Two Finger Test
Before 1979, the United Kingdom (UK) followed a protocol for medical examination of women who were immigrating to the UK to marry their fiancés. This protocol could have gone forever if an Indian woman had not raised her voice after being examined in a manner that not only breached her privacy but also insulted her dignity. At that time, people entering the UK did not need visas, if they were going to marry their fiancées within three months. But the Indian lady had to undergo an extensive medical examination on her plan to settle in the UK. The immigration officer was doubtful that this was her first marriage and was somewhat sure of having children already. This may have occurred because of her age of 35 years.
A week later, this practice of medical examination made headlines in London print media, thus exposing the practice of the virginity test, also known as the two-finger test. Immediately disciplinary action was ordered against immigration officials who were suspected of having carried out this test. Indian High Commissioner to the UK also asked the UK government to ban this practice as it was outrageous and was carried nowhere in the world.
What is two-finger test
The test is conducted to check whether the woman has had recent sexual intercourse. The test includes an inspection of the hymen, which is a membrane that surrounds or partially covers the external opening of the vagina. The hymen is inspected as it can be torn only if a woman has had any sexual intercourse. Not only it is ethically incorrect but in medical terms, flawed. It is proven medically that the hymen can be sexually torn due to several reasons from cycling to riding to masturbation. Actually, the two-finger test is performed by the doctor, who inserts two fingers into the vaginal canal of the woman to check the laxity of her muscles and determine if she has been sexually active.
In India, this test was quite rampant till a few years back, as it was conducted on rape victims to prove whether sexual intercourse took place or not. Almost a decade back after the Nirbhaya case, the Government formed a committee under Justice Varma, and its report said “ It is crucial to underscore that the broken hymen 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. On the basis of this test observations/conclusions such as ‘habituated to sexual intercourse should not be made and that is forbidden by law. Following the recommendation of the Justice Varma Committee, The Criminal Laws (Amendment)Act, 2013, made the two-finger test illegal.
Now yesterday in Supreme Court (SC) in their order by a bench led by Justice DY Chandrachud said the sole reason behind using the regressive test on traumatized sexual assault survivors is to see whether the woman or girl was habituated to sexual intercourse, which is not legal. Such a concern was irrelevant to the fact whether she was raped or not. Previous sexual experiences are immaterial to the question of conduct.
The faulty logic behind the test was that a woman can not be believed when she said she was raped merely for the reason that she was sexually active. This so-called test has no scientific basis and neither proves nor disproves allegations of rape. It instead re-victimises and re-traumatises women who may have been sexually assaulted, and is an affront to their dignity. The two-finger test or pre-vaginum test must not be conducted.
The SC said that the legislature had amended the criminal law in 2013 to introduce Section 53 A, which says ‘the evidence of a victim’s character or her previous sexual experience with any person shall not be relevant to the issue of consent or the quality of consent in the prosecution of sexual offences’. Any person who conducts a two-finger test in a sexual assault case shall be guilty of misconduct.
The judgment of SC said that the Ministry of Health and Family Welfare had also issued guidelines proscribing/banning the application of the two-finger test on alleged rape victims by health practitioners. While directing the Centre and State governments to ensure that the Ministry’s guidelines are circulated to all governments and private hospitals, the court also ordered workshops to be held to communicate to determine sexual assault and rape. It also directed the government to review the curriculum in medical schools to ensure the practice is no longer used.
I hope this regressive test should go away from the mindset of medical and legal practitioners.
Waiting for your views on this blog.
Anil Malik
Mumbai, India
1st November 2022