SC slams two-finger test in rape cases; calls out ‘patriarchal and sexist’ mindset

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 Supreme Court said on Monday while directing that those conducting the two-finger (virginity) test on rape survivors should be prosecuted for criminal misconduct.

Underlining that the two-finger test stands proscribed by the top court through a raft of judgments starting 2013, the SC bench headed by justice Dhananjaya Y Chandrachud frowned upon the continuance of the practice even though it was established to be lacking any scientific basis to ascertain the sexual history of the victim.

“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 and is an invasive method of examining rape survivors… It instead re-victimises and re-traumatises women. The two-finger test must not be conducted,” justice Chandrachud said while reading out the operative part of a judgment in a criminal case.

He added, “The test is based on an incorrect assumption that a sexually active woman cannot be raped. Nothing can be further from the truth.”

The apex court highlighted that the probative value of a woman’s testimony does not depend on her sexual history. “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,” said the bench.

Issuing a slew of directives to ensure implementation of its previous judgments, the top court directed the Centre and states to ensure that the guidelines formulated by the department of health and family welfare banning the two-finger test are recirculated to all government and private hospitals.

It further said that workshops must be conducted for health care providers to communicate appropriate procedure for examining survivors of sexual assault.

The court also favoured a review of curriculums in medical schools to state that the two-finger test is not prescribed as one of the procedures to be adopted while examining survivors of sexual assault and rape.

The SC passed the judgment on Monday while setting aside the acquittal of a man in a rape and murder case, and sentencing him to life term.

The Supreme Court had in May 2013 ruled that the two-finger test on a rape victim violates her right to privacy, and asked the government to provide better medical procedures to confirm sexual assault.

Referring to various international covenants, the 2013 judgment said that rape survivors are entitled to legal recourse that does not violate their physical or mental integrity and dignity. “Medical procedures should not be carried out in a manner that constitutes cruel, inhuman or degrading treatment and health should be of paramount consideration while dealing with gender-based violence,” it had stated back then.