Two-finger test in rape cases: Executive must summon the political will to implement Supreme Court’s directive

The Supreme Court has reiterated that the test re-traumatises rape survivors and is based on patriarchal ideas. But issues related sensitisation of police and lawmakers will have to be addressed by the executive

On October 31, a two-judge bench of the Supreme Court noted that the two-finger test is a sexist medical practice that re-victimises and re-traumatises rape survivors. The Court also issued directions to the Union and state governments to implement the 2014 guidelines of the Ministry of Health and Family Welfare for health providers in sexual violence cases. Notably, it held that any person conducting the two-finger test “shall be guilty of misconduct”. However, the apex court was only restating its earlier position. The Court must not, and cannot, fill in for executive inaction on this issue.

The two-finger test involves the medical examiner inserting their two fingers into the vagina of a survivor to note the presence or absence of the hymen and the so-called laxity of the vagina. While a hymen can be torn and its orifice may vary in size for many reasons unrelated to sex, the origin of the two-finger test lies in the misogynistic belief that a torn hymen is an indication that the survivor is habituated to sex and therefore, cannot be raped or is more likely to make false claims about being raped. Legal scholar Pratiksha Baxi calls this “medicalisation of consent” where women’s bodies are given precedence over their voices. Recognising this as an invasion of privacy and a violation of a survivor’s dignity, the Supreme Court prohibited the test in Lillu @ Rajesh v. State of Haryana (2013). Shortly after, in March 2014, taking forward the recommendations of the Justice J S Verma Committee Report, the Ministry of Health & Family Welfare issued guidelines for medico-legal care for survivors of sexual violence. These guidelines explicitly prohibited the two-finger test and discussed the need for training medical examiners to respond to the needs of the survivors in a sensitive and non-discriminatory manner.

Nearly eight years since the guidelines were issued, the two-finger test still remains a reality. Its prevalence is a reflection of the complete lack of political will to address the issue. In such a scenario, the Court commenting on the sorry state of affairs and issuing directions to the government on enforcement of the protocol including the emphasis on workshops and the medical school curriculum is significant. In fact, the Court took a step further by holding a person conducting the two-finger test on a rape survivor guilty of misconduct. It is unclear if the Court was making a reference to professional misconduct on part of the medical examiner. In any case, the Court’s directive could make the medical community take this seriously. However, any changes should be evidence-based and brought in only after an assessment of the current situation across states.

While fragmented pieces of narratives and research indicate that the two-finger test continues in rape cases to date, it is incumbent upon the executive to undertake a comprehensive pan-India review to assess the nature and extent of the problem. In my research on rape trials in Lucknow in 2015, defence lawyers told me that the changed format (introduced after the passing of the Criminal Law Amendment Act, 2013) of the medico-legal certificate used by doctors in rape cases did not require them to make a note of the finding of the two-finger test. However, according to the lawyers, this did not mean that the test was not happening anymore. They told me that it was no longer being recorded as such but was still being conducted. While findings from my research may be dated, it demonstrates the relevance of empirical inquiry to understanding the kind of challenges that lie ahead of the executive if it is truly interested in getting rid of the two-finger test in rape cases.

How much of the continued existence of the two-finger test is a result of the overall poor state of forensic medicine infrastructure in India? What about the lack of awareness amongst the medical community about the unscientific nature of the two-finger test? How much of this is attributable to the patriarchal notions about rape? Do medical practitioners see themselves as caregivers when handling sexual violence cases? What do medical practitioners understand as their role in the criminal legal system, specifically towards rape survivors? Does the training in medical school prepare medical examiners for their role in the justice system? Does the institution of police have any bearing on the continued use of the two-finger test in rape cases? Do training and workshops designed for doctors include modules on sexuality and discrimination? We, as citizens, must hold the executive accountable and demand an evidence-based approach to addressing the problems of implementation on this front.

Neetika Vishwanath is with Project 39A at National Law University, Delhi, where she heads the work on sentencing.

This article was first published in The Indian Express and can be accessed here.