Two Fingers Test on Rape Victim

Two Finger Test is also known as Virginity Test, in which doctor examines that whether hymen of a rape victim is present or not, by putting his or her two fingers inside women’s vagina and with this her sexual experience is determined that whether she is a virgin or habituated to sexual intercourse. This test is also done to check how much damage is caused to genitalia of women.

It is significant to note that this test is completely irrelevant and baseless because result drawn out of it is completely based on assumption. It is a subjective test as result may vary from doctor to doctor because thickness of finger is different and due to which it loses its validity in law.

If a woman is habituated to sexual intercourse, the court may use it to determine her consent and court may infer from it that its not rape, she might have consented for the act. Also, this test is mainly done on unmarried females and often without their consent. The status of hymen whether intact or torn is completely irrelevant because hymen can be torn while doing some physical activities also like riding, cycling, masturbation, etc and some women don’t even have hymen by birth. 

Right to Privacy-

Privacy is a fundamental right of every human being and this right have been extended to women. According to Article 21 of the Indian constitution, interference in the privacy should be justified by law, which is fair and reasonable. The virtue of privacy is in its functional relationship with integrity. Privacy is an essential strand of human dignity. It ensures that a human can lead a life of dignity.

Privacy is a civil liberty of human being and two finger test violates the victim’s right to privacy and it is also inferred from the medical research that insertion of two finger in vagina of a victim may damage the evidences which are collected around the vaginal opening due to the gloves which doctor wear while finger insertion.

According to medical jurisprudence if a woman has an intact hymen still one, two or more fingers can be inserted easily in her vagina, leaving hymen intact. It is also proved that hymen is very elastic and its elasticity vary from women to women which clearly mean that hymen’s breakage process is also different. Normally post- pubertal hymen ranges from thin and stretchable to thick and rigid and in some cases, there’s no hymen by birth. It is also said that if finger can be inserted easily then a body of size of penis in erection could also pass through easily without damaging hymen. So, this test is irrelevant and unscientific, the process as a whole is unjust and unethical.

Legal Perspective-

Section 146 of Indian evidence Act, 1872 prohibits the lawyer to ask questions in cross-examination related to victim’s general immoral character. This led to an end to asking inappropriate questions to the victim regarding her previous sexual habits.

Despite the above provision, doctor conducting examination of victim need to know about her previous sexual habits to make opinion regarding her consent which causes prejudice to her testimony.

Section 164 (A) of CRPC, 1973 talks about legal requirements for medical examination of victims.

  • One of the most important requirements is the consent of the victim for medical examination (Section 164A (7)).
  • Examination should be done within 24 hours of receiving information and should only done by medical practitioner in hospital run by government or local authorities and in his/her absence examination is done by registered medical practitioner.

Also, if during examination victim refuses to do the two-finger test and doctor still conducts the test, then in such case doctor is also liable for the offence of rape under Section 375(d) of IPC, 1860 which clearly states that insertion of any object or any other part of body except penis in vagina without the consent of women will amounts to rape.

Case laws-

In Lillu @ Rajesh & Anr. V. State of Haryana[1], Supreme Court talks about the right of the rape victims to privacy, physical and mental integrity and dignity. Court also said that a rapist not only cause physical injury to them but also leaves a scar on respect, dignity and honour of a women and two-finger test works as a fuel to the fire which also violates their rights and privacy.

In Narayanamma (Kum) v. State of Karnataka[2], Supreme court held that two-finger test doesn’t give clear and reliable insight about the history of habit of sexual intercourse of victim.

In State of Gujarat v. Ramesh Chandra Rambhai Panchal[3], Gujarat High court held ‘two-finger test’ unconstitutional as it violates the right of privacy, physical and mental integrity and dignity of the victim. Court also stated that the tow-finger test is unscientific method of examination and has no forensic value. Section 155 of the Indian Evidence Act does not allow compromise on victim’s credibility. Court also added that medical examination should not be done in such a manner that it constitutes inhumane, cruel and barbaric treatment.

In Rahu@ Rajesh Prasad v. State of Uttarakhand[4],  victim was 32 months pregnant at the time of medical examination, as she was pregnant doctor still conducted two-finger test and noted that only one finger can be inserted easily and the girl was not habituated to sex, despite being pregnant.

Conclusion-

Hymen should be treated like any other part of genital. Also, this test is completely unethical, irrelevant and baseless because result drawn out of it is completely based on assumption. An intact hymen doesn’t rule out sexual violence and a torn hymen does not prove sexual habit. Hymen should be treated like any other part of genital. It is wrong to use habitually of women to have sexual intercourse to determine her consent. This test should be condemned and should be prohibited, through many judgements concept of right and privacy of victim is getting recondition and sensitivity and judicial actions there is a change in the investigation process of the doctors and officers.

[1] (2013) 14 SCC 643.

[2] (1994) 5 SCC 728.

[3]  (2020) SCC Online Guj 114.

[4] MANU/UC/0054/2010.

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