A supreme relief for rape victims

The Supreme Court on Monday held that any person found conducting two-finger test on a victim in rape or penetrative sexual assault cases will be guilty of misconduct. A division bench of Justices D Y Chandrachud and Hima Kohli expressed displeasure that such tests were being conducted even today and said that the same had no scientific basis and re-traumatised victims of sexual assault. "Evidence of a victim's sexual history not material to case. It is regrettable that it continues to be conducted even today. The so-called test has no scientific basis...it instead re-victimises and re-traumatises women," the court said.

The test is based on incorrect patriarchal notion that a sexually active woman cannot be raped, the court added. Any person conducting such a test should be held guilty of misconduct, it added. "The test is based on an incorrect assumption that a sexually active woman cannot be raped ... It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped merely because she is sexually active," the judgment said. The Bench also ordered that any person conducting such a test should be held guilty of misconduct. The Supreme Court has also directed the State and the Central governments to ensure that guidelines are circulated to government and private hospitals in this regard.

This inhuman and degrading practice subjects the victim to further humiliation as it follows a presumption that hymen could be torn only through sexual intercourse. In fact a committee which was formed under former Chief Justice J S Verma, (formed soon after the 2012 Nirbhaya Gangrape case) had recommended tougher laws for such cases and ban of the two-finger test. The Committee said that on the basis of this test observations/ conclusions such as 'habituated to sexual intercourse' should not be made and this is forbidden by law.

Yet, the test continues to be conducted in India and other countries despite rape test kits being provided by the government to all medical institutions after the committee recommendations. The very test is unscientific. According to medical experts, science has proved that the hymen is not a reliable source of proving vaginal penetration. The hymen, which is a thin membrane in the vagina, can rupture not just during sexual activity but also during day-to-day work or any physical activity, including playing sports.

In May 2013, the Supreme Court banned the two-finger test on rape victims on the grounds that it violated their right to privacy. The court asked the government to provide better medical procedures in order to confirm sexual assault. It also felt that the test is medically unnecessary, oftentimes painful, humiliating and a traumatic practice that must end. Among the pending suggestions are: Workshops should be held for health providers to prevent the test from being conducted on rape survivors and revision of the curriculum in medical schools.

A woman in our society has been a victim of humiliation, torture and exploitation. There are many episodes of rape, murder, dowry, burning, wife beating and discrimination in society. Despite all the progressive talk and economic uplift and education, women have always been subjected to untold misery here. At least one such misery goes now. But the stigma continues for no fault of hers in such cases.