The two-finger test is banned in India. It had a long history of misuse by doctors and lawyers who presented its findings to pass judgement on a rape survivors’s virtue (read: virginity) and character (read: sexually active).
Fingers Burnt
The Delhi government today beat a hasty retreat by withdrawing a controversial circular that appeared to be endorsing the banned “Two Finger Test” on rape survivors.
It cannot be recommended that physicians be made to function under the constraint of a complete ban of these essential steps of internal examination of a sexual assault survivor.
– Circular Withdrawn by Delhi Government
What shocked activists-lawyers across the country was that the circular was issued despite a May 2013 Supreme Court directive to the government to provide better medical procedures than the two-finger test to confirm sexual assault.
Undoubtedly, the two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent.
– BS Chauhan & FMI Kalifulla, Supreme Court Bench
“Focus on Courts, Not Hospitals”
The Supreme Court was clear that it’s not just the two-finger test, but its “interpretation” that violated the right of rape survivors. Women’s rights lawyer and activist Flavia Agnes says that we need to now focus on what happens in courts, not hospitals.
Findings of the medical test used to be presented as evidence. Today our judges have to be alert and not allow it in trial courts. The responsibility rests on the legal, not medical profession.
– Flavia Agnes, Women’s rights lawyer
A two year-old Change.org petition started by activist Kavita Krishnan gives an example of how a Madhya Pradesh court discriminated against a rape complainant.
In an October 2012 verdict, a Madhya Pradesh court held that a rape complainant was a “consenting party” because “looking to her physical examination, she was habitual to do the intercourse and therefore she knew about the act but she did not complain to anybody till she reached home.
Historical Context
In 1972, two policemen in Chandrapur, Maharashtra got away with raping a young tribal girl called Mathura by arguing that consent was a given because she was habituated to sex. Legal activism in the late 1970s resulted in an amendment to Section 376 in 1983. Activists contended that consent involves submission, but submission may not necessarily mean consent. Among other things, the amendment put the onus on the alleged rapist to prove innocence. Unfortunately, this allowed for the two-finger test to become a yardstick for the victim’s morality which was raked up as recently as in the 2013 Suzette Jordan case.
Suzette Jordan waived her right to anonymity to dispel the taboo that comes along with being a rape survior in India. She went on record to say that the humiliating two finger test was like being “re-raped”. This played a crucial role in the movement to get the two-finger test banned in our country.
The onus is now on our judiciary to not admit biased medical exams that cast aspersions instead of talking facts.
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