II. Methodology

This report is based on research that Human Rights Watch conducted between April 10 and August 10, 2010, in Delhi and Mumbai.

A researcher conducted interviews, both in person and on the phone, with 44 people, including doctors, health rights activists, women’s rights activists, prosecutors, other lawyers, judges who have served in criminal trial courts or on criminal appellate benches, and parents of survivors of sexual violence, in Mumbai and Delhi. Most of the health rights activists and doctors interviewed had studied health system responses to sexual violence and are advocating for a uniform gender-sensitive examination protocol for rape survivors, along with training for doctors involved in these examinations. The lawyers Human Rights Watch interviewed included some recommended by women’s rights and children’s rights activists, who have extensive experience in the prosecution of rape or child sexual abuse. Five of the forty-four interviewees were from parts of India outside Mumbai and Delhi, and were interviewed because they had experience working with survivors of sexual violence. Three of the interviewees were from countries other than India, namely South Africa, the United Kingdom, and the United States.

The interviews were conducted in English or Hindi and lasted between 30 minutes and an hour. Human Rights Watch used pseudonyms where interviewees wished their identities to be protected.

Due to the difficulties involved in locating survivors willing to talk about their experiences, Human Rights Watch was able to speak with only one survivor, who had indicated to her lawyer that she was willing to talk to the researcher about her forensic examination and deposition to the police.

Mumbai and Delhi were chosen as investigation sites because they rank first and second among cities across the country in the number of registered cases of rape.[2] In addition, both Delhi city and Maharashtra state (the capital of which is Mumbai) have recently witnessed developments related to sexual violence. In June 2010 the Maharashtra state government issued a set of guidelines related to the forensic examination of rape survivors that reinstate questions about the hymen and the number of fingers that can be admitted into the hymenal orifice. Similarly, in early 2010 the office of the Director General of Health Services in Delhi introduced a template for the forensic examination of rape survivors at government hospitals that seeks information about the size of the hymenal orifice and asks doctors to comment on whether the survivor is “habituated to sexual intercourse.” Many health rights and women’s rights activists regard these as a setback to women’s rights.[3]

Mumbai and Delhi have also seen some positive developments related to the treatment and examination of rape survivors. For example, the Mumbai-based Center for Enquiry Into Health and Allied Themes (CEHAT), together with doctors from across the country, has developed a detailed template and instruction manual for the forensic examination of survivors of sexual violence. The document clearly indicates to doctors what information is relevant for such an examination, outlines situations in which it is appropriate to note injuries to the hymen, and describes how these must be recorded—directives that show doctors how to conduct examinations in a manner that respects a survivor’s privacy and dignity. The instruction manual also explains that the two-finger test is no longer admissible in court, and that doctors should not use the test to assert findings or render medico-legal opinions.[4] In Delhi, the government is also slowly beginning to pay greater attention to the health needs of and forensic examination protocols for rape survivors: 2009 High Court guidelines, for example, outline what different actors, including police officers, prosecutors, and doctors, should do to assist survivors of sexual violence. The High Court has also formed a committee headed by Justice Gita Mittal to oversee the implementation of all guidelines related to sexual violence against adults and children.[5]

In April 2010 Human Rights Watch attended a Mumbai conference that gathered women’s rights activists from across India to discuss the proposed Criminal Law (Amendment) Bill, 2010, which seeks to introduce a new definition for “sexual assault” and also to amend certain procedural and evidentiary rules for related criminal trials. The women’s rights activists present prepared a set of recommendations to be shared with the government, including one that unanimously reiterated their longstanding demand for the prohibition of the finger test as part of forensic examinations of rape survivors.

Human Rights Watch also analyzed around 160 judgments—153 from High Courts across the country and seven Supreme Court judgments—rendered during the last five years in order to determine how medical opinions based on the finger test were used in courtroom proceedings on rape beyond Mumbai and Delhi.

Terminology and Scope

The phrase “sexual violence” is used in this report to refer to all forms of sexual violence, both penetrative and non-penetrative. In addition, since India does not have an overall definition of sexual violence, the terms “sexual offense,” “sexual violence,” “sexual assault,” and “rape” are used in this report interchangeably. India currently only defines four sexual offenses: rape (as penile penetration),[6] an “unnatural offence—carnal intercourse against the order of nature with man, woman, or animal,”[7] which in practice is also used to punish child sexual abuse, “outraging the modesty of women,” and “insulting the modesty of women,” which are used to punish non-penetrative sexual offences.[8] Indian law does not recognize the offence of marital rape, and a man cannot by law be prosecuted or punished for raping his wife.[9]

Boys, men, and transgender persons are also victims of sexual assault, and they face some similar and some different problems.[10] While this report discusses the need for specialized and sensitive procedures of examination for all children and adults who face sexual violence or abuse, it specifically focuses on female survivors of sexual violence.

The phrase “forensic examination” is used in this report to describe all parts of the medical examination that doctors conduct on survivors of sexual violence, including the internal gynecological examination, and “forensic evidence” or “medico-legal evidence” is used to describe all evidence generated by a forensic examination. “Medico-legal opinion” is a phrase commonly used in India to refer to the medical opinions written by doctors after examining a rape survivor, which have legal evidentiary value. “Prosecutrix” is a term used in India to refer to a survivor of sexual violence during trial.

Textbooks and doctors describe finger test findings using the terms “hymenal orifice,” “vaginal orifice,” and “vagina” interchangeably, and Human Rights Watch has reproduced them as such.