A two-finger test is a test that requires inserting two fingers into the vagina of a sexual assault or rape to check the laxity of women’s vaginal muscles to verify whether she is sexually active or not. Collins dictionary defines laxity as the state of being “lax” or “looseness”[1]. The test is employed to check the condition of a woman’s hymen. There are numerous myths surrounding the hymen, and one of them is that an intact hymen is proof of a woman’s virginity. According to the test, the ability to accommodate two fingers indicates that a woman is habituated to sexual intercourse and if the fingers do not fit easily, it suggests that such a woman is a virgin. However, virginity cannot be substantiated by having an intact hymen. Scientifically, the presumption of intact hymen-no rape is not true.[2]. A handbook was released by the World Health Organization which dealt with sexual assault victims. As per this handbook, there is no place for virginity (two-finger) testing, it has no scientific foundation.[3].
Historical Background
Virginity testing is a long-established practice. This practice is not confined to rape victims or the India only. It is prevalent in other regions of the world as well. A historian- Hanne Blank in her book “Virgin: The Untouched History”,[4] States that women were widely exposed to the virginity tests. The occurrence of these tests can also be traced back to the 1970s when British Authorities suspected that an applicant who might have been previously married was entering the nation without a visa under the pretence of marrying their fiancé. Women are supposed to prove their virginity in India as well, the test is that they must bleed after the consummation.[5]. Around the globe, most people still believe that women bleed the first time they have sexual intercourse and that a woman’s sexual history is evident in her physical anatomy. Both are untrue, however, most communities and religions around the world hold these notions.[6].
Reliability of the Test
The two-finger test is entirely unreliable and highly questionable due to the absence of any scientific backing. As a method for examining sexual assault, the test is extremely unscientific.[7] And provides no forensic value. The sexual history of a survivor is irrelevant in determining whether she consented at the time of the assault. Under Section 155 of the Evidence Act, of 1872, the credibility of a rape victim cannot be undermined by claiming that she is of “ generally immoral character”. Science refutes the notion that intact hymen serve as definitive proof of virginity and the ease of penetration in the two-finger test is not a reliable indicator of sexual activity.
Purity’s burden; Rape trauma and ethical inquisition
In society, the virginity of a woman holds immense importance, it symbolizes her good character and eligibility for marriage. Across different cultures which are shaped by historical or religious beliefs, virginity is associated with purity, morality and faithfulness. These antiquated notions place an unfair burden on women. The aftermath of rape amplifies these toxic perceptions. The trauma of rape leaves a victim with excruciating scars. Moreover, subjecting a victim to the two-finger intrusive test violates her mental and physical well-being.[8]. It imitates the original penetrative assault which causes trauma through re-rape, re-experience and re-victimization[9]. In 2004, the Apex court stated that the presence of the elements of section 375 of the IPC in a particular case is independent of whether or not the victim is sexually active.[10]
Physical violation
Inserting two fingers into the vaginal cavity of a victim may worsen the injuries. The test could lead to infection if appropriate precautions are not taken into consideration. The results of the test are not always accurate. Many families harm or kill their girls on the ground that they have brought shame to the family by involving in a particular act, so sometimes, a failed test may lead the harm to the victim by her very own family.
Psychological violation
The intruding nature of the test mortifies a victim. Fear and anxiety are some of the most often encountered effects after the rape. The self-esteem of the victim has already been gravely impaired by the rape, therefore, when she is subjected to the two-finger test, it is a flagrant violation of her privacy, reducing her to the status of a mere chattel.
Legal stance on the two-finger test
In a series of decisive steps, the two-finger test has faced widespread condemnation. International Covenant on Economics, Social and Cultural Rights[11] and the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power[12], contain that rape survivors are entitled to a legal remedy that does not violate their integrity or traumatise them. The two-finger test compromises a person’s right to know how the doctor is handling their bodily fluids as well as the right to privacy and dignity. Justice Verma Committee was set up after the 2012 gangrape in Delhi. It suggested a ban on the two-finger test. It contained[13];
It is imperative to highlight that the size of vaginal introitus is inconsequential in a sexual assault case, thereby two-finger test must not be conducted. The Criminal Law (Amendment) Act 2013 amended the Evidence Act and inserted Section 53A. As per this Section, evidence of a victim’s character or her previous sexual experience with anyone shall not be relevant to the issue of consent or quality of consent in prosecutions of sexual offences. Moreover, in 2014, the Ministry of Health and Family Welfare, the government of India released several guidelines and regulations that outlined the medico-legal care for survivors of sexual assault.[14]. Some recommendations are;
- The per-vaginum test known as the two-finger test should not be carried out.
- The pre-vaginal exams may solely be performed on adult females when medically mandated.
- The condition of the hymen is immaterial since it can be ruptured by other factors such as cycling and riding etc. Both an intact hymen and a broken hymen do not rule out sexual assault or sexual activity.
Yet, as these guidelines were not legally binding and there were no repercussions for non-adherence, they were not followed as intended.
Judicial Dimension
The legitimacy of the two-finger test has persistently been challenged by the Supreme Court. The Supreme Court in the case of Lillu v State of Haryana[15], stated that “the two-finger test and its interpretation contravenes the right of rape survivors to privacy, physical and mental integrity and dignity.” High Courts as well have applied an equivalent approach. In the case of State of Gujarat v Rameshchandra Ramabhai[16], 2020, the Gujarat High Court stated that a two-finger test is an ineffectual form of testing. Other High Courts have held that this test is not reliable a sit is not corroborated by scientific evidence. However, none of these decisions account for the issue of gender prejudice in rape cases. In actuality, there are several discrepancies in the method of the judiciary itself. Whenever judges made an effort that the sexual history of a victim is irrelevant, they concurrently disparaged the victims by stereotyping them as women with “promiscuous character” and “easy virtue”. Along the same lines, the Supreme Court cited the State of Uttar Pradesh v Munshi.[17], which stated that “even a woman of easy virtue has a right to refuse to commit herself to sexual intercourse”. In another case of State of Maharashtra v Madhukar Mardikar[18], the court said that simply considering she is a woman of easy virtue, her evidence cannot be thrown ashore”. These decisions are based on stereotypical, degrading and sexist notions notwithstanding their emancipatory intent. On October 31, 2022, in the case of State of Jharkhand v Shailendra Kumar Rai[19], the Supreme Court bench comprising of Justice DY Chandrachud and Hima Kohli reiterated the ban on the two-finger test. In its ruling, the Court observed that the test is patriarchal, scientifically erroneous and an affront to the dignity of women who have experienced the horror of sexual assault.
This decision is noteworthy as it stipulates that anyone discovered carrying out the two-finger test on a victim of rape or penetrative sexual assault will be found guilty of misconduct.
Conclusion
Despite its entrenched tradition, the two-finger test faces strong scrutiny due to its lack of scientific backing in evaluating sexual assault. Joint legal efforts have aimed to limit its usage. The role of the judiciary has been fundamental in shaping the discourse regarding the test. The decision of 2022 signifies a remarkable milestone in the continuous effort to safeguard the rights and dignity of women.
Author(s) Name: Raheeq Assad (Central University of Kashmir)
References:
[1] collins (4th ed.). (2010). https://www.collinsdictionary.com/dictionary/english/laxity
[2] Kuntela Y, ‘Rape: The (un)justified hindrances serving (in)justice in India’ (2020) 18 supremo amicus
[3] Basak S, ‘“ Explained: What’s Two-Finger Test on rape survivors and why has SC banned the ‘ Unscientific’ practice’ [2020] outlook
[4] Blank H, Virgin: The Untouched History (Bloomsbury USA 2008)
[5] Shrivastava S and Sivakami M, ‘Enforcing the ban on the ‘Two-Finger Test’’ [2023] The India Forum
[6] Sophia S. Galer “The sex myth that’s centuries old”, BBC, Apr.20, 2022.
[7] bawsar p, ‘Use of two-finger test- an analysis of legal developments in India’ (2023) 3(3) International Journal of Advanced Legal Research
[8] Khan S, ‘“Two Finger Test’ (2023) 6 International Journal of law management & humanities 1183
[9] Sunil Kumar Ojha and Vishwakarma Singh, ‘Two finger tests: Violation of right to privacy, physical and mental integrity and dignity’ (2022) 12(2) World Journal of Biology Pharmacy and Health Sciences 040 <http://dx.doi.org/10.30574/wjbphs.2022.12.2.0193> accessed 19 June 2024
[10] Rahul Ranjan, Jesika Aditi, ‘Two-Finger Test on Minors’ (2023) 3(2) Jus Corpus Law Journal 818-827
[11] International Covenant on Economic, Social, and Cultural Rights, 1966.
[12] UN General Assembly , Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power,GA Res 40/34, GAOR, UN Doc A/Res/40/34 ( Nov. 29, 1985).
[13] Law IJVCoAtC, Justice Verma Committee report on amendments to criminal law (National Law University, Delhi 2013)
[14] Government of India, “Guidelines & Protocols, medico-legal care for survivors/victims of sexual violence” (Ministry of Health & Family Welfare, 2014).
[15] Lillu v State of Haryana, (2013) 14 SCC 643.
[16] State of Gujarat v Rameshchandra Ramabhai (2020) SCC Online Gujarat 114.
[17] State of Uttar Pradesh v Munshi AIR 2009 SC 370.
[18] State of Maharashtra v Madhukar Narayan Mardikar (1991) 1 SCC 57.
[19] State of Jharkhand v Shailendra Kumar Rai 2022 Livelaw (SC) 890.
