“No book has ever told me that, Virginity and Dignity are synonyms…”- Anonymous
Recently The Divisional bench of Gujrat High Court delivered justice to a 25 year old case under Section 376 (Rape) of the Indian Penal Code, 1860. The accused was convicted under section 363 (Punishment for kidnapping) as well but acquitted by the trial court on the erroneous assumption that the victim was of a major age i.e more than 16 years of age which was realized after the acquittal order for rape.
The Court further observed that the victim was subjected to the gruesome “two finger test” as a part of the medical examination, which presumes to check consent of the victim at the time of the commission of the act. The two finger test, or Per Vaginum is defined as a medical process under used as an evidence in the court for rape cases where a woman’s vagina is examined to determine flexibility of vaginal muscles and whether the hymen tissue has been torn or not. Doctors insert two fingers inside the woman’s vagina and the ease with which it can slide in easily. If the fingers have difficulty in being penetrated, it is assumed that the woman is a virgin.
The term ‘virgin’, in the traditional and religious sense refer to the hymen membrane that holds dignity and respect of the woman. The process is used to determine earlier penetration in the vagina and is assumed to be in direct proportion to the woman’s sexual history. Partial penetration of the penis within the Labia Majora, or the vulva or pudenda, with or without the emission of semen is enough to constitute the act as rape. Further, hymen is situated more deeply in children than in nuptial girls, which often escapes uninjured in an attempted rape. Therefore, this test raises certain questions: While the test aims to check if the hymen is torn or not, does it distinguish if it was torn 10 days back or an year back? Can it tell if the person is involved in habitual sexual relation? How does determine if such relation was consensual or not? Where it has been scientifically proven that the hymen escapes untorn in children, will the test be reliable enough? Where it has been also been proven that hymen isn’t necessarily torn due to sexual intercourse and can be so due to different physical activities, how reliable is the gruesome test to prove if a person is raped or not? If the section of rape under IPC defines any kind of forced penetration punishable (not necessarily Vagina), how would the two finger test hold value?
The ‘virginity’ test, dates back to the 18th century. Not only in India, but in many middle eastern countries and north eastern Africa, this tradition is used to determine ‘purity’ of a woman. The concept of virginity testing is not just limited to the medical factor but is also based on cultural and moral sense. It is based on the age old social norm of controlling women and their sexuality and often exists in patriarchal societies which believe women to be the properties of males. Since their bodies are wholly controlled, they’re subjected to male harassment (psychological as well as physical) and considered to be a symbol of purity. Such discriminatory attitude towards women only creates further pressure on them to not engage in sexual activities till they marry. Virginity thus perpetuates the harmful idea that only women are responsible for sexual activities and further misconduct that occurs and naturally allows men to have such relations outside marriage, but not for women. The fear of social exclusion, physical harm etc. furthers the women, especially in 3rd world countries, to comply and follow the norms that have been created around them. This often justifies violence against them in the name of protecting them.
When an FIR is registered for the case of rape, the accused, under section 53A of the CrPc and victim, under section 164A of the Crpc are subjected to a medical examination by a registered medical practitioner for the collection of evidences and to determine sexual contact between the parties. Where there are reasonable grounds to believe that the examination of accused will fetch evidences as to the commission of the act, it is lawful for the medical practitioners, on the request of a police officer not below the rank of a sub-inspector to make an examination and/use reasonable force, as deemed necessary for the same. However, for the medical examination of the victim, full consent of the woman or someone on her behalf must be provided within 24 hours to the registered medical practitioner.
Sexual violence, apart from being a dehumanizing act, also intervenes with a woman’s right to privacy and sanctity. A rapist not only causes physical scars, but also breaks down a woman- with respect to her position, dignity, honor and reputation in the society. As if that was not enough, the two finger test further violates the rights of a victim to privacy, mental integrity and dignity. Even if it the non-existence of the hymen is proved, it cannot presume the factor of consent between the parties. Moreover, sexual assault survivors are entitled to legal procedures that do not further violate their physical and psychological being. Medical procedures must take place in a manner that it considers health as top priority of the victim in case of gender based violence. There must be no arbitrary hindrance with their privacy.
The courts have also referred to the amendment added in 2002 of section 146 of the evidence act, 1872 that refrains questions in cross examination of the prosecutrix that questions her ‘immoral character’. Despite the aforesaid proviso, the test which leads to formation of medical opinion that consent was there, only distorts testimony of the victim due to her mentioned sexual history during trial.
This is the reason why In October 2018, UN Human Rights, UN Women and World Health Organization stated that virginity test is a humiliating, painful and traumatic practice constituting violence against women. In the era of new inventions and technologies that rule the world and has its affects on India as well, it is harrowing that we rely on a method so primitive and so astonishing to degrade a person even more when they’ve been in certain psychologically and physically challenging situations. The Human Rights watch believes that it is lamenting that such test can be used as an evidence and further gives defendants a wrong hand to characterize rape survivors and women as ‘loose’. And since rape trials in India also depend on sensitivity of individuals, i.e prosecutors, defendants, judges and media; why should they have an upper hand in a matter this sensitive? And why should a grave issue like this be backed up by evidences with no scientific value/background?
Further, it can also be constituted that a non-consensual two finger test can be held as rape. When the following test is performed on a victim, without their permission, it subjects to Section 375 (d),( vide Criminal Law amendment, 2013) which talks about insertion of any foreign object or any part of the body which is not penis, in the vagina, urethra, and or anus, without her consent. Such medical practitioners can be held liable on the charge of forcibility.
Through Nirbhaya Case , the criminal law (amendment) Act, 2013 was introduced by the Ministry of Health and Family Affairs, which aimed to abolish such practice. It was established that such practice was prohibited completely and could only be performed on Adult women if medically indicated. In case of assault, circumstantial evidences such as DNA testings, tears, bleedings were to be considered and should focus more on testimonies of the victim and witnesses rather than an ill mannered medical examination. However, even after the amendment, there are several incidences which indicate that such testings still take place in many states till this date, even after its ban all over India. Lack of awareness regarding the law is one reason. Lack of other circumstantial evidences is the other.
Supreme Court on 18th December, 2019 in Re: Assessment of The Criminal Justice System in Response To Sexual Offences in SMW (Cri.) No)s).04 of 2019 gave guidelines to revamp the criminal justice system in cases relating to sexual assault. With regards to Per-Vaginal testing, The Ministry of Health and Family Welfare has prepared guidelines for medico-legal care of survivors, as well as designed a medical kit for collection of medical/DNA evidences for examination of victims and accused. It further aims to distribute it to all primary and community health centers as a start. It has also declared the test to be of no consequence and violative of dignity of a woman.
The two finger test is an unethical, unscientific and unreliable method that is still very prevalent in India as well as any other countries in the world. It is an unruly method that not only violates the privacy of the victim, but also degrades her physical and psychological status. Not to forget that it is also an unreliable method that amounts to no real picture of whether a rape had taken place or not. Little girls and minors go through such procedures and have no idea of what is going on. A medical treatment should not take place on the cost of someone being subjected to rampant discrimination and degrading treatment. With time, the Indian criminal justice system has come up with amendment and reliable precedents that aim to remove stigmatization that is associated with sexual assault victims. DNA Tests, witnesses are logically a better alternative to collect evidences against the culprit.
About the author
Anvita Sharma is a 3rd-year learner from Symbiosis Law School, Noida. Her academic interest lies in Intellectual Property Rights and Entertainment and Media Law. As far as other interests are concerned- they range from advocating for women’s rights on the internet and in general and cribbing about not having enough time to learn how to play the guitar.