By Debayan Bhattacharya and Dhaval Hemesh Sheth
Introduction
Recently, an IAF officer filed a police complaint, alleging that she had been subjected to the illegal and dehumanising two-finger test after reporting rape.[1] The two-finger test also known as the Per Vaginal (P/V), is an invasive test used by medical practitioners to assess the laxity of the vagina and determine whether the rape victim was ‘habituated’ to sexual intercourse or not.[2] Despite the Supreme Court’s ruling that banned the two-finger test in 2013,[3] it continues to be widespread and prevalent.[4] It is not only a blatant violation of the victim’s dignity and privacy, but it also forces the victim to relive her trauma. Moreover, it has been deemed unscientific.[5]
However, the prevalence of the two-finger test is symptomatic of a larger issue with the criminal justice system. The system is concerned with legislative reforms for punishing offenders and not counselling or rehabilitating the victim, even though it ought to operate primarily in the victim’s interest. This manifests in several ways and has massive implications for the dispensation of justice. Despite efforts to improve the justice system over the years, the police, judiciary, and health system all remain fundamentally incapable of comprehensively handling crime.
The Two-Finger Test: Illegal, Invasive and Inhumane
When an offence of rape or attempt to rape is under investigation, the victim undergoes medical examination as per Section 164A of the Code of Criminal Procedure, 1973. A medical practitioner examines the victim within twenty-four hours from the time of receiving the information relating to the commission of such offence. At this stage, rape victims are subjected to the invasive and humiliating ‘two-finger’ test. The doctor inserts two fingers inside the vagina of the victim to determine the absence or presence of hymen. If the fingers penetrate easily, the victim is deemed ‘sexually active’, and aspersions are thrown on the validity of the rape complaint.
This medical practice is prevalent despite the fact that the Supreme Court in Lillu Allius Rajesh and others v. State Of Haryana[6] had declared that the two-finger test violated the privacy, dignity and integrity of a rape survivor.[7] In highlighting the degrading, cruel, and intrusive nature of this medical procedure, the Court mentioned that the State is under an obligation to ensure access to safe and effective medical procedures.[8] In Narender Kumar v. State (NCT of Delhi), the Apex Court held that a victim’s sexual history is irrelevant in sexual violence cases. The same cannot be used to infer the victim’s character as loose or immoral.[9] Furthermore, Section 53A of the Indian Evidence Act, 1872 states that the evidence of character or previous sexual experience will not be relevant for the issue of consent. Recognising the dismal plight of rape victims, the Union Ministry of Health released new Guidelines for medico-legal care of rape survivors in 2014.[10] These guidelines have universally been hailed as progressive and comprehensive, and they specifically state that the “Per-Vaginum examination commonly referred to by lay persons as ‘two-finger test’, must not be conducted for establishing rape/sexual violence and the size of the vaginal introitus has no bearing on a case of sexual violence.”[11] Moreover, these guidelines were developed in consultation with the WHO and are fully consistent with India’s international law obligations under the International Covenant on Economic, Social, and Cultural Rights, 1966 and United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985.[12]
Unfortunately, these progressive steps have failed to eradicate the malaise of the two-finger test. Judicial discourse is still dominated by discussions on whether the victim had “loose morals”.[13] The 2014 Guidelines have no legally binding power since healthcare is a state subject,[14] and only nine states have voluntarily pledged to apply it so far.[15] Even states that have officially accepted it do not effectively implement it.[16] As a result, there is flagrant transgression of rape laws. Studies indicate that the two-finger test is still used to ascertain rape.[17] Medico-legal reports still mention whether the victim was ‘habituated to sexual intercourse’. By relying on such reports and illogical inferences, police often refuse to pursue legitimate cases of rape. The two-finger test, which is currently unscientific and outdated, is widely used to arrive at such conclusions. Therefore, the two-finger test not only violates the integrity and dignity of the victim but also hinders their right to access justice.[18]
Instances of Systemic Failure
This hindrance cannot be attributed solely to medical professionals and the prevalence of the two-finger test. Instead, there are various ways in which victims are denied justice indicating a collective failure of the entire system. The limited resources available at the hospitals is one such factor. Hospitals and medical professionals play a crucial role in the entire process. They are responsible for the collection of evidence and counselling survivors of rape and sexual assault. However, neither of these functions are satisfactorily fulfilled by the hospitals.
Sexual Assault Evidence Collection (SAEC) or Sexual Assault Forensic Evidence (SAFE) Kits, which have been deemed mandatory by the Central Government’s 2014 Guidelines,[19] are not available in the majority of the private hospitals to date.[20] These kits were designed to aid the medical professionals in collecting various samples and swabs from the victim. Such samples often play a crucial role in prosecution because they assist the healthcare professionals in determining the forensic evidence and are essential for medical examination.[21]
Further, another important aspect is the lack of counselling services available to victims. Western countries employ Sexual Assault Nurse Examiner (SANE) and Sexual Assault Forensic Examiner for the preliminary stage of victim-care.[22] They are sensitised and trained to handle and counsel victims of sexual assault. Forensic Nursing has resulted in more charges being filed by the police,[23] and conviction rates are significantly higher in cases where SANE was used.[24]
In India, however, the medical practitioners often doubt the victim’s story and do not alleviate the guilt and trauma the victim suffers after experiencing sexual assault.[25] Healthcare professionals are riddled with biases and stereotypes. Doctors still doubt the victim’s testimony, record their observations on the past sexual history of the victim, and do not recognise the victim’s therapeutic needs.[26] Medical professionals have never received any training for the new protocols which outline medico-legal care for rape victims.[27] Moreover, doctors follow archaic and illegal methods of evidence collection like the two-finger test as they are not acquainted with the new technology mentioned in the guidelines.[28]
Forensics is no better off. Forensic evidence is crucial in cases of rape and sexual assault. DNA evidence has been singled out as an important factor on which courts tend to tether their judgement. However, the forensic infrastructure is woefully inadequate. There are six national forensic labs in the country, but only three have the facilities required to carry out DNA analysis sufficient for a rape prosecution.[29] One of the three labs, the Chhattisgarh Central Forensics Lab, can only work on just over one hundred and fifty cases at a time.[30] Moreover, there is a severe scarcity of qualified personnel. India only has twenty-five DNA experts and three hundred medico-legal experts.[31] This has resulted in a backlog of over 12,000 cases.[32] The lack of infrastructure, qualified personnel, and professional investigation has devastating implications for a country where a rape occurs every 15 minutes.[33] Forensic reports, that often contain crucial DNA evidence, have been delayed for as long as two years.[34] The net result is that victims have to wait for an extended period for justice, which aggravates the trauma that they have faced.
Police and law enforcement authorities also play a massive role in the plight of victims. Constables, who are the first officers to come into contact with any scene, are not aware of the precautions required to preserve evidence.[35] As a result, evidence collected is often contaminated and is rendered inadmissible by the court.[36] Moreover, evidence with respect to rape has to be collected on a priority basis i.e., with such urgency. However, this is not followed in several instances.[37] Even in cases where evidence is duly collected, there are complex procedures to preserve the evidence. Police are not adequately sensitised about the process; this often results in yet more evidence that is unreliable due to imperfect collection.[38] This situation is exacerbated by widespread police apathy that is dictated by the underlying patriarchal attitude. This leads to scepticism of victims thus pressuring them to withdraw cases.[39]
Even the judiciary, which is often the last resort for victims, has shown staggering insensitivity in handling cases of rape and sexual assault. For instance, in 2020, the Karnataka High Court released a rape accused on bail after observing that the victim falling asleep after the rape was “unbecoming of an Indian woman”.[40] Such absurd, deeply patriarchal notions of the “ideal victim” continue to perpetuate.[41] This judgement of the victim’s character is deeply entrenched. This is damaging, since the Indian judiciary enjoys broad public legitimacy and is often the last hope for a victim.[42] Such insensitivity even at this stage causes irreparable harm to the survivor, who has already faced immense trauma and backlash.
The collective result is devastating. A mere twenty-three percent of cases end up in conviction, though over ninety five percent of these are solved.[43] Evidence is almost always tampered.[44] In many of these acquittals, courts have castigated the police for failing to carry out basic investigation, such as not collecting evidence and contacting witnesses who could corroborate the victim’s claim.[45] The net result is that the system is insurmountably stacked against the victim, who has to face stigma, abuse, and a lack of closure, all for no fault of their own.
Recommendations and Conclusion
The prevalence of the two-finger test is a dark hint at the structural inefficiencies plaguing the justice system, which has collectively failed to ensure that victims can achieve any form of justice or closure. Several steps have to be taken to ensure that illegitimate methods like the two-finger test do not continue to proliferate.
First, the requisite awareness programs must be conducted for doctors, police, and lawyers. The flagrant transgressions of rape laws and protocols by police officers and medical professionals indicate their lack of awareness and knowledge about crimes involving sexual violence. There is an urgent need to sensitise these officers and provide them with adequate training. The doctors must be trained to follow the new guidelines and protocols for medico-legal care of rape victims.
Second, there is a substantial need to bolster the Indian medical system. As mentioned above, most hospitals do not have the SAFE kits and thus, resort to conventional and unscientific medical examination methods. The collection of evidence is a complex and lengthy procedure, which can only be addressed by adequate training and facilities. The Government of India must procure SAFE kits and ensure that every hospital is well-equipped with these kits.
Third, the concept of Forensic Nursing must be introduced in India. SANE and SAFE kits must form the first line of rape victim care in India. Currently, medical professionals are insensitive and inadequately trained to provide holistic healthcare for rape victims. Trained professionals can alleviate the trauma and guilt of the rape survivors, since they are adequately trained and sensitised to provide medical, counselling and forensic services. Such programs in western countries have improved the efficacy of the Criminal Justice system to handle offences involving sexual violence.
Fourth, there is a need to revamp the forensic system in the country. The current policy is to inaugurate new labs with state-of-the art facilities. While this may certainly improve the situation, it nevertheless leads to inefficient use of resources. Most personnel in these new labs are individuals who are transferred from existing labs.[46] This means that most of these individuals are overworked and cannot perform adequately. Moreover, the central issue with Indian forensics is the lack of qualified personnel. A system of accreditation and certification has to be introduced in order to ensure quality. Finally, there is no standard procedure followed in such cases. Police often dither and delay the sending of samples. Thus, mandating the samples to be sent to laboratories within a few days of their collection and in all cases of rape can be helpful. This is pertinent since inviting forensics is still discretionary in sexual assault cases.[47]
Each of these recommended steps can only be achieved gradually provided that adequate funding is provided, and the authorities sincerely enforce the 2014 Guidelines. These requirements are not difficult to fulfill as immense political capital is associated with rape law reform and criticism of violence against women.
The matter of funding can be easily addressed. The Nirbhaya Fund, which was setup to ensure a separate source of funds for expenditures on strengthening women’s safety, has been severely underutilised.[48] States can begin to use the resources present in this Fund to improve the medical and forensic facilities available. While such a process is likely to be expensive, it is long-term investment to bolster the infrastructure of the justice system and thus the financial expenditure is likely to be manageable.
A PIL can be filed in a constitutional court to address the issue of mandatory compliance with the 2014 Medico-Legal guidelines. The courts can take suo motu cognisance of the issue and deliver a binding judgement. Even otherwise, the significant political interest in ensuring justice to rape victims can create pressure for state governments to enforce these guidelines. However, these have to be deliberately directed and curated.
At the end of the day, the plight of rape survivors is truly horrifying in the country. The massive public attention and interest have been channeled into the creation of more stringent legal provisions. Given the pendency of rape cases[49] and systemic failures, this has led to little deterrence. However, a more fundamental flaw has been the patent disregard for the victim’s interests and concerns. Without access to counselling services, a professional investigation, and an unbiased trial process, survivors are forced to live through their trauma at each step. There is enough interest in improving the conditions of victims; all that needs to be done is to shift the focus to entrenching a victim-focused care system. Under the current patchwork system and reactionary improvements, India’s criminal justice system is failing the victim.
The authors, Debayan Bhattacharya and Dhaval Hemesh Sheth, are undergraduate law students at the National Law University (NLUD), Delhi.
[1] Pramod Madhav, Was blackmailed, subjected to 2-finger test: Woman IAF officer on rape charges against colleague, September 30, 2021, available at https://www.indiatoday.in/india/story/blackmail-two-finger-rape-test-woman-iaf-officer-in-fir-1859055-2021-09-30 (Last visited on October 7, 2021).
[2] Rose Mckeon Olson and Claudia García-Moreno, Virginity testing: a systematic review, 14(1) Reproductive health (2017).
[3] The Hindu, No two-finger test for rape: SC, May 19, 2013, available at https://www.thehindu.com/news/national/No-two-finger-test-for-rape-SC/article12141055.ece (Last visited on October 7, 2021).
[4] NDTV, Rajasthan Doctors Perform Banned ‘Finger Test’ On Rape Survivors: Report, November 8, 2017, available at https://www.ndtv.com/india-news/rajasthan-doctors-perform-banned-finger-test-on-rape-survivors-report-1772723 (Last visited on October 8, 2021); Roli Srivastava, Rape survivors still subjected to intrusive, illegal tests in India, January 10, 2018, available at https://www.reuters.com/article/india-sexcrimes-justice-idINKBN1EZ0RO (Last visited on October 8, 2021); Shruti Menon, How A Banned Test Continues To Traumatise Rape Survivors In India, January 21, 2018, available at https://www.ndtv.com/india-news/how-a-banned-test-continues-to-traumatise-rape-survivors-in-india-1802547 (Last visited on October 8, 2021).
[5] Vageshwari Deswal, Virginity Test: Why the two finger test is unscientific, illogical and illegal, May 9, 2019, available at https://timesofindia.indiatimes.com/blogs/legally-speaking/virginity-test-why-the-two-finger-test-is-unscientific-illogical-and-illegal/ (Last visited on October 7, 2021); MoHFW Guidelines & Protocols for Medico-legal care for survivors/victims of Sexual Violence (19 March, 2014) Cl 18B.
[6] Lillu @ Rajesh and Anr. vs. State of Haryana, (2013) 14 SCC 643.
[7] Id., ¶14.
[8] Id., ¶13.
[9] Narendar Kumar v. State (NCT of Delhi), (2012) 7 SCC 171, ¶¶26-27.
[10] MoHFW Guidelines & Protocols for Medico-legal care for survivors/victims of Sexual Violence (19 March, 2014).
[11] Id., Cl. 18-B.
[12] Kruthika R, Two Finger Test in Rape Cases: Adding Insult to Injury, November 17, 2014, available at https://clpr.org.in/blog/two-finger-test-in-rape-cases-adding-insult-to-injury/; Jayshree Bajoriya, Doctors in India continue to traumatise rape survivors with the two-finger test, November 9, 2017, available at https://scroll.in/article/857169/doctors-in-india-continue-to-traumatise-rape-survivors-with-the-two-finger-test (Last visited on October 8, 2021).
[13] See infra note 41.
[14] The Constitution of India, 1950, Schedule VII, List II, State List, Item 6 (Public health and sanitation; hospitals and dispensaries).
[15] Jayshree Bajoriya, Doctors in India continue to traumatise rape survivors with the two-finger test, November 9, 2017, available at https://scroll.in/article/857169/doctors-in-india-continue-to-traumatise-rape-survivors-with-the-two-finger-test (Last visited on October 7, 2021).
[16] Id.
[17] The Economist, Victims of rape in South Asia face further violation from the courts, June 30, 2018, available at https://www.economist.com/asia/2018/06/30/victims-of-rape-in-south-asia-face-further-violation-from-the-courts (Last visited on October 7, 2021).
[18] Supra Note 15.
[19] MoHFW Guidelines & Protocols for Medico-legal care for survivors/victims of Sexual Violence (19 March, 2014), at 9, 20.
[20] Jamal Ayub, Madhya Pradesh: SAFE kits for rape survivors absent in most private hospitals, January 9, 2020, available at http://timesofindia.indiatimes.com/articleshow/73163039.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst (Last visited on October 7, 2021).
[21] Rohan Deshpande, Three steps India should take to ensure that rape survivors actually get justice, October 4, 2020, available at https://scroll.in/article/974835/three-things-india-should-do-to-ensure-that-rape-survivors-actually-get-justice (Last visited on October 7, 2021).
[22] Prachi Sharma, M K Unnikrishnan and Abhishek Sharma, Sexual violence in India: addressing gaps between policy and implementation, 30(5) Health Policy and Planning [2015] 656, 658.
[23] Shreemanta Kumar Dash, Shailendra Patel, Krishnadutt Chavali, Forensic nursing – Global scenario and Indian perspective, 42 J. Forensic Leg. Med. (2016).
[24] Philip Bulman, Increasing Sexual Assault Prosecution Rates, 264 NIJ Journal (2009) at 14.
[25] Durba Mitra and Mrinal Satish, Testing Chastity, Evidencing Rape, 49(41) Economic and Political Weekly (October 11, 2004).
[26] Jagdeesh Reddy, Padma Deosthali & Sangeeta Rege, Health centres are still failing rape survivors, three years after guidelines on unbiased treatment, September 25, 2017, available at https://scroll.in/pulse/851783/health-centres-are-still-failing-rape-survivors-three-years-after-guidelines-on-unbiased-treatment (Last visited on October 7, 2021).
[27] Gaurav Saigal, ‘Doctors not trained in rape exam protocols’, March 24, 2018, available at https://www.hindustantimes.com/lucknow/doctors-not-trained-in-rape-exam-protocols/story-O5aZ9Sp9ZovdMhQ44MKDpJ.html (Last visited on October 7, 2021).
[28] Id.
[29] Huizhong Wu, Sexual violence victims can wait years for India’s overtaxed crime labs, June 6, 2018, available at https://edition.cnn.com/2018/06/06/health/india-forensics-delays-justice-intl/index.html (Last visited on October 7, 2021).
[30] Id.
[31] Sharma et. al., supra Note 22, at 657.
[32] Moushmi Das Gupta, Over 12,000 sexual assault cases pending due to backlog at forensic labs, April 26, 2018, available at https://www.hindustantimes.com/india-news/over-12-000-dna-samples-from-sexual-assault-cases-pending-examination-at-forensic-labs/story-AzD26fBHTEibaUu7OKinoN.html (Last visited on October 7, 2021).
[33] Pinky Anand, Forensic DNA is a quick way to bring rapists to justice. But awareness and testing levels are low in India, October 12, 2020, available at https://timesofindia.indiatimes.com/blogs/voices/forensic-dna-is-a-quick-way-to-bring-rapists-to-justice-but-awareness-and-testing-levels-are-low-in-india/ (Last visited on October 7, 2021).
[34] Supra Note 24.
[35] Anthony Khatchaturian, Are our police equipped for today’s challenges?, January 15, 2019, available at https://www.telegraphindia.com/opinion/are-our-police-equipped-for-the-challenges-of-investigating-crime-in-the-21st-century/cid/1681765 (Last visited on October 8, 2021); Justice V.S. Malimath Committee, Report of Committee on Reforms of Criminal Jusitce System, 101 (28 March, 2003)
[36] Manasi Paresh Kumar, Tampered evidence, delayed lab reports: Why forensics isn’t leading to convictions in rape cases, January 21, 2020, available at https://bengaluru.citizenmatters.in/rape-cases-investigation-forensic-evidence-collection-lab-reports-40071 (Last visited on October 7, 2021).
[37] Id.
[38] Supra Note 21.
[39] Nita Bhalla, Analysis: How India’s police and judiciary fail rape victims, January 16, 2013, available at https://www.reuters.com/article/india-delhi-gang-rape-women-safety-polic-idINDEE90F0AY20130116 (Last visited on October 7, 2021).
[40] LiveLaw, ‘Not The Way Our Women React When They Are Ravished’: Karnataka HC On Rape Victim Claiming To Have Slept After Offence, June 24, 2020, available at https://www.livelaw.in/news-updates/not-the-way-our-women-react-when-they-are-ravished-karnataka-hc-on-rape-victim-claiming-to-have-slept-after-offence-read-order-158855 (Last visited on October 7, 2021).
[41] Savyasachi Rawat, The “ideal” rape victim in the eyes of the courts, July 8, 2020, available at https://www.barandbench.com/columns/the-ideal-rape-victim-in-the-eyes-of-the-court (Last visited on October 7, 2021).
[42] A.M. Ahmadi, Former Chief Justice of India, Inaugural Speech at Workshop by Institute of Advanced Legal Studies: Judicial Process: Social Legitimacy and Institutional Viability (December 16, 1995).
[43] The Times of India, 95% of rape cases solved, conviction rate at 23%, February 20, 2021
https://timesofindia.indiatimes.com/city/delhi/95-of-rape-cases-solved-conviction-rate-at-
23/articleshow/81118564.cms (Last visited on October 7, 2021).
[44] Amita Pitre, Sexual assault care and forensic evidence kit: Strengthening the case for use of the kit, 21st September, 2005, available at http://www.cehat.org/cehat/uploads/files/A%20252.pdf (Last visited October 8, 2021).
[45] Supra Note 39.
[46] T.R. Baggi, Why is forensic science stunted and static in India?, September 11, 2011, available at https://www.thehindu.com/opinion/open-page/why-is-forensic-science-stunted-and-static-in-india/article2442491.ece (Last visited on October 8, 2021).
[47] Supra Note 36.
[48] Prabhash Dutta, Nirbhaya Fund utilisation shows why women continue to be unsafe in India,
December 5, 2019, available at https://www.indiatoday.in/news-analysis/story/nirbhaya-fund-utilisation-shows-why-women-continue-to-be-unsafe-in-india-1625407-2019-12-05 (Last visited on October 7, 2021).
[49] The Wire, Pendency of Rape cases is on the rise in India, March 15, 2020, available at https://thewire.in/law/pendency-of-rape-cases-is-on-the-rise-in-india (Last Visited on October 7, 2021)
The Journal of Indian Law and Society 