While conducting a study of the Fast Track Courts that have been instituted in Bangalore to try cases of rape and sexual assault, it was startling to discover that out of the 12 cases that have been disposed of by the FTCs since their establishment, 11 resulted in acquittals. The only case which resulted in the conviction of the accused was for the offence of “attempt to rape” and not rape. In this case, the court heavily relied on the medical reports which stated that the victim was “used to having sexual intercourse.”1 This conclusion was drawn by the Medical Officer upon conducting the two-finger test”.
Historically, the two finger test has been conducted during the medical examination of a rape victim to check two factors: to decide whether the hymen is torn or not and to determine the laxity of the vagina. The reason for conducting the two finger test was to answer the question of whether the victim was habituated to sexual intercourse. When introduced as evidence in a rape trial, the opinion of the medical officer on the result of the two finger test has often been used to the detriment of the victim of sexual assault, despite the fact that the victim’s sexual history is irrelevant in determining whether rape has been committed in the particular instance complained of. There is an abundance of case law to support the proposition that, the fact of whether the victim was habituated to sexual intercourse is totally irrelevant2 and that the evidence of the medical examiner regarding the victim being habituated to sexual intercourse does not discard the Prosecution’s case.3 Why then does the two-finger test continue to be used by medical officers and relied on by courts?
The Supreme Court of India in the case of Lillu v.State of Haryana4 relied upon the International Covenant on Economic, Social, and Cultural Rights 1966 and the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985 to affirm the view that legal recourse made available to rape survivors must not be designed in a way to retraumatize them or violate their physical or mental dignity. Most importantly the Court stated that the two finger test “violates the right of rape survivors to privacy, physical and mental integrity and dignity”. This decision is long overdue and serves as an affirmation of the rights of rape survivors.
The Department of Health Research (DHR) has recently issued guidelines on Forensic Medical Care for Victims of Sexual Assault. Based on various Supreme Court judgments which have held that information regarding the past sexual conduct of the victim is wholly irrelevant, these guidelines specifically state, with respect to the two finger test, that “the procedure is degrading and medically and scientifically irrelevant”. The guidelines prohibit the conduct of the test as well as statements regarding whether the victim is habituated to sexual intercourse either on the basis of this test or any other method.
The Supreme Court decision and the DHR guidelines read together certainly put an end to this inhumane and cruel test and are a step in the right direction towards restoring the dignity of rape survivors. What is critical though is that courts, prosecutors and medical examiners actually follow Supreme Court precedent and the DHR guidelines when dealing with cases of rape and sexual assault.
For further reading on the subject – Human Rights Watch has recently issued a report documenting the use of the “two-finger” test, titled “Dignity on Trial: India’s Need for Sound Standards for Conducting and Interpreting Forensic Examinations of Rape Survivors”
1. State of Karnataka by Ashoknagar Police Station v. Dastaggir Khan in LIV Addl.City Civil & Sessions Court.↩
2. See, for example, State of Punjab v. Ramdev Singh AIR 2004 SC 1290, State of Uttar Pradesh Vs. Pappu alias Yunus and Anr AIR 2005 SC 1248, Narendra Kumar v. State AIR 2012 SC 2281.↩
3. State of Punjab v. Ramdev Singh, AIR 2004 SC 1290, ¶7.↩
4. AIR 2013 SC 1784.↩