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Two-Finger Test: Undermining the Dignity of Women

Introduction

What do you believe is the most important reason that most rape victims are hesitant to report rape cases? The two-finger test is one of the most important reasons. The two-finger test is an invasive physical examination of a woman’s vagina to determine vaginal muscle laxity and whether or not the hymen is broken. This is a test in which the doctor inserts two fingers into the woman’s vagina and assesses the ease with which his fingers penetrate to locate the intact hymen. So, if the fingers slide in easily, it indicates that the woman is sexually active; if the fingers do not slide in easily, it indicates that the hymen is intact and thus she is a virgin. But do you really believe an intact hymen is proof of virginity?

Is intact hymen proof of virginity?

Science has successfully debunked the myth of an intact hymen by demonstrating that sex does not always have to be vaginal; it can also be anal or oral, and hymen repair surgery is an option. According to a medical article, the hymen can be torn for a variety of causes, including cycling, riding, and masturbating. In some situations, it can also be ruptured as a result of overexertion; this can happen to persons who train for competitions in sports like cycling and swimming. A damaged hymen doesn’t necessarily indicate a history of sexual activity, according to research, and neither does an intact hymen. Some women even don’t have hymens when they’re born, which is a well-known truth. While a hymen can be torn and its orifice can vary in size for a variety of reasons unrelated to sex, the origin of the two-finger test lies in the misogynistic belief that a torn hymen means the survivor is habituated to sex and thus cannot be raped or is more likely to make false claims about being raped.[1] Imagine the situation of a rape victim who, after having her dignity stripped from her, is then subjected to such immoral medical procedures.[2] But these procedures are not new they have a long history of abuse, as in India, virginity tests are very common.

Virginity Test- Long History of Abuse

The test, often known as the “virginity test,” has a long history of abuse, particularly in the subcontinent, where patriarchal values still govern the majority of institutional frameworks and where it is typically the victim’s responsibility to make her voice heard. India has a long-standing tradition known as “Kukari ki Rasam,” commonly known as a threat ritual. To determine whether the bride is pure, a skein of thread is used to check for the existence of the hymen. The other option, “evidence of blood,” required ripping the hymen resulting in blood loss. Sexual assault is frequently accompanied by victim shaming, which places the blame for the perpetrator’s sins on the victim in a society that has not yet accepted the economic, sexual, or social agency of women. Women have often been told that boys will be boys and that they should have been more cautious, more modest, and less conspicuous. The “two-finger test” has proven to be a useful tool for moral assessment in such a situation. Although it lacks scientific validity, the test, which is carried out by doctors to discover whether the complainant is habituated to sexual activity, has been used as a yardstick to judge the truth of the victim’s claims. In India’s rural regions, where the media and NGOs cannot access, the practice is still being carried out. Since it did not fall within the Indian Penal code, the police were also powerless to intervene.[3]

Recent findings

Recently, the Supreme Court outlawed the two-finger test, declaring that it was based on the patriarchal mindset that sexually active women cannot be raped. A bench of Justices Hima Kohli and DY Chandrachud criticized the “two-finger test” used on victims of sexual assault as being regressive, unscientific, and disrespectful to women’s dignity. The Court referred to the practice as patriarchal and sexist and declared that anyone found engaging in it would be in breach of conduct because it assumes that a sexually active woman’s allegations of rape cannot be taken at face value.[4] The bench stated that the court has repeatedly condemned the use of the two-finger test in rape and sexual assault cases.[5] The ostensible test has no scientific foundation. It, on the other hand, re-victimizes and re-traumatizes women.[6]

Two Finger Test – A Legal Perspective

The “two-finger test” has previously been the subject of criticism. Its prohibition had been suggested by the Justice JS Verma committee, which was established following the 2012 Delhi gangrape event. The SC criticized the test in 2013 for violating privacy. [7] According to the Criminal Law (Amendment) Act of 2013, a victim’s sexual history or character should not be taken into account for the prosecution of sexual offenses.[8] Section 53A[9] of the Indian Evidence Act clarify that any material intended to assess the survivor’s character or past sexual experiences is irrelevant. The test also violates Articles 14[10] and 19[11] of the Constitution as well because it infringes women’s security and dignity. A virginity test is by definition an infringement on the victim’s bodily privacy. When done without the woman’s knowledge, it becomes an egregious violation of her dignity.[12] In the Lilu @ Rajesh and Anr v. State of Haryana[13] case, it was further determined that the two-finger test violates the privacy rights of women. The two-finger test breaches the right to privacy, bodily and mental integrity, and dignity of rape survivors, according to a ruling made in April 2013 by a Supreme Court panel consisting of Justices BS Chauhan and Fakkir Mohamed Kalifulla. However, the failure of states to stop the use of the two-finger test points not only to the inadequate information dissemination and education of all justice stakeholders but also to the pervasive miasma of ignorance and patriarchy.[14]

Concluding Remarks

In my opinion, the test is flawed from a medical standpoint in addition to being unethical. The presence of a hymen does not indicate if a woman had any intercourse.[15] Even after the Supreme Court attempts to halt the two-finger test and declares it scientifically invalid, the practice persists. According to the guidelines, the ‘two-finger test’ should not be used to establish rape/sexual violence. The guidelines state that any medical examination requires the consent of a rape victim (or her guardian, if she is minor or mentally disabled). Even if the victim does not provide consent, medical treatment cannot be denied.[16]

These, however, are only guidelines and are not legally binding.

Some of the alternatives to alleviate the problem are –

  1. The Ministry of Health and Family Welfare’s guidelines should be made available to both private and public hospitals.
  2. Workshops for health providers should be held to prevent the test from being performed on rape survivors.
  3. The problem can be solved by widespread sensitization and training of both doctors and police officers.

Perhaps there is a lesson to be learned here about looking at the wider picture; guidelines alone cannot solve what is broken unless there is a change in gender relations from the bottom up — not as members of a hierarchy, but as equals. Conducting sensitization drives for all the genders is one such way. In addition to that children from a young age should be taught to respect all genders. Gender study should be a subject taught in schools as a part of moral and value education. This will engender a bottom-up approach towards a better youth and a crime-free society as well in posterity.

Author(s) Name: Gauranshi Jindal (Rajiv Gandhi National University of Law, Patiala)

References:

[1]Shaikh Azizur Rahman, ‘Activists Welcome India’s ban on ‘two-finger’ test on rape survivors’ (VOA News, 02 November 2022) <https://www.voanews.com/a/activists-welcome-india-s-ban-on-two-finger-test-on-rape-survivors-/6817242.html> accessed 08 January 2023

[2]Tushar Jain, ‘Do you know about the two-finger test?’ (Sayfty) <https://sayfty.com/do-you-know-about-the-two-finger-test/> accessed 08 January 2023

[3]Ibid

[4] Shreya Basak, ‘Explained: What Is Two-Finger Test On Rape Survivors And Why Has SC Banned The ‘Unscientific’ Practice’ (Outlook India,02 November 2022) <https://www.outlookindia.com/national/explained-what-is-two-finger-test-on-rape-survivors-and-why-has-sc-banned-the-unscientific-practice-news-234114> accessed 08 January 2023

[5] Ibid

[6]Taran Deol, ‘Drop ‘patriarchal, sexist’ 2-finger test from medical syllabus: Supreme Court’ (Down To Earth, 31 October 2022) <https://www.downtoearth.org.in/news/health/drop-patriarchal-sexist-2-finger-test-from-medical-syllabus-supreme-court-85703>accessed 08 January 2023

[7]Varsha, ‘Analysis of Justice J S Verma Committee Report on Amendment to Criminal Law with Special Reference to Sexual Assault against women’ (BnB Legal, 23 September 2022) <https://bnblegal.com/article/analysis-of-justice-j-s-verma-committee-report-on-amendment-to-criminal-law-with-special-reference-to-sexual-assault-against-women/> accessed 08 January 2023

[8]Mukul Bhowmick, ‘How insensitive medical education allows the banned two-finger test for rape survivors to persist’ (Scroll, 08 November 2022) <https://scroll.in/article/1036458/the-banned-two-finger-test-continues-because-medical-education-remains-blind-to-its-gender-biases> accessed 08 January 2023

[9] Indian Evidence Act 1872, s 53A

[10] Constitution of India 1950, art 14

[11] Constitution of India 1950, art 19

[12]‘Statement on virginity testing’ (2015) 33 Journal of Forensic and Legal Medicine, 121-124 <https://www.sciencedirect.com/science/article/abs/pii/S1752928X15000335?via%3Dihub> accessed 08 January 2023

[13]Lillu @ Rajesh &Anr v State Of Haryana (2013) 14 SCC 643

[14]‘No to two-finger test’ (The Indian Express, 02 November 2022) <https://indianexpress.com/article/opinion/editorials/no-to-two-finger-test-8243541> accessed 08 January 2023

[15]Tushar Jain (n 2)

[16]Ibid