|Volume 5 Issue 11| November 2011|
The Two-Finger Test:
MAIMUNA AHMAD questions the validity of a physical test performed on victims to confirm the perpetration of rape.
According to police reports, an average of 3,300 people are raped every year in Bangladesh. Those who seek justice must run a medico-legal gauntlet, at the hands of a society that places the stigma of rape on the victim, rather than the perpetrator. Although very little has been written about the subject in Bangladesh, a recent Human Rights Watch (HRW) report on the use of medical evidence in rape trials in India sheds light on one particularly problematic practice known as the “two-finger test”. A preliminary research investigation by the Bangladesh Legal Aid and Services Trust (BLAST) indicates that this practice is widespread in Bangladesh as well.
Sylvie Rougerie, a research intern at BLAST, found that the One-Stop Crisis Center at Dhaka Medical College Hospital (OCC-DMCH), “which has one of the largest and most women-friendly forensics departments in the country, performs the finger test as part of its normal examination.” The 2010 HRW Report entitled “Dignity on Trial”, describes the two-finger test as “a practice where the examining doctor notes the presence or absence of the hymen and the size and so-called laxity of the vagina of the rape survivor. The finger test is supposed to assess whether girls and women are 'virgins' or 'habituated to sexual intercourse'.” “Results” which assert that a victim was not a virgin at the time of her rape are frequently used in the courtroom to cast public doubt on her moral character and to reduce the weight of her evidence.
Medical professionals have denounced the two-finger test as unscientific on several counts. A scientifically sound method of measurement should yield empirically consistent results regardless of who performs the test. For example, there is a very clear scientific method of how to take human body temperature. As long as she correctly follows the prescribed way to handle and read a thermometer, any healthcare professional who takes a given patient's temperature will have the same findings. This is because the instrument of measurement (the thermometer), and the method of reading it (visually matching the level of mercury to the demarcated scale) remain constant. The results of the test, measured in constant units (degrees Celsius or Fahrenheit) are not open to subjective interpretation.
In sharp contrast, every aspect of the two-finger test is variable and subjective. The instrument of measurement -- the doctor's own fingers -- may vary greatly in size and shape, for example, from a 270-pound male doctor to a 110-pound female doctor. There is neither a defined scale for “vaginal laxity” -- what is “easy” for one examiner may not feel so for another -- nor any related units of measurement. Instead, a doctor performing the finger test will typically comment in their own words on how “easily” he/she was able to insert one or two fingers into the survivor's vagina.
These “findings” are entirely subjective
Even if the method of testing was in fact objective, the medical premise on which it is based -- that so-called vaginal laxity is a scientific indicator of a woman's past sexual history -- is false. According to an interview given by a forensic medicine expert to HRW:
[The two-finger test] is all a myth. Nothing -- no scientific evidence show[s] that
Additionally, the two-finger test problematically relies on and perpetuates myths about the hymen as an indicator of virginity. The HRW report also claims that
Contrary to the medico-legal significance attached to the hymen… the international consensus is that the examination of a woman's or girl's hymen cannot indicate definitively whether she is a “virgin” or is “sexually active”. “Old tears” or “laxity” of the hymen and vagina do not prove that a girl or woman is “habituated to sex,” because they can be caused by exercise, physical activity, or the insertion of tampons or fingers, among other events not related to sexual intercourse.
While it is important to debunk the myth of science behind the two-finger virginity test, any discussion of the test that focuses solely on its scientific veracity may belie the problematic legal practices and social norms associated with it. According to Fatama Sultana Suvra, who is compiling an oral history of a group of Bangladeshi rape survivors, the majority of men accused of rape do not, in a court of law, attempt to contest the act of intercourse itself. Rather, they assert that the sex was consensual. To prove this point, the defence builds a case that the victim had “loose morals” or was habitually promiscuous. “It is easier to prove that the girl is of 'bad character,'” Suvra says, “than to prove that sex never took place.” The results of two-finger test figure prominently in courtroom arguments as “medical proof” of a woman's “promiscuity.”
Even if the two-finger test could scientifically tell us a woman's past sexual history, the information should have no legal bearing on a rape trial. Whether a woman has had sex before or not, with whom and how many times, is entirely immaterial to the case. In theory, the only question that should matter in court is whether or not she gave consent to a particular man in a particular instance. A complete and accurate sexual history, even if it could be provided by the finger test would not be able to answer this question.
Nonetheless, “exposing” a woman's past sexual history is a common practice in defensive arguments in rape trials. According to activists like Suvra, the assumption made by those administering the finger test in hospitals or invoking it courtrooms, is that once a woman has had sex, she is incapable of being raped. The chauvinistic logic that underpins this assumption is quite simple. It asserts that if a woman is sexually active prior to marriage, she is necessarily immoral and promiscuous. As such, her consent to subsequent sex acts is taken for granted. This line of thinking does not recognise that a woman -- her moral character notwithstanding -- has the right to give or withhold consent for every sexual act, every time. In court, the defence relies on this logic to shift the focus of the trial from the actions of the accused to the character of the victim.
The fact that it is scientifically untenable and legally irrelevant makes it all the more pathetic that survivors of rape are subjected to the two-finger test, which can be both painful and traumatic. Performed most often by male doctors and without the fully-informed consent of the patient, the test, which simulates penile penetration, can be an emotional ordeal for women and children who have recently experienced sexual violence. This summer, Sylvia Rougerie interviewed a lawyer who “confirmed that the test had previously been used on one of her 10-year-old clients, who cried and screamed throughout the procedure.”
Although there remains a plethora of problematic practices that hamper a rape survivor's access to proper healthcare and legal justice, the two-finger test stands out as one of the most archaic. It yields no medical or legal benefit for the rape victim. Based on a combination of deeply chauvinistic attitudes towards women's sexuality and flimsy science, it is used instead as a tool used by the defence to disparage the victim's character. When administered without the fully-informed consent of the patient, the test can itself be considered a sexual assault. Its painful and demeaning nature acts as yet another deterrent for rape survivors to seek medical help or legal recourse.
Following outcry from civil society members and investigations undertaken by organisations like HRW, the Supreme Court of India has outlawed the use of “evidence” that asserts a woman is habituated to sex. Blaming the victim for her rape, however, is by no means unique to Bangladesh, India, or even the region. It was not until the 1970s and 80s that the United States began enacting rape shield laws that prohibited the use of evidence that relates to the past sexual behaviour of the victim. It is time for the government of Bangladesh to take similar measures, starting with a ban on the use of the two-finger test all together.
Maimuna Ahmad is a research fellow at Bangladesh Legal Aid and Services Trust.
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