Condemning the use of the ‘two-finger test’ on survivors of rape and sexual assault to confirm the crime, the Supreme Court recently ruled ‘any person performing such tests will be held guilty of misconduct’.
A bench consisting of Justices D Y Chandrachaud and Hima kholi said ‘the so-called test is based on the incorrect assumption that a sexually active woman cannot be raped. They further said, ‘nothing can be further from the truth- a woman’s sexual history is wholly immaterial while adjudicating whether the accused raped her.’ The aforesaid observations of the court are spot-on from judicial point of view.
What is this test, and how is it done?
The ‘two-finger test’, also called per-vaginal test or simply PV by healthcare providers is a very useful physical examination done in women by inserting two fingers of the examiner into the vaginal canal of the examenee.
To prove that a woman has had, or has been forced into penetrative sex, two details are studied. These are: laxity of vaginal muscles and preservation of the hymen, which is a thin membrane in the vagina.
However, as a foolproof test to prove violent sexual assault, the above two details cannot be relied on.
This is because (1) the vaginal muscles can be lax in women who have been sexually active, before the alleged ‘rape’. (2)The hymen can be absent in women who have been physically active in sport and exercises. An absent hymen and lax vaginal muscles therefore, do not confirm forceful penetrative sex, which is rape. It is based on these two facts that the bench questioned the scientific validity of the test to confirm rape.
But, this test is also used extensively in clinical medical practice too. The test gives useful information to surgeons and gynecologists to diagnose and plan treatment of various disease entities involving pelvic organs in women and also provides valuable information on the progress of labor in a prurient (a woman in labor) to the obstetrician.
In forensic medicine and criminology, examination of the sexual organs, especially the vagina is of paramount importance, in a woman who charges of being raped or sexually assaulted.
But, the test, due to its shortcomings can only be complementary to more scientific tests and circumstantial evidence arrived at by investigative agencies and forensic experts to confirm sexual crime. The test by itself cannot be depended on as foolproof evidence of sexual violation of a woman, due to its innate drawbacks mentioned. Except in one situation- to confirm physical violation in women who are unlikely to have had penetrative sex earlier for religious, health, and other social reasons.
The Supreme Court had banned the test in May 2013 on the grounds that it violated women’s right to privacy. In 2018, the WHO and UN’s women’s rights body had called for a ban on PV examination to confirm rape, to eliminate violence against women. The PV examination was condemned as being painful, humiliating, and traumatic to the woman examined to rule out rape, which itself is traumatic. In India too, the Justice JS Verma committee formed soon after the Nirbhaya gang rape case in Delhi had recommended doing away with the PV test in cases of rape.
The Supreme Court, however, while pronouncing the ruling at this instant seems to have gone on overdrive by ordering the state and union governments to take steps to erase the ‘humiliating test’ from medical curriculum and warned that doctors would be guilty of misconduct for carrying it out. The court seemingly threw the baby out along with the bath water, as the test is too important to be struck off medical curriculum, as it is still used widely, and relied on by other medical specialties other than Forensic Medicine.
The learned court must therefore reexamine its blanket ruling condemning the PV test, as something that is to be abandoned entirely by medical professionals as it continues to be an important physical examination employed by doctors to diagnose and treat diseases in women and also to conduct deliveries safely.