APEX COURT BANS TWO-FINGER TEST
Editorial . . . . .
A female sexual assault victim is given the two-finger test, virginity test, or per-vaginum examination by a doctor to determine whether or not she has developed sexual habits. In this test, the medical examiners place their two fingers into the victim’s vagina to assess the vagina’s “laxity” and the presence or absence of the hymen (a membrane that partially seals the vagina). The test is predicated on the idea that if the victim has torn hymens, it indicates that they are accustomed to having sex and therefore cannot have been raped or are most likely fabricating their accusations.
Another outdated custom that was upheld by the judiciary has been abandoned. In a landmark decision, the Supreme Court strongly condemned the two-finger test. This practice was not only based on the patriarchal presumption that a woman who engages in sexual activity is less likely to have been assaulted, but it also left the victim feeling humiliated and traumatized. The Apex Court issued a strong warning against the technique, claiming it lacks a scientific foundation and exposes the victim to further abuse. Additionally, it frequently takes place without the lady’s knowledge, which is against her rights as a woman. The two-finger examination is an intrusive method of assessing rape survivors that lacks any supporting scientific research. As opposed to that, it re-victimizes and re-traumatizes women. The Supreme Court majority said, “The test is founded on the false idea that a woman who is sexually active cannot be raped. There is no possible way that this is true. Additionally, it said that anyone administering such a test would be in violation of the rules. Additionally, it mandated that the two-finger exam be taken out of medical college textbooks and study materials. Women are once again victimized and used by the two-finger test. This investigation violates human rights and is not merely against the law. The approach was declared unlawful by the top court in 2013, but there was little change in the practice. The so-called exam, it had been stated, infringes on the rights of rape survivors. The judgment was made in reaction to changes made to the sexual assault legislation in 2013 that recognized penetration other than penile-vaginal penetration as rape and made a woman’s prior sexual experience irrelevant when determining whether or not to move forward with a prosecution. The two-finger test is routinely used on young girls even though experts have long criticized it as being unreliable. Since the “test” “had no bearing on a case of sexual violence,” the Union health ministry published specific recommendations suggesting that it shouldn’t be conducted in 2014. Clinicians were forbidden from talking about “prior sexual experience or habit to sexual intercourse” in the recommendations. However, many states didn’t put these regulations into effect. Madras High Court earlier this year and Gujarat High Court in 2020 both criticized its continued use. States have failed to publicize and put into practice what the courts have repeatedly deemed illegal. A federal law making the two-finger test illegal might unify all states at once. It is not surprising that many doctors are unaware of key decisions and regulations in their area. While cases were still being tried under Section 66A of the IT Act in 2015, the lower judges and police appeared to be completely unaware of this fact. A uniform way of examination using the SAFE (Sexual Assault Forensic Evidence) kit and thorough training for medical professionals in dealing with rape survivors were recommended in the 2014 guidelines.
Without a doubt, the two-finger test and how it is applied violates the right to privacy, bodily and mental integrity, and dignity of rape survivors. It’s past time to end the practice permanently. To prevent the test from being performed on rape survivors, instructions issued by the Ministry of Health and Family Welfare should be distributed to private and public hospitals also afresh in Jammu and Kashmir, and workshops for medical professionals should also be conducted. The solution to this problem is widespread awareness and training of medical and law enforcement personnel. Certainly, the test is a sign of the level of patriarchy and ignorance present in both the legal system and society at large. The recent SC remark on the matter is a positive step, but the executive now has the role to take initiative. It is crucial to assess and correct the situation across all of J&K.
