“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.”
On October 31, 2022, the Supreme Court of India (SC) reiterated its opposition to the use of the ‘two-finger test’ in rape and sexual assault cases. The bench also directed the Union and state governments to make efforts to remove mentions of the test from the medical curriculum and stated that the doctors found to be conducting the test will be held guilty of misconduct.
The SC declared the two-finger test (also known as the ‘virginity test’ or ‘per vaginum’ test) unconstitutional in 2013. It had then stated that the test “violates the right of rape survivors to privacy, physical and mental integrity and dignity.”
What is the ‘two-finger’ test?
The unscientific and traumatizing two-finger test is still being used as part of the medical examination in a number of South Asian countries. This test involves a medical practitioner inserting two fingers into the vagina of a rape survivor in an attempt to determine if the hymen is broken, as well as to “test the laxity of the vagina”. The test is often used to declare rape survivors as “habituated to sex”. The medical evidence of past intercourse is used to cast doubt on the rape allegation, either to suggest a survivor lied about the rape, to imply that the rape wasn’t harmful, or to suggest the moral impropriety of the survivor and therefore her lack of entitlement to justice.
In March 2014, India’s Ministry of Health issued Guidelines for the care of survivors/victims of sexual violence. The Guidelines specifically state that ‘Per-Vaginum examination commonly referred to by laypersons 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. Per vaginum examination can be done only in adult women when medically indicated.’
However, the Guidelines have not been universally adopted across India, nor have they been enforced, and any breaches are not underpinned by legal sanctions.
The recent ruling has come in response to the continued reliance on the test in the country, including in the case before the SC of its use by a medical board on a 16-year-old survivor of rape even while she was battling severe burn injuries. The rapist had set her on fire after the assault in an attempt to murder her. The SC reversed the man’s acquittal by the Jharkhand High Court and expressed disgust at the test being conducted.
Equality Now has long advocated for a complete ban on ‘virginity tests’. Jacqui Hunt, Global Lead – End Sexual Violence, says, “Every day, survivors are silenced, threatened, and intimidated. They face discrimination and inaction from the police and other legal authorities and are often coerced into settling or compromising their cases even though this is not permitted under Indian law. Having to undergo a humiliating and irrelevant test only serves to discriminate against them further and makes it even more unlikely they will receive justice for rape.” A 2020 report by Equality Now and Swabhiman Society outlined how Dalit women face additional discrimination from medical professionals.
A victim’s sexual history is immaterial
The recent ruling is significant because it holds that any person found conducting a two-finger test on a victim in rape or penetrative sexual assault cases will be guilty of misconduct. This starts to address the impunity of medical professionals who continue with this practice.
The ruling was also important in underscoring that “the two-finger test is based on the incorrect assumption that a sexually active woman cannot be raped…a woman’s sexual history is wholly immaterial while adjudicating whether the accused raped her.” It begins to send a signal that the common persistent attacks on survivors’ character during trials, especially based on their sexual or relationship history, will no longer be tolerated.
“While this is a welcome judgment from the SC, the Indian government must now act properly and definitively to institutionalize the SC’s findings to ensure that irrelevant two-finger tests are no longer used and that any medical professional found to have conducted such tests is formally held to account,” adds Jacqui Hunt.