What is a two finger BAN ? Analysis of the Two Finger Test Ban | Shainelex Best Criminal Law firm in Kolkata

• 6 December 2022

The method used to assess the laxity of the vaginal wall is the Two Finger test, which is more correctly known as a vaginal examination. This not-so-new test is used to determine whether the woman has ever engaged in sexual activity. In essence, it is a procedure done on sexual assault victims by medical specialists to evaluate whether the incident had indeed occurred. For a number of reasons, though, this test has not been regarded as a reliable predictor of assault. For one thing, the fragile membrane that determines virginity can be torn not only during sexual activity but also during athletics, dance, or other vigorous physical activity.

In the 18th century, the two-finger test, commonly referred to as the virginity test, was invented. It enables the medical professionals to examine the victim’s hymen to confirm her rape accusation. The Ministry of Home Affairs (MHA) has established some guidelines for medical professionals who deal with sensitive topics like rape cases or sexual harassment in the wake of the Nirbhaya gang rape case. These rules, which are prescribed by the Ministry, must be followed by them. These regulations, which were released on July 25th, 2017 stipulate that the doctors must not only treat the sufferer medically but also give them the critical psychological care they need.

The victim’s character is being assassinated based on the results of this test. If the report demonstrates that she was accustomed to having sex, it is assumed that she must have given her assent, making her accusations unfounded and untrue.

The WHO has disqualified the test because it uses an outdated standard for assessing sexual assault. Because the hymen can extend during physical activities like riding a horse or cycling, it is incorrect to assume that a woman’s hymen can only be torn during sexual activity.

Human Rights Watch urged the Indian government to respect the victim’s right to privacy and to forbid the two-finger test from being used to examine rape victims medically.

Judicial Position on the “Two-Finger Test” Issue

In Lilly Rajesh and Vs. State of Haryana, the Supreme Court ruled that the rape victim’s right to privacy, physical and mental integrity, and dignity were all infringed by the two-finger test.

The government has been urged to provide better medical procedures in order to verify the victim’s claim of sexual assault, according to the B.S. Chauhan and F.M.I. Kalifulla justices’ bench.

The bench ruled that even if the test shows positive results, the victim’s consent is not presumed to have been given in advance.

The bench cited the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power from 1985 and the International Covenant on Economic, Social, and Cultural Rights from 1966 in saying that the rape survivors are entitled to legal recourse that does not re-traumatize them or violate their physical or mental integrity and dignity.

The court ruled that medical procedures shouldn’t be inhumane or harsh and they shouldn’t degrade care. When dealing with this kind of assault, the victim’s health should always come first.

Additionally, the court cited the cases Narayanamma (Kum) v. State of Karnataka & Ors., State of Uttar Pradesh v. Munshi, and Narender Kumar v. State (NCT of Delhi), in which the Supreme Court had ruled that the admission of two fingers that provides information about a rape survivor’s history of sexual encounters does not clearly indicate that she is accustomed to such encounters, and even if she is, it does not.

The Indian government has published specific guidelines and regulations for the medical-legal care of sexual assault survivors and victims. The Guidelines stipulated:

• It is not recommended to perform the “two-finger test,” often known as the per-Vaginum examination.
• The size of the vaginal introitus does not influence a sexual assault case, and only adult women who are medically required may undergo a pre-vaginal examination.
• The recommendations state that the hymen’s condition is immaterial because it can tear as a result of various activities, including riding a bicycle and other activities. An unbroken hymen does not show sexual assault, while a ripped hymen does not demonstrate sexual contact.
• In cases of sexual violence, the hymen should be documented just like any other part of the genitalia.
• Only pertinent observations, such as new tears, bleeding, edema, etc., should be recorded in an assault case.
• According to the rules, the physical examination to look for injuries to the genital area should not take precedence over the testimony of the victim and the witness in cases of sexual violence.

Ban on the Two-Finger Test:

On October 31, the Supreme Court ruled that anyone who gave rape or sexual assault survivors the “two-finger test” would be found in violation of the law.

The Supreme Court had already ruled that the two-finger test violates the rights of rape survivors in Lillu v. State of Haryana in 2013.

The Supreme Court rejected the legitimacy of the Two Finger Test for the reasons listed below:

• Lack of Scientific Support: The Two Finger Test is “regressive and invasive” and “lacks scientific support as it neither confirms nor denies charges of rape.”
• Victimization Two Finger Test “re-victimizes and re-traumatizes women who may have been sexually abused,” according to a concerned person.

Consequences of Using the Two-Finger Test

It is significant to remember that the doctor’s medical judgment significantly influences the outcome of a criminal case.

• The doctor must highlight any signs of recent changes and resistance marks if there has been a sexual assault.
• She is not permitted to express her views on rape because the term “rape” refers to a legal offense and not a medical condition.
• After their inquiry, the investigating officer must decide whether or not rape was committed. A doctor’s unasked-for opinion could cast doubt on the claim and make it less compelling.
• As a result, it is inappropriate to do the two-finger test (on a victim of sexual assault), as it provides no useful evidence for the inquiry.

No rape victim should be forced to submit to the two fingers test in order to support their allegation of rape because it is an unscientific and inhumane procedure. According to medical professionals and social workers, the victim has been re-raped. It not only infringes on the victim’s right to privacy but also harms her moral, physical, and mental health. Even prepubescent females who are too young to understand what is happening to them are subjected to the two-finger test. The government should create modified legislation that are to be consistently implemented throughout the nation and outright forbid such a test. The victim should be placed in a relaxed setting to encourage speaking up.