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The "two-finger test" for sexual assault victims: Comprehending the recent judgements by Apex Court

The Supreme Court's recent decision in The State of Jharkhand against Shailendra Kumar Rai @ Pandav Rai, which disapproved of the two-finger test, made headlines recently. In Lillu v. State of Haryana (2013) and the Union Ministry of Health and Family Welfare's 2014 Guidelines for Medico-Legal Care for Survivors/Victims of Sexual Violence, the Supreme Court reiterated the principles had previously established. The Supreme Court declared that the two-finger test was "unconstitutional" in 2013. This time, it has requested that survivors no longer be exposed to it from the Union health minister.

What is the "Two-finger Test"

The two-finger test, commonly referred to as the "virginity test," has deviated from the traditional expectation that a woman must be a virgin or "sexually pure" to be acceptable for marriage. Such antiquated ideas about maintaining a woman's virginity even made their way into the forensic investigation. The two-finger test is an outdated forensic procedure from the 18th century in which the examining physician records the hymen's existence or absence, the size, and the alleged laxity of the rape victim's vagina. Based on this, it is then determined if she is "habituated to sexual intercourse." Notably, Section 53A of the Indian Evidence Act explicitly states that the victim's prior sexual history would not be considered when determining whether to prosecute for a sexual offence.

There is no scientific basis for this exam. The gathering of evidence becomes essential in assuring prosecution due to the significance of forensic evidence in criminal proceedings, particularly in cases involving sexual offences. It is commonly known that rape cases nationwide have conviction rates of about 40%. However, it should be noted that the Union Home Ministry highlighted in response to the Lok Sabha that the conviction rate was 0% in several areas, including the Andaman and Nicobar Islands, Dadra and Nagar Haveli, Daman and Diu, Ladakh, Arunachal Pradesh, and Sikkim.

In this test, the medical professionals place their two fingers inside the vagina of a woman victim during the examination of a victim of sexual offences to check if penile penetration has occurred or not, as well as to determine the laxity and presence of the hymen to determine whether she is a virgin or not.

This test violates a woman's basic human rights, disrespects her body, and calls into doubt her right to an abortion. It should be emphasized that the execution of this test might be interpreted because the flexibility of her vagina assesses the victim's permission or whether or not her hymen is intact.

Observations by the Apex Court

Judges Dr D.Y. Chandrachud and Hima Kohli made the following observations:

"While examining the victim, the Medical Board conducted what is known as the "two-finger test" to determine whether she was habituated to sexual intercourse. This Court has time and again deprecated the use of this regressive and invasive test in cases alleging rape and sexual assault. This so-called test has no scientific basis, and neither proves nor disproves allegations of rape. It instead re-victimizes and re-traumatizes women who may have been sexually assaulted, and is an affront to their dignity."

"The "two-finger test" or pre vaginum test must not be conducted… the so-called test is based on the incorrect assumption that a sexually active woman cannot be raped. Nothing could be further from the truth – a woman's sexual history is wholly immaterial while adjudicating whether the accused raped her. Further, the probative value of a woman's testimony does not depend upon her sexual history. It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped, merely for the reason that she is sexually active."

The Supreme Court declared the two-finger test "unconstitutional" in the Lilu Rajesh v. State of Haryana case in 2013. Following this, in 2014, the Union Health Ministry released rules for medicolegal processes involving sexual assault survivors. But according to a Human Rights Watch study from 2017, just nine governments had done so by that point, and even those that had approved the rules weren't always adhered to.

Observing that the practice was "archaic and obsolete" and infringed on a survivor's right to privacy, bodily and mental integrity, and dignity, a division bench of the Gujarat high court stated this in January 2020. The Lahore high court in Pakistan declared such tests to be unlawful in January 2021, citing rulings by the Supreme Court in the aforementioned Rajesh case from 2013 and decisions by the Gujarat and Allahabad high courts.

Concluding observation

The two-finger test is an unauthorized medical notion that violates both the victim's basic human rights and medical ethics. We can only hope that everyone in the country complies with the rules set forth by the Union Ministry and the courts. Court decisions repeatedly reaffirm the same principles, but unless the medical associations herald systemic changes, the courts, the legislature, and the executive branch—changes that must range from raising awareness to enforcing harsh penalties for such unwarranted and unconsented exams—these practices will persist unabated.

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