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HindustanTimes Thu,24 Apr 2014

Get rid of degrading test for rape victims

HT Correspondent, Hindustan Times  Mumbai, January 15, 2013
First Published: 00:47 IST(15/1/2013) | Last Updated: 00:56 IST(15/1/2013)

It’s not just attitudes and moral judgments relating to women that are in urgent need of reform, India needs to change archaic, unscientific procedures so that government doctors and the police cannot insist that rape victims undergo the humiliating two-finger test.

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In a two-finger test, the doctor inserts two fingers into the woman’s vagina to test vaginal laxity, which is meant to determine whether the victim is accustomed to sexual intercourse. The logic of the test is frightening, with its implication that if an unmarried woman is sexually active, she is immoral and may not have been raped.

Earlier, as per section 154(4) of the Indian Evidence Act, the defence could question a woman’s moral character and use evidence from the two-finger test to their advantage. In 2003, this clause was omitted, but the test continues to be used by courts of law as an investigation procedure, and the police routinely use the test in rape investigations.

The violative test is inaccurate and unscientific as vaginal laxity can be caused by other factors, and the test it is based on subjective observation. In 1898, a French jurist, L Thoinot, advised the test to determine whether the rape victim is a “true virgin or a false one”. This practice found support in Jaising Modi’s textbooks on medical jurisprudence.

None of the first-world countries use this test. “In fact, of the eight countries, I have studied, including Pakistan, none use the two-finger test when examining a rape victim,” said Dr Indrajit Khandekar, assistant professor, forensic medicine, Mahatma Gandhi Institute of Medical Sciences, Wardha.

“Possibly, only India adopts this method when examining rape victims.”

In 2010, the Human Rights Watch released a 54-page report, Dignity on Trial: India’s Need for Sound Standards for Conducting and Interpreting Forensic Examinations of Rape Survivors by Aruna Kashyap, which documents the trauma of rape victims and the continued use of this test as “evidence” by defence lawyers and courts.

Kashyap found 153 judgments related to rape cases in 18 states where the two-finger test has been conducted.

“This practice continues to date. I have found 2012 judgments that refer to these findings to figure past sexual history or even penetration, which is not scientific,” Kashyap said.

According to doctors, police officers investigating rape cases specifically ask whether the victim is accustomed to sex. “Even if doctors want to do away with the two-finger test, most times they are compelled to do it by the police, who ask if the woman is habituated to sexual intercourse.

But what relevance does sexual experience have in a rape case,” asked Khandekar, who has conducted a study examining the loopholes in the medical examination of sexual assault victims. “We want the state home department to get involved and direct police officers not to ask such questions.”

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