Rights group opposes ‘degrading’ medical test for rape victims

It’s demeaning for any woman. It becomes particularly worse for rape victims who have already been through a lot of mental trauma.

But the ‘two-finger test’ — a medical procedure to establish virginity, or the violation of it, in case of rape victims — continues to be an accepted practice in the country.

Human Rights Watch (HRW), the international rights watchdog, on Monday sought a ban on it, calling it “degrading”.

In June this year, the state’s directorate of health services had issued a forensic examination template for rape victims. It specifically asks doctors to state whether the hymenal orifice admits one or two fingers.

The test ascertains the laxity of the vagina, which in turn indicates whether the victim is habituated to sex. The template is being used in all state-run hospitals.

Even the Indian Medical Association (IMA) protocol for forensic examination across the country seeks information about hymenal size — whether the vaginal opening is “narrow or roomy” and asks the doctor to give an opinion whether the evidence suggests “habitual sexual intercourse”.

This has been disseminated all over the country between 2006 and 2008.

The Delhi government has introduced a similar template for its public hospitals this year.

“The government has failed to understand and protect rape survivor’s rights,” said Aruna Kashyap, a researcher with HRW, who has come up with a 54-page report, Dignity on Trial: India’s Need for Sound Standards for Conducting and Interpreting Forensic Examinations of Rape Survivors, documenting the continued use of this “evidence” by defence lawyers and courts.
These tests are unsound scientifically because the state of the hymen is not indicative of virginity, she said.    

Kashyap conducted extensive interviews of doctors, rape victims, judges, forensic scientists and lawyers in Mumbai and Delhi for the report. She also read judgments of all high courts relating to rape cases. In 153 judgments spanning 18 states, she found reference to the finger test.

“Carried out without informed consent, the test would constitute assault, and is a form of inhuman and degrading treatment,” HRW said in a press release. The experience can cause additional truama as it “not only mimics the abuse but can also be painful,” it added.

“Once the particular offence has occurred, whether or not woman is habituated to sexual intercourse has no relevance to the offence,” said human rights lawyer Maharukh Adenwalla.

The police, however, have no options left. Dr SM Patil of Nagpada police hospital said, “We have to carry out all the required internal examinations as it is a part of the medical examination procedure. Very often visual examinations are not accurate due to which we have to do the two-finger test in order to rule out intact hymen.”

A senior gynecologist from the state-run JJ Hospital said that internal examinations of a rape victim, including the ‘two-finger’ test, is done only after it is confirmed that the hymen is ruptured.

“A thorough visual examination of the genitals is enough to know if the hymen is broken. Once confirmed, we do the internal tests to understand the laxity of the vagina,” she said.

The tests are conducted despite the Supreme Court order making it specific in connection with two cases of 2005 and 2008 that being habituated to sexual intercourse is not relevant in a case of rape.

Considering the opinions expressed by high courts across the country, the report states that an unmarried woman or girl who is allegedly “habituated to sexual intercourse” attaches stigma to her and adds to the conception of a woman with “loose morals”.

At the root of this problem are archaic medico-legal textbooks, particularly the one written by Jaising Modi.

“The textbook tells doctors to be careful around rape victims. It says if she has accused someone of rape, she can accuse the doctor too,” said human rights lawyer Flavia Agnes who spoke in the press conference.