By Kavitha Rao
Thursday, October 21, 2010
The two-finger rape test in India is physically invasive and contradicts legal standards against using a victim's previous sexual experience against her. A rights group is calling for a ban and a lower court ruled that it should be stopped.
NEW DELHI (WOMENSENEWS)--In late September a lower court in New Delhi ruled that a rape test decried by Human Rights Watch earlier that month was obsolete and should be stopped.
The court also directed the government to take "appropriate action," but Aruna Kashyap, a women's rights researcher at Human Rights Watch, says she's seen nothing yet.
"Government bodies have told me they would look into it and nothing's been done so far," she said. "Some government officials and judges are sympathetic, but there is a hierarchy amongst Indian bureaucracy and it moves really slowly."
The two-finger rape test involves a doctor inserting fingers in a rape victim's vagina to determine its "laxity" and decide if she is "habituated to sex." Defense lawyers often use this evidence to discredit the testimony of unmarried rape victims, who are dismissed as "loose women."
"The issue of rape is so entangled with the victim's character that doctors think that they have a duty to comment on it through so-called medical evidence," said Flavia Agnes, an activist with Majlis, a Mumbai-based women's group. "In most rape trials, public prosecutors do not actively protect the victim against such slander."
Human Rights Watch issued a report on Sept. 6 calling for a ban of the test after its staff interviewed women who had undergone the test, activists, lawyers and doctors. Researchers also analyzed 153 court judgments that referred to the finger test.
"This test is yet another assault on a rape survivor, placing her at risk of further humiliation," said Kashyap.
The Indian government amended its evidence law in 2003 to prohibit cross-examination of survivors based on their "general immoral character."
The Indian Supreme Court has described opinions based on the finger test as "hypothetical and opinionative" and has ruled that they cannot be used against a rape survivor. The World Health Organization guidelines also say that forensic examinations should be minimally invasive.
Some hospitals in India have banned the test on their premises. But despite the rulings and prohibitions, many unmarried rape victims continue to undergo the two-finger rape test in the absence of a government ban.
In practice, there are no standard forensic examinations for rape victims in India and much is left to the discretion of doctors, lawyers and judges.
"The fact is that the government believes in the value of the two-finger test, as do most doctors," said Padma Deosthali, a coordinator for the Center for Health and Allied Themes, a Mumbai-based nonprofit for victims of sexual abuse.
Deosthali says the entire system is set up to disbelieve any woman who complains of sexual assault, which is why the test has survived for so long.
"Doctors and forensic scientists have absolutely no training on how to deal with rape victims," she said. "Victims are dumped in busy labor wards, with doctors who have no time to examine them. There is often no counseling or treatment."
The states of Maharashtra and Delhi continue to recommend the finger test in their forensic examination guidelines. The Delhi forensic template even asks the examining doctor to give an opinion on whether the survivor is "habituated to sex."
Dr. D.S. Dhakure, director of health services in the state of Maharashtra, refused to respond to questions on why the two-finger test is still being used.
The National Women's Commission, a government body set up to protect women, said it was looking into the matter.
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Kavitha Rao is a Bangalore-based journalist and writes for the Guardian, the New York Times, Time and several others. Her Web site is at www.kavitharao.net
Dignity on Trial, Human Rights Watch report: