India: Supreme Court Bans Two-Finger Test In Rape Cases
The Supreme Court of India has banned using the two-finger test in rape cases, labelling it "patriarchal" and "unscientific." The court added that anyone caught administering the test would be considered to have acted unlawfully.
On Monday, Justices DY Chandrachud and Hima Kohli banned the test while reversing a man's conviction for rape and murder. Despite an earlier court ruling in 2013 deeming the two-finger test unconstitutional, it was still widely used.
"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 Justices ruled.
A 28-year-old female officer in the Indian Air Force (IAF) accused her colleague of rape and claimed she was forced to undergo an unlawful "two-finger test" to prove the sexual assault. In her police case, she also alleges that the IAF harassed and misled her.
The victim sustained a right leg injury on September 9 while practising basketball, said the FIR. Afterwards, that day, she went to the officers' mess bar with her coworkers, where the accused officer offered to buy her another drink.
The female police officer, however, felt sick and went to bed. The two of her buddies had locked the door to her room from the outside.
The victim claims the perpetrator entered her bedroom while sleeping, tried to wake her up, and kissed her. She tried to shove him away repeatedly, but her injured ankle prevented her from doing so. The next day, she confronted the suspect, who admitted guilt and apologised for the intrusion into her privacy. A female coworker of the victim claimed to have seen semen streaks on the bed, evidence of the alleged sexual assault.
She claims that she was repeatedly pressured to either retract her complaint or approve a revised version of the letter.
This, however, was something she flat-out refused to do. College officials reassured her that she could take the emotional toll of encountering her rapist on campus if she could bear the discomfort of her ankle injury, she said.
She was transported to the Air Force Hospital for a checkup, where she was subjected to the infamous "two-finger test" and asked a series of questions regarding her "sexual history."
The two-finger test involves inserting two fingers into a woman’s vagina to determine the laxity of vaginal muscles, thereby determining ‘virginity’. In some cases, it is done by inspecting the size of a vaginal opening and for tears in the hymen.
As per the World Health Organisation, neither of the methods in the two-finger test can prove whether a woman has had vaginal intercourse or not. It is based on the assumption that a sexually active woman is less likely to have been sexually assaulted.
The bench said whether a woman was “habituated to sexual intercourse” or “habitual to sexual intercourse” was irrelevant for the purpose of determining whether the ingredients of Section 375 of the IPC (relating to rape) were present in a case.
The court noted that Parliament explicitly recognised this fact when it enacted the Criminal Law (Amendment) Act 2013, which amended the Evidence Act to insert Section 53A by which evidence of a victim’s character or of her previous sexual experience should not be relevant to the issue of consent or the quality of consent in prosecution of sexual offences.