India should criminalize the use of 'virginity tests'
The Supreme Court of India could ban the so-called “virginity tests” in cases of rape and sexual assault.
**Warning: This article includes descriptions of rape that might be disturbing for some readers.**
Credit: Alejandro Ospina
In October 2022 the Supreme Court of India delivered a judgment in the case of the State of Jharkhand v. Shailendra Kumar Rai (2022). The two-judge bench, comprising Justice DY Chandrachud and Justice Hima Kholi, held that the practice of the so-called “two-finger test” in an alleged rape and sexual assault case was a “regressive and invasive test” and it had “no scientific basis and neither proves nor disproves allegations of rape.”
This “virginity test” is an examination of female genitalia to assess the examinee’s sexual history through the presence or absence of a hymen and the laxity of the vagina. The practice is used in many communities to separate “pure” from “impure” females, for military selection, and in determining rape or sexual assault allegations. The practice is or was prevalent in Asian countries, including Afghanistan, Bangladesh, India, Indonesia, Iran, Pakistan, Sri Lanka, and Tajikistan.
This eighteenth-century colonial test is crude and unreliable and underpins much of the discrimination, harassment, and social hostility toward rape survivors. Moreover, medical literature suggests that the test doesn’t have merit. Bioethics studies have argued that this immoral practice surpasses what is necessary to criminalize medical malpractice and prosecute an individual case of sexual assault.
In India the test is used to transform the testimony or allegations of sexual assault or rape into statements of consensual sex on the premise that the survivor was “habituated to sexual intercourse,” suggesting the moral impropriety of the victim. According to the Human Rights Watch Report of 2010, medical institutions in India routinely subjected rape survivors to such tests during forensic examinations. The report analyzed 153 Indian High Court decisions concerning rape allegations across the country and highlighted that many courts used the findings of this test to comment on the character of the women, often calling them “women of easy virtue.” Another study found that 74 cases out of 160 determined by High Courts in 2010 specifically deliberated on the results of the test.
The test has been declared unscientific and medically unnecessary by the WHO and the UN, but it was still practiced by many medical officials in India and recognized by the Indian Courts in determining testimonies. Pratiksha Baxi, a feminist legal scholar, argues that “all rape victims irrespective of age are subjected to an invasive mimicry of the act of sexual violence via the technique of two-finger test.”
The case and the court’s rationale
In the case of State of Jharkhand v. Shailendra Kumar Rai (2022) , the Medical Board conducted the test on a minor rape survivor to determine whether the survivor had repeatedly engaged in sexual intercourse or not. The accused had also set the rape survivor on fire after the sexual assault and, later, the survivor succumbed to their wounds. Previously, the High Court of Jharkhand ruled out a conviction of life imprisonment based on medical testimony and witness statements.
In its decision the Supreme Court noted that the test “re-victimizes and re-traumatizes” women who may have faced sexual assault and is an “affront to their dignity”. Additionally, the court referenced an earlier case, which held that the two-finger test violates the right to privacy, integrity, and dignity, and that rape survivors are entitled to legal recourse that “does not re-traumatize them or violate their physical or mental integrity and dignity”.
Furthermore, the court observed that the test is based on the incorrect assumption that a sexually active woman cannot be raped and, thus, a woman’s sexual history is wholly immaterial to determine the allegations of rape or sexual assault. J. Chandrachud further noted that the two-finger test is patriarchal and sexist because it aims to declare that a woman who is sexually active cannot be believed when she alleges sexual assault. Most notably, the court issued guidelines to the Union Government of India and the State Governments to ensure that the two-finger test is not prescribed while examining survivors of sexual assault and rape.
The criminalization of the test
The persistence of the two-finger test, despite its being declared unconstitutional in 2014, reflects that the mere pronouncement of its unconstitutionality was not sufficient to protect rape survivors from revictimization and retraumatization. Thus, the criminalization of the use of the test by medical practitioners nationwide was imperative, with social reforms to dismantle the patriarchal and sexist perspective behind the test. The Supreme Court held that any medical practitioner who conducts a two-finger test while examining an individual alleged to have been subjected to a sexual assault in violation of the court’s directions shall be guilty of misconduct.
Under international human rights instruments, the use of the test under the disguise of a medical examination is cruel, derogatory, and violates Article 7 of the International Covenant on Civil and Political Rights (ICCPR) and Article 5 of the Universal Declaration of Human Rights (UDHR), respectively. Article 7 of the ICCPR specifically prohibits any medical or scientific experimentation without “free consent.” Further, the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) obligates that survivors of sexual assault are entitled to legal assistance and that state parties take measures to minimize inconvenience to victims and protect their privacy. Likewise, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), under Articles 2(d) and 2(f), prohibits all forms of discrimination against women and, under Article 5(a), stipulates that the state parties ought to eradicate prejudices and customary practices that stereotype people or groups. However, the conception and commission of the test itself are structured on the stereotype that women don’t engage in sexual activity until they are married.
The revictimization and psychological trauma caused by the test are severe and might contribute to increased depression, anxiety, and mental harassment. Scientifically, the test also doesn’t give rise to the presumption of consent by the survivor.
Therefore, the criminalization of the two-finger test would not only protect the victim’s rights but will also bring India into conformity with its international obligations as a state party to the above-mentioned international instruments. The Indian legislature should take into consideration the court’s directions and introduce a bill or amend the existing statutes, penalizing the practice of two-finger tests by any medical practitioner for any purpose.
Sarthak Gupta is a BA, LL.B. (Hons.) student at the Institute of Law at Nirma University, India. His scholarly interests are in constitutional law, human rights and gender studies, and international law. He is a staff writer and associate editor of JURIST at the University of Pittsburgh, Pennsylvania.