In India, physicians are allowed to perform a “finger” test on rape victims to determine their level of sexual activity. If a physician is able to insert two fingers into the victim’s vagina, she may be considered “habituated” to sex. Results of the examination are admissible in court and can be used to undermine the credibility of an unmarried rape survivor, according to a recent Human Rights Watch report. There are several international instruments that commit states, including India, to uphold women’s right to pursue medical attention and legal remedies, and would prohibit the use of the finger test.
The international community has taken measures to stop sexual violence and encourage the prosecution of sexual offenders. According to United Nations Resolution 62/134, states are obligated to exercise due diligence to prevent, investigate, and punish sexual crimes. The Resolution further urges states, “[to] provide victims with access to appropriate health care, including sexual and reproductive health care, psychological care, and trauma [counseling].”
Various international laws protect women’s rights. Article 5 of the Universal Declaration of Human Rights (UDHR) forbids “cruel, inhuman or degrading treatment.” India ratified the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), and article 5(a) of the Convention obligates states to “modify . . . social and cultural patterns of conduct of men and women” to prevent prejudice based on gender stereotypes. Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) extends the “ . . . right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”
The finger test likely violates the women’s rights articulated in the UDHR, CEDAW, and the ICESCR. Furthermore, the finger test may deter rape victims who fear subjection to such an invasive procedure or the potentially damaging results from coming forward. In addition to violating clearly established international human rights law, the finger test, by creating a potential disincentive for women to come forward after being raped also undermines the justice system by allowing some rapists to escape punishment.
India has taken some steps to prevent the use of the finger test. In 2005, the Supreme Court of India held in State of Uttar Pradesh v. Pappu that a rape victim’s prior sexual activity is irrelevant. More recently, a proposed amendment to the Criminal Law Bill states that, “previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent.” Also this year, India established a committee, headed by Justice Gita Mittal, to consider further amendments to sexual violence laws. The committee has not yet released a formal response to the use of the finger test.
Despite efforts by the national court system, legislature, and medical organizations to ban the finger test, local doctors, attorneys, judges, and police officers are still authorizing the test. Human Rights Watch identified eighteen Indian states, including thee major Mumbai hospitals, that still use the finger test. In June 2010, the Maharashtra government standardized how many fingers to use during the test, and earlier this year, the Delhi government requested reports regarding whether the orifice is “roomy,” or “narrow.” The inaction of India’s national government shows that it is either unable or unwilling to enforce the Supreme Court’s five-year-old decision.
Despite attempts to dissuade the use of the finger test, the practice is still used on women in a country with the second largest population in the world, even though the finger test clearly violates international laws and obligations to protect the right to privacy and bodily integrity.