics on the Two Finger Test were removed from medical course syllabuses and textbooks.

Conclusion

The recent decision is significant because it states that anyone found performing a two-finger test on a victim in rape or penetrative sexual assault cases will be found guilty of misconduct. This starts to address the impunity of medical professionals who continue with this practice.

The ruling was also significant in underscoring that “the two-finger test is based on the incorrect assumption that a sexually active woman cannot be raped. A woman’s sexual history is wholly irrelevant in determining whether the accused raped her.” It sends a message that the common persistent attacks on survivors’ character during trials, particularly those based on their sexual or relationship history, will no longer be tolerated.

References:

• https://www.indiatoday.in/law/story/why-sc-slammed-two-finger-test-rape-and-sexual-assault-victims-explained-2291634-2022-10-31
• https://www.drishtiias.com/daily-updates/daily-news-analysis/two-finger-test
• https://www.thehindu.com/opinion/op-ed/enforcing-the-ban-on-the-two-finger-test/article66115405.ece
• Exam-Labs Microsoft AZ-900

[1] Ramkirat Munilal Goud v. The State of Maharashtra (2021) S.C.C. Online Bom 4562.

[2] Narayanamma (Kum) V. State of Karnataka (1994) 5 S.C.C. 728 (India)

[3] State Punjab v. Ramdev Singh A.I.R. 2004 S.C. 1290 (India)

[4] Lillu v. State of Haryana A.I.R. 2013 S.C. 1784 (India)

By: R. VINOTH KANNA, currently pursuing 3rd Year B.A., LL.B (Hons) a student at SATHYABAMA INSTITUTE OF SCIENCE AND TECHNOLOGY