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The 'two-finger' test

By Sharmila Joshi

Though the Supreme Court has ruled that the results of a ‘finger test’ cannot be used against a woman, and that a rape survivor’s ‘habituation to sexual intercourse’ is immaterial, this ‘unscientific, inhuman and degrading’ test is still widely used in India, says a new Human Rights Watch report

 In the thicket of harrowing procedures and prejudices that a woman in India must traverse to arrive at some semblance of recovery and justice after a sexual assault, is a medical examination called the “finger test”.  The test is done by the doctor who examines the woman, and whose report is used as forensic evidence in the subsequent trial. The doctor uses the test to note the presence or absence of the hymen and the size and “laxity” of the vagina. The test is used to asses whether the girl or woman who has been raped is “habituated” to sexual intercourse.  

A report by Human Rights Watch, titled ‘Dignity on Trial: India’s Need for Sound Standards for Conducting and Interpreting Forensic Examination of Rape Survivors’, highlights the use of this practice. The test is “unscientific, inhuman and degrading”, the report notes. The report was released in Mumbai on September 6, 2010.  

The proposed Criminal Law (Amendment) Bill 2010 is expected to introduce a more comprehensive definition of “sexual assault” and amend rules for procedures and evidence for trials in cases of sexual assault. This makes the HRW report’s emphasis on the need to completely prohibit the use of the “finger test” (or the “two-finger test” as it is alternatively called) especially relevant.  

“As long as the two-finger test remains, it will provide the defense with a ready-made line of argument. And rape trials in India will be dependent on the individual sensitivity of judges, prosecutors, and defense counsels. Why should that be the case? It is an archaic procedure and needs to go,” Rebecca Mammen John, a criminal lawyer in New Delhi, says in an interview to HRW. 

The report draws on interviews conducted by HRW researchers in Mumbai and Delhi with 44 people including doctors, health rights activities, women’s rights activists, lawyers and judges. HRW also analysed 160 judgments; of these 153 were from High Courts across the country and seven were Supreme Court judgments, all passed during the last five years. The judgements were analysed to determine how medical opinions based on the “finger test” were used in rape trials beyond Mumbai and Delhi.  

A former public prosecutor quoted in the report says, “Where the defense takes the line that there was consent [to sexual intercourse], usually they also look to medical evidence for support. And if the medical report says anything about the two-finger test, then they draw it out in court—saying she was “habituated” so consented and is falsely implicating the accused.” Another prosecutor says, “The finger test is relevant for the defense…if the medical report says that two fingers have passed, the defense can show that she is habituated. This shakes the testimony of the prosecutrix [the girl or woman].” 

At the launch of the report in Mumbai, Flavia Agnes, women’s rights lawyer and director of Majlis, said, “Forensic practices are biased against women and doctors are concerned about protecting the accused. The prosecution follows a fixed pattern, and the entire process remains full of stereotypes…this is how a rape victim must behave, this is how her body structure must be, this is how the elasticity of her vagina must be…This just cannot work.”  

The test persists in India even though it has no forensic value. The condition of the hymen can vary for many reasons, as the HRW report points out, that are not related to sexual intercourse. Besides, as has by now been frequently reiterated by activists and others, a woman’s past sexual history is not relevant to whether she consented to the sexual act being debated at trial. “And the finger test itself can result in further trauma to the survivor, whose dignity is generally ignored,” the report notes, “In effect, it is a procedure that without informed consent would amount to sexual assault.” 

The prospect of a forensic examination, the HRW reports states, is in fact one of the disincentives for reporting sexual abuse. Evidence collection techniques are not standardised, and often rape survivors have to go from one hospital or ward to another, for multiple examinations. “Since doctors tend to seek blanket consent for the forensic examination as a whole [and may not mention the test specifically],” the report says, “…many survivors have little understanding of what the test entails; what information is collected for what ends; and the implications of refusing to undergo a forensic examination or any part of it….”  

Despite the lack of informed consent, the results of the test may be presented in court. Although judges often lack adequate information to interpret the medical evidence, many judges, the report says, consider the results of the “finger test”. “In theory, an allegation that a rape survivor is “habituated to sexual intercourse” is not by itself grounds for an acquittal,” the report says. “But courts across the country have at times used this as evidence to assert that the rape survivor had “loose” or “lax” morals.” 

These pernicious medical and legal practices persist despite the test having no legal relevance. The Supreme Court has ruled that the results of a “finger test” cannot be used against a woman, and that a rape survivor’s “habituation to sexual intercourse” is immaterial.  Amendments to the law in India have also prohibited cross-examining women about their “general immoral character”. And still, the use of the test is “near-universal” in India, according to Dr Rajat Mitra, from a Delhi-based NGO which works with rape survivors, who is quoted in the report. At least three leading government hospitals in Mumbai, the HRW report notes, including one where “more than a thousand rape survivors are examined every year”, continue to conduct the finger test.  

The report and the speakers at its recent launch reiterated that the various arms of the legal, bureaucratic, police and medical systems are oblivious to changes not just in other fields, but also in their own. Despite the SC ruling, in 2010, the Delhi and Maharashtra governments introduced new forensic examination templates for rape survivors, the HRW report states, “which, among other things, seek details about the hymenal orifice size of the survivor.” 

Most medical textbooks in India have not been amended to disregard the test and point out that it is unscientific, Dr N Jagadeesh, forensic expert, said at the launch. ”Although some books are removing these portions [which advocate the test] and condemning the test, most books don’t,“ he said, “Doctors in training still use these outdated textbooks and are not aware of the many court judgments that comment on the irrelevance of the past sexual history of the woman. So there is a discrepancy in the doctor’s training. This perpetuates the practice.” 

The HRW report recommends that all senior police officials should be instructed to ensure that police requisition letters for forensic examinations do not ask doctors to comment on whether a rape survivor is “habituated to sexual intercourse”. To even get access to a medical examination—let alone comprehensive healthcare and counselling—a requisition is required from the investigating police officer. This requirement, Dr Jagadeesh pointed out, has also been put aside by the Supreme Court. “Unfortunately,” he said, “such information is not widely disseminated.” 

Justice A P Shah, former Chief Justice of the Delhi High Court and the chief guest at the launch of the report, emphasised sensitisation and training at all levels of the judiciary. “I find to my dismay that there is not such training of judges,”  he said, “There is a feeling that it is not appropriate to have training for judges of higher courts. I cannot believe that by taking an oath and donning a robe you acquire all wisdom. If judges in other countries undergo such programmes, there is no reason why in India judges should be averse.”  

The HRW reports emphasise the need for uniform nationwide guidelines for forensic examinations that respect survivors’ rights to health, consent and dignity, and for “scientific, relevant and accurate information to be presented in courts, rather than outdated material gleaned from textbooks or old-fashioned medical practices.” Doctors, the police, prosecutors, and judges should all work together to stop the test from being administered and to standardise evidence collection to protect the rights of survivors,” the report states 

There have been some positive changes, the report notes. For example, the Mumbai-based Centre for Enquiry Into Health and Allied Themes (CEHAT), in consultation with doctors from across the country, has developed a template and instruction manual for  forensic examination in cases of sexual violence. The manual also explains that the finger test is no longer admissible in court. In 2009, the High Court in Delhi passed guidelines about what police officers, prosecutors and doctors should do to assist survivors of sexual violence. The court has formed a committee headed by Justice Gita Mittal to oversee the implementation of all guidelines related to sexual violence against adults and children.

The urgent need to change the laws and trial procedures related to sexual assault was highlighted 35 years ago with the case of Mathura, a 16-year-old adivasi girl who was raped by two policemen in eastern Maharashtra. The lower court ruled in favour of the policemen. Mathura was accused of being a “liar” and “habituated to sexual intercourse”. The High Court set aside this judgment and sentenced the accused. However the Supreme Court again acquitted the policemen.

More than three decades later, the spectre of Mathura, Justice Shah said, remains with us. “There is no point in saying we are becoming a superpower,” he said, “Are we sensitive to victims of sexual assault? Why are these questions not asked when we talk about the progress made by out country?” Having worked uphill for decades on issues of gender justice, Flavia Agnes asked, “Where does the problem lie? Why has nothing changed? Where do these issues get lost? I wish HRW luck…what we have not been able to do in 30 years…perhaps something will be done now.”  

Infochange News & Features, September 2010