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‘Two-Finger Test’ of Sexual Assault Victims: What SC Said?
Nov 02, 2022
Today’s edition of our Current Affairs will comprise a discussion on the ‘Two-Finger Test’ of Sexual Assault Victims: What SC Said. Read further to upgrade your UPSC CSE knowledge and also understand the topic’s relevance to the UPSC syllabus.
For Prelims: Two-finger test, World Health Organization (WHO), Section 375 (rape) of the IPC, Violation of Right to Privacy, National Medical Commission (NMC).
For Mains: Flaws in the two-finger test, Case in which the SC made recent observations, SC’s earlier comments on the two-finger test, Government’s guidelines, Attempts to stop the ‘two-finger test’.
Recently the Supreme Court has expressed its disapproval of the two-finger test and held that those conducting the ‘two-finger test’ on alleged rape victims will be held guilty of misconduct.
Explain why and how the SC has expressed its disapproval of the two-finger test.
About the Two-Finger Test
It is also referred to as the Per-Vaginum examination.
Normally, a woman who has been sexually assaulted undergoes a medical examination for ascertaining her health and medical needs, collecting evidence, etc.
The two-finger test is one of those medical examinations, which is carried out by a medical practitioner.
It involves the examination of her vagina to check if she is habituated to sexual intercourse. Moreover, such ‘information’ has no bearing on an allegation of rape.
Flaws in the two-finger test:
The practice is unscientific.
It does not provide any definite information.
The so-called test is based on the incorrect assumption that a sexually active woman cannot be raped.
The test also violated woman’s right to privacy.
According to a handbook released by the World Health Organization (WHO) on dealing with sexual assault victims says that “There is no place for virginity (or ‘two-finger’) testing; it has no scientific validity.”
Case in which the SC Made Recent Observations
In the rape and murder of a minor girl case in Jharkhand in November 2004, she was subjected to the ‘two-finger test.
In this case the SC stated:
It was “regrettable” that the practice was still followed, “Whether a woman is ‘habituated to sexual intercourse or ‘habitual to sexual intercourse is irrelevant for the purposes of determining whether the ingredients of Section 375 (rape) of the IPC are present in a particular case.”
Adding that the “probative value” of a woman’s testimony does not depend upon her sexual history, they stated that It is patriarchal and sexist to suggest whether she was raped, merely because she is sexually active.
Section 375 of the Indian Penal Code:
Defines rape as "sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped or is of unsound mental health and in any case if she is under 18 years of age."
SC’s Earlier Comments on the Two-Finger Test
Violation of Right to Privacy: In May 2013, the apex court held that the two-finger test violates a woman’s right to privacy.
Other Medical Procedures: The SC asked the government to provide better medical procedures to confirm sexual assault.
Presumption of Consent: Habituated to sexual intercourse cannot give rise to the presumption of consent, the SC said.
Legal Recourse: The apex court said rape survivors are entitled to legal recourse that does not re-traumatize them or violate their physical or mental integrity and dignity.
History is immaterial: Nothing could be further from the truth, a woman’s sexual history is wholly immaterial while adjudicating whether the accused raped her, as per the SC.
Government’s Guidelines on the Two-Finger Test
In 2014, the Union health ministry released a document titled ‘GUIDELINES & PROTOCOLS Medico-legal care for survivors/victims of sexual violence’.
The guidelines are clearly opposed to the two-finger test.
In fact, the guidelines state that a rape victim’s consent (or her guardian’s, if she is minor/mentally disabled) is necessary for any medical examination.
Even if consent is not provided, the victim cannot be denied medical treatment.
These guidelines are not legally binding.
Attempts to Stop the ‘Two-Finger Test’:
The Madras High Court directed the state to ban the two-finger test, in April 2022.
The National Medical Commission (NMC), the country’s top medical education regulator, modified modules for forensic medicine stating that students will be trained on “how to apprise courts about the unscientific basis of these tests if the court orders it”.
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Criminal Law (Amendment) Act 2013: Criminal Law (Amendment) Act 2013, mentions that the “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 offences”.
Circulation of Ministry’s guidelines: The Centre and state governments should ensure that the Ministry’s guidelines are circulated to all government and private hospitals.
Workshops: The SC also ordered workshops to be held to communicate the appropriate procedure to determine sexual assault and rape.
Reviewing the curriculum: It also directed the government to review the curriculum in medical schools to ensure the practice is no longer used.