Two-finger test on rape survivors patriarchal, sexist, unscientific: Supreme Court

The Supreme Court on Monday said that anyone conducting the two-finger test on survivors sexual assault would be guilty of misconduct, as it declared the invasive procedure adopted to ascertain sexual history of the victim as patriarchal, sexist, regressive and unscientific.

"The so-called test has no scientific basis. It re-victimises and re traumatises the 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," a bench of Justices D Y Chandrachud and Hima Kohli said.

The court said it is regrettable that "two finger test" continues to be conducted even today, though the Ministry of Health and Family Welfare had issued guidelines proscribing its application.

"It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped merely because she is sexually active," the bench said.

The bench also pointed out this court has time and again deprecated the use of two finger test in cases alleging rape and sexual assault.

Justice Chandrachud, who authored the judgment on behalf of the bench, said the probative value of a woman’s testimony does not depend upon her sexual history.

The bench said whether a woman is “habituated to sexual intercourse” or “habitual to sexual intercourse” is irrelevant for the purposes of determining whether the ingredients of Section 375 of the IPC are present in a particular case.

The bench said in terms of Section 53A of the Evidence Act, evidence of a victim’s character or of her previous sexual experience with any person shall not be relevant to the issue of consent or the quality of consent, in prosecutions of sexual offences.

The court directed the Centre and state governments to ensure that the guidelines formulated by the Ministry of Health and Family Welfare are circulated to all government and private hospitals. It ordered for review of the curriculum in medical schools with a view to ensure that the two-finger test or per vaginum examination is not prescribed as one of the procedures to be adopted while examining survivors of sexual assault and rape.

It also directed for sending the copy of direction to the authorities concerned.

The court's directions came while setting aside Jharkhand High Court judgment passed on January 27, 2018. The high court overturned the conviction of an accused charged with the rape and murder of a minor girl. The accused had raped the victim in November 2004 and had set her on fire. The victim succumbed to burn injuries in December 2004.

The victim’s vaginal examination revealed that two fingers were inserted easily. The doctor stated that the deceased may have engaged in intercourse prior to date of the alleged crime, and that the insertion of two fingers in her vagina meant that she was habituated to sexual intercourse. The top court said the victim's statement was sufficient to hold the accused guilty.