Many Indian hospitals routinely subject rape survivors to forensic examinations that include the unscientific and degrading "finger" test, Human Rights Watch has said in a report. 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 defence counsel and courts.
The medieval practice, described in outdated medical jurisprudence textbooks used by many doctors, lawyers, and judges, involves a doctor inserting fingers in a rape victim's vagina to determine the presence or absence of the hymen and the so-called "laxity" of the vagina. 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," says 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." The report was released on Monday.
- Sandhya S. (name changed), adult rape survivor, Mumbai, August 2, 2010
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 sex. 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 programmes to standardise forensic examinations and to train and sensitise doctors, police, prosecutors, and judges to survivors' rights. But the Indian government is currently reviewing laws regarding sexual 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 sexual violence," Kashyap said. "The Indian government should set right this injustice with a comprehensive policy and program for such services."
How Human Rights Watch went about
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 vaginal or anal orifice of an adult or child survivor of sexual 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 vagina 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 sex."
"Survivors of sexual violence have the right to legal recourse without being further traumatised 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."
What happens in Maharashtra and Delhi
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 vagina is "roomy" or "narrow" and has "old tears," and even asks the examining doctor to give an opinion whether the survivor was "habituated to sex." 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 Organisation's (WHO) "Guidelines for medico-legal care for victims of sexual 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 sexual assault. It states that health and welfare of a survivor of sexual 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 vagina) is rarely medically necessary after sexual assault.
The Indian government should use its ongoing reform process for laws relating to sexual violence to prohibit the finger test and standardize the medical treatment and forensic examinations of survivors of sexual violence in line with the rights to health, privacy, dignity, and legal remedy, Human Rights Watch said. The government should introduce special programmes to sensitise 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.
What Human Rights Watch recommends to Union and state governments
In order to ensure that the current review processes bring about concrete change in how the health and criminal justice systems approach survivors of sexual violence in general, and rape survivors in particular:
- Prohibit the finger test and its variants from all forensic examinations of female survivors, as it is an unscientific, inhuman, and degrading practice, and
- Instruct doctors not to comment on whether they believe any girl or woman is “habituated to sexual intercourse”.
- Instruct all senior police officials to ensure that police requisition letters for forensic examinations do not ask doctors to comment on whether a rape survivor is “habituated to sexual intercourse.”
- Communicate to trial and appellate court judges that finger test results and medical opinions about whether a survivor is “habituated to sexual intercourse” are unscientific, degrading, and legally irrelevant, and should not be presented in court proceedings related to sexual offences.
- Devise special guidelines for the forensic examination of child survivors of sexual abuse to minimise invasive procedures. Emphasize that tests that risk mimicking the abuse should be conducted only when absolutely medically necessary to determine if injuries need therapeutic intervention. Ensure that any test is only carried out with the fully informed consent of the child, to the extent that is possible, and the consent of the child’s parent or guardian, where appropriate.
- Develop, in a transparent manner and in consultation with Indian women’s, children’s, and health rights advocates, doctors, and lawyers, a protocol for the therapeutic treatment and forensic examination of survivors of sexual violence that adheres to:
- The procedural and evidentiary decisions pronounced by the Indian Supreme Court and international laws.
- Standards and ethics issued by the World Health Organisation.
- Organise, in consultation with national and state judicial academies and experts on women’s, children’s, and health rights, special programmes for trial and appellate court judges on proceedings related to rape and other sexual offenses, and on the rights of survivors.
- Organise, in consultation with state police academies, judges, and experts on women’s, children’s, and health rights, special programmes for police related to investigating and prosecuting sexual offenses, and on the rights of survivors.
- Organise, in consultation with judicial and other officers in charge of prosecution services and experts on women’s, children’s, and health rights, special programmes for prosecutors on proceedings related to rape and other sexual offenses, and on the rights of survivors.
- Develop, in consultation with women’s, children’s and health rights experts in India, multidisciplinary centers in at least one government hospital in every district of the country (or in an alternative appropriate population-to-distance norm), staffed with trained personnel and equipped to provide integrated, comprehensive, gender-sensitive treatment, forensic examinations, counseling, and rehabilitation for survivors of sexual violence.
- Develop and introduce, in consultation with lawyers and experts on women’s, children’s, and health rights, a mandatory gender-sensitive training module for medical students on treating and examining survivors of sexual violence.
- Form a committee to review, update, and revise medical jurisprudence textbooks to ensure the inclusion of the latest positions in Indian law on procedure and evidence related to sexual violence.
- Consult with women’s rights and children’s rights activists and lawyers to ensure that their concerns regarding forensic examinations in sexual violence cases are addressed in the final version of the Perspective Plan for Indian Forensics. Before finalizing the plan, the government should also study lessons learned from other jurisdictions about how integrated medical and forensic services are provided in a gender-sensitive and timely manner.
