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The Absurdity of the Two Finger Test – A Socio-Legal Analysis


Two Finger Test
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The Two-Finger Test (TFT) or Per Vaginal (PV) or Bimanual Test is a gynaecological test for determining the virginity of a woman for various reasons and under different circumstances. It is most prevalently used to determine if a woman/victim of rape was actually raped by checking for the intactness of her hymen or laxity of the vagina as signs of vaginal intercourse.

 The two-finger test has received backlash from various human rights groups and women rights activists as it violates the dignity of women who are subjected to it. It adds to the trauma of a rape survivor by being so invasive and violating her privacy. Not only this, it also promotes the objectification of women as well as toxic patriarchal norms in society.

The Virginity of a woman has always been everybody’s business except hers. Virginity until marriage is deemed to be a sign of a virtuous woman and increases her suitability for marriage. Sex before marriage again becomes a gender-biased topic where what is seen as a sign of bravado for a man is seen as sin and impurity for a woman. It seems that for ages, all the weight of society, the family, and a man’s honour, rest on the women’s Hymen indeed.

Science on the Two Finger Test

Science has proved that the hymen is not a reliable source of proving vaginal penetration. The hymen, which is a thin membrane in the vagina, can rupture not just during sexual activity but also during other physical activities like horse riding, playing sports, etc.  Contrary to the popular belief, medical practitioners have confirmed that not every sexual intercourse would actually tear the hymen due to the elastic nature of the hymen. Also, not all girls (in rare cases) are born with a hymen. Therefore associating virginity with the hymen is utterly absurd and unscientific.

Also, the test cannot be called the only reliable one in procuring evidence in sexual assault cases. In cases of sexual assault against children (young females), the hymen being so deep-set often stays intact during penetration. Therefore, in child rape cases, it is a useless procedure in determining if the offence was in fact committed

The World Health Organization reports that the two-finger test is still being practised in more than 20 countries across the globe. These are performed in order to assess the virtue of a woman before marriage by the groom’s family or by medical practitioners to determine the sexual activity of a bride or the rape survivor respectively. Cases of two-finger testing are also reported in cases of employment before recruiting women. The test just adds to the post-traumatic stress that the rape victim has undergone and adds to her humiliation.

This invasive two-finger test is one of the big reasons why victims of sexual assault hesitate to report such incidents. In many cases, partial penetration, which constitutes rape under IPC, takes place and the two finger-test becomes an illogical proof of rape. Section 375 of the Indian Penal Code defines non-penetrative acts also as rape.

In the above context, the concept of the ‘consent’ of a woman during sexual intercourse goes down the drain and her sexual history becomes a determinant of the truth in her allegations of rape against the rapist.  Section 154 (4) of the Indian Evidence Act, which has now been omitted, somewhere played a huge role to promote a rape survivor’s sexual history as a point to defeat her case against the rapist. It would be fair to refer to the test as Two Finger Rape, since it is equally undignified, humiliating, and traumatic for the rape survivor.

It makes her relive the trauma of rape and invades the right to privacy as guaranteed under Article 21 of the Indian Constitution. Not just this, it adds to the mentality it was her fault as a rape victim is looked down upon and her character scrutinised by people including the medical examiners performing the two-finger test. Instead of extending support to the victim after such a horrendous and traumatising experience, she is subjected to the societal stigma of proving her virtue through this test.

Law and the Two Finger Test

Digital Rape

The ‘International Covenant on Economic Social and Cultural Rights 1966’ and ‘UN declaration of Basic Principle of Justice for Victims of Crime and Abuse of Power 1985’ lay that rape survivors are entitled to such a legal recourse that does not question their dignity, does not traumatize them, and is not violative of their integrity. The United Nations has also suggested that the medical examination procedures shall be humane and must respect the dignity of the victims and must not be weighed down by outdated patriarchal notions.

The Verma Commission

After the shocking and horrendous Nirbhaya Rape Case, a three-member committee chaired by Chief Justice J.S. Verma was constituted in order to make recommendations in the examination of ‘rape’ as an offence. The 657-page-long report not only suggested amendments in the criminal laws of India but also was against the intrusive and humiliating Two-Finger Test.  In the chapter of ‘Medico-Legal Examination of the Victim’ the report recommended not to conduct the Two Finger Test in determining whether Rape took place or not,  as it is unscientific and unnecessary.

Further, the Verma Commission laid down the guidelines that needed to be followed while medically examining the rape victims like the explanation of every step of the examination and its corresponding significance to the victim, the presence of same-sex trained health worker in a separate room with the victim, obtaining the consent of the victim for the procedure, showing the report and explaining the details of the same to the victim and also maintaining the confidentiality of  victim outside the court of law among others

Two Finger Test through Case Laws

Narayanamma (Kum) v. State of Karnataka 

In this case, the court had clearly stated that the Two Finger Test was a clear violation of the right to privacy, dignity, and integrity of the victim. The Hon’ble court had also stated that no medical examination of the victim shall be unethical, inhumane, and cruel. The court had further asked to maintain the dignity and privacy of the victim during medical examination and it shall in no way cause an adverse effect on her mental health. 

State Punjab v. Ramdev Singh 

In this case, the court held the Two Finger Test as inconclusive proof to determine anything about the consent of the victim as required under Section 375 of the Indian Penal Code.

State of UP v. Munshi

In this case, the Hon’ble court while giving weight to a women’s consent held that ‘whether the victim was habitual to sexual intercourse cannot be a determinative question as it does not relate to the question of consent. It clearly implies that just because a woman is sexually active does not automatically determine that her consent was given in that instance. In the case of Narendra Kumar v. State of NCT of Delhi also the court upheld the above viewpoint. 

Lilu v. State of Haryana 

In this case, the accused was convicted by the sessions court for raping a minor girl of about 14 years of age. On appeal, he contended that she had given her consent and was habituated to sexual intercourse. He also contended that she was not a minor. The appellant relied on the two-finger test to assert his contentions. The respondents on the other hand argued the Two-Finger Test is unethical and unconstitutional. The apex court while citing the above-mentioned case laws convicted the accused and held that the test undoubtedly violates the right to privacy and the dignity of the victim. Moreover, the question of ‘habitual sexual intercourse’ is not a determinative factor in deciding rape cases. 

Consequently, the Two-Finger Test was banned in India. The Virginity test and related topics on Two Finger Test were removed from the syllabus of and from the textbooks of medical courses. 

The Indian Airforce Case 

An IAF Coimbatore officer who was raped by her fellow officer in 2021 was subjected to the humiliating Two Finger-Test by the medical examiners which have been long banned by the courts. In her words, ‘The test made me nauseous enough to relive the trauma of being raped’, she describes the ordeal she was subjected to. In this case, it can be clearly seen that despite the ban on the Two Finger Test, it is still being conducted and victims are being looked down upon while being subjected to this humiliation and two-fold trauma. 

Conclusion

Rape is such a sexual offence that is a hard blow to a women’s self-respect, confidence, and dignity as a human being. The road to justice is anyway tedious and bumpy, on which the humiliating Two-finger Test creates unnecessary hurdles for the victims. Some take this unethical test and relive their rape trauma while some resort to silence and subsequently refrain from reporting the offence. The TFT is still being persistently used in determining the occurrence of rape, despite the criticisms and ban by the apex court. It calls for stricter measures including a penalty for conducting the same.

The law should be pro-victim and not against her. Only strong measures by the legislature and judicial interventions can stop this disgusting menace carried on till today due to age-old patriarchal beliefs. Only then can the victims obtain justice in the true sense.



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