Rape is the principal sex crime in respect of its impact on body, mind and also to a lesser extent, the reputation of the victim. As it is very difficult to find eyewitnesses to this offence, the prosecution has to often depend on testimonial and medical evidence. However, the procedure of medical examination widely followed in our country is extremely violent, unscientific, inhuman and degrading.
According to Section 375 of the Penal Code, 1860, the medico-legal facts in an offence of rape are the consent of the victim, the age of the victim, and penetration of the penis into the vagina. Whether penetration has taken place or not is to be proved by medical examination.
In order to collect the evidence of penetration, the doctor examines the vagina of the victim to find out the marks of swelling and inflammation with or without bruising. The hymen is examined to see whether it is torn or lacerated. If the hymen shows no tear, the distensibility of the vaginal orifice is noted by the process which is known as the so called two finger test.
The controversial two finger test, which is widely practiced in Bangladesh, may be traced back to a French medical jurist, Thoinot, who believed that there were true and false virgins. In 1898, he advised the medical students to insert a cone, or two fingers into the vagina to ascertain virginity. Now-a-days, the examining doctor inserts his/her two fingers into the rape victim’s vagina to determine whether the hymen is broken; and whether the victim had previous sexual activity.
The sole purpose of the finger test is to assess whether the girl or woman is virgin or habituated to sexual intercourse. The result of this test is frequently used in the courtroom to cast doubt on her moral character and to reduce the weight of her evidence. The defence always tries to take the benefit of Section 155(4) of the Evidence Act, 1872 which provides that when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.
In fact, the defence lawyers use the past sexual history in cross examination to humiliate the rape survivors by asking intrusive and offensive questions, e.g. how long she was penetrated, how much, and how did she know whether she was penetrated as if it matters to her when she is being raped how much penetration is enough for the law!
The results that two finger test reveal are variable and subjective as the instruments used in such test are the fingers of the examining doctors. Moreover, such test is not scientific because the hymen indicating virginity of the rape victim may be torn or damaged by physical exercise, disease or due to menstruation.
The two finger test seems to be a hindrance to the trial of a rape case as in most of the cases the victims do not want to undergo a second rape in the name of medical test. The experts, therefore, repeatedly urge for banning this painful two finger test by amending Section 155(4) of the Evidence Act, 1872 as India brought about such an amendment in 2003 banning this unscientific practice.
