SCIENTIFIC VALIDITY AND LEGALITY OF TWO-FINGER TEST IN INDIA

Nilanjana Banerjee

INTRODUCTION

There are several types of offences against women and one of the most brutal among them is rape. It is not only an offence against the woman but against the entire society. In the view of Susan Brownmiller (in her book Against Our Will: Men, Women & Rape), it is a process of intimidation by which men tend to keep women in fear.  Moreover, it is a display of power over women and isn’t any new crime.

The ancient Babylonians and Hebrews used to execute the married rape victims while stoning the virgin raped victims. However, later this got recognised as a crime. The physical examinations of the victim play a vital role in the prosecution, and one of many such examinations is the two-finger test, which is deliberated in this article.

WHAT IS A TWO-FINGER TEST?

The medical name is ‘bimanual examination’, which involves the examination of the hymen and laxity of the vaginal wall to acquire information about the sexual history of the concerned woman. It is done by inserting two fingers into the vagina of the victim. Furthermore, it is the ease or difficulty in inserting the fingers which help in determining whether she has been sexually active (raped/assaulted). However, medical science has made several attempts to debunk the myth around its accuracy and said there is no scientific value in it.

Many medical professionals hold the view that hymen should not be considered an appropriate indicator of virginity, as a girl may be born without it, or it can rupture due to sports etc. The forensic consultants opine against it and determine it as inconclusive proof for a rape. The functionality of this test has been brought into question often as virginity is a matter of subjective orientation, and a great deal of social values has been attached to it. Feminists have claimed that the test is meddling with her dignity.

It is accepted as evidence in offence of rape as dealt under sec.375- 376 IPC. S.375 covers a wide ambit of activities under rape (2013 amendment act). It provides-

1. Sexual intercourse upon a woman as per IPC,  –

(a) Penetrating (to any extent) of the penis into the vagina, anus or mouth of the woman or makes her do it

(b) Inserting (any object or body part to any extent) in the vagina, anus or mouth of a woman or making her do it.

(c) Manipulating a woman and any of her body parts to cause penetration or makes her do so.

(d) Applying mouth to the vagina, anus of a woman

2. Against her will

3. Without consent

4. Consent obtained by instituting fear

5. With or without consent, in case the victim is under 18 yrs.

6. When she is unable to communicate

7. Consent obtained during unsoundness or intoxication or such situation

8. When the consent is given because she believed the man to be her husband, however,  the man understands this and is aware that her belief is false.

Satisfaction of these elements will lead to the offence of rape, thereafter, the two-finger test is conducted. However, it is highly significant to understand if this test is legally permissible.

LEGALITY & SCIENTIFIC VALIDITY

The offence of rape in itself leaves a cataclysmic impact on the victim, and they must be handled with maximal sensitivity. However, they are always looked down on. The two-finger test, which originated in the 18th century, can only ascertain information about the hymen, hence, there can be two situations i.e., presence or absence of hymen. In the latter case, the absence can be due to several reasons unrelated to sexual activities. Nothing can be concluded about rape.

Neither loose vaginal walls can conclude anything relevant about her past sexual experiences (earlier, it was allowed to bring in the past sexual experience, however, it got banned by the 2003 amendment).

In the former case- As per Modi’s Jurisprudence Toxicology, it is established that to constitute an offence of rape, there is no need for complete penetration, partial penetration, or an attempt sufficient in law. Therefore rupture of the hymen is not imperative. Moreover, the hymen is situated deeply in young females, hence over and over, it escapes an injury in the case of rape of children. Also, going by this method would acquit those who made an attempt to penetrate but failed to.

Thus it is unscientific.

After the 2012 Delhi gang-rape case, Verma Committee(chaired by CJ J.S.Verma) was constituted to make recommendations about the examination of a rape victim. . In the chapter of ‘Medico-Legal Examination of the Victim’, they had laid down the following guidelines-

  1. The examination room must be clean, hygienic, and well ventilated.
  2. The equipment must conform to international standards.
  3. In case, the victim is a minor, first, the female relative of a victim shall be examined.
  4. During the examination, a trained health worker (of the same sex) should be present.
  5. The doctor performing the examination, along with the victim’s relative, must explain each and every step of the examination along with giving reasons.
  6. The examiner must seek consent for the examination and proceed only then.
  7. The victim must feel restful, and it must be guaranteed to her that she is in control of the pace.
  8. The victim must be reassured about confidentiality.
  9. The report must be shown and explained to her.

Thereafter in 2013, in Lilu v. State of Haryana, the court declared this test as unconstitutional. The issue was- Whether a two-finger test is valid or is it violative of Art 21[1]?

Referring to several cases like Narayanamma (Kum) v. State of Karnataka, state Punjab v Ramdev Singh[2] etc, the court finally concluded that the test undoubtedly violates the right to privacy and dignity of the victim. Judges held the opinion that rape is a dehumanising act and a severe blow to her self esteem.

CONCLUSION

The two-finger test is one of the medical examinations where the examiner checks the hymen and laxity of the vaginal wall. Medical science has said that it is inconclusive proof of virginity, hence this test has been disregarded as evidence for rape.


[1] INDIA CONST. Art 21

[2] state Punjab v Ramdev Singh AIR 2004 SC 1920

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