By Apurva Kandpal

Abstract

The paper focus on the ‘two-finger’ and ‘hymen test’ that have been widely used to identify rape victims. The tests, conducted under the safety net of medical expertise, have resulted in extreme human rights violations. The paper highlights the over-reliance the judiciary puts on medical reports, and how it undermines the victim’s credibility and creates doubts on the testimony. The need for a more victim-centred and gender-sensitive approach is felt very heavily in the Indian criminal justice system. 

Introduction

In the criminal justice system, gender stereotypes and archaic medical procedures have been deeply ingrained. Under the guise of medical jurisprudence, these categories have established dangerous precedents that discredit and violate the victim’s testimony in rape trials. Medico-legal categories such as ‘habituated to sex’, ‘two-finger test’, and ‘breaking of the hymen’, have played a major role in weakening the victim’s argument significantly in the court. Such categories have been pervasive in converting a full-fledged crime like rape into a consensual activity.

Archaic Medical Tests

In cases of rape, there are two methods which have been used as medical evidence to determine the virginity of the victim. The first is the finger test, which involves the medical practitioner using their finger to determine the “looseness” of a woman’s vagina. In cases where a woman can admit more than one finger, they will be assumed to be habitual to sexual intercourse. The second method is the state of the women’s hymen where, if the hymen is found intact and there are no signs of tear, the woman will be considered a ‘true’ virgin. Recent or old vaginal tear wounds have been used to decide whether the vaginal cavity broke recently due to the alleged rape, or an old tear as a result of previous sexual history. 

Undoubtedly, these tests are based on extremely flawed reasoning. According to medical reports, a vagina can easily allow two or more fingers inside after a single sexual intercourse. While in the case of the hymen, it can break from activities as simple as riding a cycle or a horse and might continue to stay intact even after sexual intercourse. Relying on such atrocious methods for heinous crimes like rape can go against the concept of justice and equity. These tests have been historically used to shame and discriminate against women for indulging in pre-marital sex. The division between old hymen tears and an intact hymen is a classificatory practice that separates a lying promiscuous woman from the true raped virgin. 

Case of a Promiscuous Woman

There have been numerous judgements in the past that acquitted a person accused of rape by relying on old hymeneal tears and habituation to sex as implied consent by the victim. The social construct of consent developed by the judiciary and the public relies on the ideal notions of a woman in Indian society. An ideal woman is someone who is chaste, does not indulge in premarital sex, good homemaker and is an ideal wife. Women belonging to the upper strata of our society, like cisgender, heterosexual and upper-caste caste women are images of purity and idealism. On the other hand, women who are part of the LGBTQIA community, sex work and the Dalit community do not even fall under the construct of ideality. In the highly contentious case of Tukaram v. State of Maharashtra, two policemen were acquitted of gang-raping a minor tribal girl. The reasoning given behind the acquittal was based on the fact that the girl had old hymen tears and was thus habitual to sexual intercourse. The court further stated that the girl’s statements could not be relied upon as she was of a dubious and promiscuous nature. The case sheds light on how courts can base their entire judgements on the help of medical reports, which scientifically is not very reliable. 

In a progressive judgement, Vijay @Chinee v. State of Madhya Pradesh the medical expert refused to signify the finding of the two-finger test as the presumption of habituation of sex. The expert stated that even after one intercourse, a woman’s vagina can admit two fingers and hence, the two finger is not reliable to form a presumption that the woman was habitual to sex. Justice P. Sathasivam and BS Chauhan further observed that under Section 114 of the Indian Evidence Act, 1872, if the victim states in her evidence before the court that she did not consent, the court shall presume that the act between the accused and the victim was non-consensual.

Over-Reliance on Medical Reports

Another major explanation behind using tests like the hymenal test is that a hymen can vary in shape, size, and elasticity. In some women, the hymen is not even present at all. The finger test has become the scientific assessment of a woman’s virginity, despite the fact that a woman’s virginity is irrelevant to the question of consent. By relying on such violative tests, the judiciary also ignores the fact that there are various cases where rape has happened, but the hymen was still intact. How can such a huge reliance be put to a test that is so unreliable and violative? 

In 2010, the Human Rights Watch Report Dignity on Trial called the two-finger test a colonial, sexist and injurious procedure that is violative of a woman’s dignity and rights. Finally, in the historic judgement, State v. Umesh Singh challenged the medicalization of rape trials in India. Justice Kamini Lau, in the judgement, stated that in the case of an unmarried woman, if the hymen cord is intact and has records of force or any signs of tears or bruises near the vagina, it would be enough to constitute rape. The court held the two-finger test unreliable and violative of Article 21 of the Constitution.

Very recently, the Supreme Court of India has come up with a handbook on dealing with gender stereotypes. Under the guidance of the current Chief Justice of India, D.Y. Chandrachud, the handbook identifies and removes words and phrases in judgements and court language which are gender stereotypical. Words like promiscuous, slut or dubious women should be prevented and only ‘woman’ should be used in place of it. The book directs  judges to avoid words which can lead to harmful stereotypes and precedents.

Author’s Bio

Apurva is a third-year law student at Jindal Global Law School. Her areas of interest are gender studies, intersectional feminism, queer theory, and criminal law. 

Image Source: https://theleaflet.in/rights-of-sexual-assault-victims-how-courts-have-deprecated-the-two-finger-test/