Ban-finger test in rape cases

Posted in CRIME AGAINST WOMEN, CRIMINAL JUSTICE SYSTEM, FUNDAMENTAL RIGHTS, GENDER, HUMAN RIGHTS by NNLRJ INDIA on September 7, 2010

FROM THE HINDU

Making a woman’s s*xual 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 s*x 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 s*xual 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). Medical evidence 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 v**gina 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 s*xual 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 s*xual intercourse’ is immaterial to the issue of consent in a rape trial.” Despite these rulings, opinions on the victim’s s*xual 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 s*xual violence in Indian law has also hindered the prosecution of various s*xual 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 s*xual 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. India:

Prohibit Degrading ‘Test’ for Rape

Posted in CRIME AGAINST WOMEN, CRIMINAL JUSTICE SYSTEM, FUNDAMENTAL RIGHTS, GENDER, HUMAN RIGHTS, JUSTICE by NNLRJ INDIA on September 7, 2010 HUMAN RIGHTS WATCH Forensic Exams Should Respect Survivors’ Rights to Health, Privacy, and Dignity (Mumbai) – Many Indian hospitals routinely subject rape survivors to forensic examinations that include the unscientific and degrading “finger” test, Human Rights Watch said in a report released today. It urged the Indian government to ban the practice, used to determine whether the rape survivor is “habituated” to s*xual intercourse, as it reforms its laws on s*xual violence. The 54-page report, “Dignity on Trial: India’s Need for Sound Standards for Conducting and Interpreting Forensic Examinations of Rape Survivors,” documents the continued use of the archaic practice and the continued reliance on the “results” by many defense counsel and courts. The practice, described in outdated medical jurisprudence textbooks used by many doctors, lawyers, and judges, involves a doctor inserting fingers in a rape victim’s v**gina to determine the presence or absence of the hymen and the so-called “laxity” of the v**gina. These findings perpetuate false and damaging stereotypes of rape survivors as “loose” women. Defense attorneys use the findings to challenge the credibility, character, and the lack of consent of the survivors. “This test is yet another assault on a rape survivor, placing her at risk of further humiliation,” said Aruna Kashyap, women’s rights researcher at Human Rights Watch. “The Indian government should heed demands of Indian activists to abolish this degrading and useless practice.”Finger test findings are scientifically baseless because an “old tear” of the hymen or variation of the “size” of the hymenal orifice can be due to reasons unrelated to s*x. Carried out without informed consent, the test would constitute an assault, and is a form of inhuman and degrading treatment, Human Rights Watch said.”I was so scared and nervous and praying all the time: ‘God, let this be over and let me get out of here fast,” the report quotes one rape survivor as saying as she described her experience of a forensic examination. 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, whose decisions are binding, has described opinions based on the finger test as “hypothetical and opinionative,” and has ruled that they cannot be used against a rape survivor.Although these developments have helped curtail the practice, the Indian government has yet to take steps to ensure that all states eliminate it. There are no nationwide guidelines or programs to standardize forensic examinations and to train and sensitize doctors, police, prosecutors, and judges to survivors’ rights. But the Indian government is currently reviewing laws regarding s*xual violence, presenting a unique opportunity for change. “The Indian government has paid little attention to how health care and forensic services are delivered to survivors of s*xual violence,” Kashyap said. “The Indian government should set right this injustice with a comprehensive policy and program for such services.”The report is based on 44 interviews in Mumbai and Delhi with activists, rape survivors and their parents, prosecutors, other lawyers, judges, doctors, and forensic experts. Research also included a review of forensic examination templates used in those cities, and an analysis of 153 High Court judgments on rape that referred to the finger test findings from 18 states. It finds that the finger test-related information continues to be collected and used. Forensic examinations are a harrowing experience for many rape survivors, who are shunted from one hospital or ward to another for various aspects of the examination. Often doctors insist that the survivor must make a police complaint when she approaches them directly, which can intimidate her. Further, inserting fingers into the v**ginal or anal orifice of an adult or child survivor of s*xual violence during a forensic examination can cause additional trauma, as it not only mimics the abuse but can also be painful. Some doctors in India conduct the finger test with little or no regard for a survivor’s pain or trauma, Human Rights Watch found. Many High Court judgments reveal that doctors have testified in court that having one or two fingers inserted into the v**gina is “painful” or “very painful” for the survivor. And when the survivor did not experience any pain - if two fingers could be inserted “painlessly” or “easily” – then she was described as being “habituated to s*x.”"Survivors of s*xual violence have the right to legal recourse without being further traumatized in the process,” Kashyap said. “The health and criminal justice systems should work together to ensure that they do not perpetuate damaging stereotypes of survivors.” The Maharashtra and Delhi governments continue to recommend the finger test in their forensic examination templates. For example, as recently as June 2010, the Maharashtra state government introduced a standard forensic examination template that includes a series of questions about the hymen, including the number of fingers that can be admitted into the hymenal orifice. Early this year, the Delhi government introduced a forensic examination template that asks questions about the hymen, including whether it is “intact” or “torn,” the “size of the hymenal orifice,” whether the v**gina is “roomy” or “narrow” and has “old tears,” and even asks the examining doctor to give an opinion whether the survivor was “habituated to s*x.” Much of the Delhi template resembles a template created by the Indian Medical Association and disseminated to doctors across the country between 2006 and 2008. The World Health Organization’s (WHO) “Guidelines for medico-legal care for victims of s*xual violence” recommends that health care and forensic services be provided at the same time, and by the same person, to reduce the potential for duplicating questions and further traumatizing the survivor of s*xual assault. It states that health and welfare of a survivor of s*xual violence is “the overriding priority” and that forensic services should not take precedence over health needs. It also says forensic examinations should be minimally invasive to the extent possible and that even a purely clinical procedure such as a bimanual examination (which also involves the insertion of two fingers into the v**gina) is rarely medically necessary after s*xual assault. The Indian government should use its ongoing reform process for laws relating to s*xual violence to prohibit the finger test and standardize the medical treatment and forensic examinations of survivors of s*xual violence in line with the rights to health, privacy, dignity, and legal remedy, Human Rights Watch said. The government should introduce special programs to sensitize doctors, police, prosecutors, and judges to the rights of survivors, and set up multidisciplinary teams in every government hospital with doctors trained to be sensitive to survivors and with training and equipment to conduct forensic examinations in a manner that respects survivors’ rights. Sample Testimony From the Report The clerk told me a male doctor will conduct the test [forensic examination] and asked me whether that was ok. I said “yes.” But other than that, I did not know what they were going to do. I was so scared and nervous and praying all the time: “God, let this be over and let me get out of here fast.” I did not even know it was going to be like a delivery examination [an internal gynecological examination]. - Sandhya S. (name changed), adult rape survivor, Mumbai, August 2, 2010 In cases of very young girls – girls below [age] 12 or 13 – they [police officers and hospital staff] believe it is a case of s*xual abuse. But if they are older, then they believe that the girl is trying to falsely frame someone. Their belief changes the way they address the survivors. They are very rude and disrespectful. They will say things like, “Why are you crying?” “You have only been raped.” “You are not dead.” “Go sit over there.” And order them around. - Dr. Rajat Mitra, director, Swanchetan, a nongovernmental organization that provides counseling services to rape survivors, Delhi, May 25, 2010 Where the defense takes the line that there was consent [to s*xual intercourse], usually they also look to medical evidence for support. And if the medical report says anything about the finger test, then they draw it out in court – saying she was “habituated” so consented and is falsely implicating the accused. - Dev D. (name changed to maintain anonymity as requested) a former public prosecutor, New Delhi, May 22, 2010 The finger test is relevant for the defense especially if the prosecutrix [term used to refer to a rape survivor during trial] case is that the woman is unmarried [as opposed to a married woman who is assumed to be "habituated to s*x"]. Then if the medical report says that two fingers have passed, the defense can show that she is habituated. This shakes the testimony of the prosecutrix. - Radha M. (name changed to protect identity), a former chief public prosecutor, location withheld, May 11, 2010 Sample Extracts From Judgments “Though the girl was aged about 20 to 23 years and was unmarried but she was found to be “habituated to intercourse.” This makes her to be of doubtful character.” - Jharkhand High Court, 2006 “She was complaining pain and the v**gina was admitting 1½ finger [sic] …. From the medical report it is clear that the prosecutrix was not a girl of lax moral and she was not “habituated to s*xual intercourse” and most probably, that was her first experience as the doctor has observed reddishness on her v**gina and blood secretion and pain on touching the v**gina.” - Chhattisgarh High Court, 2007