Flavia Agnes: the two-finger test and why the outrage is misplaced
Since December 2012, the conversation around rape has been heated and frequent in India. In 2013, the government finally passed guidelines for the medical examination of survivors of sexual assault fundamentally saying: do not use the two-finger test.
Over the last few days, the conversation was reignited after the Delhi government released a circular allowing for the exam to be conducted on rape survivors.
The circular has, expectedly, received flak from anti-rape activists.
Also known as the Per Vaginal (PV) examination, the test is usually resisted because it's seen as a chastity test that can be used to assassinate a woman's character in court.
The controversial test involves a doctor inserting fingers in a rape victim's vagina to determine its 'laxity' and decide if she is 'habituated to sex'.
The three-member committee that released the circular did, in fact, justify their actions, saying that to completely do away with the test would 'amount to an incomplete assessment' of the victim and result in possible injustice to her.
But with the media glare on them, instead of explaining their rationale, the AAP government beat a hasty retreat last Monday and revoked the offending advisory.
If it was still being proposed as a chastity test, the outrage would have been justified. But there may be real medical reasons for having it.
Flavia Agnes, a legal scholar and women's right activist who has handled hundreds of rape cases, takes a more layered position and explains why the recent outrage may have been misplaced.
The 'two-finger test' is a term used for the internal examination of a rape victim. The test is used to assess internal damage to the vagina, mouth of the uterus, etc.
Earlier, when rape laws were loaded against women, the test was used to ascertain the sexual history of the victim. For instance, if only one finger could be inserted with difficulty, the doctors would presume that the girl had been a virgin until the sexual assault.
But if the vagina admitted two fingers easily, it was assumed that she was a woman of loose moral character.
[twittable]The test should be used, not routinely, but at a doctor's discretion to detect vaginal damage and get evidence[/twittable]
The doctors would then write these comments on medical reports after which lawyers would use it to discredit the victim in court.
I wrote extensively on this issue between 1995 and 2000. It was also taken up by other NGOs, who felt that a victim's consent is necessary before conducting such a test. They drew up medical protocols accordingly.
There was a provision in the India Evidence Act (Section 155) that allowed for the sexual history of a victim to be used as a defense for the accused. As a result, medical reports were used to discredit the victim during the trial.
But in 2002, this offending section was deleted. Now, a judge cannot allow a lawyer to use this while cross-examining a victim since sexual history is no longer relevant. It is up to trial court judges and prosecutors to stop this practice even if defense lawyers resort to such tactics.
Later, as per the medical protocols brought out by the Health Ministry, doctors were barred from making such comments in reports.
The test can be conducted if it's necessary for the treatment of the victim, but only after obtaining her consent. There may be many reasons for a hymen tear or for the elasticity of the vagina.
One does not know why the Health and Family Welfare department of the Delhi Government sent out the circular allowing the internal test to be conducted with the explicit permission of the patient. But when they realised that they faced strong opposition, they withdrew it.
The main concern regarding the test is that it is used to discredit the victim during trial. But since the offending section under the Indian Evidence Act has been deleted, such comments cannot be used at all.
Asking doctors to resist from making such comments is one aspect, but it is more important to make our trial court judges aware of the legal position and their duty to protect the dignity of the victim.
Our organisation Majlis, in collaboration with the Mumbai Police, launched a programme called Rahat which provides support to survivors of sexual violence. So far, we have provided socio-legal support to around 350 survivors.
We've studied trial court judgments on rape and sexual abuse from 2008 onwards and have not come across any judgment where the elasticity of the vagina came up as an issue. While there were such instances earlier, we don't find such comments in judgments now.
[twittable]Moral character and past sexual history should be delinked from the need to conduct an internal exam[/twittable]
The purpose of the internal examination is to collect evidence to treat the victim. It should not be conducted routinely, but whenever necessary for the purpose of evidence collection and treatment.
In one case that came to us, eight men had raped a 40-year-old rag picker. Twigs had been inserted into her vagina and those were detected during an internal examination. Those twigs were then matched with shrubs at the scene of the crime to produce clinching evidence against the accused.
I think we should abandon the word 'two-finger test' because it has a negative connotation and that we should instead use the more accurate term Per Vaginal examination as it is more scientific. Moral character and sexual history should be delinked from the need to conduct internal examinations.
I had also protested against use of the two-finger test at one time. But when the law and the context changes, it is important for us to take note and not hold on to earlier notions.
But there are some issues that the media picks up on for sensational value and this is one such issue. When we protest against such a test, it is important to have an accurate context for doing so. Many times, the protest and sensationalism is unfounded.
To conclude, the internal examination of a rape victim is a medical imperative which should not be carried out routinely, but be left to the doctor's discretion in order to provide the best evidence or treatment for the victim.