Advocacy groups are welcoming a decision by India’s Supreme Court that bans what is known as a “two-finger” test on rape survivors, calling it a patriarchal and invasive practice and ruling that anyone violating the directive will face misconduct charges.
Medical experts have used the test to determine whether a woman has engaged in regular sexual intercourse.
Calling the practice regressive and unscientific, a two-judge panel said, “the probative value of a woman’s testimony does not depend upon her sexual history. It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped, merely for the reason that she is sexually active.”
New York-based Human Rights Watch said in a statement, “The judgment brings hope that the justice system will finally stop using this unscientific process.”
In the past, the Supreme Court had “deprecated,” or voiced disapproval of, the use of the test in several orders, Justice DY Chandrachud, one of the two judges, noted.
“The so-called test has no scientific basis. It instead re-victimizes and re-traumatizes women and is an affront to their dignity. So, the two-finger or per vaginam test must not be conducted,” Chandrachud said.
“The test is based on an incorrect assumption that a sexually active woman cannot be raped. Nothing can be further from the truth — evidence of a victim’s sexual history is wholly immaterial while adjudicating whether the accused raped her. It is regrettable that it continues to be conducted even today.”
The bench made the observation while restoring conviction in a 2004 case of rape and murder of a woman in the eastern state of Jharkhand. On October 31, the Supreme Court overturned a ruling by the Jharkhand High Court acquitting a man — who had been previously convicted by a lower-level trial court in the state.
The Supreme Court asked the federal and state governments to ensure that the two-finger test is no longer conducted on rape survivors. The court ordered the Indian health ministry to conduct workshops for all health service providers across the country, in order to communicate the proper procedure to examine rape survivors and let them know that in no situation are they to conduct two-finger tests.
The court also ordered the health ministry to ensure that the chapter on two-finger tests is removed from the syllabus of medical education.
Since 2013, the Supreme Court has said the test and its interpretation violate the right of rape survivors to privacy, physical and mental integrity, and dignity. Indrajit Khandekar, a Maharashtra state-based activist and medical doctor, said this is the first time the court has banned it and attached punitive action on doctors found conducting the test.
Khandekar, a forensic expert, filed a public interest litigation in the Bombay High Court in 2010 seeking a ban on the test on the basis of a 258-page report that he prepared following his research on the use of the test.
The attachment of the provision of punishment in Monday’s ruling from the country’s highest court raises hopes the test will finally be eliminated, Khandekar said.
“The two-finger test or the virginity test is an unscientific, inhumane, derogatory, and discriminatory practice that violates a woman’s dignity,” Khandekar told VOA. “The test can be physically, psychologically, and socially devastating to girls or young women. Other people have no right to know whether or not a particular girl is a virgin.”
In several cases, the doctor’s opinion after conducting a two-finger test, and the assumption that a rape survivor had engaged in regular sexual activity, was used to cast a stigma on a young woman’s character, calling her one with bad morals, he said.
“As a result, one might wonder whether this is a trial for rape on a woman or a trial for the victim’s character. Even the insertion of the fingers into the vagina of a female without her consent is nothing but a second assault,” Khandekar said.
Medical doctor Ranjana Pardhi, who has long campaigned against the two-finger test, said that studies published in several medical journals show that the inspection of the hymen cannot give conclusive evidence of vaginal penetration or any other sexual history.
“Abnormal hymenal features such as a hymenal transection, laceration, enlarged opening, or scars are found in females with, as well as without, a history of sexual intercourse. Vaginal laxity and size of introitus [an opening] also is not an indicator of sexual intercourse. There are some other tests to confirm sexual intercourse or penetration,” Nagpur-based Pardhi told VOA.
“The so-called virginity test or two-finger test is medically flawed.”
Pardhi added that activists campaigning against the test are hopeful that their long fight is going to bear fruit but warned that without enforcement, it might not be successful
“We also hope that the law enforcement agencies and the judiciary will strictly penalize the medical professionals for noncompliance. Otherwise, the ban will remain unimplementable and meaningless,” she said.