The “two-finger test,” also known as a per vaginum examination, was a widely used method to determine if a woman was “habituated to sexual intercourse” or “sexually active.” It has been used to assess the credibility of sexual assault cases. However, the Supreme Court of India has now declared this practice as unscientific and a violation of women’s rights.
This blog post will explore this decision and its implications.
What is the “Two-Finger Test”?
The “two-finger test” involves a medical professional inserting two fingers into a woman’s vagina to assess the laxity of the vaginal muscles. The test was often used to determine whether the woman is sexually active and therefore if a claim of sexual assault could be truthful. The test, which is also referred to as per-vaginum test, has been highly contested as it is unscientific, invasive and a violation of the victim’s privacy and dignity.
The Supreme Court’s Intervention
The Supreme Court of India has unequivocally banned the use of the “two-finger test” in cases of sexual assault and rape. In a landmark judgment in Criminal Appeal No. 1441 of 2022, the Hon’ble Supreme Court declared the test as unscientific, invasive, and a form of re-traumatization for survivors of sexual assault.
Key Directives of the Supreme Court:
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Banning the Practice: The Court explicitly prohibited the two-finger test in any form while examining survivors of sexual assault and rape.
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Proper Procedures: The Court mandated that medical professionals must follow the proper and scientific procedures for examination and documentation.
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Circulation of Guidelines: The Court directed the Ministry of Health and Family Welfare to ensure its guidelines on medico-legal care for survivors of sexual violence are circulated to all hospitals, both public and private.
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Workshops: Medical professionals must be given appropriate training and undergo workshops to understand the correct procedure for such examinations.
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Curriculum Review: Medical schools were directed to review their curriculum and remove any mention of the two-finger test as a legitimate procedure.
Why is the Two-Finger Test Unscientific?
The Supreme Court cited many studies and the opinion of the medical community to determine that the two-finger test lacks any scientific basis. Some of the core reasons why the test was deemed unscientific and unreliable include:
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Lack of Correlation to Sexual Activity: The test incorrectly suggests a correlation between vaginal laxity and sexual activity, which is a false assumption as the hymen can be torn due to various reasons other than sexual activity.
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Not Determinant of Consent: The test cannot determine if a sexual act was consensual or not.
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Violation of Bodily Autonomy: The test is a violation of the woman’s bodily autonomy as it is invasive and non-consensual.
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Violation of Dignity and Privacy: The test is an affront to the dignity and privacy of the victim as it causes re-traumatization and further victimizes the victim.
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Traumatizing for Victims: The test is considered to be a re-traumatizing procedure for victims of sexual assault.
Understanding the Legal Framework
The Supreme Court’s decision also aligns with the amendments to Indian laws, in the Criminal Law Amendment Act, 2013, and also highlights the following:
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Section 53A of Indian Evidence Act: Explicitly prohibits the use of evidence related to a victim’s character or past sexual history in cases of sexual assault and rape. This also clearly states that these details are irrelevant in determining consent.
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Section 375 of Indian Penal Code (IPC): The definition of rape does not mention or require any form of a virginity test. Rather it defines rape based on penetration and consent of the victim.
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Right to Privacy and Dignity: The Supreme Court’s ruling is rooted in the fundamental right of every individual to privacy and dignity under Article 21 of the Constitution.
Key takeaways
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The Two-Finger Test is Banned: The Supreme Court has banned the two-finger test and any similar methods.
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Scientific Basis: The test lacks any scientific basis and is unreliable.
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Violation of Rights: The test is a violation of the privacy, dignity, and bodily autonomy of women.
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Need for Sensitivity: Medical and legal professionals must handle sexual assault cases with utmost sensitivity, understanding that the primary evidence is the victim’s testimony and that the medical procedures are meant to determine any bodily harm.
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Importance of consent: Consent must be sought for any procedures and consent must not be inferred by the nature of the victim’s prior sexual activity or other details.
The Way Forward
The Supreme Court’s directives provide clear guidance:
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Awareness and Training: Medical professionals need to be adequately trained to deal with sexual assault cases with sensitivity and by using scientific medical procedures.
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Curriculum Reform: Medical schools need to adapt their curriculum and remove practices like the two-finger test, adopting a more trauma-informed approach to medical examinations.
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Implementation: It is imperative that all medical institutions and authorities implement these guidelines stringently.
Conclusion
The ban on the two-finger test is a victory in the fight for justice and for the rights of women facing sexual violence. It recognizes the unscientific and dehumanizing nature of the test and sets a precedent for a more respectful, evidence based and trauma informed medico-legal approach in India.