This is not the first time that the “two-finger test” has come under scrutiny.In a progressive call, a bench of Justices DY Chandrachud and Hima Kohli on Monday called the “two-finger test” conducted on victims of sexual violence regressive, unscientific and offensive to the dignity of women. Calling the practice patriarchal and sexist in its assumption that a sexually active woman cannot be taken at face value when she complains of rape, the Court said those found indulging in the practice will be guilty of misconduct. The justices made the comments in a restorative order upholding the conviction and sentencing of a man for the rape and murder of a minor girl in Jharkhand in 2004, who had been subjected to a “two-finger test” by a hospital medical board. The test, also called the “virginity test”, has had a long history of misuse, especially in the subcontinent, where patriarchal norms continue to guide most institutional frameworks and where the onus of making herself heard, more often than not, lies with the victim.
In a society yet to come to terms with women’s agency — economic, sexual or social — sexual violence is often accompanied by victim shaming, a shifting of the culpability on the woman for the transgressions of the perpetrator. Over and over again, women have been told that boys will be boys, that they were asking for it, that they ought to have been more, or less — more careful, more demure, less visible, less out there. In such a scenario, the “two-finger test” has played out as an effective instrument of moral judgement. Conducted by doctors to determine whether the complainant is habituated to sexual intercourse, it has been used as a yardstick to ascertain the veracity of the victim’s claims, despite its lack of scientific validity.
This is not the first time that the “two-finger test” has come under scrutiny. The Justice JS Verma committee, set up after the 2012 gangrape incident in Delhi, had recommended its banning. In 2013, the SC had called the test out for its violation of privacy. The Criminal Law (Amendment) Act 2013 stipulates that a victim’s character or her previous sexual experience should not be relevant to the issue or the quality of consent in the prosecution of sexual offences. Yet, the failure of states to prevent the use of the two-finger test points not just at the inadequacy of dissemination of information and education of all stakeholders of justice, but also at the pervasive miasma of ignorance and patriarchy. Perhaps there is a lesson here to look at the bigger picture — a stringent legislature alone cannot fix what is broken till there is change in gender relations from the grassroots up — not as part of a hierarchy, but as equals.