The Supreme Court on October 31 prohibited “Two-Finger Test” in rape cases and warned that persons conducting such tests will be held guilty of misconduct and directed the Centre to ensure that survivors are no longer subjected to it..
Noting that it was regrettable that “two-finger test” continues to be conducted even today, a bench comprising Justices DY Chandrachud and Hima Kohli said the test was based on the “incorrect” assumption that “a sexually active woman cannot be raped.”
WHAT IS ‘TWO-FINGER TEST’?
This is a medical examination with respect to woman who is sexually assaulted for ascertaining her health and medical needs, collection of evidence.
A medical practitioner conducts the two-finger test. It involves the examination of the vagina of a woman to check if she is habituated to sexual intercourse. The WHO had already made it clear that there is no place for virginity (or ‘two-finger’) testing; it has no scientific validity.
WHAT THE SC OBSERVED
The SC made the comments in its order restoring the conviction and sentencing of a man for the rape and murder of a minor girl in Jharkhand in November 2004. The girl was set on fire by the man after she tried to thwart his sexual assault attempt. Later, in hospital, she was subjected to the ‘two-finger test’.
The court observed that it had time and again deprecated the use of two finger test in cases alleging rape and sexual assault. “The so called test has no scientific bascientific basis. It instead re-victimises and re-traumatises women. The two finger test must not be conducted….The test is based on an incorrect assumption that a sexually active woman cannot be raped. Nothing can be further from the truth”, the Court noted.
“The probative value of a woman’s testimony does not depend on her sexual history. It is patriarchal and sexist to suggest that a woman cannot believed when she states that she was raped merely because she is sexually active”, the bench added.
EARLIER SC OBSERVANCES
The Apex Court in 2013 had held that the two-finger test violates a woman’s right to privacy. At that time, the court asked the government to provide better medical procedures to confirm sexual assault.
A bench of Justices B S Chauhan and FMI Kalifulla held that even if a woman is “habituated” to sexual intercourse, that cannot give rise to the presumption of consent in the particular case.
It also said that rape survivors are entitled to legal recourse that does not re-traumatise them or violate their physical or mental integrity and dignity.
GOVERNMENT GUIDELINE ON TWO FINGER TEST
The Centre in 2014 released a document titled ‘GUIDELINES & PROTOCOLS Medico-legal care for survivors/victims of sexual violence’. In this, there is elaborate mention of two finger test. It clearly states “per-Vaginum examination commonly referred to by lay persons as ‘two-finger test’, must not be conducted for establishing rape/sexual violence and the size of the vaginal introitus has no bearing on a case of sexual violence. Per vaginum examination can be done only in adult women when medically indicated.”
The guidelines specifies that a rape victim’s consent (or her guardian’s, if she is minor/mentally disabled) is necessary for any medical examination. Even if the consent is not provided, the victim cannot be denied medical treatment.