Two-finger test – a “patriarchal medical practice"

    Recently, on 31 October 2022, in State of Jharkhand v. Shailendra Kumar Rai @ Pandav Rai Crl. Appeal No. 1441 of 2022, Hon. Supreme Court [Justices D Y Chandrachud and Hima Kohli], decided to ban the two-finger test on rape victims, calling the test a “patriarchal medical practice". Directions were also issued to the Union as well as the State Governments to ensure that the guidelines formulated by the Ministry of Health and Family Welfare are circulated to all government and private hospitals. Further directions were given to conduct workshops for health providers to communicate the appropriate procedure to be adopted while examining survivors of sexual assault and rape and make amends to review the curriculum in medical schools with a view to ensuring that the "two-finger test" or per- vaginum examination is not prescribed as one of the procedures to be adopted while examining survivors of sexual assault and rape. " whether a woman is "habituated to sexual intercourse" or "habitual to sexual intercourse" is irrelevant for the purposes of determining whether the ingredients of Section 375 IPC are present in a particular case. ……….." “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," the bench added. The "two-finger test" or per- vaginum test has no scientific basis and neither proves nor disproves allegations of rape. It instead re-victimizes and re-traumatizes women who may have been sexually assaulted and is an affront to their dignity. It is patriarchal and exists to suggest that a woman cannot be believed when she states that she was raped, merely for the reason that she is sexually active………." the Court observed. The test is usually performed by an expert who inserts two fingers into the vaginal canal of a rape survivor to check the laxity of her muscles to determine whether the woman has been subjected to penetrative sex. The test is also supposedly used to inspect whether a woman's hymen is intact. Often, the “virginity test" is to assess the laxity of the vaginal muscles of a woman, primarily to check if she is sexually active or not and to check if the woman's hymen is intact. Usually, the test is performed on rape survivors to “confirm" their allegations. The test is performed by a doctor, who inserts two fingers into the vaginal canal of the rape survivor to check the laxity of her muscles and determine if she has been sexually active or not. This test was mostly practiced in Bangladesh, Pakistan, and India before it got banned by the governments, though some authorities still maintained its validity before the Supreme Court orders. The test is essentially based on an incorrect assumption that a sexually active woman cannot be raped, the Court observed. "The Principal Secretaries in the Departments of Health of each state shall also be responsible for ensuring the implementation of the directions issued in this judgment. The Secretaries in the Departments of Home of each state shall in addition issue directions to the Directors General of Police in this regard. The Directors General of Police shall, in turn, communicate these directions to the Superintendents of Police," … the Bench directed. Lillu v. State of Haryana (2013) 14 SCC 643 - Ref. to in Para 61-66