The two-finger test/Per Vaginal examinal/Bio mamual test
Definition:
(Section 375 Penal Code) Define Rape as
Sexual intercourse by a man with a woman in any of the following five circumstances:
1]against her will, or; 2) without her consent, or; 3) with her consent when her consent has been
obtained by putting her in fear of death or hurt, or; 4) with her consent when the man knows he is
not her husband but she has given consent because she believes him to be another man to whom
she is lawfully married, or; 5) with or without her consent when she is under fourteen years of age.
As expanded in NSND: (Section 9 (1)) (i) sexual intercourse with a woman over the age of 16 years,
to whom the accused person is not married, without her consent, or despite the fact that she shows
fear, or by gaining her consent through fraudulent means and; (ii) sexual intercourse with any
woman below the age of 16 years.
Evidence used on genital area Stains of blood or sperm on the clothes of the victim or accused
Presence/absence of blood/semen in vagina Rupture of hymen- Findings from Two Finger test
Indications of penetration Indications of venereal disease passed from accused DNA:
1) To establish paternity, 2) To examine fibres
The two-finger test also known as the PV (Per Vaginal) refers to an intrusive physical
examination of a woman’s vagina to figure out the laxity of vaginal muscles and whether the
hymen is distensible or not.
In this, the doctor puts two fingers inside the woman’s vagina and the ease with which the
fingers penetrate her are assumed to be in direct proportion to her sexual experience.
Thus, if the fingers slide in easily the woman is presumed to be sexually active and if the fingers
fail to penetrate or find difficulty in penetrating, then it is presumed that she has her hymen
intact, which is a proof of her being a virgin.
The Two Finger Test A medical examination in which the examining
doctor notes the presence or absence of the hymen and the size and socalled laxity of the vagina of the rape survivor and comments about
whether she is “habituated” to sexual intercourse (Human Rights Watch)
BLAST.
Main Problems with ‘the two finger test”
(1)Virginity and or “habituation” cannot be “tested” by per vaginal examination (2)The results
are not legally probative (3)The result are not logically probative (4)The test causes additional
trauma (5)The test causes additional stigma (6)The test is in breach of national and
international obligations (7)The test goes against international standards for the collection of
medical evidence.
Bangladesh Legal Aid and Services Foundation (BLAST)
On October 8, 2013, the Bangladesh Legal Aid and Services Foundation (BLAST) along with 5
other civil society organizations and two medical experts filed a petition alleging that a routine
medical procedure performed in rape investigations violated the Constitution of Bangladesh.
The lawsuit focused on the "two fingers" test, an invasive and inconclusive medical procedure in
which a doctor inserts two fingers into a woman's vagina to determine whether the sexual assault
has occurred or not. The doctor also often uses the test to give an opinion about whether the
victim was "used to having sex."
In 2013, the Supreme Court chamber that reports to the Supreme Court ordered government
agencies to provide a justification as to why these procedures did not violate the Constitution.
Responding to the appeal filed by the petitioners in 2016, the same court found that the "twofinger test" had no legal or scientific basis.
The Court prohibited the practice and ordered medical providers to use the "Health Protocol for
Victims of Sexual Violation" that follows the guidelines established by WHO and create forensic
care and medical examination rooms.
The Court also asked the government to issue a circular so that the judges of lower courts,
prosecutors and the entities in charge of investigating have knowledge of this decision. Finally,
the Court prohibited the lawyers from asking questions that would affect the dignity of the
victims of rape during the trial.
Hon'ble court pleased to dispose of the rule with following 8 directionsAfter conclusion of the hearing, the Hon'ble court pleased to dispose of the rule with following 8
directions1. The TFT is not scientific, reliable, valid and hereby prohibited in any examination of rape
victim.
2. The respondents shall make available the health care protocol ( Health Response To
Gender Based Violence- Protocol For The Health Care Providers) to forensic experts,
physicians who conduct medical examination on rape victims; police officers who
conduct investigation of rape case; public prosecutors appointed in Nari O Shishu
Nirjataon Tribunal and other interested private lawyers
3. Physicians/forensic experts shall issue medical certificates about examination of rape,
they shall not use the degrading word “habituated to sexual intercourse” and shall not ask
any questions of her previous sexual experience.
4. In case of a deep-seated intra-vaginal examination the matter shall be referred to a
Gynecologist for an expert opinion to identify an injury or for medical reasons.
5. Per speculum examination is not a must in the case of children/young girls when there is
no history of penetration and no visible injuries.
6. The bimanual test is not related to TFT and being related to obstetrician gynecological
examinations only, same shall not be practiced in rape victim.
7. The Government shall appoint trained doctors and nurses for medical examination of rape
victim. Such examination shall be conducted in presence of preferably female police,
female relative and preferably by female physicians. The concern physicians and forensic
experts shall strictly maintain the privacy of the victim.
8. The Nari-oShishu Nirjaton Tribunal shall ensure that no lawyer shall ask any degrading
question to rape victim which is not necessary to ascertain any information of rape.
Guidelines and protocols for Medico-legal care for survivors/victims of Rape
Victims..
The guidelines also provide that the status of the hymen is irrelevant as it can also be torn due to other
things such as cycling, riding among other things. An intact hymen does no rue out the sexual violence
and the torn hymen also does not prove sexual intercourse.
Hymen should be treated like any other part of the genitals while documenting examination findings in
sexual violence cases.
In the case of assault, only relevant findings such as fresh tears, bleedings, edema etc are to be
documented.
The guidelines directed that in cases of sexual violence more focus should be on the testimonies of the
victim and the witness rather than the physical examination to check for injuries to the genital area.
Effects of Two finger test :
Physical harm:
Virginity tests resulted in physical harm to examinees. Reported incidents include injury caused by
examiner, relatives, and examinee herself. Reports include examiner-induced aggravation of existing
injuries, a failed test resulting in a relative breaking examinee’s arms, and completed suicide.
Psychological harm:
The psychological trauma of anticipating, experiencing, and recalling the virginity test was reported by
examinees and witnesses. Included are reports of extreme fear and anxiety before the test, screaming,
crying, and fainting during the test, and long-term effects of self-hatred, loss of self-esteem, violation of
privacy, and revictimization of previous sexual assault.
Social harm:
The social effects of virginity testing were documented. Included are reports of a negative test bringing
shame and dishonor to families and communities, social ostracism through marriage ineligibility and
exclusion from jobs, and humiliation through name-calling. Positive tests also are reported to increase a
virgin’s risk of sexual assault.
DNA Test as Replacement of Bimanual Test:
Rape is such experience which shakes the foundations of the lives of the victims. For many, its
effect is a long-term one, impairing their capacity for personal relationships; altering their
behavior and values and generating endless fear.
Woman or a girl subject to sexual assault is not an accomplice to the crime, but is a victim of
another person's lust. It is improper and undesirable to test her evidence with a certain amount of
suspicion treating her as if she were an accomplice.
When there are no witnesses, when the victim is killed after being ravaged, or in cases of child
rape, where a child cannot speak up for herself about what has happened to her, DNA evidence
can provide incontrovertible proof which can be used to pressure a rapist into confessing
to his crimes.
DNA is the genetic blue print for life and is virtually contained in every cell. No two
persons, except identical twins have ever had identical DNA. DNA testing can make a
virtually positive identification when the two samples match. It exonerates the innocent
and helps to convict the guilty.
DNA profiling is a reliable diagnostic technique that can be useful in establishing guilt
or innocence.
Introducing DNA profiling in the medical test of rape victims would be a vital
contribution to troubleshoot the issue of bimanual test and would also allow the
investigators, associated with medico-legal process, to get access to a technology which
can help in ensuring right to privacy and dignity.