A three-member committee of the Delhi government recently issued guidelines on the “two- finger test,” also known as ‘per Vaginal Examination,’ and recommended that physicians should not be made to function under the constraint of a complete ban of these essential steps in the internal examination of a sexual assault victim’.
The committee also reportedly said there was a misconception that the test was conducted to judge if the woman was habituated to sexual intercourse and that the test was purely to examine genital organs for forced penetration, document injuries and collect samples.
The circular further mentions that “to do away with this essential pelvic examination would amount to incomplete assessment of the survivor, which will ultimately result in injustice and low conviction rates.” Whatever may be the hue and cry, for the Health Minister of Delhi it is the misinterpretation of the circular.
However in 2014 the same test was banned by the Department of Health Research and the Indian Council of Medical Research in a new set of guidelines issued following the Supreme Court judgment in 2013. In 2012, Justice Verma Committee had said that victims should not be subjected to the two-finger vaginal examination.
Two Finger Test
It is a form of test that involves testing for laxity of vaginal muscles with fingers. A doctor performs the test by inserting two fingers into the female’s vagina to check the level of vaginal laxity, which is used to determine if she is “habituated to sexual intercourse.” In virginity tests, the presence of a hymen is often used to determine if a woman is a virgin.
“The two-finger test is a colonial practice that has carried on unchallenged,” says Dr. Pratiksha Baxi, Assistant Professor, Centre for the Study of Law and Governance. She said that in colonial times, the French and British jurisdiction classified women into ‘true virgins’ and ‘false virgins’ in cases of rape.
It was believed that inserting two fingers into the vagina of a woman could tell a true virgin from a false one. “It is a patriarchal inheritance of a colonial law that has expanded into good women and bad women,” she says.
Of course certain countries do still practice this inhuman and unscientific method of testing the virginity while many countries have done away with it.
Egypt admitted its military forces had performed virginity tests on women detained during the 2011 Egyptian revolution. It said the tests were carried out in order to refute claims that the women had been raped while in detention.
On March 23, 2011, Amnesty International protested against the Egyptian government over alleged forced virginity testing of women protesters. However on December27, 2011, the Egyptian Government banned this test.
Some cultures require proof of a bride’s virginity prior to her marriage. This has traditionally been tested by the presence of an intact hymen, which was verified by either a physical examination (usually by a physician, who would provide a certificate of virginity) or by a “proof of blood,” which refers to vaginal bleeding that results from the tearing of the hymen.
The physical examination would normally be undertaken before the marriage ceremony, while the “proof by blood” involves an inspection for signs of bleeding as part of the consummation of marriage after the ceremony.
Virginity testing was also used on women entering Britain on a so-called fiancee visa. In 1979 this practice was exposed and the policy was quickly changed.
In January 1979, a woman was required by British immigration officers to undergo a virginity test when she arrived in London claiming that she was there to marry. Such a visit did not require a visa, but as proof of her bona fides, she was required to submit to the test.
In Bangladesh the two-finger test was a routine procedure in the medico legal examinations of rape victims. In order to determine whether or not the hymen of an alleged rape victim had been broken or remained intact, the doctor—frequently male—would insert the index and middle finger inside her vagina.
Activists and legal experts have deemed this test a violent penetrative act that traumatizes victims of rape forced to undergo it. Many rape victims who do not wish to be subjected to such an invasive and traumatizing examination choose not to pursue their cases and are therefore denied access to justice. However in a groundbreaking decision issued in October 2013, the Supreme Court of Bangladesh banned its use in the interim.
Examinations to test for previous sexual activity are commonly performed in India on rape victims. However, the usefulness of these criteria has been questioned by medical authorities and opponents of virginity testing because vaginal laxity and the absence of a hymen can both be caused by other factors, and the “two-finger test” is based on subjective observation.
Supreme Court on Two Finger Test
In Lillu @ Rajesh & Anr Vs State of Haryana, A Division Bench of the Supreme Court comprising of Justices B.S.Chauhan, Fakkir Mohamed Kalifulla on April 9,2013, held that, undoubtedly, the two finger test and its interpretation violate the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent.
In Narayanamma (Kum) v. State of Karnataka & Ors., (1994) 5 SCC 728, Supreme Court held that fact of admission of two fingers and the hymen rupture do not give a clear indication that prosecutrix is habitual to sexual intercourse.
State of Uttar Pradesh v. Munshi, AIR 2009 SC 370, the Apex court has expressed its anguish and held that even if the victim of rape was previously accustomed to sexual intercourse, it cannot be the determinative question.
Even if the victim had lost her virginity earlier, it can certainly not give a license to any person to rape her. It is the accused who was on trial and not the victim. So as to whether the victim is of a promiscuous character is totally an irrelevant issue altogether in a case of rape. Even a woman of easy virtue has a right to refuse to submit herself to sexual intercourse to anyone and everyone, because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone.
A prosecutrix stands on a higher pedestal than an injured witness for the reason that an injured witness gets the injury on the physical form, while the prosecutrix suffers psychologically and emotionally.
In Narender Kumar v. State (NCT of Delhi), AIR 2012 SC 2281, the Court dealt with a case where the allegation was that the victim of rape herself was an unchaste woman, and a woman of easy virtue. The court held that so far as the prosecutrix is concerned, mere statement of prosecutrix herself is enough to record a conviction, when her evidence is read in its totality and found to be worth reliance. The incident in itself causes a great distress and humiliation to the victim though, undoubtedly a false allegation of rape can cause equal distress, humiliation and damage to the accused as well.
State of Maharashtra & Anr. v. Madhukar Narayan Mardikar, AIR 1991 SC 207; State of Punjab v. Gurmit Singh & Ors., AIR 1996 SC 1393; and State of U.P. v. Pappu @ Yunus & Anr., AIR 2005 SC 1248) the Court held, “Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of “easy virtues” or a women of “loose moral character” can be drawn.
Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated.
In State of Punjab v. Ramdev Singh, AIR 2004 SC 1290, the court held that rape is violative of victim’s fundamental right under Article 21 of the Constitution. So, the courts should deal with such cases sternly and severely.
Sexual violence, apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a woman. It is a serious blow to her supreme honor and offends her self-esteem and dignity as well. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience.
A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honor, reputation and chastity. Rape is not only an offence against the person of a woman, rather a crime against the entire society. It is a crime against basic human rights and also violates the most cherished fundamental right guaranteed under Article 21 of the Constitution.
International Covenant on Economic, Social, and Cultural Rights 1966; United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, 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.
Reliability
Many researchers state that the presence of an intact hymen is not a reliable indicator of whether a female has been vaginally penetrated because the tearing of the hymen may have been the result of an involuntary sex act, such as rape, or other event.
The hymen, named for Hymen, the Greek god of marriage, is a ring of fleshy tissue that sits just inside the vaginal opening. Normal variations include everything from thin and stretchy to thick and somewhat rigid. But in some cases it may also be completely absent.
It is a misconception that the hymen always tears during first intercourse or that intercourse is required to rupture the hymen. In 2009, the Swedish Association for Sexuality Education proposed that the term “hymen” be changed to “vaginal corona.”
Fact of admission of two fingers and the hymen rupture does not give a clear indication that prosecutrix is habitual to sexual intercourse. Some women are even born without hymens. A female can undergo a surgical procedure, hymenogrhaphy or hymenoplasty, to repair or replace a torn hymen, to pass a virginity test
Reason for the ban
The above mentioned facts really show that two finger test is unreliable, unscientific and unreasonable. A woman’s past sexual experience should be irrelevant to the judiciary deciding the case. Probing into the sex life of a woman is a violation of her right to privacy.
The two-finger test is not only sexist but unscientific in gauging a woman’s sexual behavior. The test is conducted on the presumption that in a virgin woman, a one-time sexual intercourse (the alleged rape) will lend new tears to the hymen, while old tears will reveal the woman being habituated to regular sexual intercourse.
The hymen is not a wall that breaks during sexual intercourse. It is a thin layer of tissue that partly covers the opening to the vagina. It is not an indicator of virginity. Hymens are unrelated to a woman’s virginity. They could tear during childhood or puberty.
Activities such as dancing, stretching, horse riding, running, swimming, jumping, masturbation, usage of tampons, or accidents can also tear the tissue. During menstruation, clots in the blood create pressure which could lead to tears in the hymen. Tearing of the hymen does not always lead to bleeding or pain. Some women are born with a hymen so flexible that it does not tear even during a sexual intercourse.
A health system that is not only sensitive but skilled becomes crucial in cases of violence. But most often doctors do not have the time or the inclination to discuss with a rape survivor the process of the medical examination, or to offer psychological help. A uniform medical protocol needs to be set up, and the archaic procedure of the two-finger test should be done away with.
As the Supreme Court has rightly said, this test violates the right to privacy of a woman, and is immaterial because previous sexual history has no relevance to the rape case under consideration.
Requiring a female to undergo a virginity test is widely seen as harmful, especially when it is performed on behalf of a government. This test seems to assert the notion that sexual intercourse outside of marriage is acceptable for men, but not for women and that women’s sexual activity should be subject to public knowledge and criticism, while men’s should not. Therefore two finger test should be done away with and it should not be used.