It is no secret that survivors of rape in India are humiliated and discriminated. They could face it in their own homes, police stations and then in the hospital where they undergo invasive medical tests that often end up doing little beyond harming their case later in the legal process.
While in our outrage over the brutality of the Delhi gangrape case and seeking the harshest possible punishments for the culprits, little has been said so far about the treatment of rape victims barring making our police force more sensitised. Our legal process requires the conducting of a medical test which is performed on the basis of a 'proforma', a fact sheet that has to be filled by a doctor. And no, we don't have a standardised fact sheet across the country. The most controversial part of the test: the much reviled 'two finger' test.
What is the two finger test
A doctor at the government hospital inserts two fingers into the rape victim's vagina to check for the presence or absence of the hymen and also to check the 'laxity' of the vagina, ostensibly to check if penile penetration has taken place.
What's wrong with the test
The test is deemed to establish whether the woman has had sexual intercourse and if she is habituated to it. Incidentally even that can't be ascertained from this test since the presence or absence of hymen or width of the vagina has no correlation with virginity or sexual activity.
And what's wrong with that?
In a case of rape the least relevant fact is whether the victim is habituated to sexual intercourse of not. The question lies in whether the one forced sexual encounter for which the complaint has been filed is valid or not. The two finger test only seeks to establish prior sexual activity and unlike other forensic medical tests doesn't help establish rape. Also pause and just imagine, the comments that will be passed if the woman has indeed had prior sexual activity.
Oh and just in case you're not horrified enough by this, child sexual abuse victims also have to undergo this test if the doctor who examines them deems it fit to conduct it.
Sana Contractor, associate co-ordinator at the NGO Centre for Enquiry into Health & Allied Themes (CEHAT) in Mumbai, which has worked with sexual assault victims says the proforma which is followed is just another feature of the gender insensitivity to rape survivors.
"The problem with tests like the two finger test and a test which tests for the tear of the hymen moves the issue from sexual assault to the woman's sexual history," she told Firstpost.
The problem also lies with the fact that there isn't a uniform proforma which states exactly what a doctor needs to examine, and more importantly not examine, in the case of a victim of sexual assault. In many cases the doctor just writes down his opinion on a piece of paper and sends it to the police, according to an expert. The ambiguity in the proforma is perhaps highlighted by the fact, that at one time it required the doctor to measure the woman's built and nutrition, because it was believed a healthy woman would be able to resist rape.
"There is no uniformity in the manner in which the tests may be carried out...Even two doctors in the same hospital may carry out different tests," Contractor said. (CEHAT also has a detailed manual for medical examination of sexual assault victims, which you can read here)
Dr Indrajit Khandekar, Forensic Consultant at the Department of Forensic Medicine, MGIMS, had carried out multiple studies on the examination of sexual assault victims and discovered that the methods were being used for the last 40 years and were "horrible". This led to him filing a petition before the Nagpur bench of the Bombay High court that was converted into a public interest litigation by the judges.
"I discovered there is no uniform proforma in Maharashtra or the country and an even worse habit was that doctors would file replies to queries sent by police officials investigating the case," Khandekar told Firstpost.
On studying the queries being asked by the police, Khandekar said he discovered that the questions asked were completely irrelevant to the investigations like "Whether the victim is habituated to sexual intercourse", "Whether rape has occured or not" and "Whether the victim is capable of sexual intercourse".
"No investigating agency needs to know this for a case and it is equally not required for doctors to examine injury marks on the body of the survivor," he said, adding that the lack of injury marks was often used to prove in court that the victim had offered no resistance.
Under the recommendations he has made to the Maharashtra government that have since been accepted, doctors are now required to collect over 20 forensic samples as compared to the two-three samples that the police usually sought.
"I had conducted workshops with the police and discovered that the police had developed the queries on their own without any reason for it. I asked where they had learned to ask queries of the sort they did, and they said that the were just following the orders that their seniors had given them and didn't know why it had come into being," he said.
The problem is also that doctors felt that they were obliged to answer the queries by the police, and that in India the examination of sexual assault victims was always carried out by a regular doctor or gynecologist and not by a doctor well versed in forensic science.(You can read the difference between international and Indian hospitals in treating victims of sexual assault victims here)
"We are using a new proforma in our own institute and we have directed police officials not to ask such queries in the future. We need set protocols of this kind not only across the state by the entire country," Khandekar said.
Currently the examination of a rape survivor is carried out under the section 164A of Code of Criminal Procedure code, which Khandekar and other experts debunk as being too inadequate and archaic given there is no uniform medical procedure or acceptance of collecting forensic samples.
The Supreme Court's judgement allowing court's to convict rapists purely on the basis of the survivors statement has helped but not always does it help.
In a detailed report on sexual assault cases in India, lawyers told Human Rights Watch that "usually no acquittal or conviction rests completely on the findings of the finger test, but the defense uses these findings to break the morale of the survivor while she is testifying in court, to question her character and credibility, or to dispute her consent to the sexual act under consideration."
According to Khandekar, the role of forensic science in rape cases cannot be understated because of the Supreme Court judgement.
"Sometimes a victim's statement may not be deemed trustworthy by the court if they are under pressure and fumble while giving their statement. Without conclusive medical tests, judges may hesitate to convict rapists," he said.
And while we may be working towards a uniform proforma for examining adult victims of sexual assault, there is no change yet for children who are victims of sexual abuse.
"There are changes that are required during the examination of victims of child sexual abuse since sexual assault cannot be diagnosed in the same way...We are in the process of submitting an initial set of guidelines," Khandekar said.
A universal proforma across the country and universal laws to examine rape victims with the collection of forensic evidence would go a long way to perhaps ensure that survivors of rape do not face harassment in court. It would also perhaps ensure that they aren't turned away by the legal mechanisms that are meant to safeguard their interests.
Before we jump to amending laws, creating new ones and deciding whom to name them after, perhaps it would make as much sense to improve the treatment of rape survivors when they do seek succour.