For a rape survivor, trauma comes in repeat doses. First, there is the gruesome act and then follows the difficult task of reporting the assault. For years, an impediment to coming forward about a sexual offence has been the finger test a survivor is subjected to — a gross violation of privacy, a horror upon horrors. On Monday, the Supreme Court of India moved to make amends, declaring that any person conducting the invasive “two finger” or “three finger” vaginal test on rape or sexual assault survivors will be found guilty of misconduct. Calling it regressive, the Bench led by Justice D.Y. Chandrachud said, “this so-called test has no scientific basis and neither proves nor disproves allegations of rape. It instead re-victimises and re-traumatises women who may have been sexually assaulted, and is an affront to their dignity”. The apex court said whether a woman is “habituated to sexual intercourse” or “habitual to sexual intercourse” is irrelevant for the purposes of determining whether there has been a rape under Section 375 of the Indian Penal Code. The test, it said, is based on the incorrect assumption that a sexually active woman cannot be raped; and “it is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped”.
The Court pointed at a legislative measure of 2013 when Section 53A was added to the Indian Evidence Act which clearly said that the “evidence of a victim’s character or of her previous sexual experience with any person shall not be relevant to the issue of consent or the quality of consent, in prosecutions of sexual offences”. The Ministry of Health and Family Welfare had issued guidelines, saying the finger test must not be conducted. The Court, upset that the practice still continues, has directed the Union and State Governments to do everything to spread the message, including amending the medical curriculum so that students are aware that the finger test procedure is not to be followed while examining a rape survivor. Despite stringent laws in place after the Nirbhaya rape of 2012, things on the ground have not improved for a survivor who has to battle stigma and many other prejudices, not least the assumption that she is to blame for an assault. Rapes often go unreported, and the conviction rate is low too (28.6% in 2021, according to National Crime Records Bureau data). It is now up to the governments, health centres and police stations to act with sensitivity and without discrimination and ensure women have access to justice and dignity while reporting rape.
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