Pronouncing the judgment in a rape case on October 23rd 2010, Additional Sessions Judge Kamini Lau drew attention to an outdated and barbaric practice that continues to be used in rape cases while collecting forensic evidence. Rather than help the survivor, this particular test, called “finger test” or the Per Vagina (PV) test, traumatises the survivor and gives the defence in such cases a stick with which to intimidate and demoralise rape victim in court.
When a woman reports rape, she has to go to police station who then sends her to a government hospital for a medical examination. The report by the doctor who conducts this test is supposed to be part of the medico-legal evidence that the prosecution presents in a rape case. Yet, although such a test has long been discarded elsewhere, in India doctors are trained to test whether the rape survivor is “habituated to s*xual intercourse ‘by inserting two fingers inside her v**gina. Why is this of any relevance to a case where the facts of rape and s*xual assault are being determined? Does this mean that an unmarried woman who has had s*x cannot be raped? What does this absurd test actually establish when the woman’s character or s*xual habits are of no consequence in the matter before the court.
Judge Lau said “The test is violative of the fundamental right to privacy of the victim”. She went on to say “State action cannot be a threat to constitutional right of an individual. What has shocked my conscience is that this test is being carried out in a routine manner on victims of s*xual offences (even minors) by doctors.”
The judge recommended that police officers be sensitised to this issue. But as much as police officers, doctors also need to taught a survivors rights and informed that such a test is simply not allowed. According to a recent report by Human Rights Watch titled “ Dignity on trial: India’ need for sound standards for conducting and interpreting forensic examinations of rape survivors “ the “finger test” remains standard practice in many parts of India including Mumbai and Delhi.
Intimidating practice
Worse still, because the practice continues, many survivors lose their cases in court because they get demoralised, confused or intimidated when sections from the medical report relating to this test are used by the defence to undermine their testimony. Yet, the survivor’s testimony is supposed to be enough in a rape case and the forensic evidence is only secondary. This is especially so because survivors often wait before they go to police and as a result valuable evidence is lost. As a result, several court rulings have emphasised that delay in filing a complaint should not be held against the survivor.
Judge Kamini Lau has drawn attention to an extremely important aspect of the procedures followed in rape cases. Unlike something like this is addressed urgently, convictions in rape cases, already abysmally low, will never improve. And women who are s*xually assaulted will continue to hesitate before turning to law.
