#Law and Her

Finally, Two-finger Test On Rape Survivors Will Call For Prosecution

Two-finger test on Rape Survivors, Doctor Performs Two-Finger Test
The Supreme Court bench comprising Justices DY Chandrachud and Hima Kohli in the State Of Jharkhand Versus Shailendra Kumar Rai @ Pandav Rai | Crl.A. No. 1441/2022 held that persons who conduct “Two-finger test” on rape survivors shall be held guilty of misconduct.

Two-finger test involves the use of two fingers which are inserted in the woman’s vagina to determine whether the hymen is intact or not. It is based on the assumption that the hymen can be torn only by sexual intercourse. It is fundamentally flawed as there can be a number of other reasons due to which hymen may not remain intact. Such unscientific and illogical test is in practice even today and the Court expressed regret and concern over the same,

This court has time and again deprecated the use of two finger test in cases alleging rape and sexual assault. The so called test has no scientific basis. It instead re-victimizes and re-traumatizes 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 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 be believed when she states that she was raped merely because she is sexually active.”

The Court also issued some directions to ensure that the test does not remain in practice. You can read the judgement here.

Two-finger Test On Rape Survivors Will Call For Prosecution

Union Health Ministry is directed to make sure that two finger test is not conducted on the survivors of rape and sexual assault. Union & State Governments are directed that guidelines formulated by the Department of Health and Family Welfare (proscribes two finger test) need to be circulated to all the hospitals, both Government and private. Conduct workshops for communication of the pertinent procedure which is used for the examination of the survivors of rape and sexual assault. Review of the curriculums of medical schools to ensure that the procedure which is used for the examination of the survivors of rape and sexual assault does not prescribe two-finger test.

As rightly stated by the Hon’ble Court that the test is sexist and patriarchal and its practice should be discontinued. A woman who has suffered sexual assault or rape cannot be put to further ignominy by such test. It violates the right of the woman as was stated by the Apex Court in 2013 when the Apex Court had asked the Government to replace the test, “Undoubtedly, the two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent.”

The views expressed are the author’s own.

Suggested Reading:

Patriarchal And Sexist: Supreme Court Bans Two-Finger Test Method To Confirm Rape