Ban Two-finger Test On Rape Victims: Madras High Court Orders Tamil Nadu Government

The Madurai Bench of the Madras High Court has directed the Tamil Nadu government to ban medical practitioners from conducting the controversial two-finger tests on victims of sexual assault.

A division bench of Justices R Subramanian and N Sathish Kumar said: ¡°It has been a common practice for doctors to perform the two-finger test on victims who have been subjected to rape, particularly on minor victims. It is unconstitutional.¡±

What is the case?

The court was hearing an appeal by a man named Rajiv Gandhi from Pudukottai, challenging his conviction and sentence by the Pudukottai Mahila Court in 2021.

He was awarded a life sentence under the Protection of Children from Sexual Offences Act for the rape of a 16-year-old, and seven years¡¯ imprisonment under section 363 of the Indian Penal Code (IPC) for kidnapping.

PTI

According to the prosecution, Gandhi had befriended the girl who came to him for training at his tailoring shop and later abused her sexually.

The minor¡¯s father lodged a complaint with the police after she allegedly went missing.

She was found with the man later and was subjected to the two-finger test to confirm rape.

The counsel argued that the girl had given her consent to sex and it cannot be counted as rape. However, the additional public prosecutor? submitted the girl is a minor and so the consent is invalid.

The judges held that the fact that the girl did not make an attempt to escape showed the conviction for kidnapping was not justified and set it aside.

The judges modified the life sentence to 20 years¡¯ rigorous imprisonment.

Violation of the right to privacy

Quoting a Supreme Court order of 2013, the additional public prosecutor and the appellant¡¯s counsel submitted the test was conducted unconstitutionally and it violated the girl¡¯s right to privacy.

Representational Image

The Supreme Court judgment held that the two-finger violates the right of rape survivors to privacy, physical and mental integrity and dignity.

The judges held it was necessary to ban the practice in the state.

According to the World Health Organisation, neither inserting two fingers inside the vagina to check if the hymen is intact or not, nor inspecting the size of a vaginal opening and tears in the hymen can prove that a woman has had sexual intercourse. The technique is practised on the assumption that a hymen can be torn only because of sexual intercourse.

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