Ban the two-finger test in rape cases

 By Pratiksha Baxi

There is a surging hope that the Justice Verma Commission will do justice to the cries for freedom and justice resounding in the city surely and loudly since the tragic death of the 23 year old who was raped and brutally assaulted. An advertisement announced to the public that they are welcome to send their responses to the Commission by the fifth of January on issues relating to “extreme sexual assault” and questions of stricter punishment. Amidst televised debates on castration and death penalty, there are many who are at work furiously detailing major and minor reforms in the laws, courts, city planning and governance that can be put in place, even though it is unclear whether or not these constitute the terms of reference of the said commission. Women’s groups and feminist lawyers have been rather philosophical about being denied the chance to appear before the commission to determine how to craft a just law. Indeed, we are hopeful that this time radical change will at long last happen.

The government however does not need a commission to remind it of several submissions to get rid of the colonial, sexist and violent practice of the two-finger test. There is no law, which says that doctors must insert two fingers (sometimes more, some even quibble about the size of the fingers in our courts) in the vagina to figure out whether the hymen is distensible or not. This then leads to the inference that the rape survivor is habituated to sex, introducing past sexual history into rape trials. Past sexual history was disallowed in rape trials since 2003. However, the two-finger test by medicalizing consent allows past sexual history of the raped survivor to prejudice her testimony.

This is true even in cases of aggravated rape where the burden of proof is reversed. An analysis of judgments pertaining to gangrape and other instances of aggravated rape shows that there is an increased reliance on the findings of the two-finger test since the burden of proof is reversed and the onus is on the accused to prove consensual sex.

The Human Rights Watch report Dignity on Trial collated judgments; medical opinions and interviews with experts to recommend to the government that the two-finger test should be scrapped in 2010. This report makes several excellent suggestions about how the medical protocols need to be changed in order to move towards a therapeutic jurisprudence, which would extend care and empathy to the rape survivor rather than blame and stigma.

It is not too hard for the government to get its home ministry together with the health ministry to set up a panel of experts to look at the relevance of the two-finger test as evidence. There is no scientific basis to this test, since no doctor can determine whether or not a woman has a sexual history, unless she chooses to narrate her sexual biography.

Women may not have hymens due to a number of reasons other than sex outside or within marriage. Women may masturbate, have sex with other women and/or men, or be celibate: how does the two-finger test determine this personal history? And how is it relevant to determining whether or not a woman is sexually assaulted?

The origins of the two-finger test may be traced back to a French medical jurist, Thoinot, who believed that there are true and false virgins. Women with intact hymens could also be habituated since some women have elastic hymens. Not wanting to be fooled by such devious hymens, Thoinot advised medical students to insert a pipette, a cone or two fingers into the vagina. This, he believed, mimicked an erect penis. This was in 1898.

Modi’s medical jurisprudence textbooks almost verbatim quote these passages from Thoinot (1911 translation in English) until 2010. For instance, the 1969 edition of Modi plagiarises Thoinot almost verbatim. The two-finger test finds repetition in every other medico-legal textbook. These textbooks are used in courtrooms to discredit the survivor: “oh, she is habituated, she is lying about rape”: is a common refrain in trial courts.

Or defence lawyers use such textbooks during trials to humiliate rape survivors: to ask them how long they were penetrated, how much and how did they know whether they were penetrated. They ask: did the accuse ejaculate, where did the semen fall and how was it complete penetration, if the victim did not care to notice where the semen fell? As if it matters to you when you are being raped how much penetration or ejaculation is enough, for the law!

There are scores of judgments where you find dastardly descriptions of one finger being inserted in a child’s vagina, three or more fingers being inserted in a pregnant survivor’s vagina, description of old tears versus fresh vaginal tears, all amounting to a science fiction horror story, which amounts to sheer hatred of women and not science.

If rape survivors experience rape trials as a pornographic spectacle, it is not only the fault of the judiciary—surely the ministry of home and the ministry of health can change medical protocol.

To treat sexual violence as a public health concern, we do not need judicial reform. We need political will. Can we please shift focus from whether or not to castrate and how to castrate (which incidentally is defined as torture in international law and can only be implemented as a voluntary medical program)? Is it possible for 24/7 television anchors, who dismiss activists making this demand by saying “oh, that’s ok”, to please not be “ok” about this?

Is it possible to campaign to get rid of colonial and misogynist practices of subjecting survivors to the obnoxious two-finger test? Surely women, children and men (yes, they too are subjected to this test under s. 377) do not deserve the violence of re-rape under the guise of medicine? We do not want to wait for the esteemed commission to give us azadi from this violent practice. We demand that the government ban this test today!

(Distributed by Women's Features Service.  The writer is Assistant Professor, Centre for the Study of Law and Governance, JNU, and a contributor to our blog. Her forthcoming book, ‘Public Secrets of Law: Rape Trials in India’ will be published by OUP in 2013.)

(The author of the post wanted to replace the text posted here earlier with the present improved one. Apologies to the readers who might have read the previous post, which does not substantively differ from the present one)

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Chastity, Virginity, Marriageability, and Rape Sentencing

A guestpost by Mrinal Satish, Associate Professor, National Law University, Delhi.

The horrific gang rape incident in Delhi has led to demands for amending the law to provide for more stringent punishment for rape, including introducing the death penalty. Over the last few days, there have been various debates about the advisability of making such changes to the law. An issue that has not been highlighted in these debates is the existing state of rape sentencing. Any attempt at law reform needs to include an examination of this issue. In this piece, I provide a brief account of a few problems plaguing the current rape sentencing regime in India. This is based on my doctoral study at Yale Law School, in which I examined all rape cases decided by all High Courts and the Supreme Court over the last twenty five years.

Section 376 of the Indian Penal Code (I.P.C.) prescribes the punishment for rape. For non-aggravated forms of rape, the minimum punishment is seven years imprisonment, and the maximum is life imprisonment. The minimum punishment for aggravated rape (gang rape, rape of a girl under the age of twelve, custodial rape) is ten years imprisonment, and the maximum is life imprisonment as well. In both these circumstances, courts have the discretion to sentence below the prescribed minimum term of imprisonment, if they provide “adequate and special reasons” for so doing. The crucial question is: how do courts determine the appropriate sentence to be imposed on an offender? A basic understanding of the trial process is essential to understand the procedure involved. The Criminal Procedure Code (Cr.P.C.) divides the trial into two distinct phases – the guilt determination phase and the sentencing phase. In the guilt determination phase, the court either convicts or acquits the offender on the basis of evidence presented in this regard. If the offender is convicted, then the sentencing phase begins. In this phase of the trial, the court considers evidence and arguments on factors relevant to the determination of sentence. Ruling on the factors that a court should consider in deciding on sentence, the Supreme Court has held that the nature of the offence; the presence of aggravating and mitigating circumstances; the prior criminal record of the offender; his age, professional, social, and educational background, amongst others are relevant. Another important consideration is the theory of punishment that should be followed – deterrence, rehabilitation, retribution, etc. Since the I.P.C. does not provide guidance to courts on any of these issues, except for prescribing maximum - and in some cases, as in rape - minimum punishments, judges have the absolute discretion to determine the sentence for each individual offender. Unlike some other countries, such as the United States and England, India does not have sentencing guidelines, which provide rules and principles for judges to follow while sentencing. These guidelines generally list out factors that the court should (and should not) consider while sentencing. The absence of such guidelines in India is one of the reasons for the rampant disparity that exists in sentencing across crimes, including rape. In fact, the Supreme Court has itself repeatedly acknowledged the existence of disparity in its death penalty practice. It has observed that sentencing has become “judge-centric,” instead of being based on principles. The same critique applies equally to rape sentencing as well. However, the causes for disparity in rape sentencing, as compared to capital sentencing or sentencing in other crimes, are entirely different.

What makes rape sentencing different from sentencing for other crimes? Unlike other offences, the crime of rape carries its own baggage. Over the years, stereotypical and patriarchal notions have developed with regard to women’s sexual behaviour. Most of these notions are based on the assumption that the chastity and virginity of a woman are her most important “assets.” Popular notions consider rape as a fate worse than death since it robs women of these “virtues” and casts a stigma over victims for the rest of their lives. In these imaginations, rape is not a crime against a woman’s sexual autonomy or bodily integrity, but an irreparable loss to her chastity, “modesty,” and social standing. A woman who has already “lost” her chastity and modesty by having sexual relations before or outside of marriage, is not considered to have suffered too much harm; and the perpetrator is therefore not required to be punished too severely. In order to ensure that such stereotypical notions relating to the sexual behaviour and sexual mores of women are not considered in rape trials, the Indian Evidence Act was amended in 2003, prohibiting the defence from impeaching a rape victim’s testimony on the basis of her past sexual history. Unfortunately, the amendment appears to have impacted only the guilt determination phase of the trial, and not the sentencing phase. The site of stereotyping has merely shifted from the guilt determination phase to the sentencing phase of the trial, and stereotypes have an adverse impact on rape sentencing. In cases where the woman’s behaviour does not adhere to stereotypical constructs, the men who raped them end up getting lower sentences.

But, if the law prohibits past sexual history from being considered, how does it continue to impact rape sentencing? The answer to this is the nature of evidence required to prove rape, and the manner in which such evidence finds its way into the trial. The crucial fact that the prosecution has to prove in rape cases is the lack of the woman’s consent to sexual intercourse. Unlike laws of various other countries, Indian law does not require the prosecution to prove that the offender knew that the woman had not consented, or intended to rape the woman. The woman’s testimony that she had not consented to intercourse is sufficient. In fact, the Supreme Court has consistently held that conviction can be based solely on the testimony of the woman, and there is no need for any other corroborating evidence. However, the court has to be satisfied that the woman’s testimony is reliable, and she is in fact stating the truth. It is in the determination of the reliability of the victim’s testimony that stereotypes enter rape adjudication.

An important piece of evidence in rape cases is the report of the medical examination of the rape victim. Medical and forensic evidence enables the prosecution to show that penetration of the vulva by the penis (a pre-requisite for the offence of rape) had in fact taken place. Doctors are required to testify to this fact, as also the presence of body fluids and injuries, if any. Note, however, that the law does not require ejaculation. The protocols followed by doctors in examining rape victims across India go much beyond determining whether penetration had occurred. They continue to make assessments of the woman’s sexual history, and play a major role in advancing stereotypical notions relating to women’s sexual mores, by providing a scientific veneer to the process. This process includes the examination of the woman’s hymen and the distensibility of her vagina. Whether the hymen is torn, and if so, if such tears are old or new are noted. Doctors conduct the “two-finger test,” ostensibly to determine whether penetration has occurred. This highly invasive procedure involves the doctor inserting one, two, or more fingers into the woman’s vagina to determine the elasticity of the orifice. If the doctor is able to insert two or more fingers, it ostensibly indicates that the woman has had prior intercourse. The rationale behind this “test” is that if two fingers can pass through the vagina, a body of the size of an erect penis could have passed through the orifice at an earlier point of time.

Let me provide a concrete example of how the stereotypes find their way into the trial process through medical examination. Assume that in examining an unmarried rape victim, the doctor notes the presence of old tears on her hymen. The doctor also notes that she was able to insert two or more fingers into the vagina of the victim. Although the doctor does not expressly opine that the woman was sexually active, this information is conveyed to the court by way of the medical report. My study showed that in cases where the medical report indicated that the woman had been sexually active before marriage, lower sentences were imposed on the offenders who raped them. In contrast, in cases where the offender had raped a virgin, the sentence was relatively higher. Thus, the sexual history of the victim had an impact on the sentence imposed on the offender. Another factor related to virginity is the perceived loss experienced by an unmarried victim, in terms of her marriageability. The Supreme Court has in a number of cases noted how rape adversely affects the chances of a woman finding a suitable groom. In this context, the Court has even held that the marital status of the woman can be a relevant factor in rape sentencing. It is not surprising then that offenders who raped unmarried (and virginal) women got higher sentences in contrast to men who raped married women. Further, courts tend to impose lower sentences when a victim who was unmarried when the offence was committed, gets married during the trial. Since the rape did not impact the victim’s ability to get married, the harm caused by the offence is discounted. An egregious example of this approach is the Supreme Court’s decision in Baldev Singh v. State of Punjab (2011), another gang rape case that got a lot of media attention. One of the reasons that the Court gave for reducing the sentence in this case was that the victim was now married.

The second stereotype that affects rape sentencing is the perception that rape is a matter of shame for the victim. The Supreme Court has in fact frequently observed that a woman experiences a “deep sense of deathless shame” as a consequence of being raped. Combined with the notion that a woman considers her chastity and virginity to be invaluable, a myth has developed that on being inflicted with this “shameful” act, a woman will necessarily physically resist her attacker, when sexually assaulted. Such physical resistance, it is believed, leads to injuries on the woman’s body, which then demonstrates that sex was not consensual. Note, however, that the law does not require the woman to resist the attack. The presence of injuries might corroborate lack of consent, but the absence of injuries should not imply consent. Although courts do not appear to infer consent from absence of injuries, I found a marked decrease in sentences in cases where no injuries were present on the woman’s body. Hence, unfortunately, the notion that a woman should physically resist rape makes its way into rape sentencing.

The third interesting finding of my study was that courts consider acquaintance rape to be less traumatic than rape by a stranger. Offenders who were in a romantic relationship with the women they raped got lower sentences, compared to their counterparts who raped women they did not know. In cases of statutory rape where the under-aged girl had consented to intercourse, courts consistently imposed lower sentences on the offenders, based on the understanding that the young woman had otherwise “contributed” to the offence.

Law reform movements, as well as policy-makers have not paid much attention to issues pertaining to stereotypes surrounding rape sentencing. For justifiable reasons, their focus has been on steps to ensure higher convictions in rape cases. In addition to these efforts, there is need for reforms to rid rape sentencing of stereotypes. This would include: first, changing the nature of medical evidence collected in rape cases. Protocols for medical examination of rape victims should be modified, and corresponding changes should be made to medical education syllabi. The second reform required is the formulation of principles to be followed by judges while sentencing rape offenders. Factors that should not be considered in sentencing rape offenders (such as the victim’s sexual mores) should be listed. Currently, a large number of rape offenders whose victims do not adhere to the stereotypical construct of a rape victim get relatively lower sentences. Ensuring principled sentencing, one that is in tune with our constitutional values, is a better guarantee for justice to rape victims, rather than legislative steps providing for capital punishment, chemical castration and the like.

Mrinal Satish is an Associate Professor at the National Law University, Delhi. His doctoral dissertation at Yale Law School examines the issue of rape sentencing in India. He can be contacted at mrinal.satish@aya.yale.edu)

Compromise Formula in Rape Sentencing

This guest post has been contributed by Mrinal Satish, JSD candidate at the Yale Law School. Mr Satish has taught criminal law and procedure for several years and is working on a thesis examining sentencing policy in India. He can be reached at mrinal.satish@yale.edu

“Court frees Rapists, Agrees they can pay Victim” bemoaned headlines on February 24, 2011. The judgment of the Supreme Court in Baldev Singh v. State of Punjab led to discussions as to whether the Court was right in what it did. The headline though was not exactly accurate. The Court did not really “free” the three rapists, but reduced their sentence to the period undergone (three and a half years). Though the minimum sentence for gang rape is 10 years, it used its discretion to impose less than the minimum. It also enhanced the fine imposed on each of the defendants to Rs.50,000 from Rs. 1000. It asked them to deposit the amount within 3 months, failing which the amount was to be recovered from them as arrears of land revenue. Was the sentence justified? I don’t think so.

S. 376(2)(g) of the Indian Penal Code deals with gang rape. On the issue of sentence, it provides a minimum punishment of 10 years imprisonment and a maximum of life. A court has the discretion to impose less than the minimum sentence if it finds “adequate and special reasons” for so doing. Enhanced sentences were introduced by amendment in 1983, whereby the Legislature indicated that it considers aggravated rape (including gang rape) deserving of higher punishment. It is also pertinent to note at this stage that in earlier cases the Supreme Court has ruled that the term “adequate and special reasons” ought to be strictly interpreted. (See for instance: State of Andhra Pradesh v. Bodem Sundara Rao, AIR 1996 SC 530).

In Baldev Singh, the Supreme Court used the "adequate and special reason" exception to impose a less than minimum sentence. What were the adequate and special reasons cited? First, that the incident was an old one and had taken place 14 years prior to its judgment and secondly, that the parties had entered into a compromise. It also mentioned that persons accused of rape and the victim were now married (albeit not to each other) and that the victim had two children. Further, the parties had reached a compromise stating that they wanted to “finish the dispute” and that there was no “misunderstanding between them.”

Let us look at the reasons expressly considered by the Court in reducing the sentence. Should delay in judicial proceedings be considered as a factor for reducing sentences? I believe that it should not for two reasons. First, our judicial process is not known for its timeliness. Delay in proceedings is a common occurrence and hence ought not to be considered as a mitigating factor. Second and more importantly, the victim does not have control over the judicial process and delays therein, even though the accused might. If she did, one could justify reducing the sentence. As the system presently operates, it is patently unfair to the victim and is an incentive to the accused to delay proceedings.

Further, can a “compromise” between the victim and the accused persons be considered a factor in reduction of sentence? As the Court notes in the judgment, S. 376(2)(g) is not a compoundable offence and parties cannot withdraw or compromise the case, even with the permission of the court. Most crimes (including the present one) are considered as crimes against the entire society, which is why the State prosecutes the crime on behalf of the victim and society. If we let victims compromise their cases, when the law does not permit, we end up undermining the entire system. It could also lead to situations where victims are coerced into agreeing to a compromise. If we as a society want to change this position, it is for the Legislature to amend the law. Does it intend to do so? When plea bargaining was introduced in India a few years ago, the Legislature expressly exempted crimes against women from being subject to a plea bargain, because of the often unequal bargaining power of the parties involved, as well as the expressive importance of prosecuting such crimes. This to me indicates that the Legislature did not want to permit “compromises” where victims of crime are women. The Supreme Court in this has hence acted contrary to express legislative mandate. Unfortunately, this now constitutes precedent and before it leads to trading in sentences, one hopes that the Court corrects this anomaly at the earliest.

This case also reflects the state of sentencing in rape in India. I have been studying this issue and I find that determination of sentences based on patriarchal notions of shame, value, honour and chastity of the victim is a prevalent practice. Recently, the Supreme Court reaffirmed its underlying assumptions in rape adjudication when it said: “The important thing that the court has to bear in mind is that what is lost by a rape victim is face. The victim loses value as a person” [State of U.P. v. Chhotey Lal, (2011) 2 SCC 550]. The Court has also frequently said that rape leads to “deathless shame.” Questions of value and shame are determined by a victim’s chastity and her “marriage-ability.” Thus, past sexual conduct (even after the repeal of Section 155(4), Indian Evidence Act) or subsequent marriage of the victim, have significant impact in reduction of sentences. This is also where compensating the victim for this “loss of value” in return for reduced sentences for the accused comes into play. Courts have in the past awarded compensation and used that as a factor for reducing custodial sentences. Baldev Singh’s mention of the current marital status of the victim and the accused, and of the fact that the victim now had children from her marriage, is therefore consistent with the past practice of Indian courts and of the use of sentencing as a site for perpetuation of stereotypes.

Dignity on Trial: Human Rights Watch Report on Conducting and Interpreting Forensic Examinations of Rape Survivors

Human Rights Watch has released a comprehensive report "Dignity on Trial" on the use of forensic evidence in rape trials. The report compiled by Aruna Kashyap has also been covered by the New York Times. The report critiques the criminal justice system for its perpetuation of morally loaded ideas of chastity, modesty and virginity, and argues that what is needed is not just law reform, but a change in mindset which sees violence as a violation of women’s dignity, equality, sexual autonomy and bodily integrity.

It also make a set of reccomendations to the Indian government which I am reproducing:

Recommendations To the Indian Central 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
o Instruct doctors not to comment on whether they believe any girl or woman is “habituated to sexual intercourse”.
o 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.”
5 Human rights watch | September 2010
o 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 minimize 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:
o The procedural and evidentiary decisions pronounced by the Indian Supreme Court and international laws.
o Standards and ethics issued by the World Health Organization.
• Organize, in consultation with national and state judicial academies and experts on women’s, children’s, and health rights, special programs for trial and appellate court judges on proceedings related to rape and other sexual offenses, and on the rights of survivors.
• Organize, in consultation with state police academies, judges, and experts on women’s, children’s, and health rights, special programs for police related to investigating and prosecuting sexual offenses, and on the rights of survivors.
• Organize, in consultation with judicial and other officers in charge of prosecution services and experts on women’s, children’s, and health rights, special programs 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.
Dignity on Trial
• 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.