India’s Supreme Court Slams Use of ‘Two-Finger Test’

On October 31, India’s Supreme Court ruled that any person conducting the invasive “two-finger test” on survivors of sexual assault will be found guilty of misconduct. 

“This so-called test has no scientific basis and neither proves nor disproves allegations of rape. It instead re-victimizes and re-traumatizes women who may have been sexually assaulted, and is an affront to their dignity,” the apex court pointed out, ruling that “the ‘two-finger’ test or pre-vaginum test must not be conducted.” 

The two-finger test involves checking the laxity of a woman’s vaginal muscles with two fingers to determine whether she is sexually active or not. “Evidence” from such tests is often used by defense counsels during rape trials to claim that the rape survivor was “habituated to sex” or even had “loose” or lax morals. 

In its ruling, the court pointed out that checking the laxity of a woman’s vaginal muscles to determine whethere a rape has occurred is based on the “incorrect” assumption that “a sexually active woman cannot be raped.” 

“Whether a woman is ‘habituated to sexual intercourse’ or ‘habitual to sexual intercourse’ is irrelevant for the purposes of determining” whether she was raped. A woman’s sexual history, the court stressed, is “wholly immaterial” while deciding whether the accused raped the victim.

This is not the first time that the Supreme Court has slammed the use of the two-finger test. In 2013, it ruled that its use was “unconstitutional.” In its 2014 guidelines for medico-legal procedures on survivors of sexual violence, the Union Home Ministry asserted that the two-finger test must not be conducted to establish rape and clarified that “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 offenses.”

That the Supreme Court had to intervene yet again to rule out the use of the two-finger test indicates not only the abject failure of the government in enforcing its own rules and guidelines but also the credibility that medical professionals still accord to unscientific practices. 

Most worrying is the extent of patriarchy in Indian society revealed by the continuing use of the two-finger test.

It is the loss of virginity, rather than evidence of violence, that appears to be the main concern of Indians regarding rape – thus the belief that a woman “habituated to sex” cannot be raped.

More troubling is the manner in which authorities, especially police and defense counsels, use so-called “evidence” gathered from a two-finger test to question the morals of a rape survivor. Such “evidence” is used most frequently against unmarried rape survivors.

Survivors of rape are often subjected to systematic maligning not just by defense lawyers seeking to get their clients, accused of rape, off the hook but also by the patriarchal criminal justice system. 

Victim blaming is rampant. In December 2012, a 21-year-old woman was savagely gang-raped and killed on a bus in New Delhi. One of the rapists was later quoted by the BBC as saying that “women who go out at night have only themselves to blame in case they attract attention of male molesters.”

It is not just rapists that blame their victims. The court does this too.

When Tehelka editor Tarun Tejpal was on trial for the rape of a younger colleague, it was the latter’s character and conduct that was put under scrutiny. Not only was she subjected to intrusive and demeaning questions at the trial, but the text of the judgment laid out details of every aspect of her life. That the judgment detailed her attire at the time of the sexual assault, the length of the dress and its lining, and even the kind of undergarment she wore indicated that these played an important role in the judge’s decision. 

Lawmakers engage in such maligning too. When a mother of two was gang-raped in a car in Kolkata in 2012, West Bengal Chief Minister and Trinamool Congress party chief Mamata Banerjee accused her of fabricating the assault. A TMC parliamentarian commented that the “rape was a sex deal gone wrong.”

That women also indulge in victim-blaming must not be ignored. Judge Kshama Joshi, who delivered a not guilty verdict in the Tejpal case in 2021, and Banerjee are both women.

In its recent ruling against the two-finger test, the apex court has directed the central and state governments to ensure that Health Ministry guidelines are circulated among the police and all government and private hospitals. It has called on the government to conduct workshops for medical personnel on proper examination methods. Additionally, it has called for a review of the curriculum in medical colleges

Activists have welcomed the Supreme Court order. However, the order itself is unlikely to bring change. As with previous court and government orders, the ruling could very well be ignored. Implementation of the order requires political will on the part of the government at both the central and state level, including the criminal justice system and the medical fraternity. It requires robust steps to tackle India’s deeply entrenched patriarchy and truly eliminate such disturbing practices.