Rights of sexual assault victims: How courts have deprecated the ‘two-finger’ test

‘[The] two-finger 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.…The test itself is one of the most unscientific methods of examination used in the context of sexual assault and has no forensic value.’

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RECENTLY, the Madras High Court in the case of Rajivgandhi versus State (2022) had directed the Government of Tamil Nadu to immediately ban the practice of the ‘two-finger’ test conducted by medical professionals on survivors of rape.

“We have no doubt that the two-finger test cannot be permitted to be continued. Therefore, we issue a direction to the State Government to ban the practice of two-finger test on victims of sexual offences by the medical professionals forthwith,” a division bench of Justices R. Subramanian and N. Sathish Kumar had observed.

What is the two-finger test?

The practice of the two-finger test, also known as the ‘virginity test’ has flown from the societal norm that a woman must be a virgin or ‘sexually pure’ in order to be suitable for marriage. Such regressive notions on preserving the chastity of a woman found its way into forensic examination as well.

In this test, the medical practitioners, during the examination of a victim of sexual offences, insert their two fingers inside the vagina of a woman-victim in order to check if penile penetration has taken place or not, as well as to ascertain the laxity and presence of hymen to determine whether she is a virgin or not.

This test is certainly invasive and disrespectful to the body of a woman as it intrudes on her basic rights as a person and questions her claim. It is to be noted that the performance of this test can be understood in the sense that the consent of the victim is judged by the laxity of her vagina, or if her hymen is intact or not.

‘Per-Vaginum examination commonly referred to by lay persons as ‘two-finger test’, must not be conducted for establishing rape/sexual violence and the size of the vaginal introitus has no bearing on a case of sexual violence.’: Union Ministry of Health and Family Welfare

Below, we shall look into certain decisions of the high courts and the Supreme Court, as well as foreign courts, which have declared this so-called virginity test to be in violation of female victims’ dignity, since no determination of existence of rape can be ascertained through this test medically.

Presently, this test has started to lose its ground; however, it shall not be wrong to say that this system of medical examination of a victim of sexual offences, which continues to make them vulnerable and chips away at their credibility even before the perpetrator is tried in a court of law, continues to be deployed by courts to this day.

Also read: Medical Evidence in Rape Cases and Poor Court Outcomes

What have courts in India said about the two-finger test?

We shall first draw our attention to the ground-breaking order of the Supreme Court in the case of Lillu @ Rajesh and Another versus State of Haryana (2013), wherein it was held that the two-finger test violates the right of rape survivors to privacy, physical and mental integrity, and dignity, and even if the test result is affirmative, it cannot ipso facto give rise to a presumption of consent.

While invalidating this distorted practice, the division bench of Justices Dr. B.S. Chauhan and F.M.I. Kalifulla observed that:

“…rape survivors are entitled to legal recourse that does not retraumatize them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender-based violence. The State is under an obligation to make such services available to survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with his privacy.”

Following this, in the year 2014, the Union Ministry of Health and Family Welfare issued certain guidelines for the medico-legal care of victims of sexual violence, wherein this practice of the two-finger test was held to be a degrading practice and unnecessary.

‘[T]he “two-finger test” is unconstitutional, as it violates the right of the victim of sexual assault to privacy, physical and mental integrity and dignity’: Gujarat High Court

The relevant portion of the guidelines is as follows:

“Per-Vaginum examination commonly referred to by lay persons as ‘two-finger test’, must not be conducted for establishing rape/sexual violence and the size of the vaginal introitus has no bearing on a case of sexual violence. Per vaginum examination can be done only in adult women when medically indicated.

The status of the hymen is irrelevant because the hymen can be torn due to several reasons such as cycling, riding or masturbation among other things. An intact hymen does not rule out sexual violence, and a torn hymen does not prove previous sexual intercourse.”

We shall now refer to a suo motu case of the Supreme Court in In Re: Assessment of the Criminal Justice System in response to Sexual Offences (2019), wherein the court expressed extreme displeasure on the non-implementation of criminal law provisions (including the 2013 and 2018 amendments post-Nirbhaya case) relating to rape cases and other sexual offences.

The relevant portion of the order in the said case is as follows:

“Vide the Amendment Act of 2013, Section 53A was inserted in the Evidence Act, 1872. It provides that the evidence of character of the victim and of such person’s previous sexual experience with any persons shall not be relevant on the issue of such consent or the quality of consent. The effect of above provision is that previous sexual experience and in effect the habituation to sexual intercourse is now irrelevant for the purpose medical examination. Still, we come across the medical opinion such as “the victim is habitual of sexual intercourse” and the opinion suggesting possibility of consent on the basis of her previous sexual exposure.”

A division bench of then-Chief Justice of India S.A. Bobde, and Justices B.R. Gavai and Surya Kant called for a status report from all states and union territories in the country on the question of, among other things, whether medical experts have done away with the ‘two-finger test’.

This case is still pending and is yet to be listed for further hearing.

Earlier in 2019, the chapters pertaining to the two-finger test were removed from the medical syllabus in the State of Maharashtra.

It is imminent to refer to the landmark decision of the Gujarat High Court in the case of State of Gujarat versus Rameshchandra Ramabhai Panchal (2020), wherein it was held that the archaic and outdated practice of the two-finger test, conducted to determine the virginity/consent of a rape victim, is violative of the right of the victim to privacy, physical and mental integrity, and dignity, and is, therefore, unconstitutional.

A division bench of Justices J.B. Pardiwala and Bhargav D. Karia noted that the virginity determination test is in direct conflict with the proviso to Section 146 of the Indian Evidence Act 1872, which provides that “in prosecution for rape or attempt to commit rape, it shall not be permissible to put questions in the cross-examination of the prosecutrix as to her general immoral character.” 

The relevant portion of the decision is as follows:

“Despite the aforesaid proviso (referring to Section 146 of the Indian Evidence Act), the two-finger 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. 

…The test itself is one of the most unscientific methods of examination used in the context of sexual assault and has no forensic value. Whether a survivor is habituated to sexual intercourse prior to the assault has absolutely no bearing on whether she consented when the rape occurred. Section 155 of the Indian Evidence Act, does not allow a rape victim’s credibility to be compromised on the ground that she is “of generally immoral character,” the bench remarked.

Our endeavour is to remind the trial Courts as well as the medical fraternity that the “two-finger test” is unconstitutional, as it violates the right of the victim of sexual assault to privacy, physical and mental integrity and dignity.”

‘[T]wo-finger test and its interpretation violate the right of rape survivors to privacy, physical and mental integrity and dignity.  It is the need of the hour to implement the ban on the ‘two-finger test’ on rape survivors with full force’: Jammu and Kashmir High Court

The High Court of Jammu and Kashmir, in a significant ruling in State of J&K versus Mohd. Imran Khan (2020) had directed all the health professionals of the union territories of Jammu and Kashmir, and Ladakh to strictly desist from undertaking ‘two-finger test’ on the rape survivors.

The relevant portion of the judgment is as follows:

“[T]wo-finger test and its interpretation violate the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, the “two-finger test” has been declared as unconstitutional.

It is the need of the hour to implement the ban on the ‘two-finger test’ on rape survivors with full force and in this regard a direction is required to be extended to all the health professionals of Union Territories of Jammu and Kashmir, and Ladakh, so that the judgment of the Supreme Court and guidelines and protocols issued by the Ministry of Health and Family Welfare, Govt. of India, on the subject are taken seriously.”

In a very recent decision of the Bombay High Court in Mohammed Ashfaq Dawood Shaikh versus State of Maharashtra (2021), the court had expressed hope that the Maharashtra government would take necessary steps to shun the “unscientific and heavily criticized” two-finger test, which is conducted on rape survivors to ascertain if the hymen of the concerned person is intact or not.

A division bench of the Justices S.S. Jadhav and P.K. Chavan noted that the Maharashtra government seemed to have formulated certain guidelines in this regard, and must strictly adhere to them.

Also read: Hathras Rape Case: Three steps India should take to ensure that rape survivors actually get justice

What have courts across the border said about the test?

In January last year, the Lahore High Court held in Sadaf Aziz versus Federation of Pakistan (2021) that two-finger tests carried out for the purposes of ascertaining the virginity of a female victim of rape or sexual abuse are unscientific, having no medical basis and therefore, unconstitutional.

A single-judge bench of Justice Ayesha A. Malik held that such tests are discriminatory and against the right to life and right to dignity enshrined in Articles 9 and 14 of the Constitution of Pakistan.

Interestingly, to hold the same, the High Court had relied upon the decision of the Supreme Court of India in Lillu @ Rajesh and the Gujarat High Court’s decision in Rameshchandra Ramabhai Panchal.

The relevant portion of the decision is as follows:

“Virginity testing is highly invasive, having no scientific or medical requirement, yet carried out in the name of medical protocols in sexual violence cases. It is a humiliating practice, which is used to cast suspicion on the victim, as opposed to focusing on the accused and the incident of sexual violence. This in effect amounts to gender based discrimination as it is neither a medical condition which requires treatment nor does it provide any clinical benefit to the victim. Its sole purpose is to determine whether the victim is habituated to sexual intercourse so as corroborate her statement on the charge of rape and sexual abuse.

When seen in the context of an investigation into the incident of sexual violence, whether the victim was previously accustomed to sexual intercourse is hardly the determinative question. The issue is whether the accused committed rape on the victim in the time and circumstances complained of. If the victim, is found to not be a virgin, it cannot and does not suggest that she was not raped or sexually abused. What it does is place the victim on trial in place of the accused and shifts the focus on her virginity status.

The virginity test by its very nature is invasive and an infringement on the privacy of a woman to her body. It is a blatant violation of the dignity of a woman. The conclusion drawn from these tests about a woman’s sexual history and character is a direct attack on her dignity and leads to adverse effects on the social and cultural standing of a victim.” 

On the very same day, the Supreme Court of Pakistan, in the case of Atil Zareef versus The State (2021) had also held that recording the sexual history of the victim by carrying out a two-finger test is unconstitutional.

A division bench of Justices Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah was of the view that:

“Dragging sexual history of the rape survivor into the case by making observations about her body including observations like “the vagina admits two fingers easily” or “old ruptured hymen” is an affront to the reputation and honour of the rape survivor and violates Article 4(2)(a) of the Constitution, which mandates that no action detrimental to the body and reputation of person shall be taken except in accordance with law.”

Also read: Secondary Victimisation of Rape Survivors: Adding Insult to Injury

Why two-finger testing should end

According to a report by international non-governmental organization Human Rights Watch, in spite of the Supreme Court declaring the two-finger test as unconstitutional and against the rights of the female-victim, many doctors across the country have been found to continue to conduct the humiliating and inhumane test.

‘Virginity testing is highly invasive, having no scientific or medical requirement, yet carried out in the name of medical protocols in sexual violence cases. It is a humiliating practice, which is used to cast suspicion on the victim, as opposed to focusing on the accused and the incident of sexual violence. … The virginity test by its very nature is invasive and an infringement on the privacy of a woman to her body. It is a blatant violation of the dignity of a woman’: Lahore High Court

Contrary to the mandate provided in the 2014 guidelines issued by the Union Ministry of Health and Family Welfare, doctors perform this test irrespective of whether the victim is a minor or an adult.

Even courts are still relying on such tests. For instance, the Madhya Pradesh High Court, in the case of X versus State of Madhya Pradesh & Ors. had, last month, set aside the bail granted to a rape accused under the provisions of Protection of Children from Sexual Offences Act 2012, after relying on the two-finger test conducted on the prosecutrix.

The single judge bench of Justice R.K. Dubey had observed that although the medical report of the prosecutrix did not mention any definite opinion of rape, it pointed out that her hymen was ruptured and two fingers were easily going in her vagina, which prima facie corroborated the fact that she was sexually abused.

The two-finger test or the virginity detection test is an unapproved medical concept which transgresses ethics as well as the basic fundamental rights of the victim. We can only hope that compliance with the observation of the courts and Union Ministry guidelines occurs throughout the country.

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