The two-finger test done on rape victims has long scarred them emotionally and shredded their dignity. Now, with the Supreme Court asking the Government to come up with an alternative to TFT, SHAlINI SAKSENA delves into this medical procedure to tell you how it is entirely unnecessary and misguided, cannot establish rape and is prescribed nowhere in the IPC
Conscious, co-operative and well oriented to time and place. Vitals within normal limits. Menstrual history: Attained menarche at the age of 15 years. Menstrual cycle: 3/30, average, regular flow. No injury seen on face, back, breasts, abdomen, back, arms or legs. Breasts well developed with brown coloured areola, external genitalia well developed. About 2 cm black pubic hair, not metted. Hair cut and sent for chemical analysis. labia majora and labia minora well developed. Hymen not present. External coitus admits one finger loose easily. Uterus retroverted, multiparious, firm, mobile… Vaginal smear taken from posterior fornix and sent for chemical analysis.
Opinion: She is habitual of sexual intercourse — Medical report of an alleged rape victim
Such and similarly worded medical examination reports of alleged rape victims are read out in court. Yes, rape cases are in-camera. But in actuality, this means that when reports such as the above mentioned one, are discussed in court, the victim cringes in shame. The report mentions the most private details of her private parts, something that an Indian upbringing makes it difficult for the girl to think about even in her own thoughts. The doctor’s testimony is heard by the judge, the case recorder, the defence and prosecution lawyers, their assistants if any, the victim, her family and the accused.
Much as the world may tell rape victims indulgently that “the shame is not yours”, all proceedings to get justice show them otherwise. And it is the two-finger medical test that signals how the actual rape was just the beginning of their humiliation.
“The journey from being a rape victim to a rape case and ultimately to a forgotten rape statistic is definitely humiliating and self-defeating,” says activist Deepti with Saheli, a Delhi-based NGO. She gets angry at the very suggestion that this correspondent would like to hear out the trauma of being medically examined from one of the victims and refuses categorically.
“Why do you want to knowIJ There is no reason to sensational details to sex up your story,” she says, not wanting to hear anything on the need to highlight the issue in the media, especially now that the Supreme Court has said that the two-finger test (TFT) violates the right to privacy and needs a more dignified alternative. “As it is, the media is intrusive. The media should know where to draw the line and it can. After all it withheld the Delhi gangrape woman name for months. So why not in other casesIJ Deepti says adding the these women are not victims. “Please don’t call them victims — get the terminology right. They are survivors,” she tells you.
One such survivor recounts her humiliating experience during the medical examination. “I had been raped. My clothes were torn, I had been beaten up and was bleeding. I was taken to a hospital. They said ‘test karna hoga’. I was asked to take off my salwar and lie on the table, legs spread wide. Suddenly, the doctor inserted his fingers into me. I was so shocked. They didn’t tell me what kind of test they would be doing. It was so embarrassing and humiliating. I was raped in the dark by one man with no witnesses. Here, it was like being raped again, lying on a table with the lights on with two others in the room as witnesses — a nurse and a policeman — and there was nothing I could do, not even scream out at the outrage of the whole thing.”
This rape victim’s account of what she went through during the TFT is, sadly, not a stray incident. The cut and dry, often male, doctors conducting the test, the sneers, the laughs, the intrusive questions — all of it adds up to complete shredding of a victim’s dignity. As another rape victim recalls, she can’t get over how she was treated at the AIIMS trauma centre where she had been taken for her medical. “Kiska rape hua hai aake let jao examine hoga,” the nurse yelled after a long wait and what followed was the two-finger test which the victim says was “nothing less than another shocking rape all over again, this time in full view.”
The Park Street rape victim of Kolkata, however, says she considers herself lucky for the small mercy shown to her during her examination. For one, the three doctors who examined her were women and none passed any snide remarks. “But, standing half clothed, I still wondered why I was putting myself through this medical examinationIJ I had just been raped. There were injuries. And now I had to undergo a test to prove that I was actually rapedIJ Indian women are not comfortable standing in their undergarments even in front of the mirror and here I was nearly nude, with doctors prodding me. The procedure was humiliating. The test frightened and embarrassed me. I had to gather a lot of courage to go through with it. I suppose I was lucky that the doctors were polite but when I was asked to lie down on the table and the two fingers were inserted into me, I convulsed. I was already in pain, the insertion shocked me. There was no compassion or word of sympathy. The scars will stay with me forever,” she says.
After being torn apart by a rapist, imagine being taken to hospital and made to lie down with legs spread and no underwear as someone pushes two fingers into your vagina! If this is not shredding the dignity of the victim then what isIJ
Why there should, at all, be such an archaic test to determine rape is a question that has stunningly never been answered by the system, more so, when the TFT does not even establish rape and can only tell whether the victim is virgin or not.
But now, there is a ray of hope and dignity for rape victims. The Supreme Court recently said that the TFT on a rape victim violates her right to privacy and has asked the Government to provide better medical procedures to confirm sexual assault. “Undoubtedly, the two-finger test and its interpretation violate the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, can’t ipso facto, be given rise to presumption of consent,” the bench of Justices BS Chauhan and FMI Kalifulla said.
lawyers who have been in the midst of rape case arguments admit that the TFT is not just intrusive and humiliating but also entirely misguided. In fact, nowhere in the IPC does it say that this particular test needs to be done to determine rape, yet it is the primary one done on rape victims all over the nation.
“The TFT doesn’t prove whether the woman has been raped. It was primarily a virginity test conceived by French medical jurist l Thoinot in the 19th century to tell ‘true virgins’ from ‘false virgins’, a term for women with elastic hymens which allow penetration without tear. In India, almost every textbook on medical jurisprudence has blindly been following the TFT, including A Text Book of Medical Jurisprudence and Toxicology by Jaising P Modi, the most widely read forensic books today,” Dr Indrajit Khandekar, known forensic consultant and associate professor, Department of Forensic Medicine & Toxicology Kasturba Hospital, Sevagram, Wardha, says over the phone.
The test, he says, should not be conducted on a rape victim as it is inconclusive proof of whether she has been violated or not. It merely determines whether the hymen is there or not.
“Please remember, it is not the woman’s character which is on trial but whether she has been raped or not,” Khandekar points out.
Section164 A of Cr IPC (medical examination of the victim of rape) merely says that the victim be examined by a medical expert and that the examination be conducted by a registered medical practitioner in a hospital run by the Government, with the consent of the victim or a person competent to give consent on her behalf.
The Section only specifies that the victim needs to be taken for an examination within 24 hours of receiving the information relating to the offence.
So, if TFT, is not prescribed by law, why is it followedIJ That’s because law does not specify the test needed to determine rape. “A series of tests like injuries due to restrain, presence of semen, stains, swab collection in case the victim says she was licked or kissed, samples in case of forced oral sex, the condition of her clothes etc should be conducted to determine rape. But in all cases, TFT is done which determines the most recent intercourse but also previous sexual encounters. This puts a tag on the victim that she is not a virgin and ‘habituated to sex’, therefore, a loose woman — something that discredits her testimony,” Khandekar explains.
Everyone agrees that this reeks of insensitivity. But fact also is that while the Supreme Court may have held that TFT violates the privacy of the victim, it is still the main test produced as evidence.
Absence of hymen does not mean there has been no rape, these activists argue and the chorus of doing away with the TFT and replacing it with a more concrete and conclusive test without violating a woman’s rights and privacy has grown over the years.
“The question is whether a particular man raped the woman or not. Her hymen is not on trial and nor is her character. So, queries doubting her character need to be avoided,” Kavita Krishnan, secretary of the All India Progressive Women’s Association, says.
“The TFT is a violation of the person’s right. The results of the test give an entirely different connotation to the case. A more scientific alternative would be a DNA test. There is demand for more institutes where this test can be conducted. It will not only add credence to the case but also protect the modesty of the victim,” Sudha Sundaram, general secretary of the All India Democratic Women’s Association, suggests.
The Park Street victim has another suggestion. “If there is a test or procedure other than the TFT which can determine rape, I am all for it. For now though, I would suggest that there be special rooms where a rape victim is taken to be examined. Also, there should be a counsellor who should explain in detail what the test entails. In case the woman doesn’t understand Hindi or English have a person who speaks the language she understands. The presence of a family member is important as it reassures the victim. All this will mentally prepares the woman and help her overcome the shame that comes during the medical examination,” she says.
Much before the Supreme Court directions came, activists had been demanding the scrapping of TFT. In 1992, a sub-committee was set up by the National Commission for Women to recommend changes to IPC Sections dealing with rape. The draft criminal law (amendment Bill) is still under discussion. The sub-committee said that the TFT doesn’t establish anything.
It is “outdated, irrelevant and meaningless, and only increases the prejudice which exists against a survivor.”
Recounting the case of an 11-year-old who was raped, Sundaram says that when the TFT was done on her, the doctor’s report said that there were only some bruises and abrasions. In other words, rape couldn’t be confirmed. However, the girl very clearly recounted what had happened to her.
“This is not the first time where the test came back negative. There have been cases where the rapist has forced the victim to wash herself after the act. The test is such cases will come negative. But this doesn’t mean she was not raped. A test conducted by a forensic expert can find out that the victim was made to wash.
“The fact that the expert will collect over 20 samples means that when he is asked to depose in court, there will be no ambiguity, no need for explicit explanations of the medical report, saving the victim the humiliation,” Khandekar states.
Testing times