Ban on the two-finger Test

In Context

• Recently, the Supreme Court declared that any person conducting the ‘two-finger test’ on rape or sexual assault survivors will be found guilty of misconduct. 

More about the News

• Court’s Recent verdict:
  • The court said that the test is “regressive and invasive” and has “no scientific basis as it neither proves nor disapproves allegations of rape”. 
  • It instead “re-victimises and re-traumatises women who may have been sexually assaulted.” 
• 2013 SC verdict:
  • In 2013 Lillu v. State of Haryana, the Supreme Court had held that the two-finger test violates the right of rape survivors.
• Justice Verma Committee:
  • The Committee in 2013 has recommended the discontinuation of the two-finger test which is conducted to determine the laxity of the vaginal muscles. 
    • Justice Verma Committee was constituted to recommend amendments to the Criminal Law so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women. 

About the Two-finger Test 

• About:
  • The two-finger test is an invasive, unscientific and regressive practice where two fingers are inserted in the vagina to assess the laxity of vaginal muscles and examine the hymen. 
  • The two-finger test or per vaginum examination is conducted on alleged victims of sexual assault and rape to determine whether they are habituated to sexual intercourse.
• Issues:
  • Invalid for sexually active women:
    • The test is based on the incorrect assumption that a sexually active woman cannot be raped.

• No evidential value in the investigation:
  • In the case of sexual assault, the doctor is required to mention marks of resistance and sign(s) of recent intercourse. 
  • Doctor does not give his/her opinion about rape, as rape is a legal term and not a medical diagnosis. 
  • It is for the investigating officer to conclude after their investigation whether or not rape was committed. 
  • Therefore, it is undesirable to conduct the two-finger test (on a victim of sexual assault), which has no evidential value in the investigation.
• More victimisation: 
  • The test instead re-victimises and re-traumatises women who may have been sexually assaulted and is an affront to their dignity. 

Challenges in enforcing the Ban on the two-finger test 

• Lack of training & adherence to guidelines:
  • In 2014, the Union Ministry of Health issued ‘guidelines and protocols’ prescribing the application of the two-finger test. 
    • These guidelines were circulated to hospitals, but the doctors handling medico-legal cases apparently did not take the instructions seriously.
  • Training still remains one of the most neglected branches in most departments. 
  • It is, therefore, quite likely that the two-finger test will continue to be conducted in some remote areas.
• Lack of interconnection:
  • Interaction between the Health Ministry and the Home Ministry (or the police department) is limited. 
  • Further, the Health Department is not one of the pillars of the Inter-Operable Criminal Justice System (ICJS). 
    • ICJS is an extension of the Home Ministry’s mission mode project, the Crime and Criminal Tracking and Network Systems (CCTNS), and is operational at each police station of the country.

Suggestions

• Improved investigation with efficient institutional mechanism:
  • All departments which have a bearing on the investigation of offences or are stakeholders in the criminal justice system must come together periodically so that they can exchange best practices, latest developments in law, and court rulings. 
  • An institutional mechanism needs to be developed to ensure continuity of this process. 
• Congruence within ministries & departments:
  • The medico-legal section of the Health Department needs to be integrated with the Inter-Operable Criminal Justice System (ICJS). 
• Training:
  • Training capacity must also be reviewed, and communication channels improved to avoid the status quo.
• Strict implementation:
  • There must be a strict implementation of the recommendation of the Justice Verma Committee about two-finger tests and regarding the collection of evidence. 

Initiatives by the Government & the judiciary 

• Criminal Law (Amendment) Act 2013:
  • It amended the Evidence Act to insert Section 53A that the evidence of a victim’s character or of her previous sexual experience with any person shall not be relevant to the issue of consent or the quality of consent, in prosecutions of sexual offences.
• Workshops: 
  • The SC also ordered workshops to be held to communicate the appropriate procedure to determine sexual assault and rape. 
• Curriculum in medical schools: 
  • SC also directed the government to review the curriculum in medical schools so ensure the practice is no longer used.

Way Forward

• Though much needs to be done for the sexual assault victims, some changes and amendments in the law in the past three decades have brought in hope for justice and fair treatment. 
• With the help of various judicial and legislative actions there is a transformation in the process of investigation by the officers and doctors.
• A test like the Two-Finger test is an inhuman and irrational process that attacks the right to privacy and is a serious blow to the mental, physical and ethical conditions of the victim. 
• The test should be condemned and should be strictly prohibited by enacting amended laws that apply uniformly throughout the country.

Source: TH