The Supreme Court of India on Monday, October 31 forbade the two-finger test in rape and sexual assault cases, marking another progressive stride. The court said that a woman’s sexual past is irrelevant in determining whether they have been sexually violated and anyone performing such tests on assault survivors would be considered guilty of misconduct.
The bench comprising Justices DY Chandrachud and Hima Kohli said, “This court has time and again deprecated the use of two finger test in cases alleging rape and sexual assault. The so-called test has no scientific basis. It instead re-victimises and re-traumatises women.” Although the two-finger test in this case was performed more than ten years ago, the bench also expressed disappointment that it is still used today.
This positive stride in condemning the employment of this retrograde and intrusive test comes after the apex court has repeatedly denounced it; nevertheless, they continue to be performed on victims of sexual assault and rape. Why?
What is a two-finger test and why is it wrong?
The two-finger test, sometimes also known as virginity testing, involves a doctor sticking two fingers into a woman’s vagina to see if her hymen is still intact. The test is carried out to check if the victim had sex recently by examining the hymen. It is assumed that the hymen of a woman can only be torn if she has engaged in sexual activity and thus, the test is conducted on survivors of rape and sexual assault.
"The so-called test is based on the incorrect assumption that a sexually active woman cannot be raped. Nothing could be further from the truth — a woman's sexual history is wholly immaterial while adjudicating whether the accused raped her," the bench noted as it gave its judgment on Monday.
What are the previous Supreme Court decisions on this?
The two-finger test on rape victims was prohibited by the Supreme Court in May 2013 after the 2012 Nirbhaya gang rape and murder case. The Criminal Laws (Amendment) Act, 2013 was passed to outlaw this testing method because it infringed on their right to privacy. To confirm sexual assault, the court requested that the government offer better medical treatments.
The guidelines for public and private hospitals by the Department of Health and Family Welfare to examine sexual assault and rape victims forbids the two-finger test.
What do the UN, WHO and other world organisations have to say about these tests?
According to the United Nations, this testing is against human rights and without any scientific foundation. Furthermore, just as it is impossible to determine if a man or a woman has engaged in sexual activity, the same is true for women. While engaging in sports, riding a horse, bicycling and other common physical activities, women are susceptible to breaking their hymen.
In 2018, just a few years after the testing was banned in India, the World Health Organisation (WHO), UN Women and the United Nations Human Rights Council (UNHRC) advocated for a ban on the two-finger tests describing it as a traumatising, painful and an unnecessary procedure.
