A Study on the Operation of Virginity (Two Finger) Tests
By T. Tanya
Virginity test is the practice and process of determining whether a person, usually a female, is a virgin i.e., to determine whether she has been subjected to or has never engaged in sexual intercourse. The test typically involves a check for the presence of an intact hymen, on the flawed assumption that it can only be torn as a result of sexual intercourse.
This practice is considered controversial as the testing itself is unethical and the female who has to undergo such test has to go through a lot of trauma. In October 2018, the UN Human Rights, UN Women and the World Health Organization (WHO) stated that virginity testing must end as it is a painful, humiliating and traumatic practice, constituting violence against women.
How is the test conducted?
Two finger test or Per Vaginal Test is done on a rape victim. In this test, two fingers of the doctor who conducts the medical examination are inserted in the vagina of a female. This test is basically conducted to determine the laxity of the vagina.the doctors find out whether the female has engaged in sexual act by the insertion of fingers and how easy or difficult it is to penetrate. If the two fingers of the doctor easily penetrate the vagina of a woman, then it is concluded that the rape victim is habitual of having sexual intercourse and vice versa is concluded if the two fingers do not penetrate, or penetrate with difficulty. This test is also done to determine the extent of damage caused to genitalia of a woman.
The habituality of a woman to have sexual intercourse is used by the courts to determine the "quality of her consent". It means, if a woman is habitual of having intercourse, then courts may infer that she might have consented to the act of rape.
Reliability of the test:
Many researchers state that a broken hymen cannot be a reliable indicator that a female has been vaginally penetrated because the tearing of the hymen may have been caused due to some other event. Furthermore, in rare cases, some girls are born without hymens.
The hymen is a ring of fleshy tissue that sits just inside the vaginal opening. Normal variations range from thin and stretchy to thick and somewhat rigid. The only variation that may require medical intervention is the imperforate hymen, which either completely prevents the passage of menstrual fluid or slows it significantly. In either case, surgical intervention may be needed to allow menstrual fluid to pass or intercourse to take place at all. It is a misconception that the hymen always tears during first intercourse or that intercourse is required to rupture the hymen.
JUDICIAL STAND REGARDING THE VIRGINITY TEST:
In the case of Lilly@ Rajesh and Vs. State of Haryana[i], the Supreme Court held that the two-finger test conducted on rape victim violated her right to privacy, physical and mental integrity and dignity. The bench of Justices B.S. Chauhan and F.M.I. Kalifulla asked the government to provide better medical procedures in order to confirm the victim’s claim of sexual assault. The bench said that stated that the State is under an obligation to provide such services to the victims of sexual assault and should also keep in mind there is no prejudice regarding the victim’s privacy. The bench held that if the result of the test is affirmative, it does not give rise to the presumption of consent on the part of the victim.
· The bench referred to International Covenant on Economic, Social, and Cultural Rights 1966 and the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985 and stated that the rape survivors are entitled to legal recourse which does not result in re-traumatizing them or violate their physical or mental integrity and dignity.
· The bench stated that medical procedure should not be cruel, inhuman and they should not degrade the treatment. The health of the victim must also be kept in mind.
· Furthermore, the court relied on the following cases namely, Narayanamma (Kum) v. State of Karnataka & Ors[ii]., State of Uttar Pradesh v. Munshi[iii] and in Narender Kumar v. State (NCT of Delhi) [iv]in which the Supreme Court held that the admission of two finger test which claims to determine the history of rape survivor’s sexual intercourse and also it does not give clear indication of her being used to sexual intercourse. The court further held that even if she’s habituated to it that does not give a license to anyone to rape her.
Continuance of the practice inspite of banning the same:
The test was banned not only because it violates a woman’s right to privacy, but also because it is unscientific and unreliable. It relies on examining the laxity of the vaginal muscles to determine whether the survivor is habituated to sexual intercourse, and thus to ascertain rape. However even if the victim has engaged in sexual intercourse before, her sexual history must not even enter the domain of rape examination, as what needs to be considered is the absence of consent and not her previous sexual engagements. Despite the ban, numerous cases have been found where rape survivors have been subjected to the two-finger test. There was an incident in Lucknow where a girl was raped and was forced to undergo the test.
Jan Sahas, a social development society, studied the records of 200 group-rape trials and found that the two finger test was used to determine rape or otherwise in 80 percent of them.
A micro survey was conducted in Lucknow where it was found that out of 10 rapes, including 5 minors, all of them had to go through the two fingers test.
In 2016-17 the outdated test was conducted in almost 179 rape cases involving children in Chennai.
In Madhya Pradesh, a girl was raped by her father, after reporting the rape the doctor noted that she was likely pregnant but they still conducted the two-finger test. The test was completely contrary to the guidelines which were adopted by the Madhya Pradesh guidelines.
By virtue of the Criminal Law (Amendment) Act 2013, the legislature has broadened the offence of rape. The amended definition of rape under section 375(d) also includes conducting two finger test without consent. Where the victim denies or does not give consent to the test but the doctor still continues to conduct the same is liable to be charged under Section 375(d) of IPC.
Inspite of all these measures to discontinue the practice, the practice is still in existence.
The two finger test is unreliable unscientific and unethical. Women’s past sexual history should not even be considered by the jury to decide whether she is a victim of rape. The test itself is very sexist and is based on a myth that hymen tears only on events of being sexually active. In reality, hymen may break due to activities such as dancing, stretching, horse riding, running, swimming, jumping, masturbation, usage of tampons, or accidents can also tear the tissue. Some women are born with a hymen so flexible that it does not tear even during a sexual intercourse. Supreme Court has rightly held that this test violates the right to privacy of women and it is immaterial because previous sexual history has no relevance to the rape case under issue.
The practice has not ceased to operate fully. The doctors, the victims and the police officers must be educated about the current status of the tests. Not only can the lack of knowledge stop them from reporting, but even when they decide to do so, they are being judged and left traumatized.
Direct or indirect violation of the law leads to continuance of such unreasonable practices. A comfortable environment should be created for the victim so that she is able to speak out. Medical procedures should not be carried out in a manner that constitutes harsh, inhuman, or degrading treatment and health should be given importance while dealing with gender-based violence.
Certain alternatives can be used instead of the two fingers test, for example, the DNA test can be used to find the evidence in case of rape. Both U.S.A and the U.K use Sexual Forensic Evidence (SAFE) kit and only a Sexual Assault Nurse Examiner (SANE) is allowed to collect DNA evidence from the victim’s body.
[i] (2013) 14 SCC 643
[ii] (1994) 5 SCC 728
[iii] AIR 2009 SC 370
[iv] AIR 2012 SC 2281