Staff Reporter :
The High Court (HC) on Thursday prohibited the controversial use of “two-finger test” conducted for proving rape incidents.
The HC said, the test has no scientific and legal merit and ordered the government to strictly follow the healthcare protocol in honouring dignity for the rape victims.
The HC bench of Justice Gobinda Chandra Tagore and Justice A K M Shahidul Huq delivered the verdict following a writ petition filed by six human rights organisations, including Ain o Salish Kendra and Bangladesh Legal Aid and Services Trust (BLAST), in 2013.
The court directed the government to issue a circular in this connection so that the lower court judges and investigation officers in the rape cases abide by the HC order.
It also ruled that the lawyers cannot ask the rape victims any question during the trial proceedings so that their dignity is not hampered.
The judges said in the judgement, “two-finger test” have no evidential value and scientific merit.
There is a widespread concern among medical professionals, law enforcement agencies and women’s rights advocates, as well as government officials that the so-called “two finger test” conducted by physicians in medical colleges across the country on women and girls who complain of rape is unscientific and has no forensic value.
It has also been suggested that the two-finger test yields no medical or legal benefit for the rape victim and can be emotionally re-traumatising, as being violative of fundamental rights as guaranteed under Articles 27, 28, 31, 32 and 35(5) of the Constitution.
BLAST, after many months of research and consultation on the issue with related experts and review of its own casework, as well as coordination and networking with concerned organisations, filed a writ petition in this respect along with five leading human rights, women’s and development organisations (Ain O Salish Kendra, Bangladesh Mahila Parishad, BRAC, Manusher Jonno Foundation, Naripokkho) and two medical experts, Dr. Ruchira Tabassum Naved and Dr. Mobarak Hossain Khan.
The petitioners argued that the impugned practice of conducting the “two finger test” results in violations of the physical and mental integrity or dignity of women and girls who are subjected to rape, and of their rights to be free from cruel, inhuman and degrading treatment, as guaranteed under Articles 27, 28, 31 and 35(5) of the Constitution.
On October 10, 2013 the High Court Division bench comprising of Mr Justice Mirza Hussain Haider and Mr Justice Khurshid Alam Sarkar issued a Rule asking the Secretary, Ministry of Health and Family Welfare, Government of Bangladesh, Secretary, Ministry of Home Affairs, Director General, Directorate of Health Services, Inspector General of Police to respond in four weeks as to why the so called ‘two-finger test’ should not be declared to be without lawful authority and of no legal effect.
The Court further asked the respondents why their failure to prohibit the “two finger test” resulting in discriminatory and arbitrary treatment, and violations of their fundamental rights as guaranteed under Articles 27, 28, 31 32 and 35(5) of the Constitution should not be declared without lawful authority.
The court also asked the Health Ministry to form a committee of experts to develop a detailed guideline to provide support to rape victims on examination and treatment, and submit the guideline to the court in three months.
The Ministry has submitted the draft guideline, proposing abolishing the two-finger test. The guideline itself recognizes that the test is “unscientific” and “horrendous.”
The two-finger test or virginity test allows doctors to inspect the hymen of women who have been raped. This is also done to test vaginal laxity and decide whether the victim is habituated to sexual intercourse.
To prove her complaint before the case is ready for trial, the victim must go through this test, however indecent it may sound.
First, it violates her right to privacy. Second, medical experts worldwide and from Bangladesh say this test is unreliable. In their views, if the victim is married, middle-aged or has conceived multiple times, then how could this test help find any evidence? “Undoubtedly, the two-finger test and its interpretation violate the right of rape survivors to privacy, physical and mental integrity and dignity,” said the Indian Supreme Court in a landmark order in May 2013.
In the order, the court asked the government to ban the two-finger test and asked all hospitals to set up designated rooms for forensic and medical examination. Eight months after the SC order, the Indian government banned the two-finger test.
The test also contradicts the International Covenant on Economic, Social, and Cultural Rights 1966 and the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985. Under the two legal instruments, rape survivors are entitled to legal recourse that does not re-traumatise them or violate their physical or mental integrity and dignity.
