Among various heinous crimes, originating long back from history, “Rape” was one of them. It was one of the most committed crimes not only in India but also in many other countries as well, yet was a ‘Voiceless crime’. The term ‘Voiceless Crime’ might be new and not described in any book or dictionary but is self-explanatory; ‘rape’- a voiceless crime has been committed since ages especially on women due to patriarchy, sexist and misogynistic views. But later with evolution of time ‘rape’ was not only towards women but also towards men, old people, transgenders and even on little children.
Women had little rights and were simply classified as a mere property since a long time in history, hence rape was only regarded as a crime in terms of abusing another man’s property. The concept of rape as an offense underwent a major evolution with the passage of time due to changes in cultural beliefs and practices.
On 31st October, 2022 the Supreme court of India reiterated the opposition to the use of two-finger test in rape victims. The supreme court in 2013 in the case of “RAJESH VS STATE OF HARYANA”, ruled that the two-finger test is ‘unconstitutional’. Thenceforth, the Union government introduced guidelines regarding medico-legal procedures on rape survivors on 2014. Therefore, this paper will be talking about the medical procedures after a rape, to determine and examine the victim but mostly about the topic of two-finger test, it’s banned by the supreme court and what are the other procedures to completely ban and choose other alternatives to the test, and providing new perspectives towards on article.[1]
RECENT NEWS
On 31st October, 2022 the Supreme court of India reiterated the opposition to the use of two-finger test in rape victims and said that doctors would be guilty of misconduct who continued the examination. To the bench consisting of Justice DY Chandrachud and Justice Hima Kohli called the test invasive and unscientific and also said that it re-traumatises and re- victimises the survivor. The supreme court in 2013 in the case of “RAJESH VS STATE OF HARYANA”, ruled that the two-finger test is ‘unconstitutional’. Thenceforth, the Union government introduced guidelines regarding medico-legal procedures on rape survivors on 2014.But hardly was it followed by a majority of the states, it still was followed until the supreme court repeated the ban. Before moving forward with the discussion of the per vaginum test, let’s understand first with the explanation of what exactly is the two-finger test and why was it banned.[2]
WHAT IS TWO-FINGER TEST?
“Two-Finger test, also known as, the ‘PerVaginum’ test, is conducted by a medical practitioner by inserting two fingers into the vagina of a rape victim to ascertain if the hymen is broken and the laxity of the vagina.[3] This test is conducted especially with the rape survivors to determine the fact whether the victim was ‘habituated to sex’ or not.” Even most of the High court went “FOR” the decision, as it was patriarchal, archaic, violates right to privacy and dignity of a victim and has no scientific validity (stated even in the handbook released by WHO). But in 2017, a report by Human Rights watch stated that only 9 states have adopted the un-constitutionality of two-finger test[4] and the rest even though adopted, do not follow the guidelines.[5] In 2012, after the heinous crime of gang-rape in Delhi, made a flurry of legal amendments against the sexual violence against women, such as section 53A of the criminal law (amendment) act of 2013. After which a committee was formed under Justice JS Verma, called as Verma Committee, said that while deciding a rape case, it has no bearing between a woman’s sexual life or vaginal introitus and a rape case.[6] Therefore, a ban and implementation of stricter laws should come into effect in case of two-finger test. Thereby, summing up the whole background of the issue in few lines.
“TWO-FINGER TEST”, IS IT OBLIGATORY?
A rape victim, when sexually assaulted, harassed, molested not only physically but also mentally, it leaves behind a trail of discomfort, PTSD (post-traumatic stress disorder), outrage, shock, grieve, trauma, pain and what not, to the victim as well as the family. And adding to that, the professional medical practitioners, conducting the test does not consider the shock of the victim. Even the Human rights, WHO, and other well recognised organizations denied the fact that it is not necessary to conduct the test and it doesn’t provide any evidence against the victim, only used as defence’s weapon to win the case. The supreme court made its decision back then after the Nirbhaya case,2012 but were not being followed in most of the parts in India. Even When a medical test is conducted, in any bodily injuries, there is a consent form signed by the patient. But when it comes to the rape victims, there is just a Medico- Legal Case (MLC) report, but no consent form. The history of the victims is taken, but not the consent. Without disclosing the name, a woman was raped and the doctor inserted the two fingers without consent which made her feel terrible as if it was re-traumatising and taking her dignity and honour away. An activist who deals with sexual assault cases, Sidra Humayun, stated, “I count this as another rape in itself. “The majority of rape victims I’ve worked with have mentioned being traumatised by it”, she continued. According to court documents obtained by AFP, female rape victims may face humiliation and mockery if a medical expert determines that they have a history of sexual activity.[7]
A female doctor who worked in one of the public hospitals in Lahore claimed she had doubts about the innocence of juvenile rape victims. She asserted—without providing any supporting data—that families frequently manufacture rape accusations when they learn their unmarried daughter is engaging in sexual activity. Under the condition of anonymity, the woman stated, “But we can easily establish by the tests that we perform whether the girl has had sex before or not. So, we know which claim is fake and which isn’t”. [8]
An IAF Coimbatore Officer was raped by her fellow officer in 2021 and without the knowledge the test was conducted even though it was banned by the Supreme Court. She explains the suffering she went through by saying, “The test made me sick enough to relive the trauma of being raped.” In this instance, it is obvious that despite the Two Finger Test’s prohibition, it is still being used, and the victims are treated with contempt while going through this humiliation.
Even in some of the instances, there was a gynaecologist who was examining a rape victim, while examining it was found that the vagina had an injury of 6.4 cm long, conducted the test and was mentioned in the report that, “vagina admitted two fingers and blood was coming out of the stitches.”[9] In yet another case, the doctor conducted the test and deposed that, “vagina of the prosecutrix admits two fingers with difficulty and painfully.”
The victims themselves feel emotionally attacked after the test being conducted without their prior consent and it also makes them undergo immense amount of trauma as through this test their sex history raises a question of dignity in the society.[10] The doctors who should ensure mental stability after the terrorising incident, raise question of their prior history and non-consensual tests. Knowing the pain of the victims, and the practitioners themselves recording the previous reports, understand the discomfort caused to the survivors and still continuing with the tests clearly states the sufferings from the test. There are even many tests which can help in determining, if the case is fake or not or to know the condition of the victim but mentally harassing a victim who has already been through the trauma does not give the medical practitioners to go forward with the test. Thereby concluding this, in no way should the two-finger test be conducted or continued.
FOREIGN COUNTRIES ON THE TWO-FINGER TEST
In the United States every 68 seconds, a person is sexually assaulted or raped, in the immediate aftermath a victim of the sexual assault may decide to have a forensic medical examination performed as soon as possible to gather any evidence that might have left behind by the assault. Specially trained personnel on staff called Sexual Assault Forensic Examiners (SAFEs) or Sexual Assault Nurse Examiners (SANEs) conduct 4-6 hours of medical tests and the victim’s history with the rapists[11]. They mostly use the rape kits to determine certain evidences i.e., the collection of swabs from the victim’s skin, genitalia, anus, and mouth, scraping under the victim’s fingernails, and combing through the victim’s hair, saliva, blood, semen, urine, skin cells, and hair. But is important to note that the examination can be declined at any point, giving freedom to the victim to have a choice.[12]
In Pakistan, on 4th January, 2021, referring to the Indian case precedent of Lilu@ Rajesh & others vs the state of Haryana[13], declared two-finger test as unconstitutional on the basis that it hampers the dignity of a woman traumatising the victim and also, as a signatory member of the International Covenant on Civil, Political Rights, 1976, obliged to protect the privacy of a survivor victim. Hence, abiding by the rules of the covenant and other guidelines, the test was banned.
In 2018, Bangladesh too banned two-finger test and even the two-bench judge- “Gobinda Chandra Tagore and AKM Shahidul Huq” directed the government of lower court judges and investigating officers of rape cases to follow. The Indonesian army too banned the regressive tests on women troops last year.
In the United Kingdom, the two-finger test was followed back in the day especially for immigrant women who were going to marry their fiancés in the country, because it was believed that some women didn’t tell truths about their virginity during migration. However, it ended in1979 and is not being followed now.
Some countries follow the test for knowing about the virginity of a women and some countries find it unconstitutional. Over here, a few countries were taken as examples just to have the idea that most of the superior powers consider it unconstitutional and hence, is banned but other countries do not recognise the effects of the test and the rest do not conduct the test at all rather, they follow swab techniques or the techniques which does not affect the mental state of the victim is followed. The WHO, UNHRC, even the Indian government has come up with the guidelines and the procedures to be followed by the doctor, but unaware of this only a few states adhere to these rules.
SUGGESTIONS
Looking at the ground level reality and the history of the test, it had some gruesome reasons as to why it was conducted at the first place, may that be false accusations, or virginity tests before marriages or some other old age practices or rituals, in no way allows to continue with the tests in new age times. “This test is not only regarded as a trauma but also violates international human rights , article 16 of United Nations Convention Against Torture(UNCAT) and article 7 of International Covenant on Civil and Political Rights (ICCPR) as the practice is cruel and humiliating and conducted in a manner which indirectly punishes and intimidates the innocent victim.”[14] “In 1994, report published by International Conference on Population and Development (ICPD) issued that all the practices which go against or are grounded in the idea of sexual discrimination shall be eliminated.”[15] “Vienna World Conference on Human Rights and the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) conducted in 1993 also abolished the archaic prejudicial and customary practices, including TFT.”[16] “This test not only violates the international laws but also is akin to risk of infection to the survivor- as sometimes it may affect the health of the victims, making it worse with the increasing the risk of sexually transmitted diseases and human immunodeficiency viruses.”[17]
There are many factors, including: lack of knowledge of recent rulings, particularly in rural areas; lack of communication between doctors and patients; lack of workshops to mentor young doctors; lack of medical necessity for not testing young medical practitioners; lack of awareness of the repercussions and the mental state of the victims; and many more, which account for doctors’ incorrect interpretations of guidelines. The courses of action which can be taken to prevent the unawareness can be through advertisements and radios through which the rural areas can be aware about the judgements, conducting various workshops at medical colleges and hospitals, knowing the opinions and experiences of survivors, training the young medical students, and facilitating the appropriate exchange of information among the stakeholders in the criminal justice system where an institutional structure needs to be created. But the government is open to many other actions which can ensure the prevention of the test.
But what can substitute the Two-finger test/ bimanual test/ per-vaginum test? – there are many tests which can substitute the above-mentioned test: for example- examination of a women’s private parts externally, removing and collecting clothes, scalp hair, any foreign substances from the body, pubic hair, swab collection from vagina, anus, rectum, mouth using a cotton bud, and examining and collecting any other injuries, bleeding, or any signs of force on the body.[18] Another alternative is DNA collection kit, known as Sexual Assault DNA Evidence Collection Kit (SAECK) of both the victim and the accused (when arrested), replacing the two-finger test. [19]
CONCLUSION
It was indeed a sad reality that a country like India, where women are finally getting the acknowledgment of their powers and rights, the rape survivors (women/men/transgender) were going through this unknown trauma which was not recognized or even known to the majority, that how much this test was wrong and the bad part was that, even they were hurt by the test, they were quiet as they were not well-informed about the law and their rights it was high time that the test was completely banned. There are preventions and solutions mentioned by the government and international websites which contain the proper procedures and guidelines in order to be mandatorily followed by all and every state medical practitioner and medical examiners. Even though the test was easier to be conducted or cost effective, it hardly matters in this scenario, the decision of complete prohibition brings an end to the bruises of the survivors.
Just like, the United Kingdom offers all doctors who engage and evaluate sexual assault survivors a two-month intensive theoretical and practical training programme, South Africa offers specialised training for medical students on how to care and examine the survivors, providing expertise to the forensic nurses in these tests in both the US and Canada and also specialised sexual violence crisis intervention centres in some regions of the UK, the US, and Canada,[20] same way the advancing India can come up with their training programmes for the doctors to be aware of their present treatments, or impose stricter punishments in cases of violation of the Supreme Court orders or in continuance of the tests.
[1] “R.K.Vij, Enforcing the ban on the two-finger test, The Hindu, November 9, 2022, https://www.thehindu.com/opinion/op-ed/enforcing-the-ban-on-the-two-finger-test/article66115405.ece (last visited Dec 15, 2022).”
[2] ‘Two-finger test’ of sexual assault victims: “What SC said, past attempts to stop it, The Indian Express (2022), https://indianexpress.com/article/explained/two-finger-test-of-sexual-assault-victims-what-sc-said-past-attempts-to-stop-it-8243256/ (last visited Dec 15, 2022).”
[3] 953522324.pdf, “https://main.mohfw.gov.in/sites/default/files/953522324.pdf (last visited Dec 15, 2022).”
[4] “Doctors in India Continue to Traumatise Rape Survivors with the Two-Finger Test, Human Rights Watch (2017), https://www.hrw.org/news/2017/11/09/doctors-india-continue-traumatise-rape-survivors-two-finger-test (last visited Dec 17, 2022).”
[5] “Everyone Blames Me”, “Human Rights Watch, https://www.hrw.org/report/2017/11/08/everyone-blames-me/barriers-justice-and-support-services-sexual-assault-survivors (last visited Dec. 9, 2022).”
[6] Aradhana Cherupara Vadekkethil, “The Supreme Court of India Reiterates that Two-finger Virginity Test Must Not Be Conducted | OHRH, https://ohrh.law.ox.ac.uk/the-supreme-court-of-india-reiterates-that-two-finger-virginity-test-must-not-be-conducted/ (last visited Dec 15, 2022).”
[7] “Pakistan’s Punjab Bans Invasive Two-Finger Test for Rape Victims Amid Mounting Backlash, News18 (2020), https://www.news18.com/news/world/pakistans-punjab-bans-invasive-two-finger-test-for-rape-victims-amid-mounting-backlash-3080537.html (last visited Dec 15, 2022).”
[8] “Raped twice”: Virginity tests block justice, “The Express Tribune (2021)”, “https://tribune.com.pk/story/2279845/raped-twice-virginity-tests-block-justice-for-victims (last visited Dec 15, 2022).”
[9] Riya Rathore & Shivanshi Dixit, TWO FINGER TEST IN RAPE CASE WITH COMPTERNA AREA, 1.
[10] “M. W. Frank et al.”, “Virginity examinations in Turkey: role of forensic physicians in controlling female sexuality, 282 JAMA 485 (1999).”
[11] “What Is a Rape Kit and Forensic Medical Examination?, End The Backlog (2021), https://www.endthebacklog.org/what-is-the-backlog/what-is-a-rape-kit-and-rape-kit-exam/ (last visited Dec 17, 2022).”
[12] Angela Williams, Managing adult sexual assault, Clin. Pract.
[13] 40276.pdf, https://main.sci.gov.in/jonew/judis/40276.pdf (last visited Dec 17, 2022).
[14] “International Legal Note: Virginity testing: International law and social work perspectives – Daniel Pollack, 2008, https://journals.sagepub.com/doi/10.1177/0020872807085864 (last visited Dec 14, 2022).”
[15] “Report of the International Conference on Population and Development: Cairo, 5-13 September 1994, (United Nations ed., 1995).”
[16] “cedaw.pdf”, “https://www.ohchr.org/sites/default/files/Documents/ProfessionalInterest/cedaw.pdf (last visited Dec 14, 2022).”
[17] “Suzanne Leclerc-Madlala & Susanne-Leclerc-Madlala, Protecting Girlhood? Virginity Revivals in the Era of AIDS, Agenda Empower. Women Gend. Equity 16 (2003), https://www.jstor.org/stable/4066360 (last visited Dec 14, 2022)”.
[18] “womensaftyDivMedicalOfficers_06082018_0.pdf, https://www.mha.gov.in/sites/default/files/womensaftyDivMedicalOfficers_06082018_0.pdf (last visited Dec 15, 2022).”
[19] “Mohammad Rubaiyat Rahman, Bimanual Test (Two Finger Test) of Rape Victims: South Asia Case Study, SSRN Electron. J. (2013), http://www.ssrn.com/abstract=2351708 (last visited Dec 15, 2022).”
[20] “Dignity on trial: India’s need for sound standards for conducting and interpreting forensic examinations of rape survivors, (Human Rights Watch/Americas ed., 2010).”
Author: Jibisa Janvi Behera
Juris Centre 