The prosecution bears the burden of proof in criminal cases. This burden is to be disposed of beyond reasonable doubt. But rape survivors in particular, bear a much heavier burden of proof– the standards of which are not defined by the law, but by social stereotypes. This burden is to disposed beyond all reasonable and unreasonable doubts and this is the unfortunate reality for rape survivors.
On one hand, they suffer through the crime and they bear the wrath of the society for having lost their honour. On the other hand, they need to prove the existence of section 375 of IPC which defines rape before the court law and they need to subject themselves to the regressive two finger test by the medical petitioner to get a moral certificate for being a pure and pious survivor who is otherwise sexually inactive. Thus, the survivor needs to prove that she has been wronged both as per legal as well as moral standards.
What is the Two Finger Test?
The two finger test is an unscientific procedure where a medical practitioner examines the vagina of a woman to see if she has been sexually active in the past. This test is based on the assumption that a woman cannot be believed that she has been raped if she is sexually active. Firstly, this test does not yield reliable, definite and scientific results. Secondly, the sexual history of the survivor has no bearing on the legal definition of rape or evidentiary aspects of the trial. Yet this regressive test is performed on women who complain about sexual violence since time immemorial.
The Underlying Concern of the Test
Just like in present times, stereotypes around chastity of women and their obligation to stay moral, pure and pious have been commonly floated all through history and across time periods. Historian Hanne Blank, in her book Virgin: the Untouched History notes that “In classical Greek times, girls who were virgins were supposed to have small, pink, upward-pointing nipples and on the other hand, was supposed to give girls dark, large, downward-pointing nipples.”
A medieval text called De secretis mulierum talks about the way to figure out if a woman is virgin from her demeanour.
“The signs of chastity are as follows: shame, modesty, fear, a faultless gait and speech, casting eyes down before men and the acts of men. Some women are so clever, however, that they know how to resist detection by these signs, and in this case a man should turn to their urine. The urine of virgins is clear and lucid, sometimes white, sometimes sparkling…. Corrupted women have a muddy urine.”
Blank also mentions another test in her book, where a folkloric tradition is followed among the Black communities in South America, which states that the virginity of a woman can be tested by collecting some earwax of a man on one fingertip and pressing the finger against the woman’s vulva. If this exposure hurts her and she cries out, she is a virgin. Lastly, in the modern times, it is believed that if a woman bleeds after the sexual penetration, that indicates it is her first intercourse and she had been virgin up till that point.
All these stereotypes are reflective of the fact that virginity has been considered valuable throughout history. Blank traces the origins of this obsession with virginity in the men’s urge to ensure that their women bear children who belong to them and not any other man. But with time, more and more premium was placed on virginity.
As much as the stereotypes around virginity and imposition of the burden of being morally chaste on women was already problematic, the two finger test extends the idea of moral chastity to survivors of rape. This test denies relief to victims who are not virgin or sexually inactive. This test is an assault on the central principle of rape law that the woman should give consent for any sexual advance. It is based on the assumption that if a woman is sexually available for one person, she is sexually available for everybody.
The Legal Position
In Lillu @ Rajesh & Anr vs State Of Haryana, the Supreme Court held that the two finger test is violative of the privacy of the survivor and should be done away with that. The Madras High Court also directed the government to ban the two finger test early this year. Yet again this Monday, the division bench of the Supreme Court comprising of Justices DY Chandrachud and Hima Kohli in State of Jharkhand v. Shailendra Kumar Rai, deprecated the test and stated that the medical practitioners who perform the test shall be held liable for misconduct and would be prosecuted accordingly.
Besides these judicial interventions, the executive wing has also taken some feeble steps towards putting an end to this practice. In 2014, Union health ministry issued detailed guidelines stipulating the “test” shouldn’t be conducted as “it had no bearing on a case of sexual violence.” Yet, the country awaits a central legislation banning the two finger test. Judicial verdicts and non-binding guidelines cannot do much, unless there is a full-fledged law to implement and effectuate the recent directions from the Supreme Court.
Rape is already a traumatizing experience for the survivor, and procedures like the two finger test can only double the trauma. Our rape laws cannot do any justice, till the time our medical procedures and above all our outlook on virginity and chastity changes.