The news of an advisory issued by the Delhi government, permitting doctors to conduct the “two-finger test” on rape victims spread like wild fire on the social media and I was swamped with calls for a reaction. The three-member committee that released the circular had justified it on the ground that a total ban on the test may lead to an incomplete assessment of the victim and result in possible injustice to her. The reasoning appeared perfectly sound to me, and the frenzy around it totally out of sync.
Under the heightened media glare, rather than explaining the rationale, the Delhi government beat a hasty retreat and revoked the advisory and we lost an important opportunity to understand the ground reality that had led to the advisory.
However, I continued with my probe and asked a young journalist who sought my reaction: “If the ‘two-finger test’ is problematic, would a ‘one-finger test’ be alright?” She was taken aback. Amused by her reaction, I asked her what she understood by the term “two-finger test” and why she thought it was problematic. She could not explain except to mumble that it was invasive. I pushed further and asked her that if during the course of a normal delivery, the doctor feels it is necessary to use forceps, would it be invasive? Or would using a spatula for collection of vaginal swabs for cancer detection be invasive? She was dumbstruck and admitted that she did not understand the issue.
This convinced me that not everyone who was jumping on the bandwagon to hyperventilate knew what they were opposing, as is usually the case in social media. Finally, when I asked her whether the advisory had actually used the words “two-finger test”, she sheepishly answered in the negative and said that the term used was “P.V. tests” which expands to “Per Vagina tests”. Then why was she using “two-finger test”? Just for its sensational value? Internal tests through insertion of fingers are performed on rape victims during medical examination to assess the damage caused to the walls of the vagina and the mouth of the uterus during a violent sexual intercourse.
The objection to this test comes from the fact that it is also used as a “chastity test” — an elastic vagina which permits insertion of two fingers with ease is believed to be a clear indication that the victim is “habituated to sexual intercourse” prior to the incident of rape. This is often exploited by defence lawyers to humiliate the victim during cross-examination in court, to cast aspersions on her character and to discredit her, resulting in her re-victimisation.
This type of cross-examination was permitted at a time when our rape laws were loaded heavily against the victim. A sexist provision in the Evidence Act (Section 155 (4)) permitted the accused in a rape trial to use the victim’s past sexual history (with other men) in his defence. The law essentially presumed that if a woman was not a virgin, or was habituated to sex, she was an unreliable witness and the accused could reap its benefits and secure an acquittal.
This offending section was not deleted when the rape law was amended in 1983, as it was presumed that it would harm the right of the accused to a fair trial. But subsequently, in 2002, after a sustained campaign by women’s groups, it was deleted. Hence, defence lawyer cannot use the past sexual history of the victim and the court cannot permit any such questioning.
There are several Supreme Court rulings which have firmly held that the past sexual history of the victim is not relevant and cannot be used as evidence during a rape trial. What we need is a careful monitoring of court processes rather than creating hype over the medical test.
Given the progress in medical science, forensic and DNA investigation, why do doctors feel the necessity to perform this test today? The role of medical professionals in a rape case is two-fold — collection of evidence and assessing the injuries, and providing treatment to the victim. In this process, an internal examination may reveal crucial evidence. To give an example, there was a case where eight men had raped a 40-year-old ragpicker. Twigs had been inserted into her vagina which were detected during an internal examination. These twigs were then matched with shrubs at the scene of the crime to produce clinching evidence against the accused.
In cases of prolonged abuse, particularly abuse by fathers, the evidence of an elastic vagina helps in proving that the child has been subjected to prolonged sexual abuse, even though there aren’t any fresh injuries to prove rape. Similarly, in “promise of marriage” cases, the internal examination and condition of the vagina helps in proving the victim’s version that she was in a long-term sexual relationship with the accused.
We need to move with the times, incorporating the reforms that have taken place within our laws into our conceptual framework. It is time to abandon the sensational and titillating term “two-finger test” which has a negative connotation and instead use the more scientific, accurate and non-judgmental term, P.V. test. It is time to delink moral assumptions from medical examinations and use medical procedures to assess the extent of injuries and to provide treatment. The tests should be conducted, not in a routine manner, but after due application of mind, in the manner that other medical tests are conducted on the victim and the accused, which have important evidentiary value during the trial. Rather than banning the test, it would be more prudent to ban the term “two-finger test” from our medical and legal vocabulary.
The writer is a women’s rights lawyer
