Rape and two-finger test

Vidhi Agarwal

The rape cases in India has been steadily on rise and today it stands at the fourth position. The statistics of the National Crime Records Bureau of 2019 highlights that annually 32,033 rape cases have been registered with an approximate 88 cases daily. The data however fails to consider the unvoiced and unregistered cases. The victims are mostly girls and women with ages ranging from 8 months to 50 years.

Rape has been described by IPC Section 375:

“A man is said to commit “rape” who, except case hereinafter excepted, has sexual intercourse with a woman in circumstances falling under any of the six following descriptions:-

Firstly- Against her will.

Secondly- Without her consent.

Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly – With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly – With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly – With or without her consent, when she is under sixteen years of age.

Explanation – Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception – Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

However, this description did not include marital rape and with change in time, marital rape became common too and hence, Criminal Law (Amendment) Act, 2013 which not only raised the legal age of minor to 18 but also included marital rape in its definition and the changes can be noted below:

“ A man is said to commit “rape” if he:–– (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:

Firstly. –– Against her will.

Secondly. –– Without her consent.

Thirdly. –– With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly. –– With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly. –– With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly. –– With or without her consent, when she is under eighteen years of age.

Seventhly. –– When she is unable to communicate consent.

Explanation 1. –– For the purposes of this section, “vagina” shall also include labia majora.

Explanation 2. –– Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act;

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exceptions –

  1. A medical procedure or intervention shall not constitute rape;
  2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

Article 376 B further goes on to explain marital rape where any kind of coerced sexual intercourse by a husband with his wife (living separately) is a crime and punishable by law.

Human Rights Watch estimates that more than 7,200 minors, 1.6 out of 100,000 minors, are raped every year in India, using a compact sample survey. Among these, victims who report the attacks are alleged to be subjected to police systematic abuse and intimidation. In India, minor girls are trafficked into prostitution, so abuse of minors merges into a lifetime of misery. India was ranked 7th worst out of the countries surveyed by Maplecroft on human trafficking and violence against minors.

Many crimes go unreported because the victims of rape fear revenge and embarrassment, both in India and around the world. Indian parliamentarians have claimed that the issue of rape in India is underestimated because many cases are not registered, even as more victims are gradually coming out and disclosing rape and sexual assaults.

Few states have attempted to quantify or survey unreported sexual harassment cases in India. The figures in India for unregistered rapes differ widely. The 2006 National Crime Reports Bureau study notes that nearly 71 percent of sex incidents remained unregistered.

Rape Incidents of the past

Delhi Gang Rape

On 16 December 2012, the gang rape of a 23-year-old student on a public bus triggered massive protests across the capital of Delhi. She was with her boyfriend who was badly assaulted during the incident with an iron rod. This same rod was used to penetrate her so inhumanely that the intestines of the victim had to be surgically removed thirteen days after the assault before her death.

NIRBHAYA CASE DELHI GANGRAPE LAW INSIDER

There was uproar in the Indian parliament the next day over the incident. MPs had set aside their daily business in both houses to attend to the case and ordered strict punishment for those who carried out the attack. Sushma Swaraj, the Leader of the Opposition in the Lok Sabha, demanded the death of the rapist. There was mass protest and youths took to streets. Police eventually arrested the rapist who were given death sentence in the year 2020.

Also read: Remembering Nirbhaya

Shakti Mills

In August 2013, when she went to the desolate Shakti Mills estate near Mahalaxmi in South Mumbai with a work colleague on assignment, a 22-year-old photojournalist interning with an English-language magazine in Mumbai was gang-raped by five people, including a juvenile. As Mumbai was typically considered a safe haven for women with its very active nightlife, this sparked protests throughout the world.

In the Shakti Mills gang rape case, the city sessions court found the accused guilty and sentenced to death penalty for the three repeat offenders, making them the first in the country to obtain the death sentence stipulated under the newly enacted IPC Section 376E.

Unnao Case

The Unnao rape case saw an accusation that lawmaker Kuldeep Singh Sengar raped a 17-year-old girl in 2017. In 2018, the father of the alleged victim was imprisoned under the Weapons Act and died in jail after Sengar’s brother and several others were reportedly beaten up.

In 2018, a witness to the alleged attack, Yunus, died and was immediately buried without autopsy and no contact by his relatives. The wife and family of Yunus said that he was ill and died a natural death.

In 2018, because of an 18-year-old gun-firing accident, the uncle of the suspected victim was arrested and imprisoned.

In 2019, the vehicle that the suspected victim and others were riding in was struck by a truck with stained licence plates. The victim’s paternal and maternal aunts were killed as a result.

The suspected victim was seriously wounded, along with her lawyer. There were no police officers allocated to provide the alleged victim with cover, stating that there was no room in the car in which the accused person was travelling.

THE TWO FINGER TEST

Often known as the PV (Per Vaginal), the two-finger test refers to an invasive physical inspection of the vagina of a woman to assess the laxity of the vaginal muscles and whether or not the hymen is distensible. In this, the doctor puts two fingers into the vagina of the woman and it is believed that the ease with which the fingers enter her is directly proportional to her sexual experience. However, many researchers across the world have pointed out towards the flawed assumption that the hymen only tears during sexual intercourse.

In rape trials in 2003, reference to prior sexual history was prohibited (proviso was added to Section 146 of the Indian Evidence Act), but the two-finger test leading to the creation of medical opinion on consent enables the rape survivor’s sexual history to bias her testimony.

In the case of sexual harassment, the test itself is one of the most unscientific methods of testing used and has no empirical merit. Before the attack, whether a victim is accustomed to sexual intercourse has absolutely no impact on whether she had given consent when the rape happened.

Section 155 of the Indian Evidence Act does not allow the reputation of a rape survivor to be undermined on the grounds that she is “generally immoral in nature.”

PAKISTAN COURT BANS VIRGINITY TEST

The Lahore High Court held that it is illegal to administer two finger tests and hymen tests for the purpose of assessing the virginity of a female victim of rape or sexual assault. The court found that such tests have no medical basis and are unscientific and therefore offend the personal integrity of the female victim.

Such tests are discriminatory and are contrary to the right to life and the right to equality enshrined in Article 9 and 14 of the Constitution of Pakistan, Justice Ayesha A. Malik held.

The court also ordered the Federation and the Provincial Government to take the requisite measures to ensure that in the medical legal review of victims of abuse and rape, virginity tests are not carried out.

The court therefore declared that the use and conduct of virginity tests was clearly the two finger test and hymen inspection in cases of rape or sexual assault while chucking out writ petitions.

The court refers to numerous scientific studies in its judgement and acknowledged that there is clarification and agreement that virginity tests by the two finger test and hymen test can not definitively suggest that sexual abuse has occurred.

In Lillu Rajesh & ANR v State of Haryana, a reference was also made to the judgement of the Supreme Court of India in which it was held that: the two finger test and its interpretation breaches the right of survivors of rape to privacy, physical and mental integrity and dignity.

The Court has also referred to the judgments of the High Court of Allahabad and Gujarat. These courts have all held that there is no empirical or medical justification for conducting a virginity test in the form of a two-finger test or depending on the hymen’s status, whether it is torn or intact, as it is irrelevant to the investigation of the incident of rape or sexual assault, the judge said.

The Lahore Court noted that in cases of sexual assault, virginity testing is highly invasive, without any scientific or medical necessity, and carried out in the name of medical protocols. It is a degrading activity that, as opposed to concentrating on the accused and the sexual assault event, is used to cast blame on the victim.

This in essence amounts to discrimination based on gender as it is not a medical disorder that needs care nor does it provide the survivor with any clinical advantage. The prime aim is to determine if the victim is used to sexual activity in order to validate her assertion on the charges of rape and sexual assault.

The court further said whether the survivor was previously used to sexual activity is hardly the determinative issue as viewed in the sense of an inquiry into the sexual assault event. The question is whether, in the time and circumstances complained of, the accused perpetrated rape on the victim. If the victim is not found to be a virgin, it does not and cannot mean that she has not been assaulted or sexually exploited.

What it does is put the victim on trial in place of the perpetrator and changes the emphasis on her virginity status. The sexual conduct of the victim is entirely meaningless in this respect, since even the most promiscuous victim does not qualify to be raped. Nor can sexual harassment incidents be determined on the basis of a virginity test. In the sense of fundamental rights, Article 9 of the Constitution lays down the right to life and liberty in conformity with the law, and Article 14 of the Constitution lays down the fundamental rights of human dignity.

The bench also said that these rights ensure that a dignified life is lived, protecting one from deterioration and ensuring that a decent physical, social and cultural environment is accessible. It also protects an individual from structured stigmatisation, as a person’s dignity is adversely affected by stereotypical discrimination.

In addition, it grants the right to enjoy a high quality of healthcare. By its very nature, the virginity test is intrusive and a violation of a woman’s privacy in her body. It is a gross breach of a woman’s integrity. A direct assault on her reputation and leads to detrimental effects on the social and cultural status of a victim is the inference drawn from these checks on the sexual background and nature of a woman. It is also unfair since the test is specifically administered to determine whether or not she is sexually active, for which there seems to be no reason as being sexually active is unrelated to the incident of rape or sexual assault.

If the condition of the hymen is checked at all, it may be for medical reasons only with respect to injury or treatment. There is no reason, however, for such details to be used for the purpose of deciding whether or not there has been an instance of rape or sexual assault.

The High Court noted that progress will only be brought about when the people responsible for the change understand the reasons for changing old policies that no longer find any excuse and accept them. The mere recording of the change, not the implementation of the change, does not indicate that the Federation or the Provincial Government has behaved in compliance with the Constitution, the law and international obligations.

Hence a deliberate effort must be made so as to ensure that virginity checks are prevented in entirety.

The court also acknowledged that virginity testing is not categorically forbidden by the 2020 Guidelines, but instead seeks to disguise the problem in order to continue this activity.

To the degree that the 2020 Rules, SOPs and the 2015 Instructions require the two finger test or the hymen test to be considered unconstitutional for the purpose of assessing the victim’s virginity, the bench added.

STAND OF INDIAN COURTS

Recently, all health professionals of the Union Territory of Jammu & Kashmir and the Union Territory of Ladakh have been ordered by the Jammu and Kashmir High Court to “to strictly refrain from undertaking ‘two finger test’ known as‘per-vaginum examination’ on the rape survivors.”

The Gujarat High Court held in January last year that the “archaic and outdated” two-finger test procedure performed to assess the virginity/consent of a victim of rape is unlawful.

In the case of Lilu Rajesh v State of Haryana and another in 2013, the Supreme Court noted that the ‘two finger test’ would violate the right of the woman to privacy and dignity. In 2019 December, in sexual violation cases, the Supreme Court again disapproved the use of this test and asked for a study from state governments on an issue as to whether it was done away with.

Even the World Health Organisation noted that such test infringes on the dignity of the woman. The already traumatised victim puts herself into an unreported mental discomfort and pressure if she undergoes such undignified test.