The Supreme Court of India directed authorities to make sure so-called virginity tests, or “two-finger testing”, are banned in cases alleging rape and sexual assault. It also noted that suggesting a sexually active woman cannot be raped is “patriarchal and sexist.”
The Supreme Court of India on October 31 again stated that per-vaginum examination, the so-called virginity “two-finger test”, in sex crime and assault cases should be prosecuted for misconduct.
The highest jurisdiction of India overturned a 2018-ruling from the High Court of Jharkhand which acquitted a rape and murder convict. The Supreme Court held the decision of a trial court holding him guilty. The case, in which a female doctor considered the 16-year-old victim was “habituated to sexual intercourse” after a two-finger test, dates back 2004 but the Court noted the “regrettable fact that it continues to be conducted even today.”
In its ruling, the court pointed out it “has time and again deprecated the use of two-finger test in cases alleging rape and sexual assault. This so-called test has no scientific basis and neither proves nor disproves allegations of rape.”
In India, the two-finger test consists in a medical examination inserting two fingers into a person’s vagina to assess laxity of vaginal muscles. This examination would also check the presence of hymen to determine virginity.
This test doesn’t prove a woman’s virginity, nor does it prove sexual activity. The World Health Organization, in a clinical handbook on Health care for women subjected to intimate partner violence or sexual violence in 2013 for instance stated in bold that “there is no place for virginity (or ‘two-finger’) testing; it has no scientific validity.”
This test is however still performed nowadays in India on alleged victims of rape or sexual assaults “based on the incorrect assumption that a sexually active woman cannot be raped,” the Court recalled. The bench stressed that “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. Nothing could be further from the truth – a woman’s sexual history is wholly immaterial while adjudicating whether the accused raped her.” The value of a woman’s testimony “does not depend upon on her sexual history.” Moreover, this test “re-victimizes and re-traumatizes women who may have been sexually assaulted, and is an affront to their dignity.”
Last April, Madras High Court also directed the Tamil Nadu government to ban medical practitioners from conducting the two-finger test on sexual assault survivors on the appeal for a sentence from 2021. The bench noted that it “has been a common practice for doctors to perform the two-finger test on victims who have been subjected to rape, particularly on minor victims.”
Yet, laws of the Union of India in 2013 explicitly amended the Evidence Act when it enacted the Criminal Law (Amendment) Act which added new offenses after the case of a collective rape in 2012 in Delhi. It states that “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 offenses,” according to the Supreme Court order.
The Ministry of Health and Family Welfare in 2014 also issued guidelines for health providers in cases of sexual violence and proscribed the two-finger test. “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.” It also indicated that “an intact hymen does not rule out sexual violence, and a torn hymen does not prove previous sexual intercourse.”
In its ruling, the Supreme Court has directed the Union Government and State Governments to ensure these guidelines are circulated to all government and private hospitals, to conduct workshops for health providers to communicate the appropriate procedure when examining victims of sexual assault and rape, and to review the curriculum in medical schools to make sure per vaginum examination is not taught as a procedure when examining alleged victims of sex crime and assault.
Any person who conducts a two-finger test should be guilty of misconduct the Court recalled. The Criminal Law (Amendment) Act however states that “a medical procedure or intervention should not constitute rape.”
The Supreme Court ruling was related to a case in 2004 when the defendant entered into the house of the victim and raped her before pouring kerosene on her and setting her on fire. The victim, who was about 16, died a month later due to her burn injuries, but narrated the incident in hospital.
The defendant was acquitted in 2018 partly because the victim statement was deemed not admissible because she was dying, and that the doctor did not find any sign of sexual intercourse when she examined the victim. As such, the High Court considered “the prosecution had failed to prove the charges against the respondent beyond reasonable doubt.”
The hospital Medical Board had made a vaginal examination that “revealed that two fingers were admitted easily,” according to Court documents. The female doctor stated that “the deceased may have engaged in intercourse prior to date of the alleged crime, and that the admission of two fingers in her vagina meant that she was habituated to sexual intercourse.”
The Supreme Court rebuked the High Court conclusions and reversed the order of acquittal.