Madras High Court Directs State Government To Ban Two-Finger Test On Rape Victims, Calls It “Unconstitutional”
Rape and sexual assault victims have it hard. Their trauma doesn’t just end with the crime but it continues till much later. With the medical examination and having to recount the traumatic incident again and again in court and hearing it being torn apart. But the absolute worst is the medical examination which feels nothing less than a violation of their bodies. One of the most controversial practices is the two-finger test. It’s a rather explicit and intrusive physical examination where the medical examiner inserts two fingers inside the vagina of a rape survivor to check if the hymen is intact or not. This test has time and again been called a grave violation of dignity and privacy. UN Human Rights, UN Women and WHO have also time and again called for a ban on this test as it is a violation of a woman’s body. In fact, this test has been declared medically unnecessary as it holds no forensic value and cannot determine if a woman has had penetrative sex or not. Apart from this, this test is painful, humiliating as well as a traumatic practice. In a recent case, the Madhurai Bench of the Madras High Court directed the Tamil Nadu government to ban the controversial two-finger test.
A division bench of Justices R Subramanian and N Sathish Kumar was hearing an appeal filed under Section 374(2) of CrPC against a conviction and sentence given to an accused under the POCSO Act. The accused in the case was awarded a life imprisonment sentence for the raps of a 16 years old girl and seven years imprisonment under section 362 of the IPC for kidnapping, by the Pudukottai Mahila Court in 2021. The accused challenged the conviction and sentence in the case which was reduced from life imprisonment to 20 years of rigorous imprisonment. In this case, the victim was subjected to a two-finger test to confirm the rape. During the hearing, the counsel for the appellant had argued that the girl had given her consent and it cannot be called rape but the Additional Public Prosecutor submitted that the girl is a minor and the consent is invalid. the counsel for the appellant and the Additional Public Prosecutor submitted that the two-finger test has been banned by several state governments and has been held unconstitutional.
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In May 2013, the Supreme Court had held that the two-finger test violates a rape survivors right to privacy, physical and mental integrity as well as dignity while banning it. Taking into consideration the Supreme Court judgement, the bench noted that even if the report is affirmative, the test cannot be used to presume consent. The bench also noted that in 2020, the Gujarat High Court had held that this test is the most unscientific method of examination and has no forensic value.
Speaking about the same, the bench held that it is a common practice to perform the two-finger test on rape victims, especially minors while adding that it is unconstitutional. The Madras High Court directed the state government to ban the practice of the two-finger test on victims of sexual assault while noting that the test is being used in cases of sexual offences particularly on minor victims despite the Supreme Court judgement that bans the test.
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According to LiveLaw, the Madras High Court observed, “In view of the above judicial pronouncements, we have no doubt that the two-finger test cannot be permitted to be continued. Therefore, we issue a direction to the State Government to ban the practice of two-finger test on victims of sexual offences by the medical professionals forthwith.”
The victim, in this case, was befriended by the accused when she went for tailoring training at his shop. On one occasion the girl left her house to get some old clothes stitched but when she did not return, her father lodged a missing complaint with the police. The girl was later found with the man who has raped and sexually abused her and the victim was subjected to a two-finger test to confirm the rape.
