It shouldn’t be surprising when we hear that something without scientific backing is being blindly trusted by the majority, or at least by a large fraction of the population, especially in the Indian context. A black cat crossing the road does not signify that the cat has places to be instead that you are about to be showered with bad luck, breaking a mirror does not mean you are clumsy and shouldn’t be trusted with fragile objects but that the following seven years will be filled with misfortune, standing or sleeping under a peepal tree at night is strictly prohibited not because the tree emits carbon dioxide at night but because ghosts live on peepal trees and they will haunt you. Our strong belief on such things have become so evident that now it has been attributed by the world as an obvious characteristic of any Indian.
Although the superstitions mentioned here are harmless for the most part, there are a lot of other unscientific practices that are followed that can be harmful in more than one way. One such practice has made its way into being a part of medical science as well. Here, we are talking about the two-finger test, one that despite being banned due to lack of scientific backing to prove its validity, almost a decade later is still making headlines. Although this is a test that is still prevalent in a lot of South Asian countries, the Indian context will be explored in detail.
WHAT IS THE TWO-FINGER TEST?
The two-finger 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”.[1] This test is also sometimes referred to as the Virginity Test in some countries. This test tries to victim shame and then invalidate their trauma by scrapping the existence of it altogether. This test, in short, tries to claim that women who are frequenting indulge in sexual activities cannot be sexually assaulted or raped. It needs to be understood here that a women’s sexual activeness or choices do not dictate whether the rape took place or not. It is a shame that despite such a derogatory practice being banned by the apex court in our country almost a decade ago, it can still be seen discussed nationwide dues to its prevalence. The use of this test, which has no scientific backing to be accurate in determining if the rape has occurred or in establishing the presence of the hymen, still making headlines in our country shows that we hold our backward thinking at a higher pedestal than we hold scientific findings or reasoning.
According to the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, rape survivors are entitled to legal aid that does not traumatize them or violate their physical or mental integrity and dignity.[2] Even after such organisations coming out against this test if the test still exits and is being followed as a practise it solidifies the fact that our patriarchal society has and is so focussed on blaming women rather than punishing the perpetuators. We are so focussed on oppressing the victims we forget to punish the perpetuators. The long-hauled belief in the system of patriarchy and ingrained misogyny in the Indian minds have prevented even our judicial system at times from fulfilling their basic duty, i.e., delivering justice.
GOVERNMENT GUIDELINES
After the 2012 Nirbhaya gang 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. In 2013 May, the supreme court called out the invalidity of the test and asked for the government to provide better medical procedures to confirm sexual assault or rape. In 2014, the Union health ministry released a document titled ‘GUIDELINES & PROTOCOLS Medico-legal care for survivors/victims of sexual violence’.[3] The guidelines about the two-finger test were made clear, saying, “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 [opening] has no bearing on a case of sexual violence. Per vaginum examination can be done only in adult women when medically indicated.” In spite of such guidelines being clearly stated, it hasn’t stopped this test from being conducted throughout the country.
In April 2022, even The Madras High Court ordered the state to ban the test. It was observed by the bench of Justices R Subramanian and N Satish Kumar that despite the supreme court’s ban on the test it was still very widely conducted, including on victims who were minors. If the government’s clear instructions cannot put an end to this atrocity, then what can?
One would assume a doctor would be educated and well-versed enough to know the irrelevance of such a test but it seems like that’s not the case. The administration of this test and the dismissal of the assault after, also discourages victims from trying to seek justice. If professionals are unable to provide them with medical and emotional support, it shouldn’t be surprising that a vast majority of rapes go unreported.
In August this year, the National Medical Commission (NMC), the country’s top medical education regulator, modified modules for forensic medicine, including guidelines about the two-finger test. The modified module on virginity test states that students will be trained on “how to apprise courts about unscientific basis of these tests if court orders it”.[4]
REASONS FOR THE TEST BEING INCONCLUSIVE
This test is one that is, both, scientifically and morally wrong, evidently wrong. It has already been proven scientifically that a woman’s hymen may rupture due to a multitude of reasons, such as exercise, biking, swimming or even while using a tampon. So, checking for the hymen with the two-finger test cannot scientifically prove a women’s sexual history, like the believers of the test claim, or consent, or lack thereof, during the assault.
A woman’s sexual history is immaterial to determine the occurrence of a sexual assault or rape. A sexually active woman can also be raped because the ingredient that makes a sexual act an assault or rape is the lack of consent, not the woman’s sexual history. “The so-called test is based on the incorrect assumption that a sexually active woman cannot be raped. Nothing could be further from the truth — a woman’s sexual history is wholly immaterial while adjudicating whether the accused raped her,” the court said. A bench of Justices BS Chauhan and FMI Kalifulla held that even if a woman is “habituated” to sexual intercourse, that cannot give rise to the presumption of consent in the particular case. [5]
To take a common example which will help understand the problem a little better let’s talk about the #MeToo movement. It is one that has faced criticism and has been blamed for the false allegations men have had to face. While criticising the movement by saying that women are coming out with their stories of assault merely because other women have which questions the credibility of the victims’ testimonies, they don’t think about it from the other perspective. When other women come out with stories similar to their own, it gives more women power to come out and call out their abuser. Solidarity gives power to the cause. In a way this test has an opposite effect that the #MeToo movement has. While the #MeToo movement encourages women to acknowledge and come out with their stories, this test forces more women into silence to avoid the humiliation and the added trauma they will have to face.
The recent headlines of this test have been made because of Supreme Court’s reversal of High Court of Jharkhand’ decision in the case of State of Jharkhand vs Shailendra Kumar Rai @ Pandav Rai with relation to the two-finger test. “This court has time and again deprecated the use of two finger test in cases alleging rape and sexual assault. The so-called test has no scientific basis. It instead re-victimises and re-traumatises women. The two finger test must not be conducted….The test is based on an incorrect assumption that a sexually active woman cannot be raped. Nothing can be further from the truth”, the bench observed while pronouncing the judgment.[6] The court also reiterated that a woman’s sexual history and her rape cannot be said to be related to one another, and drawing such a similarity comes from a patriarchal and sexist mindset. The bench instructed the Union Health Ministry to prevent the two-finger test from being administered to victims of sexual assault and rape. The Court ordered the Union and State governments to make sure that all public and private hospitals get the Department of Health and Family Welfare’s instructions, which proscribe the two-finger test. The Bench further ordered to organize workshops and training for medical professionals to communicate proper technique while examining sexual assault survivors. It also instructed medical institutions to revise their curricula so that the two-finger test is not listed as one of the methods to be used when examining sexual assault and rape survivors. It is a ray of hope when we see our judiciary take steps to uproot this test right from the base by making sure such a test is not taught to medical professionals in the first place. This is the right direction towards making sure that this practise stops once and for all but this can only create an impact if followed through.
CONCLUSION
As a society we have reached the point where we have to start reflecting on the values that we are holding close to us and values we are representing. The patriarchal thoughts and the misogynistic ideologies that we stand by which we claim to be a part of our “culture” is a misunderstanding that should have been fixed a long time ago. Demeaning, disrespecting and questioning women are not a part of our culture and it has never been, neither is taking advantage or assaulting another individual. Equating these thoughts and ideas to our culture and traditions has stopped us from delivering justice and therefore, punishing the wrong. This has cost us the lives of many of our women who were crushed by the weight of judgement, victim blaming, shaming, neglect, and people mistrusting them and their story. Women have been pulled back from reaching their full potential and contributing their part to the society and the world at large. A test such as the two-finger test playing a huge part in determining whether or not the act took place when the test itself ‘supposedly’ only proves the frequency of sexual activity and not the consent given by them, crushes the dignity and the very spirit of an individual. It shows that the test is not conducted for establishing the rape but to diminish the credibility of the victim and the assault that took place. Why, we as a society, continue to want to question women and look at them as the one that are wrong in any given situation is a question we all must ponder on.
Our indifference to such a huge obstacle that has been placed in the path of women getting justice, even in the twenty first century, shows that even if we are able to hold our women close, we will never hold them closer than our patriarchal values.
[1] Two-finger test: The Indian Supreme Court’s important reiteration of ban, Equality Now (2022), https://www.equalitynow.org/news_and_insights/two-finger-test-the-indian-supreme-courts-important-reiteration-of-ban/#:~:text=This%20test%20involves%20a%20medical,as%20%E2%80%9Chabituated%20to%20sex%E2%80%9D. (Last visited Dec 17, 2022).
[2] Supreme Court of Pakistan declares “Two-finger test” unconstitutional (no date) OHRH. Available at: https://ohrh.law.ox.ac.uk/supreme-court-of-pakistan-declares-two-finger-test-unconstitutional/ (Accessed: December 24, 2022).
[3] ‘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 19, 2022).
[4] Supra Note 3
[5] Supra Note 3
[6] Chowdhury, S. (2022) Supreme Court bans two-finger test; says it’s based on patriarchal mindset that sexually active woman can’t be raped, Live Law. Live Law. Available at: https://www.livelaw.in/top-stories/breaking-supreme-court-bans-two-finger-test-says-its-based-on-patriarchal-mindset-that-sexually-active-woman-cant-be-raped-212806 (Accessed: December 20, 2022).
Author: Akhila Jose
Juris Centre 