In this article, Shraddha Patidar and Shweta discuss the how to complain against doctors who try to perform two finger test while medically examining rape victims.

Introduction

The two-finger test, also known as the virginity test, originated back in the 18th century. It allows the doctors to inspect the victim’s hymen to verify her claim of rape. As an aftermath of the Nirbhaya gang rape case, the Ministry of Home Affairs (MHA) has laid down certain guidelines for medical practitioners who handle sensitive issues like rape cases or sexual harassment. They are required to adhere to these guidelines that are mandated by the Ministry. These guidelines were issued on July 25th, 2017 which states that the doctors are not only required to provide medical treatment to the victim but also a much needed psychological support.

• The two-finger test is conducted by the doctors to determine if the woman has been raped or not.
• It involves an inspection of a woman’s hymen. The doctors assume that her hymen can only be torn if there has been a sexual intercourse.
• It involves a doctor inserting two fingers in a victim’s vagina to determine the laxity and decide if the victim is habituated to sex.
• On the basis of this test, begins the character assassination of the victim. If the report shows that she was habituated to intercourse then it is presumed that she must have consented to the act and thus her allegations are baseless and false.
• The test has been ruled out by WHO as it is an obsolete criterion for the sexual assault examination. The assumption that a woman’s hymen can only be torn as a result of sexual intercourse is itself faulty because the hymen can also be stretched due to physical activities such as horse riding, cycling etc.
• In September 2010, Human Rights Watch urged the Indian Government to ban the two-finger test as a medical examination of rape victims and to respect the victim’s rights to privacy, health, and dignity.

Judicial Stand on the Issue of ‘Two-finger’ Test

In the case of Lilly@ Rajesh and Vs. State of Haryana, the Supreme Court stated that the two-finger test conducted on rape victim violated her right to privacy, physical and mental integrity and dignity. Let’s take a look at the findings of the court

• The bench of Justices B.S. Chauhan and F.M.I. Kalifulla asked the government to provide better medical procedures in order to confirm the victim’s claim of sexual assault. The bench said that the State is under an obligation to provide such services to the victims of sexual assault. They should ensure the safety and see that there is no arbitrary or unlawful interference with the privacy of the victim.
• The bench said that if the result of the test is affirmative, it does not give rise to the presumption of consent on the part of the victim.
• The bench referred to International Covenant on Economic, Social, and Cultural Rights 1966 and the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985 and stated that the rape survivors are entitled to legal recourse which does not result in re-traumatizing them or violate their physical or mental integrity and dignity.
• The bench stated that medical procedure should not be cruel, inhuman and they should not degrade the treatment. The health of the victim should be given paramount consideration while dealing with this types of violence.
• Furthermore, the court relied on the following cases namely, Narayanamma (Kum) v. State of Karnataka & Ors., State of Uttar Pradesh v. Munshi and in Narender Kumar v. State (NCT of Delhi) in which the Supreme Court had held that the admission of two finger that gives an insight into the history of rape survivor’s sexual intercourse does not give clear indication of her being used to sexual intercourse and even if she is habituated to it, that does not give a licence to anyone to rape her.

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The Guidelines and protocols for Medico-legal care for survivors/victims of sexual violence

The Ministry Of Health and Family Welfare, Government of India issued certain Guidelines and protocols for Medico-legal care for survivors/victims of sexual violence. The Guidelines provided that:

• The Per-Vaginum examination commonly known as the “two-finger test” should not be conducted.
• The size of the vaginal introitus has no bearing on the case of a sexual violence and the pre vaginum examination can be done only on adult women when medically indicated.
• The guidelines also provide that the status of the hymen is irrelevant as it can also be torn due to other things such as cycling, riding among other things. An intact hymen does no rue out the sexual violence and the torn hymen also does not prove sexual intercourse.
• Hymen should be treated like any other part of the genitals while documenting examination findings in sexual violence cases.
• In the case of assault, only relevant findings such as fresh tears, bleedings, edema etc are to be documented.
• The guidelines directed that in cases of sexual violence more focus should be on the testimonies of the victim and the witness rather than the physical examination to check for injuries to the genital area.

Two finger test still continues in India

There have been many instances which show that doctors in some states of India are still using two fingers test conduct examination on sexual violence survivors despite it being banned.

• A social development society, Jan Sahas, studied the records of 200 group rape trials and found that the two fingers test was used on 80% to determine rape.
• A micro survey was conducted in Lucknow where it was found that out of 10 rape, including 5 minors, all of them had to go through the two fingers test.
• In 2016-17 the outdated test was conducted in almost 179 rape cases involving children in Chennai.
• Last year Human Rights Watch released a report according to which rape victims in Rajasthan hospital had little access to support services and the doctors there were still performing the two fingers test.
• In Madhya Pradesh, a girl was raped by her father, after reporting the rape the doctor noted that she was likely pregnant but they still conducted the two-finger test. The test was completely contrary to the guidelines which were adopted by the Madhya Pradesh guidelines.

How to complain against doctors who try to perform Two finger test

Complaint to the Medical Council of India

A complaint can be filed against the doctor who tries to performs the two-finger test during the medical test of rape victims to the Mecidal Council of India. The victim can file an online complaint here at the Medical Council of India (MCI). The aggrieved party can lodge a complaint and can send their feedback by entering their name, the subject, email address along with the complaint/feedback description in the form

The following procedure needs to be followed

• When there is any professional misconduct by any medical practitioner who is registered under the Indian Medical Council, the appellate can file a complaint to the State Medical Council in order to initiate inquiry and action against the doctor. State Medical Council would then hold an inquiry and also give an opportunity to the respondent to be heard.
• The Council has to take a decision against the Medical Practitioner within a time limit of 6 months. When the complaint is pending, the council may restrain the physician to perform the procedure which is under scrutiny.
• If the Medical practitioner is found guilty, the State Medical Council may award punishment to the practitioner as per the regulation.
• If the State Medical Council does not take any decision within the time limit of 6 months then the Medical Council of India may impress upon the State Medical Council to conclude and decide the complaint within a bound schedule or it may decide to withdraw the complaint and refer it to the Ethics Committee of the Council for its expeditious disposal in a period of 6 months.
• The person aggrieved by the decision of the State Medical Council can file an appeal to the Medical Council of India within a period of 60 years.

Complaint to the Consumer Courts

Though the Indian Medical Council Act has to provide for controlling the medical practitioners and take disciplinary action against erring doctors, Consumer Courts act as an additional remedy to the consumer under Consumer Protection Act 1986 to get compensated. One of the requirement to constitute a case of Medical negligence against a doctor as per the law is that when a doctor performs a treatment which is not accepted and established in medical norms as per medical research or the available medical literature. Two fingers test is also not accepted and established in the medical norms.

The following procedure should be followed

• A complaint needs to be filed in the District Consumer Disputes Redressal Forum if the value of services and compensation claimed is less than 20 lakh rupees and when the value does not exceed 1 crore it can be filed before the state commision. If the value exceeds more than 1 crore rupees, the National Commission needs to be approached.
• The forum can summon both the parties and make the case
• Only monetary damages may be claimed under the Consumer Protection Act and no criminal liability will arise.

How two-finger test constitutes rape

Vide the Criminal Law (Amendment) Act, 2013 (Act 13 of 2013), the Legislature has sought to give a broader meaning to the offence of ‘rape’. Accordingly, while the earlier definition of rape was confined only to an act of sexual intercourse, the amended definition of rape as mentioned in 375(d) also includes:
‘insertion, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or making her to do so with him or any other person’
During the medical examination of the rape victim, if she denies or does not give her consent to the ‘two-finger test’ and the doctor still continues and conducts the test on her, then in such a case, the act of the doctor would amount to the offence of rape as it will be covered under section 375(d) of IPC which states that insertion of any object or any part of the body apart from the penis, without the consent or against the will of the person amounts to the offence of rape.
Therefore, a rape survivor upon whom the test was conducted by a doctor without her consent can file an FIR against such doctor, charging him under section 375(d) IPC.

Conclusion

Two fingers test is inhuman and an unscientific test and no rape survivor should have to go through it in order to prove their claim of rape. Medical specialist and social workers say that it amounts to Re-Rape of the victim. It not only violates the right of privacy of the victim but it also affects her mental, physical and ethical status. The two-finger test is even performed on young and pre-pubescent girls who do not have any idea about what’s going on with them. Such a test should be strictly prohibited by the government by enacting amended laws which are to be uniformly applied over the country. A comfortable environment should be created for the victim so that she is able to speak out. Medical procedures should not be carried out in a manner that constitutes harsh, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender-based violence.

Certain alternatives can be used instead of the two fingers test, for example, the DNA test can be used to find the evidence in case of rape. Both U.S.A and the U.K use Sexual Forensic Evidence (SAFE) kit and only a Sexual Assault Nurse Examiner (SANE) is allowed to collect DNA evidence from the victim’s body.