Two Finger Test as Evidence of Rape Victim – Contradiction with the Right to Privacy

A CRITICAL ANALYSIS ON TWO FINGER TEST AS EVIDENCE OF RAPE VICTIM – CONTRADICTION WITH THE RIGHT TO PRIVACY  

ABSTRACT

Two-finger, or per vaginal examination, is the inspection of the female genitalia to assess if the examinee has had or has been habituated to sexual intercourse. It idea behind such a test done to the rape victim is to check the laxity of vaginal muscles and whether the hymen is distensible or not. In this, the doctor puts two fingers inside the woman’s vagina and the ease with which the fingers penetrate her is assumed to be in direct proportion to her sexual experience. Thus, if the fingers slide in easily the woman is presumed to be sexually active and if the fingers fail to penetrate or find difficulty in penetrating, then it is presumed that she has her hymen intact, which is a proof of her being a virgin.

The main aim of this paper is to examine the impact of the concept of the two-finger test regarding its accuracy and privacy of the rape victim. The test done on the victim by the concerned doctor makes the victim mentally not fine as she has to go through the same kind of trauma and that is against her privacy. This forces the victim to go against her own will and get ready for the evidence that is not accurate. Courts in many cases have tried to stuck down two-finger tests regarding the victim’s privacy and its accuracy.  This paper would try to look into the impact of the test done on the victim and the rationale behind such a process that is initiated. The sources that have been used for the study are YouTube, Articles, and books on rape victim legal aids, etc. The major of the understanding of the issue is been analyzed by using the articles given. The conclusion has been given with the reference to the overall research paper.

Key Words:  Two-finger test, virgin, victim, rape, and privacy.

Introduction

Women are put into positions where they need expectations to satisfy up to but people who put up those expectations aren’t gratified. Living in the patriarchal form of societies has not made anything easy for women living. Women’s voices got to be heard also and practices like virginity testing, female circumcision, and body modification will need to go under scrutiny because these practices are to keep men pleased and on top of things of women. It is common practice for many cultures around the world and in India particularly to hold a ceremony after the wedding night to determine if the woman was a virgin by observing whether the wedding sheet had been bloodied or not. The concept of virginity testing is not new; it has been practiced for thousands of years by cultures all over the world. However, there is little scientific evidence about the accuracy of these tests. Also, it’s not universally common for a woman to bleed the primary time she has intercourse. Therefore, this is often basically a cultural practice and features a little, if any, scientific basis. Today this practice is viewed by many to be a violation of human rights, causing conflicts between those that want to continue the tradition. The assumptions and attitudes that are connected to virginity testing are designed to regulate women also as supported the unequal gender power relations.

RESEARCH PROBLEM

Examination of a rape victim after the FIR being filed is important for the scientific shreds of evidence. Two-finger test being such examination where such evidence is not based on any systematic medical reports does not provide the accuracy concerning the authentication and rely on the discretionary of the medical examiner for the result.

RESEARCH QUESTION

  1. What far does the two-finger test as a shred of evidence is being backed up by the legal laws of the nation?
  2. How does the two-finger test be against the right to privacy under article 21 of the constitution?

HYPOTHESIS

  • The concept of the two-finger test is not explicitly provided in any of the prevailing laws but it’s the discretionary taken by the medical practitioner at the time of examination.
  • The two-finger test is against an individual’s right to privacy as it goes way too far to their personal area.

SCOPE AND OBJECTIVES

The research paper has the main focus on the concept of the two-finger test and its impact on a rape victim in the system of India.

Following are the objectives of this research paper

  1. To analyze the two-finger test as a shred of evidence in the Indian legal framework.
  2. To analyze the impact of the two-finger test on the privacy and dignity of a rape victim.

METHODOLOGY

The research method used in this research paper is the doctrinal research method.

It is a theoretical study where the mostly secondary source of data is used to seek to answer one or two legal propositions or questions or doctrines.

LITERATURE REVIEW

The following has been referred to in the research paper:

  1. MITRA, DURBA, and MRINAL SATISH. “Testing Chastity, Evidencing Rape: Impact of Medical Jurisprudence on Rape Adjudication in India.” Economic and Political Weekly, vol. 49, no. 41, 2014, pp. 51–58.
See also  DOCTRINE OF BASIC STRUCTURE

This book was referred to the fundamental objective of this research paper is to go through the incessant activities rape adjudication requires putting an end to the ” finger test ” as well as a substantial overhaul of many other aspects of medical jurisprudence textbooks and medical protocols in the examination of rape and this book have given us the broad idea about our research area enabling us to find the appropriate data to prove our hypothesis.

  1. MOSS, DEBRA CASSENS. “DNA—The New Fingerprints.” vol.74, no.5, 1988, pp.66–70.

This book was referred to the studied to understand how the determination of the DNA type is “gene probes,” fragments of genetic material parts of the DNA that vary from individual to the individual and comparatively subject matter of determining not only whether DNA from semen taken from a rape victim matches DNA from a suspect’s blood sample…

  1. Garrett, Brandon L., and Peter J. Neufeld. “Invalid Forensic Science Testimony and Wrongful Convictions.” vol. 95, no. 1, 2009, pp. 1–97.

This book was referred to critically examine the emergence of Invalid Forensic Science Testimony and Wrongful Convictions with its own kind of aims. This book has spoken about the impact of identifying the needs of the Forensic Sciences Community for their useful comment and it has helped to link concept with research area.

  1. Lehmann, Robert J. B., et al. “Applying Crime Scene Analysis to the Prediction of Sexual Recidivism in Stranger Rapes.” Law and Human Behavior, vol. 37, no. 4, 2013, pp. 241–254.                                                                                                             This book was referred to critically examine how the authorities of Applying Crime Scene analysis to the Prediction of Sexual Recidivism in stranger rapes and understand about the subject matter of law perspective in the legal situation.

‘TWO-FINGER TEST’ AND ITS SCIENTIFIC VALIDITY

In the occurrences when rape is accounted for and an FIR is registered, the law accommodates medical examinations of the victims. [164(A) of the Code of Criminal Procedure, 1973] to decide the veracity of the cases and that is the point at which the ‘Two-Finger test’ comes in. The two-finger test, otherwise called PV (Per Vaginal) assessment or ‘virginity test’, is where the analyzing specialist takes note of the presence or non-appearance of the hymen thus called laxity of the vagina of the assault survivor by putting their two fingers inside the women’s vagina. The ease with which the fingers infiltrate her is thought to be in direct extent to her sexual experience and decides if the young woman or woman is a ‘virgin’ or ‘habituated to sexual intercourse. Even though this test is led absolutely to inspect genital organs for constrained entrance, document injuries, and gather tests, it is regularly utilized against the casualties during preliminaries to declare that the casualty had “loose” or “lax” ethics. It is huge to take note that outcomes dependent on the two-finger test are totally ridiculous and informal in nature. It is an abstract test that relies upon one-sided and customized factors, including the thickness of each specialist’s fingers and because of this subjectivity it, at last, loses its certainty and legitimacy in a legitimate statute. The Apex Court also had repeated the equivalent in Narayanamma (Kum) v. the State of Karnataka

,[1] by holding that “reality of affirmation of two fingers and the hymen rupture doesn’t give a reasonable sign that prosecutrix is routine to sex.”

TWO-FINGER TEST AND THE LEGAL STAND

The provision to Section 146 of the Indian Evidence Act denies putting inquiries in the interrogation to the prosecutrix with regards to her overall improper character on account of rape and attempt to commit rape. section 155 of the same Act goes above and beyond and disallows the rape victim’s creditability to be settled on the ground that she is of ‘immoral character’. Notwithstanding the aforementioned arrangements, this test prompting the development of the clinical supposition with respect to ‘assent’ permits the past sexual history of the victim to make prejudice to her testimony.

For the offence of rape under Section 375 of the Indian Penal Code, even incomplete penetration of the penis, with or without emanation of semen, or even an endeavour at infiltration, turns out to be very adequate and it invalidates the requirement for leading such a test yet as Indian clinical practice has gotten detached from lawful turns of events, this training proceeds with unhampered.

The Law accommodates clinical assessment of both the assault accused (S. 53A CrPC) just as the rape victim (S. 164A CrPC),[2] quickly upon the registration of FIR in rape cases so as to decide the honesty just as the veracity of some sexual contact hosting occurred between the parties to the case. The specialist directing such assessment on the charged individual is permitted to utilize such power as is important to lead the examination, in any case, no women can be exposed to clinical assessment, not so much as a rape victim, except if she asserts. Under Section 164, An of the CrPC, such assessment will be led by a registered medical practitioner utilized in a medical clinic run by the Government or a neighbourhood authority and without such a specialist, by some other registered clinical professional, with the assent of such women or of an individual capable to give such assent for her benefit and such women will be sent to such registered clinical professional inside 24 hours from the hour of accepting the data identifying with the commission of such offence. The examination ought to be directed ideally by a women clinical official and on the off chance that by a male medico, at that point within the sight of another female specialist.

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RIGHT TO PRIVACY AND DIGNITY

Privacy and dignity of human life have consistently been cherished as major fundamental rights of each person. Such rights have been stretched out to every woman of ‘easy virtues’ as she has been held to be qualified for her entitlement to privacy and dignity. In Selvi v. the State of Karnataka, the Supreme Court, while conceptualizing ‘privacy’, has gone a step further to the qualification between ‘privacy as a right in a physical sense’ and ‘privacy of one’s mental processes and held both are the inherent parts of Article 21 of the Constitution of India. In such regards when we see the mental trauma of a woman going in a two-finger test, is more about her mental process as has to agree for a doctor to penetrate fingers to check the laxity.

In the landmark of Justice K.S. Puttaswamy(Retd) v. union of India[3], Justice Chandrachud featured the nexus between Privacy and Dignity when he observed that privacy lies in the functional relationship with dignity. He went on to say privacy is an essential facet of human dignity. It ensures that a human being can lead a life of dignity by securing the inner recesses, it becomes certain that a law, which infringes upon the privacy and dignity of an individual, will have to be within the brackets of permissible limitations on fundamental rights.

With regards to Article 21, an interruption of privacy must be supported dependent on a law, which specifies a system that is sensible just, and fair. In a nation with broad sexual orientation separation and persecution, a clinical assessment, which is taken without the assent of the women and is informal and lawfully unsound, which perceives an unmarried woman as ‘habituated to intercourse’ appends an extraordinary disgrace to her, compounding the current disgrace she faces while detailing occurrences of rape. By deciding a women’s ‘character’ with her past sexual experience and thus subverting her certainty to face such merciless offences, this test abuses the very ethos of protection and respect of an individual and doesn’t leave any stone unturned in lessening the privileges of women to a second class citizen.

CURRENT STATUS IN INDIA

This is very likely to happen where young girls engage in sexual relations to urge money reciprocally. Lastly, the way during which our so-cities expire a number of the values, beliefs like males “bio-logically programmed to wish sexual relations with quite one woman and sometimes concurrently”. It is thoughts like this that make question if women are really liberal to use their brain, when will women set their standards high enough to not fall for such sayings that men are naturally born to possess side relationships. Very often in India, the term sexuality is considered as in lines of their own culture that varies from that of the other.

Examinations to test for previous sexual activity or habituated sexual connections are commonly performed in India on rape victims by various acts. Activists and lawyers have long criticized the test as unscientific and unnecessary and one that subjects the complainant to further trauma and humiliation and sometimes allows a rapist to get away. There was a provision within the India Evidence Act (Section 155) that allowed for the sexual history of a victim to be used as a defence for the accused. As a result, medical reports were wont to discredit the victim during the trial. Defence lawyers always see space for little room to show their evidence, in that case, if the two-finger test proves to have laxity then-lawyer may turn to sat that the sexual act was with the consent of the victim by proving her habituation in sexual acts.[4] Another prosecutor says, “The finger test has relevancy for the defence, if the report says that two fingers have passed, the defence can show that she is habituated. This shakes the testimony of the prosecutrix [the girl or woman].” But in 2002, this offending section was deleted. Now, a judge cannot allow a lawyer to take the ground of a women’s sexual history while cross-examination since it would be barred and no longer relevant to prove her guilty. It is up to court judges and prosecutors to prevent this practice albeit defence lawyers resort to such tactics. Later, as per the medical protocols brought out by the Health Ministry, doctors were not allowed to make statements regarding the same in the medical reports after examination of the victim. The test is often conducted if it is necessary for the treatment of the victim, but only after obtaining her consent. There could also be many reasons for a hymen tear or for the elasticity of the vagina. Experts opined that the two-finger test or PV test is completely not necessary since forensic shreds of evidence are often collected without doing a finger test. Maharashtra Government has done away with finger test on rape victims saying such test is non-scientific most of the time, often leading to hurdles in investigations and miscarriage of justice. The Usha Mehra commission was constituted by the union government on 26 December 2012 to discuss the different aspects of the brutal rape and assault incident of the girl on 16 December 2012 on the streets of Delhi[5].Planning Commission’s working group headed by the secretary, the women and child development ministry, in its report in January 2012 recommended the abolition of this test so as to guard victims of sexual assault from further mental trauma. Hon’ble Supreme Court of India had held that the 2 finger test on a rape victim violates her right to privacy, and asked the govt to supply better medical procedures to confirm sexual assault.

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THE STATE OF GUJARAT VS. RAMESH CHANDRA RAMABHAI PANCHAL EFFECTS ON THE INTERPRETATION OF THE TWO-FINGER TEST

Though the test of two-finger is not been given in any of the constitutional provisions yet it is been practising for a long. We did discuss how it was used as a shred of evidence and the sections that would implied bar such tests on the victim but it was only after the court’s judgements it came into light and there were complete restrictions.

In the case state of Gujarat vs Ramesh Chandra, the Gujarat high court declared the two-finger test on the victim for determining the virginity in the case of rape would be unconstitutional. It further said that the practice of this test is an outdated practice that would not give conclusive evidence on the case. Such practice is against the women’s right to privacy, dignity, and physical and mental integrity.[6]

The Court further directed the trial court that if such medical certificates regarding the two-finger test are being referred to as evidence then the court should take cognizance of the same and do required in the matter.

The Court found that the practice of testing virginity of women with direct proportional to the laxity in the two-finger test to be in direct conflict with sec 146 of Indian Evidence Act, which says speaks about the immoral character of the rape victim not be a relevant factor to prove against her in the case. In this regard even though women are habituated towards sex but that cannot be seen to prove against her as in the rape the essentials are satisfied for the act.[7]

CONCLUSION

The purpose of the interior examination is to gather evidence to treat the victim. It should not be conducted routinely, but whenever necessary for the purpose of evidence collection and treatment with the consent of the victim. 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. ‘Two Finger Test’ shouldn’t be allowed to be practised insight of pain and suffering of rape survivors. Moral character and sexual history should be delinked from the necessity to conduct internal examinations. There is a requirement for uniform nationwide guidelines for forensic examinations that respect survivors’ rights to health, consent, and dignity, and for “scientific, relevant and accurate information to be presented in courts, instead of outdated material gleaned from textbooks or old-fashioned medical practices.” Doctors, the police, prosecutors, and judges should all work together to prevent the test from being administered and to standardize evidence collection to guard the rights of survivors.

[1] Human Rights Watch. Indonesia: ‘Virginity Tests’ for Female Police; 2014.

[2] Brulliard K. Zulus Eagerly Defy Ban on Virginity Test 2009.

[3] Justice K. S. Puttaswamy (Retd.) and Anr. Vs Union of India and Ors.

[4] Jagranjosh.com [Internet]. Justice Usha Mehra Commission Submitted its Report to the Union Government of India; 2013.

[5] B.S. Chauhan, Fakkir Mohamed Kalifulla. Lillu @ Rajesh & Anr vs State Of Haryana on 11 April 2013

[6] Jagranjosh.com [Internet]. Justice Usha Mehra Commission Submitted its Report to the Union Government of India; 2013.

[7] The State Of Gujarat vs Ramesh Chandra Ramabhai … on 5 December 2017.

 

 BIBLIOGRAPHY

Books

  • Garrett, Brandon L., and Peter J. Neufeld. “Invalid Forensic Science Testimony and Wrongful Convictions.” vol. 95, no. 1, 2009, pp. 1–97.
  • Lehmann, Robert J. B., et al. “Applying Crime Scene Analysis to the Prediction of Sexual Recidivism in Stranger Rapes.” Law and Human Behaviour, vol. 37, no. 4, 2013, pp. 241–254.
  • MITRA, DURBA, and MRINAL SATISH. “Testing Chastity, Evidencing Rape: Impact of Medical Jurisprudence on Rape Adjudication in India.” Economic and Political Weekly, vol. 49, no. 41, 2014, pp. 51–58.
  • MOSS, DEBRA CASSENS. “DNA—The New Fingerprints.” vol.74, no.5, 1988, pp.66–70.

Websites

 

Submitted by:

Name: Nayana bhushan AN

Age: 22

Profession: law student at alliance school of law anekal Bangalore and 6th-semester

contact details: address: Avani post mulbagal taluk and Kolar district in front of a government hospital, Karnataka. Pin code- 563127, contact number- 8762684626

email id- [email protected]

Author: Nayana Bhushan,
Alliance school of law and 3rd year

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