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A critique on the perverse adherence to the two finger test

Updated on June 9, 2015

“The finger test, which is a standard practice at the One Stop Crisis Center-Dhaka Medical College Hospital, is a practice that involves the doctor inserting one or more fingers into the rape survivor’s vagina, to note the presence of absence of the hymen, the laxity of the vagina, and vaginal tenderness. Where a medical report submitted to the court notes that the victim was “habituated to sex”, that finding is generally based on the so -called laxity of the victim’s vagina, as measured by the finger test”

- BLAST Exploratory Study by S.M. Rougerie

This particular discourse has as its object to question and prod the validity of the two finger test, used to determine the veracity of complainants of sexual assaults, especially rape. Having been employed over the decades as a litmus test when it comes to complaints of rape, this seemingly “medical and scientific” examination has grown deep roots into the criminal legal justice and medical landscape, very adamant to nest and breed, feeding off of our ignorance of the utter irrationality of it and terrible plight of victims of rape.

This wilful blindness is present not in just the localised region of one country that is Bangladesh but is prevalent throughout many other nations as well, which only goes to show that even in the 21st century many legal and medical communities are so regressive that they operate under this very presumption that a woman who is habituated to sexual intercourse is more likely to have consented to the alleged rape than not.

This is without a modicum of doubt not legally tenable as for one instance the victim might have been a married woman, who conceived and birthed multiple of time, a sexually active unmarried woman or even a sex worker. Moreover it is a conceded fact in the medical society that the hymen can tear due to a smatterings of reasons starting from menstruation, sickness and vigorous exercise inter alia.

Historically the two-finger test was considered a touchstone for the determination of chastity and virginity of a woman. But speaking more in the contemporaneous context, leaving matters of theology and ones spirituality aside, virginity of a woman, any woman for that matter, might not be a given before their marriage. Now this test is used to determine the ‘chastity’ of the complainant, grounding finding of easy virtue and promiscuity of the complainant on the looseness of her birth canal, irrespective of the fact as to whether she is married or not. This test is in fact a rule of thumb when it comes to proceedings regarding sexual offences. And to complicate matters even more so, many of the victims of sexual offences are minors, girls who have just stepped into the pubescent stages of their lives, unaware that a target has been laced on them.

Before we delved into the technicalities and the legalities of it all, the first point of order is the much due congratulating and commendation of the Indian Supreme Court, who in a landmark decision (Rajest & Anr. vs State of Hariyana 2013) has ruled that the two finger test and its interpretation violates a rape survivor’s right to privacy, physical and mental integrity and dignity in the light of the International Convention on Economic, Social and Cultural Rights 1966 (ICESCR) and United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985. In addition in the Indian case of Narayanamma (Kum) v State of Karanataka (1994) it was ruled that the two finger test cannot be used against a woman so as to impugn her credibility as a witness. Further development in the context of dispensing with the two finger test was seen in the United Kingdom as early as the 1970s where a handful of ministers recorded a formal apology to complainants of sexual offences for the finger test. Thus it is submitted that its high time Bangladesh followed suit.

Strictly on the point of relevance, the prior sexual behaviour of the victim does not factor in to whether or not she was raped in one particular instance with the defendant, which is the subject matter of the charge.

The fact that the victim was of easy virtue and promiscuous character does not go to show us that intercourse in this particular instance was consensual. This is the sine qua non of trail for rape; everything more or less hinges on consent of the victim to the sex. But living in many societies where the norms, whether legal or moral, projects that sex outside marriage is immoral and a promiscuous loose woman is more likely to have given consent to just about every other men, warding off the damaging negative predisposition of the justices who are supposed to be the living embodiment of what is just and fair and conscionable, is admittedly quite the task.

There are a lot of factors that weigh in, in the failure of the Bangladesh Criminal Justice System to deliver justice in a sensitive tailored manner, to victims of sexual offences. It is quite indispensable that medical tests need to be performed of such complainants but where we need to differ is as to how we define such necessities.

Tests recording the observations of the extremities of the victim by trained medical practitioners is one that fits into the correct definition of a necessity. This encompasses recording of any physical injury, scars, cuts and bruising and also of any tear of and on the victim’s sexual organ and rectum as well. But the use of the two-finger chastity test, might not.

If such tests are performed and observations recorded immediately after the assault, and it is not being stated that they are typically, such evidence can have a much probative value in the trial to come. Furthermore, tests collecting DNA samples left by the defendant on the victim also goes on the adjudication of the trial in a manner that is not harassing and traumatic to the victim. However, stating the obvious, such an advancement in forensics where convictions are found upon DNA evidence of perpetrators of crime might be too far-fetched in the context of Bangladesh, which had to have its tests done by seeking foreign help rather than having a state of the art lab of its own. Whatever Bangladesh’s failures in terms of medical advancement, this does not justify using the test of two finger “chastity” test upon complainants of rape.

Rape is defined in a gender biased manner in Section. 375 of the Bangladesh Penal Code of 1860 and the punitive sanctions for rape has been revamped, quite recently in terms of legal years, by the Nari O Shishu Nirjaton Daman Ain 2000 (or the Suppression of Violence against Women and Children Act 2000) in Section 9, which opts even for a death penalty in cases of rape-murder- Section 9(2). Stating the law is a mere formality in this exposition but serves to the extent of making the ever so banal point that we have the laws (rather stringent as compared to other legal systems- a man is deemed of having raped a girl below 16 years of age, which is the legal threshold for consent, even if consent was given- S.375 (5) of the Penal Code 1860) but what we lack in its enforcement due some factors which are dismissed as trivial or used rather zealously-the two finger test comes to mind.

S. 32 of the NSA 2000 provides that where any victim of the offences covered by the 2000 Act presents themselves in the hospital, it is incumbent upon the doctors to carry out a medio-legal examination on them with post haste. Guidelines as to how to carry out such medical examinations were published and the form to record the findings of such tests were released pursuant to this provision but it is axiomatic that they were not formulated or even applied in practice in a gender sensitive manner.

On a more important note, equality rights declaration and assurance found in some of the most seminal provisions of the Constitution of Bangladesh, however, do factor in on the object of this essay.

Article 27 of the Constitution provides for equality before law and entitlement to equal protection by the law. Concomitantly, Article 28 prohibits discrimination on the grounds of sex. The two finger test is grossly discriminatory to women and is the utmost violation to the privacy of one alleging to be the victim of a sexual assault. It is not only that discrimination is found regarding the use of this test in our courts but the mentality of those involved in the conducting and recording of such medio-legal evidences lack some basic commonsensical knowledge.

The two finger test itself has many varied validity and practical concerns which is to be voiced only after pointing out the lacking, overall, of the nature of evidence collection that are performed on a victim of rape.

In first point of order, absence of signs of force and injuries on the extremities of the victim are always taken as a big negating factor on the possibility of rape. However a study published in the British Journal of Obstetricians and Gynaecologists, 1999, by one Bower Dalton report the findings that in 2/3rds of the reported sexual assault cases, injuries on the victim indicating force are absent. In Bangladesh absence of physical injury is actually downplayed but ironically due to the fact that rape complaints are officially made long time after the actual day of incident (which makes the finding of signs of force an unlikely contingency), whereas it should have been due to the realisation that rape might happen not only forcefully but also by making of threats of violence or promise to marry thereafter (i.e. any other forms of duress that can make a victim acquiesce unwillingly).

In furtherance, the format in which the data of tests and the specific type of data is recorded or not recorded makes it a hindrance to the dispensing of swift and firm justice. In the government issued forms (issued by the Directorate of Health in 2007, a standard form for the collection of medical evidence pursuant to guidelines issued by the Ministry of Health in February, 2007) where the findings of the medical tests performed are to be recorded, we find spaces for the recording of size, nature of the victim’s breasts, thighs and presence of pubic hair which has no bearing on the issue of consent. Rather than being a trial for rape it seems that the chastity/promiscuity of the complainant has rather become ‘the’ issue.

Further signs of want of commitment to efficacy is the fact that no spaces are provided for the recording of activities of the victim such as bathing, washing, disinfecting and urinating after the commission of the rape which leads to loss of valuable evidence; no space to record any other form of sexual behaviour other than rape is found in the form, that little or no training is provided to the medical practitioners as to how to fill in the forms regarding the description of injuries and their medical opinions.

Practical and validity concerns about the two finger test:

Proceedings for rape can be initiated either by issuing a First Investigation Report (FIR) in the relevant police station or by filling a complaint to a magistrate. In the context of criminal proceedings brought on by filing a FIR, medical examination or more correctly the two finger test is conducted as a matter of course before proceeding to the trial. And hence due to that matter of course nature in which this test is approached, consent of the victim to this invasive test is taken as a matter of course as well. Thus the employing of the two finger test is just one of those creatures of habit turned into a practiced norm, even though it does not have any legal or logical basis to be employed as such, which has resulted in the fact that such tests are routinely conducted in rape cases notwithstanding how long after the incident the complaint has been officially filed. This is done heedless of the fact that such an invasive test simulates actual penetration which can leave an already traumatised victim even more so.

On that note, Dhaka Tribune on the 1st of October 2013, reported that a father from Tangail of a minor girl, who had been raped, was dis-incentivised from making any formal complaints after learning about the invasive test that would be performed on his little daughter.

Furthermore, the government issued stationery in which such medical evidence is to be recorded does not explicitly provide for the victim to either express or decline her consent to any of the aspects of the procedure. The form itself provides minimal detail what the victim consents to and whether or not such consent obtained has to be truly free and informed. And the cherry on the top, is the fact that rarely it is the case that such procedures are carried out by MALE medical practitioners, whereas in such situations a much more feminine and sensitive touch is warranted.

Even we were to proceed on the premise that two finger test had some value, many of the practical issues would render even such unexpectedly found validity a nullity.

One issue is that rarely do doctors agree to take the take the time to come and testify in court as they would be losing valuable working hours without being remunerated. Whereas expert witnesses testifying in courts abroad, are often remunerated for lost working hours.

In addition, such tests are not available at the sub-district level where the incidents usually take place. One more hindrance to the usefulness (if there can be any) of the two finger test, or in fact any medio-legal procedure is the informal village mediation (salishes) that makes an attempt at adjudicating complaints of rape and ends up losing valuable time by which the complainant should be tested for signs of assault and other incriminating evidences. As a rule of thumb complainants should be tested within twenty-four hours of the rape, beyond which valuable evidence which might substantiate her allegations are lost.

This is further compounded by the fact that the victims themselves are not aware as to what to do after having been raped, so much so that they only ends up complaining to the authorities after such salishes produces no results (which can be expected in the general scheme of such events. In fact BRAC paralegals, who dispense with legal assistance and education at the local community level, are only authorised to tender rape allegations to the state justice system in view of the gravity of such events, as opposed to any other issues which they try to settle amicably through mediation.) The failure of salishes are also attributable to the fact that many of the accused are found to be quite influential within their locales and gets off with merely a slap on the wrist, without any consolation to the victim whatsoever.

Having prodded the validity concerns of the two-finger chastity test, it is behoving that we visit the handful but noise making initiatives taken to cull this utter atrocity.

On the 8th of October of 2013, BLAST and a smattering of other influential NGOs served a writ petition on a number of government agencies starting with the Ministry of Health and Family Welfare to Ministry of Home Affairs, Directorate of Health Services, and Department of Forensic Medicine of Dhaka Medical College etc. instigated the High Court of Bangladesh, to charge the respondents to give reasons as to why not the two finger test as a medio-legal examination should not be declared invalid?

As a result, two days later on the 10th of October 2013, the High Court made its ruling, directing the respondents to form a committee within three months, that was to come up with uniform protocol laying guidelines, which was to be followed by all the practitioners when performing tests on victims of sexual offences.

As with all things to do with the government, the committee took its time to finally get things going and had their very first meeting on the 12th of January 2014 only after they had been cajoled quite extensively by BLAST and the other petitioners. The results of the sit down was quite unanticipated, as the participants representing the government seemed to be quite acquiescing to the allegation that the two finger test was not legally justifiable and made discussions about the terms of its change. But one matter of clarification is this that doctors and feminists view the ‘two finger test’ differently, which in medical terms is called the bi-manual test. Some of the doctors, particularly Dr. Ferdousi Islam was adamant that the test cannot be completely dispensed with, as was our expectation after the High Court’s ruling. But rather it was to be reserved for the most dubious claims of sexual allegations, as sometimes the laxity of a woman’s birth canal do hint as to whether or not she is speaking the truth.

In closing remarks, the empire of Rome was not built in one day and so would not be the ideal utopia of a Bangladesh. The object of this discourse was to sensitise the readers as to the plight the victims of rape face even after their horrifying ordeal. We do not claim that men and woman should have an equal footing; psychologically, physically, we have not been built the same. But what we can opt for what is EQUITY in between the two sexes, so that both have the right to be served with dignity, with humility, with respect to the seminal right to their physical privacy. The fact of the matter remains that the stench of discrimination still hangs in the unsettled air. This perverse adherence to the two finger test is yet another violence against women that needs to be culled, leaving one to ponder as to why the strikingly effective NSA 2000 did not opt for its removal.

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