The Supreme Court on October 31 declared that any person conducting the invasive ‘two-finger’ or ‘three-finger’ vaginal test on rape or sexual assault survivors will be found guilty of misconduct.
Supreme Court observations
- A Bench led by Justice D.Y. Chandrachud said the sole reason behind using the “regressive” test on traumatised sexual assault survivors is to see whether the woman or girl was “habituated” to sexual intercourse.
- Such a “concern” was irrelevant to fact whether she was raped or not.
- The bench added that whether a woman is “habituated to sexual intercourse” or “habitual to sexual intercourse” is irrelevant for the purposes of determining whether the components of Section 375 of the IPC (rape) are present in a particular case.
- The Bench, which also comprises Hima Kohli, made the comments in its order restoring the conviction and sentencing of a man for the rape and murder of a minor girl in Jharkhand in November 2004. The girl had been set on fire by the man after she tried to thwart his sexual assault attempt. Later, in hospital, she was subjected to the ‘two-finger test’.
- A woman who has been sexually assaulted undergoes a medical examination for ascertaining her health and medical needs, collection of evidence, etc.
- The two-finger test, carried out by a medical practitioner, involves the examination of her vagina to check if she is habituated to sexual intercourse. The practice is unscientific and does not provide any definite information. Moreover, such ‘information’ has no bearing on an allegation of rape.
- The court pointed out the 2013 amendment of Section 53A in the Indian Evidence Act. “…the evidence of a victim’s character or her previous sexual experience with any person shall not be relevant to the issue of consent or the quality of consent in the prosecution of sexual offences,” the court held.
Earlier orders and guidelines on Two-Finger Test
- This is not the first time the SC has expressed its disapproval with the two-finger test.
- In May 2013, the Supreme court had held that the two-finger test violates a woman’s right to privacy and asked the government to provide better medical procedures to confirm sexual assault.
- Invoking the 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, the apex court said rape survivors are entitled to legal recourse that does not re-traumatise them or violate their physical or mental integrity and dignity.
- The Centre’s guidelines on examining victims of sexual assault also forbid it, but the practice continues.
- In 2014, the Union health ministry released a document titled ‘GUIDELINES & PROTOCOLS Medico-legal care for survivors/victims of sexual violence’. The guidelines state that a rape victim’s consent (or her guardian’s, if she is minor/mentally disabled) is necessary for any medical examination. Even if the consent is not provided, the victim cannot be denied medical treatment.
- A handbook released by the World Health Organization (WHO) on dealing with sexual assault victims says, “There is no place for virginity (or ‘two-finger’) testing; it has no scientific validity.”
About Two-Finger Test
- The two-finger test or virginity test is a commonly followed practice used to check the laxity of a woman’s vaginal muscles, to know whether she is sexually active or not.
- An expert who inserts two fingers into the vaginal canal of a rape survivor to check the laxity of her muscles to determine whether the woman has been subjected to penetrative sex.
- The test is also supposedly used to inspect whether a woman’s is intact. The hymen is a thin mucosal tissue that surrounds the external vaginal opening and has a lot of misconceptions revolving around it, one being that an intact hymen is proof of a woman’s virginity.
- However, the presence of a hymen cannot be used to derive conclusions about a woman’s virginity or whether she has had sexual intercourse.
(Sources: The Hindu and Indian Express)
