Determining Legality and Moral Validity of the Two Finger Test: Evidence for Rape

A Two Finger Test more accurately called per vaginal examination is the procedure to determine the laxity of the vaginal wall. This not-so-new test is performed to find out if the woman had been involved in any sexual intercourse. Basically, it is performed by medical professionals on sexual assault victims to determine whether they had actually been assaulted. However, this test has not been considered as a good indicator of assault for several reasons: the thin membrane determining virginity can get ruptured not only during sexual activity but during sports, dance, or other such physical activity.

This test which is performed by the doctor inserting a finger into a female vagina has been questioned as being violative of the right to privacy of a woman. Living in a patriarchal society has led to the continuance of PV examination and clothed as valid evidence for sexual assault or rape. There is little scientific evidence about the accuracy of this test, hence in the contemporary world questions are raised and protests are being made to safeguard the right to privacy of women.

A pertinent point in this context is Section 155 (4) of the Indian Evidence Act, 1872, which allowed to bring in past sexual activities of the prosecutrix (in rape cases) to impeach the credit of a witness. However, this has been omitted later in 2003. Another notable provision in this regard is a proviso to Section 146, which prohibits putting questions or adducing evidence about the general immoral character of the prosecutrix.

This paper delves into an endeavour to research the validity of the Two Finger Test and how this test made the victims relive her trauma. Further, it will aim to find out whether the Indian Evidence act contains any provisions which support such invasion of privacy or it has provisions protecting the same.

Introduction

There are several types of offenses against women and one of the greatest among them is the offense of Rape. It is not only an offense against the woman but a crime against the entire society.[1] It is considered to be psychologically one of the most traumatic of all crimes against women.[2] In the opinion of Susan Brownmiller (in her book Against Our Will: Men, Women & Rape), it is a process of intimidation by which men keep all women in a sense of fear and it is a display of power over women.

And this is not any new crime. The ancient Babylonians, Hebrews used to execute the married rape victims, while stoned the virgin raped victims. They were of opinion that if she had not wanted it, then she would have screamed for rescue. Though later rape got recognized as a crime (for the first time it happened in 1275), what got ignored was the post-trauma and the adverse effect of the medical tests to prove the offense. The physical examinations of the victim play a significant role in a rape prosecution, and one such examination is the two-finger test (also known as per vaginal test).

It is an intrusive physical examination of the woman’s vagina to find out the laxity of vaginal walls, intact hymen and to determine whether she has been sexually active or not. There is a great premium attached to a woman’s virginity, sexual experiences to determine her character and marriage -ability. Hence women resort to several surgical interventions. Science has tried to debunk the myth attached to the intact hymen and vaginal walls as a sign of virginity. However, the effect of it is not appreciable, hence medical tests like the two-finger test persist. The offense of rape itself is quite traumatic, moreover, the victims have remarked that the two-finger test makes them relive their trauma.

Even the Human Rights Watch in a report refers that the forensic and medical expert remarks this test as unscientific, inhuman, and degrading, the test also has no forensic value. The per vaginal test, along with permission to refer to past sexual experiences (banned in 2003) has made it difficult for the victims to undergo the prosecution, hence most of the rape cases go unreported. This paper will try to analyze whether a two-finger test is an ethical evidence for rape cases.

What is a Two Finger Test?

The medical name of the two-finger test is ‘bimanual examination’. It involves the examination of the hymen and the laxity of the vaginal wall to ascertain information about the sexual history of the alleged victim here. It is done by inserting two fingers in the vagina of the concerned woman. And, the ease or difficulty in inserting the fingers helps to determine whether she has been sexually active or not (raped/assaulted in this case). In practical gynecology, it is a mono manual exam performed with one or two fingers in the vagina and with the other hand away from the abdomen so as not to confuse with the source of discomfort[3].

However, medical science has debunked the myth around this and said there is no scientific value in this test. This test involves inspection of hymen, which ultimately aims to find whether the woman is a virgin.

The hymen is the thin membrane across the opening of the vagina and this is assumed to be the indicator of virginity. However, many doctors are of the view that hymen cannot be considered an appropriate indicator of virginity and they offer several reasons for it. Like, a girl might be born without it, the membrane might have got ruptured during sports, mountaineering, dancing, etc. The forensic consultant opines against this test on the rape victim since it only determines whether the hymen is there or not- which is inconclusive proof for a rape case.

Hence the usefulness of this test has been brought into question repeatedly by the medical authorities and the victims of sexual crimes (who have undergone this test). The issue of virginity is a matter of subjective observation and human civilization has wasted a lot of time obsessing about hymen and virginity. The concept of virginity testing is not a new one and has been practised for thousands of years, however, it was all done for social purposes like finding out if she is pure, ascertaining her marriageability.

Basically, it is a cultural practice with little or no scientific proof of validity. Living in a patriarchal society had made such practice flourish and women’s body has always been under scrutiny. This cultural practice of determining virginity evolved and took a turn. Now it is being considered as evidence for rape or sexual assault. Though its validity is in question, it is still practiced.

Feminists and human rights activists have claimed that this Two Finger Test is an intrusion in women’s privacy and meddling with her dignity. There have been assumptions that it is designed to control women and her sexuality. Lawyers, medical professionals have also criticized this test as unscientific and inhumane as it subjects the complainant to trauma. It has been accepted as evidence at times, in the sexual crimes against women and such relevant crimes are discussed subsequently.

Relevancy in Offences

The category of sexual offenses in IPC is dealt with under Section 375 to 377 IPC. It talks about what rape is, what is its punishment what are different other sexual offenses are. However, the greater focus in this paper will be on rape. The most common element in all of these crimes is the absence of consent.

Rape- Section 375 defines Rape and the 2013 criminal amendment act gives it an extremely wide ambit. Before this, it was limited only to penile-vaginal penetration. The elements at present are-

1. 1. Sexual intercourse by a man upon a woman in any of the following manner-
   2. Penetration (to any extent) of a penis in the vagina, anus, or mouth of the woman or makes her do so
   3. Insertion (to any extent) any object or body part in the vagina, anus, or mouth of a woman or makes her do so.
   4. Manipulating a woman and any of her body parts to cause penetration or makes her do so.
   5. Applies his mouth to the vagina, anus, or urethra of a woman
   6. Against her will
   7. Without consent
   8. Consent obtained by instituting fear of death or hurt
   9. With or without consent under 18 yrs.
   10. When she is unable to communicate.
   11. Consent obtained during unsoundness of mind or intoxication or any such situation where she is unable to understand the situation
   12. When she gives consent because she believes him to be her husband, the man understands this, and also he is aware that he is not her husband.

The term ‘consent’ here means an unequivocal voluntary agreement by a woman either through words expressly or by gestures (impliedly). A careful analysis of the elements reveals that the sexual offense of rape does not have to be a penile-vaginal penetration, it can take several forms of penile penetration, or penetration of any body part and even includes application of mouth to her vagina, urethra, anus.

Moreover, the section makes it clear that penetration of any extent will count as rape. It does not have to be deep enough to cause physical injuries or even rupture her hymen. As per this section, the mere fact of penetration is sufficient for holding guilty. However, the penetration should be without consent or against her will. These terms ‘without consent’ and ‘against her will’ sound synonymous, but they are not. In the latter, she had expressed her will, but it was not respected and she was forced upon. In the former, consent was not even asked for. It is a very thin line difference, but the act is done despite resistance.

In the third and fourth circumstances of Section 375, consent is obtained and not voluntarily given. Hence it is invalid consent (Section 90 IPC)[4]. As per s. 90, any consent was given under fear or under misconception will not be considered valid consent under any provision of IPC.

In the case of Kaini Rajan v. State of Kerala[5], the court had said that if there was a promise made to marry her and her consent was based on it. But later the proviso was not fulfilled, then it will amount to cheating or fraud, but not rape under a misconception.

Under the 5^th, 6^th, and 7^th circumstances of s.375, the person might give consent but he does not have the capacity to think rationally. Hence it does not count as valid consent. In the case of Tulsidas Kanolkar v. State of Goa[6], the accused had sexual intercourse with a mentally challenged woman in repeated instances and was held guilty of rape. The court here said that a woman or girl who is impaired due to mental retardation cannot be said to have given consent.

The section also provides for two exceptions, the first one being examination in a medical procedure. It says if any medical procedure seems to have fulfilled the criteria for rape, would not consider so. However, the second exception is quite controversial. It is about marital rape.

The persistence of this exception shows the persistence of patriarchal notions of giving the husband power over the wife and disrespecting her consent. With the passing of time, it sounds irrelevant, hence marital rape should be made a criminal offense. However marital rape is considered domestic violence under the domestic violence act 2005. Criminalizing marital rape will respect women’s right to dignity, sexual privacy irrespective of her marital status.

Section 376D[7] talks about gang rape i.e. committed by multiple men. The punishment for gang rape is rigorous imprisonment for a term of 20 years (minimum) and extendible up to life imprisonment, while punishment for rape is laid in Section 376. As per it, rapists shall be punished with rigorous imprisonment extendible to life imprisonment. Moreover, in Section 376, it is laid down that if the rapist is a police or public servant or army or any jail management staff or any such person, then he will be punished with a minimum of 10 years imprisonment.

Demands are still made to make laws stricter and more stringent because the trauma caused by rape and the physical examination is drastic and highly damaging.

Test as Unscientific, Illogical, and Unethical

The offense of rape in itself leaves a cataclysmic impact on the victim and the victims of rape should be handled with extreme sensitivity. However, rape victims are always looked down on and also called as being ‘asking for it. It is implied that all these are highly traumatic and what adds to this snag is the physical examination procedure of the victim. The law provides for medical examination of the accused[8] as well as the victim[9] immediately after filing FIR for determining the veracity of the sexual contact if takes place.

The medical examination of the victim or any woman cannot be conducted unless she consents to it. It has to be done by a woman medico- professional and in her absence by a male doctor in presence of a female attendant. Despite doctors’ responsibility to provide medical and psychological help, they have been criticized for being insensitive to the victims. In rape cases, medical evidence plays a pivotal role, hence intensive care shall be observed while the examination is done. Though it is inconclusive without forensic evidence, still medical evidence is significant. There can be different types of medical tests done but one among them is the two-finger test.

The two-finger test which originated in the 18^th century can only ascertain information about the hymen and laxity of the vaginal orifice. The absence of hymen and laxity of the wall is no proof of rape or assault and there are two different situations, arguments to it. The first one is the absence of hymen, while the second one is the presence of hymen.

In the former case, the absence of hymen can be due to several reasons unrelated to sexual activities. From the absence of hymen, it cannot be concluded she has had sexual intercourse or was raped. Neither loose vaginal walls can conclude anything about her past sexual experiences. Earlier bringing in of past sexual history (of the victim) was allowed to determine her character and decide whether there was rape.[10] However amending act 3 of 2003 removed this insensitive, illogical and inhumane provision.

In the latter case, the presence of a vagina does not either establish anything about rape. As per Modi’s Jurisprudence Toxicology[11] and Parikh’s Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, it is established that to constitute an offense of rape there is no need of complete penetration into the vagina, partial penetration, or an attempt to do so is sufficient in law. Therefore rupture of the hymen is not necessary. Moreover, the hymen is situated deeply in younger females, hence more often it escapes an injury in the rape of children.

The muscles or labia might become red or bruised only on the use of a considerable amount of violence, which means if we consider the test as evidence in cases of partial penetration (which constitutes rape under IPC) the accused will be acquitted. In adult women, if there was partial penetration it could also leave hymen intact, hence the offense will be disproved. Thus it is unscientific and clearly illogical proof of rape.

There is another side to it too i.e. the grounds of humanity. As already said, rape causes a cataclysmic effect on the victims, hence special care should be observed so as to not cause any further trauma to them. But the description of the test itself gives a glimpse of how scary or devastating it can be. It clearly violates the dignity of the victim.

It violates the physical and mental health of the victim. It is equally painful and mimics the pain of penetrative and causes trauma through re-rape. The report of this test, based on the doctor’s interpretation frames the case whether the woman’s complaint is true and there is a considerable scope of bias. If the answer is in the affirmative, there are chances that the defense lawyers would question the woman’s character and establish it as immoral.

The International Covenant on Economic Social and Cultural Rights 1966 and UN declaration of Basic Principle of Justice for Victims of Crime and Abuse of Power 1985 lay that rape survivors are entitled to such a legal recourse that does not question her dignity, does not traumatize them, and is not violative of their integrity. It was also suggested that medical procedures should not be cruel, inhumane and paramount care shall be taken that the notions of patriarchal motions are not involved.

In 2014, Union Health Ministry laid guidelines concerning the treatment of rape victims. It has asked the hospitals to set up separation rooms for examination of the rape victim and outlaw the two-finger test. The Indian Council of Medical Research (ICMR) formulated guidelines for dealing with sexual offenses to put an end to this test. It aimed to address the psycho-social impact of rape and advised the medical professionals to counsel the victims. (guidelines similar to ones laid by WHO).

However, in reality, the approach of doctors are not sensitive enough and tests are done regardless of the victim’s comfort. Recently, the Maharastra University of Health Science had updated its syllabus and removed the concept of virginity, signs of virginity, and virginity test. This is certainly a laudable step. Supreme Court in the case of Rajesh & another v. State of Haryana (2013) has declared the test as unconstitutional because it violates the right to privacy, physical and mental integrity of the victim. From all these, it can be concluded that the two-finger test is unethical and illegal.

Foreign Countries on Two Fingers Test

Pakistan

The Supreme Court of Pakistan on 4^th Jan 2021, in the case of Atif Zareef v. The State, declared the two-finger test done on victims as unconstitutional. It said that dragging the sexual history of the victim is clearly in derogation to the body and mind of the victim. It even added expressions like ‘habituated to sex’, ‘women of lose character’ are traumatizing for the victim and questions her dignity. Hence it should be avoided. Supreme Court of Pakistan referred to the Indian judgment of Lilu@ Rajesh & another v. State of Haryana where the court had observed that the two-finger test violates the mental and physical integrity of the victim.

Pakistan is a signatory of the International Covenant on Civil, Political Rights 1976, hence obliged to follow it which protects the survivor victim from arbitrary interference into her private life. Hence the Pakistan Supreme Court abiding by this covenant and other international guidelines invalidated the two-finger test. Earlier the Lahore High Court also did the same thing by citing the Indian judgment of the State of Gujarat v. Rameshchandra Panchal.

Afghanistan

In Afghanistan ‘rape’ is not any separate offense it is recognized as sexual offenses like adultery, violation of honor, etc. The law here is quite rigged, sometimes the victims of rape are prosecuted for Zina (Adultery). The Criminal procedure code of Afghanistan refers to the use of forensic evidence, however, in practical application, there is no consistency in the use of expert evidence and prosecution. Bimanual medical test is very common in rape cases as well as adultery. Despite the fact that this test is done and used for establishing guilt or acquitting the accused.

Nepal

Regarding the right to privacy, there is no exhaustive law, which creates difficulty for women to seek justice. The court in the case of Re Sapana Pradhan Malla v. PM Nepal and Government and office of council of the minister said that due to existing discrimination, women are facing obstacles in the enjoyment of public rights and seek judicial remedy for injustice done to them. In Nepal, the victims of sexual assault are reluctant to come forward because of the legal lacunas.

The social stigmas wreath around the dignity of the survivor, her family is an obstacle to the way of admitting to rape. Even if they wish to report, the tussle between police personnel and medical professionals about who should proceed first. It discourages the survivors to report. The medical professionals demand an FIR copy for proceeding with examination and the police ask for a medical report certifying rape happened. These depict fumbling management that evidently lacks facilities for a proper investigation into rape.

South Africa

In the Zulu culture of South Africa, there is a tradition of virgin girls to dance for the king and to determine their virginity, this test is done. If she is not found a virgin, then she is taunted for it and her father has to pay a fine. The test is also performed to prevent the spread of HIV and teenage pregnancy.

However, there is no data available about its usage in the legal field.

United Kingdom

In the UK, there was a policy on virginity testing of immigrant women who are going to marry their fiancé living in the country. It was believed that virgins are more likely to tell truths about this migration. However, this policy ended in 1979, and is not practiced now.

Status in India

Verma Commission Report

After the 2012 Delhi gang-rape case, there were widespread protests on streets, college campuses, etc. Thereafter a three-member committee was set up to make recommendations about the examination of rape as an offense. On 23^rd Jan 2013, the committee was convened and it was steered by CJ J.S. Verma. It submitted a 657-page long report consisting of suggestions for Indian criminal laws governing sexual violence and punishment for it. Among the score of recommendations, the most significant one is the humiliating two-finger test.

It is an examination to determine whether the rape victim was actually raped. In the chapter of ‘Medico-Legal Examination of the Victim’, the report said, “it is crucial to underscore that the size of the vaginal introitus has no bearing on a case of sexual assault and therefore a test to ascertain the laxity of the vaginal muscles which is commonly referred to as the two-finger test must not be conducted.”[12]

The Verma Commission recommended nine standards to be followed while examining the rape victim. They are-

1. The examination room must be clean, hygienic, well ventilated, and well lit with fixed lighting.
2. The examination equipment must be adequate and confirm to international standards.
3. In the case of a minor victim, first, the mother or older female relative of a victim shall be examined, otherwise, the situation would have been different.
4. During the examination, a trained health worker preferably of same-sex should be present.
5. The examining doctor, along with the victim’s relative or health worker, must explain each and every step of the examination and give reasons for its significance.
6. The examiner must seek consent for the procedure, if the victim does not give consent, then the examiner should refrain from making any adverse comments to her.
7. The victim must feel comfortable and assured that she is in control of the pace, happening of the test. Also, she shall be assured that she will not be forced to undergo any particular things about examination.
8. The victim must be reassured that the report of examination shall be kept confidential outside court.
9. The report must be shown to the victim and it must be explained to her.

Lilu v. State of Haryana[13] The accused was convicted for rape by the additional session judge (under Section 376 IPC). The victim was found to be below 14 years on the date of offense. The convicts appealed in Punjab and Haryana High Court, where their appeal was dismissed. Then they filed an appeal in the apex court. The appellant argued that the girl had given consent to her and she was not a minor. He relied on the two-finger test and claimed that the girl was habituated to sex. While the respondents countered them by saying that the two-finger test is not valid, ethical. The report of that test is inconclusive in determining whether there was rape.

The issue in this case was-

1. Whether a two-finger test is valid or is it violative of Art 21?
2. Whether ‘habituated to sexual intercourse’ relevant in the case?

The court found out that the girl was 13 years 9 months old on the day of the rape. The apex court extensively analyzed the two-finger test which was used for determining rape happened.

Court referred to the 1994 case of Narayanamma (Kum) v. State of Karnataka[14] where the court had clearly stated that medical examination should not be carried out in such a manner that it seems inhumane, cruel, and unethical. It had even suggested that the paramount care should be the health of the victim and it should be ensured that there is no arbitrary interference with the victim’s privacy. Talking about the two-finger test, the court said that such a test is a sheer violation of the right to privacy, integrity, and dignity of the survivors.

The test is inconclusive, even an affirmative report cannot determine anything about consent. The court relied on the case of State Punjab v. Ramdev Singh[15] where the judges were of opinion that rape is a dehumanizing act, intrusion into her sanctity, a serious blow to her self esteem, hence these cases should be dealt with utmost care so as to not graven the trauma of victim.

To answer the second question, the court referred to the case of the state of UP v. Munshi[16] where it was held that ‘whether the victim was habitual to sexual intercourse cannot be a determinative question as it does not relate to the question of consent. It implies that habitual sexual intercourse does not mean that she gave consent to the accused. This judgment was reiterated in the case of Narendra Kumar v. State of NCT of Delhi[17]. Court further noted that international covenants, declarations also make it legally binding that rape survivors are entitled to such legal recourse which does not re-traumatize.

The court finally concluded that the test undoubtedly violates the right to privacy, the dignity of the victim. Moreover, the question of ‘habitual sexual intercourse is not a determinative factor in deciding rape cases.

IAF Coimbatore Rape Case– The IAF Coimbatore officer filed an FIR about the sexual assault which took place on 9^th Sep. As per the FIR, she was injured, she took a painkiller and drinks. Thereafter she vomited. Her friends (one male and one female friend) took her to her room and she almost slept. Her friends latched the room from outside and left. However, the accused came back, tried to kiss her, and defended herself. The next thing she remembered was her female friend asking whether the guy was near her with her consent and she said NO. Then her female friend showed her semen stains on the bedsheet.

She was asked either to file an FIR or give a written statement that everything was consensual. She went to the hospital where she was examined by a two-finger test and then she filed FIR.

It is 2021 i.e. eight years have passed since the Supreme Court had banned this test. Despite being unconstitutional, invalid by the Supreme Court as well as the Union Ministry of Health, this test is performed on the victims. It was deemed to be unscientific and unethical. In terms of the victim officer, ‘The test made me nauseous enough to relive the trauma of being raped’.

Findings

As per Section 375 IPC, rape is a criminal offense. However in the patriarchal society, rape victims are not treated as victims, they are being accused as ‘asking for it. In ancient days, some countries used to stone rape victims to death. The offense is not just a physical intrusion into the female’s body, rather is mentally traumatizing for the victim. It devastates the victim and society adds to her trauma. Not just the society but also the legal procedure is not humane enough to make the victim comfortable.

The Two Finger Test is one of the medical examinations where the examiner checks the hymen and laxity of the vaginal wall. It determines whether the girl is a virgin or she has been sexually active. However, medical science has said that it is inconclusive evidence of virginity.

Even if the report is affirmative it does not signify anything about the consent. Moreover, this test is traumatic to the victim, intrudes into her privacy. Hence this test has been disregarded as evidence for rape test. Supreme Court in 2013 had invalidated this test and before it in 2012, the Verma commission remarked this test as inhumane and disregarding. But this test is still being practiced on victims and this can be substantiated by the IAF Coimbatore rape case, where the victim was not aware of the invalidity of the test and she was subjected to it.

From this, it can be safely concluded that stricter legal provisions are needed to make sure that the victims are not subjected to it.

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[1] State of Punjab v. Ramdev Singh, AIR 2004 SC 1920

[2] The Sexes; Women against rape, The Time Magazine, (2013)

[3] BI Carlin and FC Leong,(2013) Female Pelvic Health and Reconstructive Surgery

[4] Indian Penal Code 1860, s.90

[5] (2013) 9 SCC 113

[6] AIR 2004 SC 978

[7] Indian Penal Code,1860 s.376D

[8] Criminal Procedure Code, s.53A

[9] Criminal Procedure Code, s.164A

[10] Indian Evidence Act, 1872, s.155(4)

[11] 21^st ed pg 303

[12] Justice J.S. Verma, (2013) Report of the Committee on Amendments to Criminal Law, Committee Amendments of Criminal Law.

[13] (2013) 14 SCC 643

[14] (1994) 5 SCC 728

[15] AIR 2004 SC 1920

[16] AIR 2009 SC 370

[17] AIR 2012 SC 2281

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