Patriarchal, Unscientific: SC Reiterates Two-Finger Test Ban for Rape Survivors

"The test is based on an incorrect assumption that a sexually active woman cannot be raped," the Supreme Court said.

Image of India’s Supreme Court used for representational purposes.

(Image: The Quint)

The Supreme Court on Monday, 31 October, reiterated the ban on the "two-finger test" in rape cases, warning that persons using such tests will be deemed guilty of misconduct.

Observing that the test was based on a patriarchal mindset that assumed that sexually active women could not be raped, the bench of Justices DY Chandrachud and Hima Kohli regretted that such a method of examination was being used even today.

What Did the Court Say?

The bench, directing the Union Health Ministry to ensure that survivors of sexual assault and rape are not subjected to the two-finger test, said:

"This court has time and again deprecated the use of two finger-test in cases alleging rape and sexual assault. The so called test has no scientific basis. It instead re-victimises and re-traumatises women. The two finger test must not be conducted... The test is based on an incorrect assumption that a sexually active woman cannot be raped. Nothing can be further from the truth."

The Supreme Court, as quoted by LiveLaw

"The probative value of a woman's testimony does not depend on her sexual history. It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped merely because she is sexually active," the bench added.

The apex court's remarks were made while deciding on an appeal filed against a judgment of the Telangana High Court which overturned the conviction recorded by a trial court in a rape case.

What Is the Two-Finger Test?

A "per vaginal" or two-finger test is an explicitly intrusive physical examination wherein a doctor inserts two fingers inside the vagina of a rape survivor to check if the hymen is intact or not.

It examines the laxity of vaginal muscles in order to determine if the woman has engaged in or has been subjected to sexual intercourse – a proof of virginity. In some cases, it is done by inspecting the size of a vaginal opening and for tears in the hymen.

In May 2013, the Supreme Court had banned the two-finger test on rape victims on the grounds that it violates their right to privacy. The court had asked the government to provide better medical procedures in order to confirm sexual assault.

In 2018, United Nations (UN) Human Rights, UN Women, and the World Health Organization (WHO) had called for a ban on two-finger test in order to eliminate violence against women. They declared it a "medically unnecessary, often times painful, humiliating and traumatic practice [that] must end."

Yet, the two-finger test continues to be practised in some cases. In 2018, an Indian Air Force officer at the Coimbatore Air Force Administrative College had accused her batchmate of rape and had further alleged that she was subjected to the banned 'two-finger test' for confirming sexual assault.

(With inputs from LiveLaw)