#GenderJustCourts - Abolishing the two finger test - new standards for medical tests of sexual assau
This post is part of a series that seeks to explore judgements relating to gender justice and equality in the Indian Courts. As a common law system, we know that it is the combination of legislation passed in parliament and interpretations made by judges that make up the laws that affect women and girls across India. We hope this series provides an insight into how past cases might impact future ones.
The case at hand is a landmark judgment towards furthering rights of women against whom sexual violence has been perpetrated. The judgment touches upon how a victim is stripped off her dignity by the outdated medical tests that are conducted on her, therefore filling in the legal void that had existed until then in this regard.
Background of the case
This is a medico-legal case which was filed in the form of a Criminal Appeal before the Supreme Court of India. Two of the four people who were convicted by the judgment of The Honourable High Court of Punjab and Haryana, filed this appeal against the State of Haryana to challenge the judgment. Note - sexual offences are considered to be offences against the state, therefore, they are tried in court accordingly. Example - Lillu Rajesh & Anr. Vs. State of Haryana
Highlights of the case
The Supreme Court spoke of the difficult experience of being a survivor of rape and opined on the further insensitive nature of the ‘two finger test’ that was used to determine if a woman had been raped or not. In its judgment, the Court also drew reference from the international standards laid out for victims of sexual violence and held that the medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender-based violence. Further, the Court has also held that the state is under an obligation to make such services available to survivors of sexual violence. Maintaining that the two finger test conducted by doctors on survivors of rape is a violation of their right to privacy, physical and mental integrity and dignity. Additionally, even if the test two finger test report is affirmative, it cannot on its own, give rise to a presumption of consent.
The Court clarifies through this judgement that it does not hold the past seuxal history of a woman as grounds for determining whether she has been subjected to sexual assault or not. It lays out in clear terms that the woman against whom such an act is perpetrated is not to be assessed in such a manner, stating that past sexual history does not allow for an automatic assumption of consensual sex. These claims combined with the two finger test were often used to discredit testimonies of survivors of sexual assault and rape.
Towards Gender Justice? Definitely!
This decision of the Supreme Court identified and addressed a harrowing medical practice which seldom brought conclusive evidence to assist the Court in its decision making process and one that was insensitive to the needs of survivors of sexual violence. This judgment bases its foundation on various settled principles of law, and focuses on the ‘right to privacy and dignity’ of survivors of rape.
The language of the judgement though is problematic in several parts, owing to its focus on the impact of such an act of assault on the ‘dignity’, ‘honour’, ‘reputation’ and ‘chastity’ of a woman - calling these aspects the most ‘cherished’ aspects of a woman’s identity. Here it fails to call rape out for what it is and garbs it in patriarchal language and ideas of honour that further pulls back the feminist movement. Even while paving the way to separate past sexual history of a woman from the value of her testimony as a survivor of sexual assault and her right to consent - it uses terms like ‘woman of easy virtue’ and ‘promiscuous’.
The judgement though most definitely brings focus on the violation of a woman’s fundamental right to privacy and dignity and broadens the scope of fundamental rights and protection further. This decision has paved the way for the introduction of the medico legal guidelines and protocol (as was notified in 2014) for survivors/victims of sexual violence.
Implications of the case
The judgement outlines the inefficacious results produced by conducting the two finger test on victims of sexual violence. It further expands the ambit of the judgment and holds that the test is a violation of the right of privacy and dignity of the rape survivor, thereby making the test unconstitutional. The following points are also brought out in this judgment:
Consent of the victim is immaterial if she is a under 18 years of age at the time of the incident;
A woman has the right to refuse sexual relations irrespective of past sexual history and that such history is not to be a factor of consideration in determining the act of rape;
The two finger test is a violation of a woman’s right to privacy and dignity;
Affirmative result of the two finger test, cannot on its own, give rise to presumption of consent.
Sudarshan M. Mohta is a 25 year old Mumbai based lawyer practicing media and entertainment law. He actively engages in addressing issues pertaining to gender justice and woman empowerment and contributes pro bono in this sphere.