India: Reforming rape laws

Updated on
The World

BANGALORE, India — The finger test really is as bad as it sounds.

A doctor inserts two fingers into a rape victim's vagina to determine the presence or absence of the hymen and to assess whether she is accustomed to sexual intercourse.

Not only is it dehumanizing and offensive, it also doesn't yield accurate medical information, according to doctors and activists. What's more, it actually helps rape perpetrators escape the law.

In addition to standard procedures, such as a body exam and collection of swabs and nail clippings, many forensic doctors in India do the two-finger check on a rape victim. The findings of the test are often used as evidence in courts to demolish a woman’s character and disqualify her testimony. And Indian courts have a low conviction rate in rape cases, usually because the credibility of the victim is brought under question.

But now, Indian laws pertaining to rape and violence are coming up for a long overdue overhaul. The finger test is beginning to represent campaigners’ earnest fight to do away with outdated methods and phrases.

Jagadeesh Reddy is one such campaigner. The Bangalore-based forensic doctor and lawyer says the finger test is an irrelevant tool that actually helps offenders go scot-free.

“It is appalling that the finger test continues to be part of medical forensics textbooks in India,” said Reddy, who works at Bangalore’s Vydehi Institute of Medical Sciences. Doctors persist in recording such evidence and lawyers continue to debate cases based on the test, he says. He correlates the prevalence of the test to the low rate of rape convictions in the country.

Human Rights Watch has recently thrown its weight behind the issue. In a recent 54-page report, the international non-profit called the finger test inhuman and unscientific.

The report called "Dignity on Trial” has analyzed 153 higher court judgments on rape that refer to finger-test evidence. The report’s author and women’s rights researcher Aruna Kashyap said such evidence collection often helped offenders and their lawyers turn criminal cases into debates about the rape survivor’s sexual history.

The report quotes medico-legal evidence as saying “two fingers admitted,” “two fingers easily admitted,” or “two fingers not easily admitted.” These findings are then used to describe the rape survivor in phrases such as “habituated,” “used to” or "accustomed to” sexual intercourse. In case the victim is a young girl, single woman or widow, such terminology makes the prosecution process harrowing.

“If the forensic report says that the hymen admits two fingers, the defense will argue that the victim is a ‘loose’ woman,” Kashyap quoted, after interviewing dozens of survivors, lawyers, doctors and police officials.

At the core of the finger-test is the widespread belief that a sexually liberated woman is "asking for it" and protecting her is not the state’s responsibility.

While India has globalized and Westernized on many fronts, laws governing violence against women remain archaic.

Even now, a husband forcing sex on his wife can be punished only for domestic violence and not marital rape. The law has just recognized as rape sex obtained by falsely promising a woman marriage. In rural India, oppressed women are sometimes stripped and paraded naked in public. The perpetrators of this atrocious act can only be tried for "outraging the modesty."

Doctors like Reddy say finger-test findings are scientifically baseless because the hymen tear or hymenal orifice size could vary due to reasons unrelated to sex. Importantly, Kashyap’s report argues that a woman’s sexual history has no bearing on whether she has consented to the sexual act in question.

The finger test is an unbridled practice even in India’s largest city Mumbai, confirms activist Audrey D’Mello of legal advocacy, Majlis. D’Mello has been witness to court cases that turn into lengthy negotiations of the victim’s character which end up “pass[ing] moral judgment on the victim rather than bringing her any justice.”

Sangeeta Rege at Mumbai’s Cehat (Center for Inquiry into Health and Allied Themes) has been recording the wide prevalence of the finger test at two large, government-run hospitals catering to hundreds of impoverished, illiterate rape survivors every year.

“We are working towards introducing international protocols in evidence collection in rape cases in the two hospitals,” said Rege. She said it is slow going.

Meanwhile, the finger-test crusade is spreading to India’s smaller cities. In rural Maharashtra state, forensic expert Dr. Indrajit Khandekar, authored a report linking finger-test evidence with legal outcomes. The report is the basis of a public interest litigation filed in March that that contends that culprits in many sexual assault cases are acquitted because of faulty medical evidence.

A successful campaign to do away with the finger test would be a victory for those fighting against the horrific ritual. More importantly, said Rege, “Doing away with the barbaric test would shield rape victims from unnecessary stigma.”