‘Patriarchal’: SC slams use of invasive rape test

It is “patriarchal and sexist” to suggest that a sexually active woman cannot be raped, the Supreme Court stressed on Monday while directing that those conducting invasive virginity tests on victims of sexual assault for ascertaining their sexual history are “guilty of misconduct”.

It is “patriarchal and sexist” to suggest that a sexually active woman cannot be raped, the Supreme Court stressed on Monday while directing that those conducting invasive virginity tests on victims of sexual assault for ascertaining their sexual history are “guilty of misconduct”.

(ANI)

Underlining that the two-finger test stands proscribed by the top court through a raft of judgments starting 2013, a bench headed by justice Dhananjaya Y Chandrachud frowned upon the continuance of the practice even though, it said, “the so-called test has no scientific basis and neither proves nor disproves allegations of rape”.

“This court has time and again deprecated the use of this regressive and invasive test in cases alleging rape and sexual assault... It instead re-victimises and re-traumatises women who may have been sexually assaulted, and is an affront to their dignity. The two-finger test or pre-vaginum test must not be conducted,” underscored the bench, as it heard an appeal in a rape case where the test was conducted on the victim.

Whether a woman is habituated or habitual to sexual intercourse is irrelevant for the purposes of determining whether the charge of rape is made out or not, said the court, adding 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. Further, the probative value of a woman’s testimony does not depend upon her sexual history. It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped, merely for the reason that she is sexually active,” underlined the bench, which also comprised justice Hima Kohli.

Referring to the 2013 amendment in the criminal law, the bench pointed out that the legislature also explicitly recognised this fact when it added Section 53A to the Evidence Act. “In terms of Section 53A of the Evidence Act, evidence of a victim’s character or of her previous sexual experience with any person shall not be relevant to the issue of consent or the quality of consent, in prosecutions of sexual offences,” it said.

Following the 2013 judgment by the top court, the Union ministry of health and family welfare also issued guidelines in 2014, stating that the two-finger test must not be conducted for establishing rape or other sexual violence.

“It is a regrettable fact that it (test) continues to be conducted even today,” lamented the bench, issuing a string of directives to ensure implementation of its previous judgment as well the health ministry’s guidelines.

It directed the central and state governments to make sure that the health ministry’s guidelines are circulated to all government and private hospitals, besides conducting workshops for health providers to communicate the appropriate procedure to be adopted while examining survivors of sexual assault and rape.

Adding that principal secretaries and director generals of police across the states must ascertain compliance with its directions, the court also ordered for a review of the curriculum in medical schools with a view to ensuring that the test is not prescribed as one of the procedures to be adopted while examining survivors of sexual assault and rape.

In the present case, the court restored the order of conviction and life imprisonment of a man, who was acquitted by the Jharkhand high court in 2018. Accused of raping and killing a woman in 2004, the man was held guilty by the trial court in 2006 but the high court acquitted him over lack of sufficient evidence. The Supreme Court, however, noted there were adequate evidence on record, and particularly the dying declaration of the victim, that bring home the guilt of the accused.

The Supreme Court, in May 2013, ruled that the two-finger test on a rape victim violates her right to privacy, and asked the government to provide better medical procedures to confirm sexual assault.

Referring to various international covenants, the 2013 judgment said that rape survivors are entitled to legal recourse that does not violate their physical or mental integrity and dignity. “Medical procedures should not be carried out in a manner that constitutes cruel, inhuman or degrading treatment and health should be of paramount consideration while dealing with gender-based violence,” it stated back then.

Experts welcomed the top court order.

“We welcome this move. We have been demanding this two-finger test to go away because we call it ‘second rape’. Even though there were guidelines and Standard Operating Procedure (SoP) with respect to the test, there was no legal bounding or law. It was more of victimizing the victims further and there is only trauma attached to the victim. This (two-finger test), going away will ease out the pain of the victim when she is already going through a lot of medical examinations,” said Yogita Bhayana, founder, PARI NGO.

“This is the established law since 2013. So if the Supreme Court says that those found practising the two-finger test will be found guilty of misconduct, the question remains, why are the existing rules not being implemented? Since these so-called tests are widely practised and the stereotypes they arise from so prevalent, who will report them, and to whom? More importantly, who will find the practitioners guilty? It is vital that the heads of hospitals or forensic centres where these tests are carried out are made vicariously responsible. With the amendment to the rape laws, the definition of rape includes non-consensual oral and anal penetration, which has made the forensic examination of the vagina irrelevant, but the procedures do not reflect that,” said Madhu Mehra, founding member, Partners for Law in Development, a New Delhi-based legal resource group.