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Adding insult to injury

In August this year 21-year-old Malati Jha (name changed) was coming back home from her tutorial classes when she was allegedly raped by her neighbour in a dark bylane of east Delhi. A day later, she lodged a complaint with the police. She was taken for a medical examination that involved the per vagina (PV) or the two finger test. Though she twitched in pain, she didn’t have any option but to go through it.

“The doctor inserted her two fingers into my vagina. She said that this test was necessary to ascertain if I was raped. I wanted it to be over soon,” recalls Jha, who feels the test was almost as humiliating as the rape.

According to doctors, this medical test is done to check the level of vaginal laxity that determines if the victim is “habituated to sexual intercourse”.

But legal experts call this test “illegal” as the Supreme Court in 2003 had labelled it “hypothetical” and “opinionative”. Again, in 2010 Delhi’s additional sessions judge Kamini Lau had said that the test “traumatises the survivor and gives the defence… a stick with which to intimidate and demoralise her in court.”

According to the National Crime Records Bureau, 24,206 rape cases were registered across the country in 2011. If the ongoing trend of medical examination is anything to go by, every rape victim is subjected to this test.

But there has been widespread condemnation of this practice. In 2010, a report titled ‘Dignity on Trial: India’s Need for Sound Standards for Conducting and Interpreting Forensic Examination of Rape Survivors’ released by international human rights group Human Rights Watch stated that defence counsel use the findings of the finger test “to shake the morale of survivors and challenge or discredit their testimony. In some cases, defence counsel even use the findings to claim that sexual intercourse was consensual.”

Legal experts dealing with cases of rape tend to agree with that. “The test violates the fundamental right to privacy of the victim,” says criminal lawyer K.T.S. Tulsi. He adds, “Plus, the act of determining if the victim is habituated to sexual intercourse or not is itself degrading for a woman. In a way, this means that rape of a woman habituated to sexual intercourse is justified. It questions the moral character and dignity of a woman and increases the prejudice which exists against a survivor.”

Activists say that the World Health Organization too stresses that the health and welfare of a survivor of sexual violence is “the overriding priority” and that forensic services should not take precedence over it. “It also says forensic examinations should be minimally invasive and that a purely clinical procedure such as the bimanual examination (which also involves the insertion of two fingers into the vagina) is rarely medically necessary after sexual assault,” says Raj Mangal, vice-president, programme, Pratidhi, a crisis intervention centre in Delhi.

But the police and government hospitals have turned a deaf ear to such observations. In fact, the forensic template that the police follow in rape cases asks the examining doctor to give an opinion on whether or not the hymen is intact. “And the finger test is necessary to see if the hymen is ruptured,” says a gynaecologist at Delhi’s Lal Bahadur Shastri Hospital, who conducts the test on rape victims.

But forensic experts feel that the examination of the position of the hymen is of little consequence. “The hymen is a flexible membrane that partly covers the vaginal opening. The popular notion that there was no rape if the hymen is not ‘torn’ is wrong. At the same time, a hymen can have an old tear and its orifice may differ in size for reasons that are unrelated to sex. The assumption that a woman’s hymen can only be torn as a result of sexual intercourse is absolutely baseless,” says Dr Sudhir Gupta, associate professor, department of forensic medicine and toxicology, All India Institute of Medical Sciences.

He also adds that examination of the external injury of the victim, collection of vaginal swab, pubic hair and blood samples, are enough to prove if the complainant has been raped.

The government too seems to feel that the PV test should be done away with. Last year the Union ministry of health and family welfare made it optional. “We had stated that the PV test would be conducted only ‘if medically indicated’ and with the ‘consent of the victim’,” says a senior ministry official.

But victims say that they are not informed about the test beforehand. “The doctor asked if I would like to go for a medical test. I gave my consent but she did not specifically mention that the finger test is also a part of the medical test,” reveals Jha.

Several non-government organisations that act as crisis intervention centres in rape cases say that they are trying to make the medical examination more victim-friendly. For example, the Mumbai-based Centre for Enquiry into Health and Allied Themes (Cehat), in consultation with doctors from across the country, has developed a rape examination protocol that leaves out the question on hymen rupture. But so far only three hospitals in the city have adopted it.

“Our proforma was overlooked. The proforma that is followed has scope for comments on the past sexual history of the victim,” says Padma Deosthali, co-ordinator, Cehat.

Legal experts also say that the government’s failure to comply with the Supreme Court order amounts to contempt of court. “A victim has every right to go to the court challenging the test. The court can always hold the medico-legal team guilty. State police and doctors should understand that apex court orders are not mere paper tigers,” says Tulsi.

He feels that India should have a rape shield law similar to the US which limits a defendant’s ability to cross-examine rape complainants about their past sexual behaviour. “I feel that a rape shield law would serve legitimate public interest in encouraging rape victims to come forward and prosecute the crime,” says Tulsi.

Pending that, at least the two finger test used to investigate rape cases ought to be dispensed with, argue activists. As Ranjana Kumari, director of the Delhi-based Centre for Social Research, says, “Police, doctors and prosecutors — all should work together to stop the test from being administered. It should be a joint effort to standardise evidence collection to protect the rights of survivors.”

Amen to that.