Patriarchal, sexist: Supreme Court on two-finger test on rape survivors

The Supreme Court on Monday said a woman's sexual history is wholly immaterial while adjudicating whether the accused raped her, and anybody who conducts the two-finger test on rape survivors would be guilty of misconduct.

It also declared the invasive procedure as patriarchal and unscientific, which re-victimises and re-traumatises the women.

A bench comprising Justices D.Y. Chandrachud and Hima Kohli said: "The so-called test is based on the incorrect assumption that a sexually active woman cannot be raped. Nothing could be further from the truth - a woman's sexual history is wholly immaterial while adjudicating whether the accused raped her."

Justice Chandrachud, who authored the judgment on behalf of the bench, said the probative value of a woman's testimony does not depend upon her sexual history. "It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped, merely for the reason that she is sexually active," he said.

The bench said whether a woman is "habituated to sexual intercourse" or "habitual to sexual intercourse" is irrelevant for the purposes of determining whether the ingredients of Section 375 of the IPC are present in a particular case.

Justice Chandrachud said this court has time and again deprecated the use of this regressive and invasive test in cases alleging rape and sexual assault.

"This so-called test has no scientific basis and neither proves nor disproves allegations of rape. It instead re-victimises and re-traumatises women who may have been sexually assaulted, and is an affront to their dignity. The 'two-finger test' or pre vaginum test must not be conducted," he said.

The bench said in terms of Section 53A of the Evidence Act, evidence of a victim's character or of her previous sexual experience with any person shall not be relevant to the issue of consent or the quality of consent, in prosecutions of sexual offences. Also, the Ministry of Health and Family Welfare issued guidelines proscribe the application of the "two-finger test".

The bench said: "Although the two-finger test in this case was conducted over a decade ago, it is a regrettable fact that it continues to be conducted even today."

It directed the Centre and state governments to ensure that the guidelines formulated by the Ministry of Health and Family Welfare are circulated to all government and private hospitals.

"Review the curriculum in medical schools with a view to ensuring that the two-finger test or per vaginum examination is not prescribed as one of the procedures to be adopted while examining survivors of sexual assault and rape," said the bench, directing authorities concerned to transmit these directions to the departments concerned, which includes Principal Secretary, Department of Public Health, of each state and Superintendents of Police.

It also directed the government to conduct workshops for health providers to communicate the appropriate procedure to be adopted while examining survivors of sexual assault and rape.

"Any person who conducts the 'two-finger test' or per vaginum examination (while examining a person alleged to have been subjected to a sexual assault) in contravention of the directions of this court shall be guilty of misconduct," said the top court.

The top court passed these directions while setting Jharkhand High Court judgment passed on January 27, 2018, which set aside the conviction of an accused charged with rape and murder of a minor girl. The accused had raped the victim in November 2004 and set her on fire. The victim succumbed to burn injuries in December 2004.

The victim's vaginal examination revealed that two fingers were admitted easily. The doctor stated that the deceased may have engaged in intercourse prior to date of the alleged crime, and that the admission of two fingers in her vagina meant that she was habituated to sexual intercourse.

The high court set aside the judgment of the trial court, which convicted the accused, and acquitted the accused, for the following reasons: the family members of the deceased were declared to be hostile witnesses and the doctor did not find any sign of sexual intercourse when she examined the victim. However, the statement of the deceased disclosed that the respondent raped her before setting her on fire.

The top court noted that the statement of the deceased satisfies the conditions in Section 32(1) and is itself a relevant fact. The dying declaration makes it abundantly clear that the respondent raped the deceased, poured kerosene on her, and set her on fire, it noted.