Two-finger test on rape survivors is banned — so why is it still performed?

Two-finger test on rape survivors is banned — so why is it still performed?

 

 

 

 

THE Madurai Bench of Madras High Court on April 21 directed the Tamil Nadu government to ban the "two-finger test" performed on sexual assault survivors, citing previous judgments which said that the practice was unconstitutional and invasive. The News Minute explores:

The Supreme Court had deemed the practice unconstitutional in 2013, and held that the test should not be performed.

Despite these directions, it is still performed in several parts of the country, including in Tamil Nadu, prompting the HC to reiterate the apex court’s order.

The two-finger test is an unscientific and regressive procedure that involves the insertion of two fingers into a person’s vagina to gauge the laxity of vaginal muscles, thereby determining her ‘virginity’.

It is based on the patriarchal assumption that a woman who is sexually active, is less likely to have been sexually assaulted; several judgments and research have shown that a person’s sexual history has no bearing on sexual assault.

In the present case before a division bench of Justices R Subramanian and N Sathish Kumar at the Madras High Court, a man who was convicted for sexually assaulting a minor was appealing against the life imprisonment awarded to him by a lower court. During the hearings, the Madras HC made the observation that “it is necessary for us to put an end to the practice of the two-finger test. We find that the two-finger test is being used in cases involving sexual offences, particularly, on minor victims. As early as 2013, the Hon'ble Supreme Court had held that the two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity, and dignity.” The court also referred to other previous judgments and pronounced, “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.”

Why the two-finger test is problematic

Dr Jayashree, Professor of Community Medicine in Government Medical College, Kannur, notes that the two-finger test — also called ‘virginity test’, and in medical terms, per-vaginum examination’ — is aimed at checking the presence/absence of hymen and if the vaginal muscles are loose or not to gauge sexual assault. However, the test is unscientific because the hymen can rupture due to several reasons other than sexual intercourse, including playing sports, riding a bicycle, using tampons, and during medical examinations. “However, people believe that the absence or rupture in hymen primarily means that the woman was sexually active,” advocate and activist Ajeetha says. 

“If the test is used to ascertain sexual assault on the basis of “laxity” of vaginal muscles, the laxity would depend on the individual’s psychological state, not on whether she has been sexually active,” Dr Jayashree explains. For instance, a person who is relaxed may have more laxity in the vaginal muscles when the medical exam is done. However, if a person is distressed, the vaginal muscles may also be tense — which is indicative of stress, not her virginity or the credibility of her testimony of sexual assault. “Therefore, laxity of the vaginal muscles tells us nothing about rape,” Dr Jayashree says. Rather, the test is painful, retraumatising, and unethical, she adds.

It is also a myth that the hymen is simply an untouched membrane that covers the vagina if the woman is a virgin. Clinicians observe that the hymen ruptures in the first few days after birth and may either remain as a rim around the vaginal opening or as a membrane with one or more small ruptures that partially cover the vagina. There are also situations where a person can menstruate and have a sexual relationship without causing any rupture to the hymen. 

Despite these facts, when a focus of the medical examination is on the hymen and virginity, it deviates attention from the actual act of sexual assault. “This test stems from the misconception that rape and sexuality are related,” advocate Sudha Ramalingam says. “Based on the test, it is assumed whether the woman has had sexual relations before, which leads to false presumptions that a sexually active woman cannot be assaulted. This is not only wrong, but also patriarchal and misogynistic. The test is also an invasion of privacy,” she adds.

Misogyny underlying the practice

Dr Indrajit Khandekar, Professor in the Forensic Medicine Department in Mahatma Gandhi Institute of Medical Sciences (MGIMS), Sevagram, who was instrumental in bringing the ban on the two-finger test in Maharashtra in 2011 even before the Supreme Court order, argues that the objective of subjecting a survivor to the two-finger test waters down to one question: Is the rape victim ‘habituated’ to sex or not, which is often then used to slut shame or discredit her. “Firstly, in cases of sexual assault, it does not matter if a person was previously involved in sexual acts. Secondly, medically, there is no way to know whether a person is habitual to sex either,” he says. 

A year after the Nirbhaya gang rape and murder case of 2012, The Criminal Laws (Amendment) Act, 2013, made the two-finger test illegal. The next year, the World Health Organisation (WHO), UN Women, and UN Population Fund (UNFPA) released a clinical handbook titled ‘Healthcare for Women Subjected to Intimate Partner Violence or Sexual Violence’, which specifically states, “There is no place for virginity (or ‘two-finger’) testing; it has no scientific validity.” Further, the handbook also asks healthcare workers to remember that “being sexually assaulted is a traumatic event” and to “be very careful not to increase her distress”.

“There was also a social media campaign in 2018 by the WHO and UN stating that the test should be banned. Even the guidelines released by our Ministry of Health and Family Welfare (MoHFW) state the same. But the thing is, these changes are not communicated to the doctors and judicial authorities and police properly,” says Dr Mohamed Khader Meeran, author of Patients’ Rights in India. The ‘Guidelines and Protocols - Medico-legal Care for Survivors/Victims of Sexual Violence’ released by the MoHFW in 2014 states that the test “must not be conducted for establishing rape/sexual violence”. 

Dr Jayashree says that the two-finger test continues like many other banned, misogynistic practices. “Dowry is banned but it is practiced in India. In a patriarchal country like India, the system is geared towards controlling women's bodies and their sexuality. Archaic rape laws (pre-1860) said that a woman who had previously had relationships cannot be raped; but while those laws are removed, a practice like the two-finger test premised on the same regressive ideas still happens,” she says. 

“Many people are neither aware that the two-finger test is banned nor about other procedures that are allowed. The sole authority who should be responsible to make the people, especially stakeholders, aware is the state government because health is a state subject. Steps should be taken to send periodic communications to everyone in the system with the latest developments,” Dr Mohammed says.

The need to popularise updated medical procedures

Incidentally, Dr Indrajit is also part of the expert committee appointed by National Medical Commission (NMC) -- the body which was reconstituted in 2020 from the MCI based on Niti Aayog’s recommendation in 2019 -- for medical education reforms. The expert committee was constituted after a Madras HC order to address the issues about LGBTQIA+ community in the MBBS curriculum. In process of the same, Dr Indrajit also insisted that syllabi in medical books be updated with the current medical examination protocols for sexual assault that excludes virginity tests. The current syllabus includes portions about discussing “medicolegal importance of the hymen” and “defining virginity, defloration, legitimacy and its medico-legal importance.”

Following Dr Indrajit’s suggestion, the NMC suggested modifications in the Forensic Medicine subject, and directed that the students should learn about the baselessness of the two-finger test. 

Another issue in Tamil Nadu, Dr Mohammed points out, is that there are no official standard textbooks in the state. “Till 2020, the Medical Council of India’s (MCI) Graduate Medical Regulations dictated the objectives, based on which textbooks or authors can be chosen by the institutions. Even if the books want to retain the two-finger test for historical context, they should emphasise that it is unscientific, illegal, and against continuing the practice.”

While courts have reiterated the invalidity of the two-finger test time and again, “the problem is that medical colleges and hospitals are not given clear instructions to ban these tests,” Ajeetha says. “Medical curriculum has to include these changes, and there is a lot to unlearn as patriarchal, unscientific practices are deep rooted and legitimised in books and study materials.”

In many cases, people do not know about the updated procedures. “Neither the prosecution knows nor the police know that there is no merit to the two-finger test. And victims are naturally unaware, too. So, the Medical Council must take it up to educate the doctors and reiterate it continually. Even after that the practice still continues, there should be some sort of consequence for the medical practitioner,” she says. 

Rights of sexual assault survivors 

Apart from reeling under the trauma of the sexual assault itself, many survivors may not know what to expect if they report the crime and are sent for medical examination.

Dr Jayashree explains that a basic medical examination would consist of documenting any injuries on the body, swab collection and the like. “Based on the person’s complaint, we have to specifically check if there are any wounds or scars. But the most important thing is that we should make the patient comfortable, and get maximum evidence possible with no distress to the survivor.

Simply put, we have to treat a person’s private parts and injuries the way we treat any other injury. Collection of samples is necessary because we need evidence,” she says.

Dr Mohamed Khader says that the medical examination, be it any part, can only be conducted with the consent of the person.

“Even when the test has to be done to collect evidence, the procedure has to be explained to the person, and the test must be conducted in the presence of a woman attender. If the survivor is a minor, consent of parents must be sought,” he says. He adds that detailed guidelines have been issued by the MoHFW in this regard.

The MoHFW states that “consent should be taken for the following purposes: examination, sample collection for clinical and forensic examination, treatment, and police intimation.” MoHFW also says that “doctors are legally bound to examine and provide treatment to survivors of sexual violence.”

According to the MoHFW, the doctors should inform the survivors or their guardians (in the case of minors) about what will be done for multiple reasons. One, so that medico-legal examination is done to assist the investigation, arrest, and prosecution of those who committed the sexual offence.

Further, the person’s body would need to be examined for injuries and to collect forensic evidence to assist the investigation. This may include obtaining samples of clothing, hair, foreign substances, saliva, pubic hair, etc.

If the survivor is a child, the parent or guardian has the full right to refuse either only the medico-legal examination or evidence collection or both. However, MoHFW clearly states that this refusal should not be used to deny treatment to the survivor.

While the hospital and doctor are bound to report the sexual violence to the police as per law, they should not do without the consent of the survivor or their guardian/parent. And that too shall not lead to the denial of treatment. 

“In case the survivor is a minor, we have to report it to the police as per POCSO Act. If the parent/guardian does not consent, we have to talk to them and provide the assurance that anonymity will be maintained. However, when the survivor is above 18 years of age, we need their consent, the denial of which means we should not report. But we try to convince them,” Dr Jayashree explains.

What to expect in a medical examination

Dr Indrajit also notes that the sooner the sexual assault medical examination happens, the most effective the collection of medical evidence.

“Especially if it is before the survivor has washed their body,” he says, adding that it is extremely helpful if they bring the clothes they were wearing at the time the assault happened, with them. He observes though that collecting evidence such as semen and DNA can prove difficult after 96 hours of the assault, “documenting injuries or scars, if any, can be done even after those four days.”

He explains that there are four aspects to a medical examination:

  • General and physical examination throughout the body (that takes note of injuries, scars or marks on the body). The medical practitioner also tries to gauge mental trauma or psychological stress too

  • Examination of the person’s private parts (which looks for external and internal injuries)

  • Specific examination based on individual cases (based on what the survivor states) 

  • Sample collection (such as DNA, blood and semen)

According to MoHFW, enquiring about the survivor’s menstrual history, including the cycle length and duration and date of last period is also normal during a medical examination. This is done because if the survivor had been menstruating at the time of the medical examination, a second examination will be needed to record injuries clearly.

Also, some evidence might be lost with the blood. History of vaccination will also be asked, especially about tetanus and Hepatitis B. This is done to see if the survivor needs prophylaxis, which is the treatment to prevent the occurrence of any disease.