Forensic Exams Should Respect Survivors’ Rights to Health, Privacy, and Dignity
(Mumbai) - Many Indian hospitals routinely subject rape survivors to forensic examinations that include the unscientific and degrading "finger" test, Human Rights Watch said in a report released today. It urged the Indian government to ban the practice, used to determine whether the rape survivor is "habituated" to sexual intercourse, as it reforms its laws on sexual violence.
The 54-page report, "Dignity on Trial: India's Need for Sound Standards for Conducting and Interpreting Forensic Examinations of Rape Survivors," documents the continued use of the archaic practice and the continued reliance on the "results" by many defense counsel and courts. The practice, described in outdated medical jurisprudence textbooks used by many doctors, lawyers, and judges, involves a doctor inserting fingers in a rape victim's vagina to determine the presence or absence of the hymen and the so-called "laxity" of the vagina. These findings perpetuate false and damaging stereotypes of rape survivors as "loose" women. Defense attorneys use the findings to challenge the credibility, character, and the lack of consent of the survivors.
"This test is yet another assault on a rape survivor, placing her at risk of further humiliation," said Aruna Kashyap, women's rights researcher at Human Rights Watch. "The Indian government should heed demands of Indian activists to abolish this degrading and useless practice."
Finger test findings are scientifically baseless because an "old tear" of the hymen or variation of the "size" of the hymenal orifice can be due to reasons unrelated to sex. Carried out without informed consent, the test would constitute an assault, and is a form of inhuman and degrading treatment, Human Rights Watch said.
"I was so scared and nervous and praying all the time: ‘God, let this be over and let me get out of here fast," the report quotes one rape survivor as saying as she described her experience of a forensic examination.
The Indian government amended its evidence law in 2003 to prohibit cross-examination of survivors based on their "general immoral character." The Indian Supreme Court, whose decisions are binding, has described opinions based on the finger test as "hypothetical and opinionative," and has ruled that they cannot be used against a rape survivor.
Although these developments have helped curtail the practice, the Indian government has yet to take steps to ensure that all states eliminate it. There are no nationwide guidelines or programs to standardize forensic examinations and to train and sensitize doctors, police, prosecutors, and judges to survivors' rights. But the Indian government is currently reviewing laws regarding sexual violence, presenting a unique opportunity for change.
"The Indian government has paid little attention to how health care and forensic services are delivered to survivors of sexual violence," Kashyap said. "The Indian government should set right this injustice with a comprehensive policy and program for such services."
The report is based on 44 interviews in Mumbai and Delhi with activists, rape survivors and their parents, prosecutors, other lawyers, judges, doctors, and forensic experts. Research also included a review of forensic examination templates used in those cities, and an analysis of 153 High Court judgments on rape that referred to the finger test findings from 18 states. It finds that the finger test-related information continues to be collected and used.
Forensic examinations are a harrowing experience for many rape survivors, who are shunted from one hospital or ward to another for various aspects of the examination. Often doctors insist that the survivor must make a police complaint when she approaches them directly, which can intimidate her. Further, inserting fingers into the vaginal or anal orifice of an adult or child survivor of sexual violence during a forensic examination can cause additional trauma, as it not only mimics the abuse but can also be painful. Some doctors in India conduct the finger test with little or no regard for a survivor's pain or trauma, Human Rights Watch found.
Many High Court judgments reveal that doctors have testified in court that having one or two fingers inserted into the vagina is "painful" or "very painful" for the survivor. And when the survivor did not experience any pain - if two fingers could be inserted "painlessly" or "easily" - then she was described as being "habituated to sex."
"Survivors of sexual violence have the right to legal recourse without being further traumatized in the process," Kashyap said. "The health and criminal justice systems should work together to ensure that they do not perpetuate damaging stereotypes of survivors."
The Maharashtra and Delhi governments continue to recommend the finger test in their forensic examination templates. For example, as recently as June 2010, the Maharashtra state government introduced a standard forensic examination template that includes a series of questions about the hymen, including the number of fingers that can be admitted into the hymenal orifice.
Early this year, the Delhi government introduced a forensic examination template that asks questions about the hymen, including whether it is "intact" or "torn," the "size of the hymenal orifice," whether the vagina is "roomy" or "narrow" and has "old tears," and even asks the examining doctor to give an opinion whether the survivor was "habituated to sex." Much of the Delhi template resembles a template created by the Indian Medical Association and disseminated to doctors across the country between 2006 and 2008.
The World Health Organization's (WHO) "Guidelines for medico-legal care for victims of sexual violence" recommends that health care and forensic services be provided at the same time, and by the same person, to reduce the potential for duplicating questions and further traumatizing the survivor of sexual assault. It states that health and welfare of a survivor of sexual violence is "the overriding priority" and that forensic services should not take precedence over health needs. It also says forensic examinations should be minimally invasive to the extent possible and that even a purely clinical procedure such as a bimanual examination (which also involves the insertion of two fingers into the vagina) is rarely medically necessary after sexual assault.
The Indian government should use its ongoing reform process for laws relating to sexual violence to prohibit the finger test and standardize the medical treatment and forensic examinations of survivors of sexual violence in line with the rights to health, privacy, dignity, and legal remedy, Human Rights Watch said. The government should introduce special programs to sensitize doctors, police, prosecutors, and judges to the rights of survivors, and set up multidisciplinary teams in every government hospital with doctors trained to be sensitive to survivors and with training and equipment to conduct forensic examinations in a manner that respects survivors' rights.
Sample Testimony From the Report
The clerk told me a male doctor will conduct the test [forensic examination] and asked me whether that was ok. I said "yes." But other than that, I did not know what they were going to do. I was so scared and nervous and praying all the time: "God, let this be over and let me get out of here fast." I did not even know it was going to be like a delivery examination [an internal gynecological examination].
- Sandhya S. (name changed), adult rape survivor, Mumbai, August 2, 2010
In cases of very young girls - girls below [age] 12 or 13 - they [police officers and hospital staff] believe it is a case of sexual abuse. But if they are older, then they believe that the girl is trying to falsely frame someone. Their belief changes the way they address the survivors. They are very rude and disrespectful. They will say things like, "Why are you crying?" "You have only been raped." "You are not dead." "Go sit over there." And order them around.
- Dr. Rajat Mitra, director, Swanchetan, a nongovernmental organization that provides counseling services to rape survivors, Delhi, May 25, 2010
Where the defense takes the line that there was consent [to sexual intercourse], usually they also look to medical evidence for support. And if the medical report says anything about the finger test, then they draw it out in court - saying she was "habituated" so consented and is falsely implicating the accused.
- Dev D. (name changed to maintain anonymity as requested) a former public prosecutor, New Delhi, May 22, 2010
The finger test is relevant for the defense especially if the prosecutrix [term used to refer to a rape survivor during trial] case is that the woman is unmarried [as opposed to a married woman who is assumed to be "habituated to sex"]. Then if the medical report says that two fingers have passed, the defense can show that she is habituated. This shakes the testimony of the prosecutrix.
- Radha M. (name changed to protect identity), a former chief public prosecutor, location withheld, May 11, 2010
Sample Extracts From Judgments
"Though the girl was aged about 20 to 23 years and was unmarried but she was found to be "habituated to intercourse." This makes her to be of doubtful character."
- Jharkhand High Court, 2006
"She was complaining pain and the vagina was admitting 1½ finger [sic] ....
From the medical report it is clear that the prosecutrix was not a girl of lax moral and she was not "habituated to sexual intercourse" and most probably, that was her first experience as the doctor has observed reddishness on her vagina and blood secretion and pain on touching the vagina."
- Chhattisgarh High Court, 2007