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India's Supreme Court FINALLY gets serious about ban on barbaric 'rape test' that re-traumatizes women

The Supreme Court of India, in May 2013, had banned the 'two-finger test' on rape victims but the practice continues in the country

NEW DELHI, INDIA: In a significant decision, the Supreme Court of India on Monday, October 31, reiterated the prohibition on the use of the “two-finger test” in penetrative sexual assault cases and warned those indulged in such practices will be deemed guilty of misconduct. The Supreme Court also asked the federal and states government to ensure that the controversial practice is no longer used.

A two-judge bench comprising Justice DY Chandrachud and Hima Kohli frowned upon the continuance of the practice despite the Apex Court banning it in 2013. “This court has time and again deprecated the use of two finger test in cases alleging rape and sexual assault. The so-called test has no scientific basis. It instead re-victimizes and re-traumatizes 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,” the bench said according to Live Law.

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Describing the practice as patriarchal and sexist, Justice Chandrachud, who is set to become the next Chief Justice of India, regretted that such a traumatizing method of examination was being used by educated medical experts even today. “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.” Justice Chandrachud said.

The bench made these observations while restoring a conviction in a Telangana rape and murder case. The bench also directed the federal and state government to ensure that the guidelines formulated by the health department, prohibiting the two-finger test, is followed in all government and private hospitals. The top court further asked the health and welfare department to conduct workshops for health providers to train them on the appropriate procedure for examining sexual assault survivors.

For the unaware, a two-fingers test or "per vaginal" test is an explicit physical examination wherein the medical experts insert two fingers inside the vagina of the rape victim to examine if the hymen is intact or not. In some cases, it is done by inspecting the size of a vaginal opening and for tears in the hymen. It is based on the assumption that a sexually active woman is less likely to have been sexually assaulted; several judgments and research have shown that a person’s sexual history has no bearing on sexual assault.

In 2018, United Nations (UN) Human Rights, UN Women, and the World Health Organization (WHO) called for a ban on the two-finger test while describing it as “invasive, humiliating, and inhumane”. Following the calls, the Supreme Court, in May 2013, banned the two-finger test on rape victims on the grounds that it violates their right to privacy. However, the test continued to be used in several states of India. Hopefully, the Supreme Court's new warning to take the ban of the 'rape test' seriously will see a change in attitudes.