Making a woman's sexual experience the basis for judging her moral character can have a disastrous impact not only on a rape trial, but more importantly, on the victim's well-being. Stereotypes about sex and morality are continually evoked in Indian courts at all levels. In 2009, the Supreme Court stated the victim “appears to be a lady used to sexual intercourse and a dissolute lady.” Acquitting the accused for lack of medical evidence, the Patna High Court said, “Though the girl was aged about 20 to 23 years and was unmarried, she was found to be “habituated to intercourse.” This makes her to be of doubtful character.”
The observations are from a report titled ‘Dignity on Trial: India's Need for Sound Standards for Conducting and Interpreting Forensic Examinations of Rape Survivors' by the organisation Human Rights Watch (HRW).
Released on Monday, the report “discusses the problems posed by one of the most archaic forensic procedures still in use: the finger test — a practice where the examining doctor notes the presence or absence of the hymen and the size and so-called laxity of the vagina of the rape survivor.”
It's a procedure that mimics the act of rape, further aggravating the victim's trauma. Terming it “degrading,” “inhuman” and “unscientific,” the study calls for a ban on the finger test as a method for collecting medical evidence in rape cases. “[It] is supposed to assess whether girls and women are ‘virgins' or ‘habituated to sexual intercourse.' Yet it does none of this,” the report states.
At a press conference here on Monday, Aruna Kashyap, women's rights researcher at HRW and author of the report said, “The test has potential for re-traumatising the victim. We decided to do a report on the finger test because of certain regressive developments in the country recently.”
“The Maharashtra and Delhi governments continue to recommend the finger test in their forensic examination templates. For example, in June 2010, the Maharashtra government introduced a template that includes a series of questions about the hymen, including the number of fingers that can be admitted into the hymenal orifice,” she said.
The apex court has described the test as “hypothetical and opinionative.” Secondly, “it has clearly and repeatedly held that showing that a survivor is ‘habituated to sexual intercourse' is immaterial to the issue of consent in a rape trial.”
Despite these rulings, opinions on the victim's sexual experience are routinely sought. They play a role in shaping the attitude of the police, medical professionals and courts.
Ms. Kashyap said the root of misinformation lay in outdated textbooks on medical jurisprudence. “The Supreme Court's decision on the test should be included in the textbooks,” she said.
Absence of definition
“The absence of a comprehensive definition of sexual violence in Indian law has also hindered the prosecution of various sexual offences, resulting in acquittals or inadequate punishments for convicted criminals,” it observes.
Pointing to the rigidity of the criminal justice system, noted women rights lawyer Flavia Agnes pointed to the functioning of a deeper ideology. “Non-biased legal opinion is always biased against the woman. As if medical status has a moral character. Virginity becomes a criterion for truthfulness or character? Is it the same with, say, anaemia?” she asked.
World Health Organisation (WHO) guidelines stipulate minimally invasive procedures and “non-invasive” ones for prepubescent girls and boys. The report stresses the need to train and sensitise medical professionals in collecting and documenting forensic evidence in sexual offences. This report is based on HRW's research between April 10 and August 10, 2010, in Delhi and Mumbai.
The observations rest on 44 interviews with activists, rape survivors and their parents, prosecutors, other lawyers, judges, doctors and forensic experts in Mumbai and Delhi.