Doctors in India continue to traumatise rape survivors

with the two-finger test

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Jayshree
Bajoria

“The doctor said to my daughter ‘If they had forced themselves on you, there should
have been marks on your body – but you don’t have any. You must have done this of
your own free will.’” Palak’s mother said that her daughter, already traumatised, felt
humiliated and scared after the medical exam.

Palak (name changed to protect her identity), a Dalit woman, was 18 when she reported
being kidnapped and raped in Madhya Pradesh, in June 2013.

As part of the legal reforms after the gang rape and murder in New Delhi in 2012,
denying medical treatment to rape survivors is punishable under section 166B of the
Indian Penal Code with imprisonment for up to a year.

Health providers have a dual role when it comes to responding to sexual violence. Apart
from collecting forensic evidence for any criminal investigation and prosecution, they
must provide therapeutic care to survivors – including addressing their sexual,
reproductive and mental health problems.

However, as in Palak’s case, Human Rights Watch’s investigation into 21 recent cases of
rape and sexual harassment in India shows that instead of providing a safe environment
of trust for treatment and examination, doctor attitudes toward women who report rape
can leave them traumatised a second time.

The 2014 guidelines

In 2014, India’s Ministry of Health and Family Welfare issued guidelines for medico-
legal care for survivors of sexual violence to standardise healthcare professionals’
examination and treatment of sexual assault survivors. The guidelines integrate
processes geared to respect women’s and children’s rights to privacy, dignity, creating a
non-threatening environment, and informed consent.

The Ministry of Health and Family Welfare, in collaboration with the World Health
Organization, has conducted five regional workshops over the last two years to
encourage adoption and implementation of the guidelines by the states. However, so
far, according to health rights groups, only nine states have adopted the guidelines. But
even in these states, the implementation has been uneven, without any oversight
mechanisms in place.

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The guidelines seek to correct pervasive myths and degrading practices around rape
that have been reinforced by common medico-legal practices. Specifically, the
guidelines eliminate what is commonly known as the “two-finger test,” a practice where
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, to assess whether girls and women are
“virgins” or “habituated to sexual intercourse”.

This evidence has been used during trials to assert that the rape survivor had “loose” or
“lax” morals. The new guidelines limit internal vaginal examinations to those “medically
indicated,” such as when it is done to diagnose infection, injury, or presence of a foreign
body.

Even before the guidelines, the Supreme Court 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. The 2015 edition of Modi’s Medical Jurisprudence, a key
reference tool for medical and legal professionals, has also attempted to steer doctors
away from the unscientific “two-finger test.”

End abusive “two-finger testing”

However, Human Rights Watch has found that doctors continue to conduct the
invasive, humiliating, and inhumane finger test to make degrading characterisations.
The doctors also fail to explain the process or purpose of the finger test to rape
survivors, causing them to be further traumatised. The test can also cause pain. The
doctors do this irrespective of whether the survivor is under 18 or an adult, single or
married.

Gayatri (not her real name), from Madhya Pradesh, was 17 when her brother witnessed
their father raping her in April 2016, which had been going on for months. After they
reported rape, the doctor noted she was likely pregnant, but still conducted a “two-
finger test”. The doctor wrote that her “vagina admits two fingers loose, not enlarged”
and concluded that “she is habitual to sexual intercourse”. The test was completely
contrary to the guidelines, which Madhya Pradesh state has adopted, and served no
purpose at all.

Harshita (name changed to protect her identity), a 30-year-old married woman from
Chittorgarh in Rajasthan, reported being repeatedly raped by a relative for a year and a
half in July 2016. The doctor examining her conducted a “two-finger test” and observed
that her vagina “admits two fingers easily,” and she was “habitual of sexual
intercourse,” an unnecessary conclusion for legal purposes.

The use of the finger test can also harm the investigation process because police, too,
may rely on medico-legal reports. Sameena (not her real name), 25, from Bharatpur in
Rajasthan was pregnant at the time she reported being gang raped in March 2016.
Instead of noting that the police did not bring her for the medical exam until several
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days later, resulting in loss of critical evidence, the doctor conducted a “two-finger test”
and observed that it was “without pain,” and that “she is habituated to intercourse”. In
October 2016, the police filed a charge-sheet against the five accused for assault, intent
to outrage her modesty, and for sexual harassment, but ruled out rape. As part of
reasons for the decision, the police cited the medico-legal report to say that Sameena did
not have any injuries on her body and “was habitual of intercourse”.

Jayshree Bajoria is the author of the Human Rights Watch report, Everyone Blames
Me: Barriers to Justice and Support Services for Sexual Assault Survivors in India,
published on November 8, 2017.

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