Doctors who use humiliating test on rape victims guilty of misconduct: India top court

India's Supreme Court was referring to the “two-finger test”, a prohibited procedure used by some Indian medical examiners to determine if a rape victim is habituated to sexual intercourse. PHOTO: REUTERS

BENGALURU - The Indian Supreme Court has ordered that doctors using a humiliating and unscientific test on sexual assault victims be held guilty of misconduct by the government.

The court was referring to the “two-finger test”, a prohibited procedure used by some Indian medical examiners to determine if a rape victim has been sexually active. This test is officially reported as “per vaginum examination”.

“The so-called test is based on the incorrect assumption that a sexually active woman cannot be raped,” the court said on Tuesday. It added that the procedure “which tests vaginal laxity is an affront on women’s dignity” and “irrelevant” to determining whether rape had occurred.

Justice Hima Kohli and Justice DY Chandrachud made the comments while restoring a conviction and a sentence of life imprisonment for a man in Jharkhand state who had raped a 16-year-old girl in 2004 and set her on fire.

The judges said it was “regrettable” that the rape survivor who was severely burnt was subjected to the two-finger test.

“The probative value of a woman’s testimony does not depend on her sexual history. It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped merely because she is sexually active,” they added.

The Supreme Court also directed central and state governments to review medical school curricula and remove any material prescribing the two-finger test as part of the medico-legal examination of survivors of sexual assault and rape. 

It had banned the invasive procedure in 2013, calling it a violation of a woman’s dignity and privacy. The judges at that time had noted that rape survivors are entitled to legal recourse that does not “re-traumatise them”.

After historic nationwide protests in India following a Delhi woman’s gang rape in 2012, India passed a stringent anti-rape law in 2014, and the Ministry of Health and Family Welfare issued comprehensive guidelines on how to examine victims of sexual assault.

The progressive 2014 protocol clearly forbids the two-finger test, determining past sexual history of the survivor, and assessing resistance of a survivor based on her physical build, among others. However, these guidelines are not legally binding.

Activists and medical experts say the test is still done in several parts of India, including on minors, due to a lack of monitoring, gender biases and regressive medical curricula. 

Research by Mumbai-based Centre for Enquiry Into Health and Allied Themes (Cehat), which works on health and human rights, found that India’s medical degree curriculum, revised in 2019 after 21 years, was replete with gender and sexual stereotypes. 

The forensic science and toxicology curriculum, for example, still contains unscientific terms such as defloration, virginity testing and types of hymen, which have no basis in medical science and perpetuate biases against women, said Ms Sangeeta Rege, director of Cehat. 

Most women who report rape “do not even know” that the two-finger test is performed on them, Ms Rege noted, as it is part of the “entire environment of invasive exams done at the hospital without consent and insensitive police response that re-traumatise the sexual assault survivor”. 

Victims often delay reporting sexual assault as they are reluctant to engage with the justice system or acknowledge the crime publicly. By the time a report is made, bruises may have healed and forensic medical evidence might have deteriorated.

Ms Kushi Kushalappa, who works at non-profit Enfold India rehabilitating child victims of sexual abuse, is doubtful about the evidence that a doctor could find during an examination, given the delay in reporting and the kind of sexual offences that can occur, including non-consensual penetration by fingers and objects, and non-penetrative sexual acts.

Although medical evidence is considered as circumstantial evidence, many courts still “rely very heavily on a good medical report that clearly states that there are signs of sexual assault or presence of forensic medical evidence”, she added.

India reported an average of 86 rapes every day in 2021, but by some government estimates, around 99 per cent of sexual assaults go unreported. Survivors are daunted by social stigma, fear, ignorance, low conviction rates, and unsympathetic police and legal systems.

Activists and experts welcomed the Supreme Court’s comments. Ms Rege said it was an opportunity for more states and medical bodies to “strictly enforce the 2014 guidelines for sexual assault examination”. She hoped that penalties for errant medical examiners would also encourage sensitive treatment of sexual assault survivors. 

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