The Tamil Nadu government was recently directed by the Madurai Bench off Madras High Court to ban the medical practitioners of the state from conducting the ‘Two-fingers Test’ on the victims of s*xual assault. A division bench of Justices R Subramanian and N Sathish Kumar said that r*pe victims, particularly the minors are being subjected to the Two Fingers test, which is totally unconstitutional.
What actually is the two-fingers test?
Also called “per-vaginal”, the two-finger test is an explicitly intrusive physical examination to test if the subject was r*ped or not. The doctor inserts his two fingers in the v*gina of a r*pe survivor and checks if the hymen is intact or not. It is an examination if the woman has engaged in any type of s*xual int*rcourse or not, in other words, a test of virgi*ity.
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As per WHO, neither of the methods in the two-finger test can prove that a woman has had v*ginal int*rcourse or not. The technique is based on the assumption that a hymen can be torn because of a s*xual int*rcourse and that the s*xual history of a woman can be determined by the appearance of her genitilia.
The test is extremely controversial and over the years, has been protested against. Many people call it a patriarchal idea which contradicts medical ethics and also interferes in the privacy of the victim. However, for decades it remained to be the only way of finding out r*pe and even enjoyed legal status in India for a long time.
In 2013, the Supreme Court of India said that the two-finger test violates the right of r*pe survivors to privacy, physical and mental integrity and dignity. The bench also noted that the Gujarat High Court in State of Gujarat vs. Rameshchandra Ramabhai Panchal reported in 2020 SCC Online Gujarat 114, had held that the two finger test is the most unscientific method of examination used in the context of s*xual assault and has no forensic value. But the test is still being used in many areas. The ban on two-finger test by the Madras High Court comes after the case involving alleged r*pe of a 16-year old.
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The case pertains to the s*xual assault of a 16-year old. Following which, the two-finger test was performed on the girl. The Mahila Court in Pudukkottai found the man guilty in 2021 and awarded a life sentence under the Protection of Children from Sexual Offences Act and seven years’ imprisonment under section 363 of the Indian Penal Code (IPC) for kidnapping.
As per reports, Rajiv Gandhi was awarded the punishment on the basis of a complaint by the victim’s father. Allegedly, the accused had befriended the girl who used to come at his tailoring shop for training and later s*xually abused her. She then went missing one day and her father filed a complaint. The girl was subjected to the two-finger r*pe test later and the man was found guilty.
Rajiv later argued in an appeal and challenged the punishment. The counsel argued that the s*x was consensual and thus, can’t be counted as r*pe but the additional public prosecutor stated that she’s a minor and the consent is thus, invalid. The judges also argued that the fact that the girl did not make an attempt to escape showed the conviction for kidnapping was not justified and set it aside.
