IV. The Use of the “Finger Test”

In the finger test, also known as the two-finger test, the examining doctor notes the presence or absence of the hymen and the size and so-called laxity of the vagina of the rape survivor.”[69] The finger test is widely used in efforts to assess whether unmarried girls and women are “habituated to sexual intercourse.”[70] Yet the state of the hymen offers little to answer this question. A hymen can have an “old tear” and its orifice may vary in size for many reasons unrelated to sex, so examining it provides no evidence for drawing conclusions about “habituation to sexual intercourse.”[71] Furthermore, the question of whether a woman has had any previous sexual experience has no bearing on whether she consented to the sexual act under consideration. The continued use of the finger test points to a gulf between Indian forensic and legal practice and current scientific knowledge and court decisions that recognize women’s rights.[72]

 

Archaic Theory in Practice

The origin of the test remains unclear. References to the test in Britain can be found as far back as the early 18th century,[73] and it appeared in a leading medical jurisprudence book in British India in the 1940s. At this stage, ironically, the finger test was used to dispel the myth that an “intact hymen” proved rape had not occurred. Mimicking penile penetration, doctors inserted two fingers through an intact hymenal orifice to show that it could stretch without tearing.[74] The test and prescriptions for its use continue to be found in textbooks currently assigned to medical students and often consulted by lawyers and judges, but now the test is described and used in the context of determining whether a rape survivor was “habituated to sexual intercourse,” as though that were possible or could help determine whether she had been raped.[75]

Over the years the test has been normalized in India and has entered widespread practice in many hospitals across the country. Although several lawyers feel that recent Supreme Court judgments and amendments to the Indian Evidence Act have deterred such testing and its use in court, the practice is far from being eliminated.[76]

At least three leading government hospitals in Mumbai, including one where at least a thousand rape survivors are examined every year, continue to conduct the finger test. These hospitals’ forensic examination template specifically asks doctors to state whether the “[h]ymenal orifice: admits: One/two fingers.”[77]

In Delhi, Dr. Rajat Mitra from Swanchetan, a nongovernmental organization that has worked with thousands of rape survivors from the city and other parts of the country, described the practice as “near universal.”[78] One judge who has served in trial courts across various districts of Delhi said that doctors routinely write results of the finger test into their medico-legal opinions, especially in the outer districts of Delhi, and this allows defense counsel to use them as evidence in court.[79] Khadijah Faruqui, a Delhi-based lawyer and human rights activist who works with Jagori, a feminist resource center, has assisted hundreds of rape survivors, and said that doctors have been receptive to concerns about the two-finger test in New Delhi (one district of Delhi), but it continues to be used commonly in other parts of the city. She said: “In cases where activists go with the victims and say it should not be conducted, doctors do not conduct it. That is about 20 to 30 percent of the cases. In others, they conduct it.”[80]

The practice is not just confined to Mumbai and Delhi. Anecdotal evidence suggests that it is even more prevalent outside the big cities. For instance, Dr. Indrajit Khandekar, a forensic expert from rural Maharashtra who authored a report analyzing the problems with forensic evidence collection there, said that he has seen many medico-legal opinions that include finger test results.[81] A gynecologist from Chandigarh in northern India said that the practice was common there too.[82] Neelam Singh, a gynecologist who conducts trainings for medical officers in Uttar Pradesh state, said that she had seen doctors use this test.[83] Shazneen Limjerwala, who wrote her doctoral dissertation on rape in the state of Gujarat, said the practice occurs there too.[84] Even the Indian Medical Association (IMA) protocol for the forensic examination of rape survivors, which has been disseminated in regional workshops across the country,[85] seeks information about the “hymenal size,” whether the vaginal opening is “narrow” or “roomy” and has “old tears,” whether injuries to the hymen are “fresh/recent/old,” and asks the doctor to give an opinion as to whether the medical evidence suggests “habitual sexual intercourse.”[86]

Seventeen nongovernmental organizations and 51 activists and lawyers from across the country wrote in a January 2010 open letter to Minister of Law and Justice Veerappa Moily that the “finger test continue[s] to be used … allow[ing] doctors to state whether a woman [is] ‘habituated’ to sex. This test allows character evidence to disqualify a victim’s testimony.” The activists continued: “Change in the structure of humiliation which typifies rape trials is not possible unless medical jurisprudence textbooks and procedures are changed.”[87] They reiterated this demand in a letter to the Indian government in June 2010.[88]

Human Rights Watch examined 153 High Court judgments in rape cases across the country that referred to the finger test, all issued since 2005, and some as recently as 2009 and 2010.[89] This analysis shows that defense counsel and courts throughout India continue to invoke finger test findings in proceedings in rape cases.[90]

Doctors and activists say that the most common descriptions of findings from finger tests in medico-legal reports are: “two fingers admitted,” “two fingers easily admitted,” or “two fingers not easily admitted.”[91] In some reports these types of comments are combined with observations about whether the hymenal tear is “old.” Some doctors describe the vagina using different phrases such as “patulous vagina” or “distended vagina.” These findings are then used to give opinions about whether the rape survivor was “habituated,” “used to,” or “accustomed to” sexual intercourse.[92] The complete illogic of these findings is illustrated by cases where an examining doctor deposed that a survivor who reported gang rape was “habituated to sexual intercourse.” In some of these cases, judges pointed out that the gang rape itself could have caused the doctor to conclude that the girl or woman was “habituated” to sex.[93]

Some doctors continue to administer the test to very young children who have been raped. Human Rights Watch spoke to a Mumbai-based mother of a six-year-old girl who was raped, and whose 2010 medico-legal report included the words, “tip of finger admitted.”[94] Similarly, judgments show that doctors have conducted finger tests on children as young as age six, and these findings have subsequently been used as evidence that penetration did or did not take place.[95] For instance, in the case of Mohammed Jaffar, who was charged with raping a six-year-old girl, the doctor stated that “the hymen orifice admitted tip of little finger …  and the vaginal orifice admits one finger with difficulty.”[96] The court used this as evidence that there was no penile penetration, ordered that rape charges be dropped, and reduced the sentence to an offense of attempt to rape.[97] Children’s rights groups across India have expressed concerns about the lack of a clear and sensitive protocol for forensic examination of sexually abused children, both boys and girls.

Where hospitals have medical forms for doctors to record their findings, doctors record the results against columns that are either marked “per vaginum digital examination,” or “fingers admitted,” or state their finding against a column that asks whether the vagina is “narrow/ roomy.”[98] For instance, the June 2010 guidelines issued by the Maharashtra government carries a section that seeks the following information from the examining doctor: the “type of hymen,” whether the hymen is “intact/ torn,” “age of tears,” and whether the “[h]ymenal orifice: admits: one/ two fingers.”[99]

Similarly, the IMA protocol and the 2010 Delhi protocol ask doctors to furnish information on whether the hymen injury is “fresh,” “recent,” or “old,” the “size of the hymenal orifice,” and whether the vagina is “narrow,” “roomy,” or has “old tears.”[100] Both protocols also ask the examining doctor to give an opinion on the following lines:

After performing the above mentioned clinical examination, I am of the considered opinion that the findings are ……………………………… consistent / not consistent with …………………… recent / old / habitual sexual intercourse.[101]

Doctors who do not use any templates for their medico-legal reports generally include a line that reads “P/V” or “PV” (for “per vaginum” examination) and state how many fingers passed or just say whether the survivor was “habituated to sexual intercourse.”[102]

Doctors alone cannot shoulder the responsibility of changing how medico-legal opinions are written and presented in court. There is evidence to suggest that in some cases police officers ask doctors to conduct the finger test. Dr. Indrajit Khandekar, who is an assistant professor of forensic evidence at the Mahatma Gandhi Institute of Medical Sciences in Wardha, said, “I have seen many requisition letters [to doctors requesting forensic examinations] by the police which ask the question ‘Is the girl “habituated” to sex?’”[103] Some doctors said they felt compelled to use the finger test to render an opinion about whether a rape survivor was “habituated to sexual intercourse,” either because hospital protocols include this information, or because they feared that either defense counsel or judges would ask them why they omitted the test and failed to provide an opinion.[104] Confirming their fears, one former sessions judge said that if doctors do not conduct the test, “Judges will ask doctors ‘Why was this test not conducted?’ ‘Is this woman habituated to sexual intercourse?’ They will have to give an opinion.”[105]

Perpetuating Damaging Stereotypes through Medico-Legal Interpretations

A medico-legal report that identifies an unmarried girl or woman as allegedly “habituated to sexual intercourse” attaches extreme stigma to her, compounding the considerable stigma unmarried women already face when reporting rape, and adding to a general stereotype about sexually active women.[106] Police officers, prosecutors, other lawyers, and judges may have a conception that a “bad” woman of “loose morals” may try to press a false charge of sexual assault against an innocent man. For instance, one former public prosecutor who spoke with Human Rights Watch said, “I find that in most cases where the man is not known to the woman, then it is definitely rape, but where the man is known to the woman, it is usually not rape, and it is a case of false charge.”[107]

Lawyers told Human Rights Watch that usually no acquittal or conviction rests completely on the findings of the finger test, but the defense uses these findings to break the morale of the survivor while she is testifying in court, to question her character and credibility, or to dispute her consent to the sexual act under consideration.[108]

Undermining the Confidence, Character, and Credibility of Rape Survivors

Especially in the case of an unmarried woman or girl, being identified as “habituated to sex” can make it a harrowing experience for her to aid the investigation and prosecution. A 2003 amendment to the Indian Evidence Act says that the defense cannot cross-examine the prosecutrix about her “general immoral character.”[109] Several legal experts said this amendment had provided some relief to survivors.[110]

But questions about character have not been stamped out of trial court practice because the extent to which such questions are allowed or disallowed is dependent on the sensitivity and personal beliefs of the presiding judge. For instance, lawyer and human rights activist Khadijah Faruqui said that in her experience, the Patiala House Court (trial court complex) located in central Delhi is more sensitive to the problems of the finger test, but that judges in other parts of Delhi often accept arguments based on finger test findings.[111] Similarly, lawyer Rebecca Mammen John explained that “archaic” finger test findings give an “unfair advantage” to the defense, which uses the findings to influence the judge.[112] She said,

As long as the two-finger test remains, it will provide the defense with a ready-made line of argument. And rape trials in India will be dependent on the individual sensitivity of judges, prosecutors, and defense counsels. Why should that be the case? It is an archaic procedure and needs to go.[113]

One judge who has overseen rape trials for nearly two decades said that many defense lawyers used the “habituated to sex” opinion to shake the confidence of survivors testifying in court, and judges respond unevenly. The judge said,

The defense will try to beat the morale of the victim by raising questions about her character. They know these are irrelevant and cannot be asked of the victim. Even if the judge disallows the question, they [defense] will say, “You disallow my question but put it on record.” It takes a long time—putting it on record, disallowing the question—these things take time. So they will simply try to tire the victim in court. They will ask a hundred irrelevant questions and one relevant question. It is an art or strategy—to ask questions about her character. And even if it is disallowed, the damage is done—it has affected the victim psychologically. And this is where some judges get overawed by the defense and then stop intervening to control them. And it takes many hours or even days for the testimony of the victim to be recorded. And at the end of a harrowing day, victims break down in court. That is what questions about character are for—it plays a huge role in demolishing the strength of the victim in court.[114]

Courts have at times made comments about the “character” of the rape survivor based on the finger test results. For example, in a 2009 rape case in which Musauddin Ahmed was the defendant, the Supreme Court (in spite of its own previous judgment) stated that “the prosecutrix appears to be a lady used to sexual intercourse and a dissolute lady.” And further, that “she had no objection in mixing up and having free movement with any of her known person, for enjoyment. Thus, she appeared to be a woman of easy virtues.”[115]

In the case of Hare Krishna Das, who was also accused of rape, the Patna High Court placed great weight on the doctor’s opinion that the survivor was “habituated to sex.” Acquitting the accused for lack of medical evidence, the court reasoned that the testimony of the rape prosecutrix was not reliable:

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.[116]

Alternatively, judges interpreted pain, blood, or fresh hymenal tears during a forensic examination to mean the rape survivor was not loose or that it was her “first” experience of sexual intercourse. For example, in Suresh Kumar’s case, the High Court of Chhattisgarh evaluated the medical evidence and held:

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.[117]

In another case, the court looked at medical evidence that showed the doctor had inserted two fingers “with difficulty,” and further, that “when the fingers were inserted there was bleeding.” Based on this, the court concluded that the survivor was not “habituated to sex,” and her “virginity was violated for the first time.”[118]

Especially in cases where a doctor has noted that hymenal tears are not fresh and two fingers passed easily, courts have used the information against rape survivors. In Gokul’s case, the court acquitted the accused and observed that:

The prosecution has also failed to show that the rupture of vagina was fresh. On the contrary, the evidence is that two fingers could easily enter in the vagina.… If [a] version given by the prosecutrix was unsupported by any medical evidence or whole surrounding circumstances were improbable and belief [sic] the case sent up by the prosecutrix, the Court should not act on the solitary evidence of the prosecutrix.[119]

Even where medico-legal reports show that two fingers have not easily passed, lawyers have used this in favor of the accused. For instance, one former public prosecutor said,

If the prosecutrix says she is raped and then it comes in medical evidence that two fingers have not passed, then it goes towards positive evidence for the accused. It is a critical piece of evidence for the defense. If there is penetration, then two fingers should pass.[120]

Similarly, medico-legal reports showing that even one finger passes with difficulty during the finger test have been taken as evidence that there was in fact no penetration.[121] Yet the finger test is not a reliable indicator of whether prior penetration has ever taken place.[122] Furthermore, the use of medico-legal findings against the prosecutrix run contrary to the Supreme Court decisions holding that penetration under the law does not require full penetration of the vagina and penetration to any degree is sufficient to prove a charge of rape.[123]

Defense Arguing Survivors’ Consent

Where medico-legal reports record findings such as “old tear” or “two fingers easily passed,” the defense has used them to argue that the girl or woman, who was “habituated to sex,” likely gave her consent and was not raped.[124] One former public prosecutor said,

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 two-finger test, then they draw it out in court—saying she was “habituated” so consented and is falsely implicating the accused.[125] 

Another former public prosecutor said,

The finger test is relevant for the defense especially if the prosecutrix 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.[126]

One former trial court and high court judge, who has adjudged many rape trials and appeals, stated that whether a woman was “habituated to sex” was irrelevant but said that the benefit of doubt was given to the accused in “borderline cases.” She said,

Every rape case is unique, so it is difficult to say whether generally the two-finger test will be relevant. But “admits two fingers” shows that the woman is used to sexual intercourse—it does not show anything else. But in borderline cases, the defense will get some benefit of doubt if it is shown that the woman is “habituated [to sexual intercourse].”[127]

Human Rights Watch found that many trial and appellate proceedings across the country have used this line of argument and courts have interpreted this in different ways.[128] In some cases, the courts accepted this argument, but eventually held that even though there might have been consent, it is irrelevant because the survivor was aged under 16 years at the time of the incident, which constitutes statutory rape (also known as “technical rape”) under Indian law.[129]

 

Medico-Legal Findings a Scientific Myth

Medico-legal opinion based on the finger test has no scientific value. Many forensic experts, gynecologists, and doctors in India have rejected it, saying that the finger test and related assessments are completely baseless, unscientific, and do not generate any reliable or valid information.

Indian courtroom proceedings related to rape routinely discuss the state of the girl’s or woman’s hymen.[130] A common misconception underlying these proceedings is that the hymen is like a closed door sealing the vaginal opening, which is necessarily “broken” on “first intercourse.” The hymen is actually just a collar of tissue around the vaginal opening that does not cover it fully. Especially in pubertal and post-pubertal girls and women, it becomes elastic. Contrary to the medico-legal significance attached to the hymen in Indian rape trials, the international consensus is that the examination of a woman’s or girl’s hymen cannot indicate definitively whether she is a “virgin” or is “sexually active.”[131] “Old tears” or “laxity” of the hymen and vagina do not prove that a girl or woman is “habituated to sex,” because they can be caused by exercise, physical activity, or the insertion of tampons or fingers, among other events not related to sexual intercourse.It is precisely for these reasons that the WHO guidelines state that specialized training is required for doctors to conduct genito-anal examinations, and understand and interpret findings accurately in the case of all survivors under age 18.[132] In any event, whether a woman or girl has had consensual sex in the past has no bearing on whether she consented to the sexual activity under investigation.[133] 

The head of the department of forensic medicine in a leading Delhi hospital said,

It [two-finger test] is all a myth. Nothing—no scientific evidence to show that if two fingers pass or don’t pass it has anything to do with being “habituated [to sexual intercourse]” or penetration at all. Now this myth is being used in courts.[134]

Similarly, Dr. Amar Jesani, a general physician and leading health and human rights activist in the country, said, “There is no scientific evidence to show that this test is correct. It is high time that the government revised its old textbooks from the 19th and 20th century.”[135]

Even if the presence of the hymen and size of the vagina did reliably answer questions about a girl or woman’s sexual experience—which they do not—the results of the test would still be arbitrary and unscientific because they vary depending on the size of the examiner’s fingers and his or her subjective assessments. Dr. Harish Pathak, a professor of forensic medicine, explained how the finger test violates the basic principle of objectivity in science:

The two-finger test is not scientific. What is scientific? Scientific evidence is that which is objective, and when the test is repeated by anyone, then the same results will be achieved. The two-finger test is a subjective test. There are many variables—the test results will be different depending on the size of the doctor’s fingers. If someone like Dara Singh [a big-built Indian wrestler] is the doctor conducting the test, then the results will be different than when I conduct it. Then the doctor has to say “whether one or two fingers passed easily,”– what is easily? What is easy for one person may not seem like it is easy for another.[136]

Raising similar concerns, Dr. N. Jagadeesh, another leading forensic expert, said, “Whose fingers are we talking about? And what is easy? This is not science.”[137]

Dr. Khandekar, an assistant professor of forensic medicine, said,

The finger test needs to go. Doctors have been conducting this because old textbooks have been recommending this, and there is no clear pro forma [format] for conducting medical tests and developing medico-legal reports in rape cases. Different hospitals use different formats or some doctors just write a medico-legal report however they want to. The test has no relevance at all when assessing whether the victim was raped.[138]

Anecdotal evidence from actual courtroom examples highlights the arbitrariness and subjectivity inherent to the finger test. For example, doctors have testified that women and girls are “habituated to sex” even where the vagina admits “two fingers with difficulty” [139] or “one finger.”[140] In one case, a 12- or 13-year-old girl who was raped was subjected to two forensic examinations. One doctor deposed: “vagina admitted one finger with difficulty. Victim felt pain on introduction of finger in vagina.” The second doctor who examined her deposed: “vagina admits two fingers tightly.” The defense counsel sought to take advantage of this discrepancy in doctors’ depositions and argued that there was no rape, but the judge rejected the argument.[141] No one suggested that the doctors’ varying opinions showed their subjectivity, and thus rendered the test invalid.

Denouncing the test categorically and saying it was “unprofessional, unscientific, and generated no reliable evidence” about anything, one judge strongly advocated excluding it from forensic examinations of rape survivors.[142]

In fact, the Indian Supreme Court, whose decisions are binding across the country, has itself observed that “the factum of admission of two fingers could not be held to be averse to the prosecutrix,” and described finger-test  assessments as “hypothetical and opinionative,” implying recognition for the inherently subjective, arbitrary, and unscientific nature of the test and related opinions.[143]

Judges and lawyers told Human Rights Watch that medical and legal professionals must be made more aware of the unscientific nature of this test if it is to be eliminated from medico-legal opinions, courtroom proceedings, and judgments.[144] The WHO guidelines for medico-legal care for survivors of sexual violence clearly states that even a purely clinical procedure such as a bimanual examination is rarely justified following sexual assault.[145]

Finger Test Results in Repeated Trauma

Inserting fingers into the vaginal or anal orifice of an adult or child survivor of sexual violence can cause additional trauma, as it not only mimics penile penetration but can also be painful. In their June 2010 letter to the Indian government, Indian women’s rights activists drew the government’s attention “to the existence of tests like the two-finger test, which further aggravate women’s experience of assault.”[146]

Anecdotal evidence suggests that some doctors in India conduct the two-finger test with little or no regard for a survivor’s experience of pain or trauma during such examinations. For instance, in one case, a gynecologist examined the survivor, found that she had a vaginal injury that was 6.4 centimeters long, sutured the wound, and referred her to a “medical jurist”— a doctor assigned to handle medico-legal cases. The second doctor proceeded to conduct her own examination, and found that the hymen was absent, noticed the stitched wound, and nevertheless inserted two fingers, recording: “vagina admitted two fingers and blood was coming out of the stitches.”[147] In yet another case, a doctor noted that the hymen was ruptured, inflamed, and vagina lacerated; and conducted the finger test and deposed: “vagina of the prosecutrix admits two fingers with difficulty and painfully.”[148] Similarly, another doctor reported that when he inserted one finger into the vagina of a 13-year-old rape survivor, it was “very painful.”[149] The WHO guidelines recognize that while some pain may be unavoidable given the nature of the examination, but recommend that an examining doctor should take steps to minimize pain either by conducting a limited examination or by administering analgesics.[150]

Pratiksha Baxi, a leading Indian feminist sociologist, has condemned the finger test as a technique that “rests on the precarious desexualisation of a clinical practice.” She points out that inserting fingers into a woman’s vagina without her consent constitutes a sexual assault, yet the two-finger test is conducted under the rubric of a professional investigation, and doctors obtain blanket uninformed consent for the forensic examination in advance.[151]

In India, health care workers ask adult survivors of sexual violence and guardians of child victims to consent to a forensic examination without providing detailed information or ensuring that they understand the procedure in a meaningful way. Indian law and WHO recommendations both say that a rape survivor must give her consent for a forensic examination.[152] The WHO guidelines state that the examining doctor should explain every step of the examination procedure to a survivor, giving her an opportunity to refuse any part of it.[153] Activists who accompany rape survivors to forensic examinations and lawyers who prosecute rape told Human Rights Watch that doctors generally seek blanket consent for any and all medical procedures to be conducted as part of the forensic examination, but seek no specific consent for the finger test, whose details and potential impact rape survivors generally do not understand at all.[154]

One adult survivor told Human Rights Watch,

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 don’t know what information they collected. I did not even know it was going to be like a delivery examination [internal gynecological examination]. They used some machine and checked the place I urinate from. Took some blood, urine. That’s all.[155]  

One parent of a six-year old child who had been raped said,

The check-up happened in the delivery room. I was not allowed inside with my daughter when she was examined. She went in with a lady police officer. I only know that they collected blood and urine because they gave it to me in dibbey [containers] and asked me to take it to the police station. I do not know what else they did during the examination.[156]

She showed Human Rights Watch a photocopy of her child’s medico-legal report, which stated that the “tip of finger passed” into the “hymenal orifice.” She did not know the significance or the meaning of this test, or how this information would be used during the trial.[157]

Survivors of rape seldom have a real opportunity to refuse consent for medical procedures. One social worker said,

It is very rare that women can say, “I don’t want this part of the examination,” or ask questions about what is being done. Even with social workers present, it is very difficult. In all the cases that we have dealt with, I know of only two cases where women have been able to say what they want. In one case, the woman stated clearly that she did not want an internal vaginal examination because the man had only tried to rape her and had not succeeded, so it was not necessary. In another case, the victim said she wanted to mull over whether she wanted the examination and to give her some time.[158]

Another human rights activist said,

In one or two cases I have seen doctors force the victim to go through all the tests. In one case, the victim only wanted a STD/HIV test to be done. She was menstruating and she was not comfortable. But basically the doctor told her she has to take the exam and she said ok.[159]

Several leading criminal lawyers said that rape survivors face adverse consequences if they refuse consent to the full forensic examination. If a rape survivor refuses to go through the entire test, the police may consider her uncooperative, reducing their commitment to the investigation, and if the case eventually goes to court, the defense may argue that she had something to hide.[160]

Lawyer Rebecca Mammen John noted a case when her client was damaged by a doctor’s note that she was “very uncooperative.” In the medical certificate, the examining doctor had noted the presence of internal injuries and had observed in writing that the victim had difficulty walking. The doctor also noted in the medico-legal report that the victim was “very uncooperative,” which the defense sought to exploit in court. She continued:

When we found out why the doctor had written “very un-cooperative” in the report, we found that it was because she [the rape survivor] had refused to undergo this two-finger test. She had pressed her legs together and refused to allow the doctor to examine her any more. She obviously did that because she was in tremendous pain. We are talking of someone who has just been raped and in pain … And I don’t understand the need for this [finger test] because the doctor had already recorded that there was a tear in the posterior fourchette [part of the vagina] and she had difficulty in walking. The two-finger test should go. It is an archaic procedure that adds to the trauma of rape victims and actually compounds their suffering.[161]

“Habituation to Sexual Intercourse” Legally Untenable

Over time, Indian medico-legal practice has become disconnected from legal developments.

The Indian Supreme Court made two important pronouncements that render the finger test untenable. First, the court has held that two-finger test results cannot be used against the prosecutrix.[162] Second, it has clearly and repeatedly held that showing that a survivor is “habituated to sexual intercourse” is immaterial to the issue of consent in a rape trial.

In State of Uttar Pradesh v. Pappu, the Indian Supreme Court held that the prosecutrix’s “habituation to sexual intercourse” was irrelevant. In this case, while hearing the appeal against the trial court’s judgment, the Allahabad High Court acquitted the accused, accepting the defense argument that the prosecutrix was a “girl of easy virtues,” and that medical evidence showed she was “habituated to sexual intercourse” and displayed no physical injuries. The prosecutrix was known to the accused, and the defense counsel had argued that “the prosecutrix was not having a good character and since her house was in front of his house, he and his family members asked them to leave that place and hence the false case was foisted.”[163] Reversing the judgment of the Allahabad High Court, the Supreme Court held,

Even assuming that the victim was previously accustomed [to] sexual intercourse, that is not a determinative question. On the contrary, the question which was required to be adjudicated was did the accused commit rape on the victim on the occasion complained of. Even if it is hypothetically accepted that the victim had lost her virginity earlier, it did not and cannot in law give licence [sic] to any person to rape her. It is the accused who was on trial and not the victim. Even if the victim in a given case has been promiscuous in her sexual behavior earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone.[164]

The Supreme Court reaffirmed its decision in the case of State of Uttar Pradesh v. Munshi, where the Allahabad High Court acquitted the accused on grounds that the survivor did not display physical injuries and was “habituated to sexual intercourse.” Setting aside the order of the Allahabad High Court, the Supreme Court pointed out that being “habituated to sexual intercourse” was not relevant.[165]

Yet again, in State of Punjab v. Ramdev Singh, the Supreme Court set aside the acquittal order of the Punjab High Court. The High Court had held that the prosecution case was unreliable for four reasons, including a medico-legal report showing that the prosecutrix was “habituated to sexual intercourse.”[166] Discussing the High Court’s grounds for acquittal, the Supreme Court held, “Merely because of [a] doctor's hypothetical and opinionative evidence that the victim was accustomed to sexual intercourse, [the] prosecution version of rape was not to be discarded.”[167]

Moreover, proposed amendments to criminal laws in India make the test redundant. The Criminal Law (Amendment) Bill, 2010, seeks to amend the Indian Evidence Act to include a provision that states that in a prosecution for sexual assault, “where the question of consent is in issue, evidence of the character of the victim or of his [sic] previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent.”[168] It further seeks to amend the existing definition of rape to sexual assault rendering this test legally obsolete because “sexual assault” in the proposed definition is no longer limited to penile-vaginal penetration.

Finger Test Violates Survivors Rights: An Inhuman and Degrading Practice 

International Law

As it is currently practiced in India, the finger test and interpretations of it violate the rights of rape survivors to privacy, physical and mental integrity, and dignity. Under international law, rape survivors are entitled to legal recourse that does not retraumatize them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment.

India is party to the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social, and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC), and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and has an obligation to ensure that the rights of survivors of sexual violence or abuse are protected.

Article 12 of the ICESCR guarantees the right to physical health, including sexual and reproductive health, and mental health. Issuing an authoritative interpretation of Article 12, the Committee on Economic, Social and Cultural Rights, its treaty-monitoring body, said that a state’s obligation to protect women’s rights includes health in the context of gender-based violence.[169] Health services—preventive, curative, and rehabilitative—should be physically and economically accessible.[170] Hence India has an obligation to make such services available to survivors of sexual violence. 

Article 5 of the Universal Declaration of Human Rights (UDHR) and Article 7 of the ICCPR clearly state that no person can be subjected to “cruel, inhuman or degrading treatment.”[171] The UN Human Rights Committee, its treaty-monitoring body, issued an authoritative commentary on Article 7 of the ICCPR, noting that the “aim of the provisions of article 7 … is to protect both the dignity and the physical and mental integrity of the individual.”[172] It clearly specifies that the prohibition under Article 7 applies to “patients” in “medical institutions.”[173] The prohibition applies irrespective of whether a person inflicting such cruel and degrading act is “acting in their official capacity,” “outside their official capacity,” or “in a private capacity.”[174] For an act to constitute “cruel, inhuman, or degrading treatment,” it is not necessary to cause “physical pain.” “Acts that cause mental suffering to the victim,” are also prohibited.[175] States should protect everyone through “legislative and other measures as may be necessary against acts prohibited by article 7.”[176]

India is not a party to the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment (CAT), but this convention provides additional information on what types of acts are considered cruel, inhuman, and degrading treatment under international law. Article 16 of the CAT requires states to prevent cruel, inhuman, or degrading treatment or punishment that does not amount to torture when committed by, at the instigation of, or with the acquiescence of a public official or other person acting in an official capacity.

Sir Nigel Rodley, the former UN special rapporteur on torture and other cruel, inhuman or degrading treatment, received information on the issue of virginity testing of rape survivors. The special rapporteur classified “virginity-testing” as a form of “gender specific … torture,” and responded to “information according to which women, even minors, were subjected to these tests after having complained of rape.” Discussing these complaints, the special rapporteur pointed to the information supplied to him that these tests were a “traumatic and humiliating experience” resulting in “stigmatization in the particular sociocultural context” of the rape survivors. He concluded that the basic principles for reparation should be observed and that rape survivors should not be retraumatized by being subjected to virginity tests.[177] The special rapporteur reiterated that domestic laws should ensure that a “victim who has suffered violence or trauma” benefits from “special consideration and care to avoid his or her retraumatization.”

The finger test during forensic examination and related discussions about whether the survivor is “habituated to sexual intercourse” constitutes a form of inhuman and degrading treatment within the meaning of Article 7 of the ICCPR. Identifying survivors of sexual violence as being “used to sexual intercourse” in the Indian social context humiliates them. It violates the physical and mental integrity of survivors of sexual violence. This is also contrary to the WHO guidelines (see below).

Article 17 of the ICCPR also protects an individual from “arbitrary or unlawful interference with his privacy,” and “unlawful attacks on his honour and reputation.” The UN Human Rights Committee has said that even interference that is stipulated under the law can be arbitrary if it is not in keeping with the “provisions, aims, and objectives” guaranteed by ICCPR or if it is unreasonable interference.[178] The continued use of the finger test and identifying women as being “habituated to sex” even though the Indian Supreme Court has clearly held that the results of the test cannot be used against rape survivors and further that whether she is “habituated to sexual intercourse” or not is irrelevant, constitutes an arbitrary and unlawful interference with the survivor’s reputation.

Specifically in the context of “body searches,” the UN Human Rights Committee has said that states should ensure that “such searches are carried out in a manner which is consistent with the dignity of the person who is being searched.”[179]Forensic examinations of rape survivors are a specialized form of a body search conducted by doctors to collect any medical evidence of the assault. Given the particularly sensitive and intimate nature of these examinations, the state is under an obligation to ensure that doctors are provided with specialized training to conduct these examinations with utmost care and sensitivity, respecting the rape survivor’s dignity at all times.

The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power and Basic Principles and Guidelines on the Right to A Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law specify that both state and non-state actors should treat victims “with compassion and respect for their dignity and human rights”[180] and “measures should be taken to ensure their safety and privacy.”[181] The state has a special obligation to ensure that “its domestic laws, as much as possible, provide that a victim who has suffered violence or trauma should benefit from special consideration and care to avoid his or her retraumatization in the course of legal and administrative procedures designed to provide justice and reparation.”[182]

International Standards

The World Health Organization has issued detailed guidelines for medico-legal care for victims of sexual violence. According to these guidelines, one of the “priorities” of medical care is “[c]oncern for the welfare of the patient” where doctors should also ensure “that patients are able to maintain their dignity after an assault that will have caused them to feel humiliated and degraded.” The guidelines further state that “medical and forensic services should be offered in such a way so as to minimize the number of invasive physical examinations and interviews the patient is required to undergo.”[183]                

In relation to internal vaginal examinations, the WHO guidelines state:

• That “[m]ost examinations in pre-pubertal children are non-invasive and should not be painful.”[184]
• That for adults and post-pubertal girls, a speculum examination may be required in the following situations: genital pain, bleeding, if a foreign body was used during the assault, and for assaults that occurred more than 24 hours prior to the examination, to collect swabs from the cervical canal.[185]
• That a bimanual examination (a clinical procedure that also involves inserting fingers to detect medical conditions of the uterus or urinary tract) is “rarely indicated post sexual assault,” meaning that such examinations are rarely medically justified in this context.[186]

In relation to internal rectal examinations, the WHO guidelines state:

• Speculums or anoscopes and digital or bimanual examinations do not need to be used in child sexual abuse examinations unless medically indicated.
• In relation to child sexual abuse, “consider a digital rectal examination only if medically indicated, as the invasive examination may mimic the abuse.”[187]
• A digital rectal examination is recommended only if a foreign object may have been inserted into the anal canal.[188]