"The clerk told me a male doctor will conduct the test [forensic examination] and asked me whether that was okay. I said 'yes'. But other than that, I did not know what they were going to do. I was so scared and nervous and praying all the time: 'God, let this be over and let me get out of here fast.' I did not even know it was going to be like a delivery examination [an internal gynecological examination]." - Sandhya S. (name changed), an adult rape survivor from Mumbai quoted in Human Rights Watch report, 'Dignity on Trial'.
What Sandhya is essentially referring to here is the controversial two-finger test. Few people had heard about the two-finger test until September this year, when Human Rights Watch researcher Aruna Kashyap released 'Dignity on Trial', a report demanding better forensic testing standards for rape survivors in India. Fewer still knew what this controversial test entails. Among many other issues, this report particularly condemns the two-finger test that is routinely performed as part of forensic evidence collection. India is the only country in the world where the test is still done.
In this test, the examining doctor inserts one or two fingers into the victim's vagina; on the basis of its elasticity and the state of the hymen, she states whether the woman was "habituated to sex" or not. Although it is generally accepted by the medical fraternity that such pronouncements are unscientific and inconclusive, the state governments of Maharashtra and Delhi continue to ask for it in their examination template for rape survivors. After finding mention of the two-finger test in 153 court cases across the country, Kashyap thinks it is a nationwide practice. "The degrading nature of the test apart, the doctor's statements can be used to cast doubts on the victim's credibility and lack of consent," says an indignant Kashyap, calling for its immediate ban.
The medical fraternity appears divided on this issue - there are doctors who would be happy to have it abolished, but many continue to swear by it. A senior gynaecologist at a civil hospital near Mumbai (who has requested anonymity), for example, is certain that the test actually benefits the victim if she is a teenager and unmarried, because if her vagina is "inelastic" and the hymen tear is recent, it strengthens her case. Pronouncing an opinion on whether the victim was habituated to sex is also acceptable, he feels, in cases where "false accusations" and "technical rape" are suspected. Technical rape is a peculiar category where a girl below 16 years had consented to intercourse, but complained under family pressure.
But Manisha Tulpule, advocate and human rights activist, finds these arguments pernicious. "All our medical jurisprudence is based on suspicion about the woman's character. Outdated textbooks used in medical schools only reinforce these perceptions," she says. According to her, besides the two-finger test, there are other severe flaws in the public health system's response to sexual assault which have been less discussed in public forums.
CEHAT, a Mumbai based NGO, which has doctors, lawyers and social analysts on its panel, has since 1997 extensively studied prevalent practices in India, compared them with international practices, and played an advocacy role on the issue with admirable resolve. In an exploratory report titled, 'Response of Health System to Sexual Violence', CEHAT researcher and policy analyst Amita Pitre describes the public health response system as insensitive, and one which prioritises evidence collection over healthcare needs of the victim. As she put it, "The victim is made to move from one department of the hospital to another for the various tests, accompanied by a lady police officer - in effect declaring to the world her plight. She has to recount the history of the assault several times - to the police, to the doctors, even, inexplicably, to the clerk who notes her admission on the hospital register!"
Pitre also notes the lack of proper guidelines or formal training of designated staff for the management of rape cases. There are no standard operating procedures, no provisions for emergency contraception, no prophylactic treatments for HIV, Hepatitis or STDs. There is also no psychological counselling or referral to agencies for legal support or shelter.
"Then there are the chain of custody issues," adds Padma Deosthalee, Coordinator of CEHAT, "One doctor examines the victim, collects evidence and makes a provisional report; the quality of evidence deteriorates because of delays by police in picking up the sealed samples and sending them to the Forensic Science Laboratory. The forensic results may come to a different doctor, who makes the final medical report. Consequently, the doctor who testifies in court may not be the doctor who examined the victim at all. It is all rather haphazard."
Some aspects of public behavior also make it difficult for doctors to deliver optimal service. Rape survivors sometimes report the crime several days after the incident, and forensic examination is done long after the 24-hour window for collecting quality evidence has passed. In many cases, partly because of the stigma attached, rape is not reported at all - especially when it is an "in-house" matter, says the aforementioned gynaecologist from the civil hospital. "The medical complaint made is an innocuous one of pain while urinating, or pain in the stomach. We can see from the vaginal injuries that there has been violent sexual assault - in the case of children, they are sometimes so severe that the wall between the vaginal and anal canal is ruptured. But when the assailant is a family member, the child's escorts don't even mention the 'rape' word. We cannot force them to prosecute, so we just treat the victim and let them go," he says.
While social factors may take a long time to change, some improvements in the testing and healthcare aspects could be implemented right away. Some of the lacunae mentioned stem from the general imperfections in an overburdened public health system. "Lack of adequate infrastructure, understaffed public hospitals and inertia make it difficult to improve standards," says Dr Rajesh Dere from the Department of Forensic Medicine, Lokmanya Tilak General Municipal Hospital.
Infrastructural constraints notwithstanding, Pitre recommends improved training and sensitisation of medical staff, and setting up of one-stop crisis management centres with trained staff within hospitals. A systemic rehaul may not be as difficult as imagined. In fact, CEHAT already has a model in place. In 1998, after a study of best international practices, CEHAT formulated the comprehensive SAFE (Sexual Assault Forensic and Medical Evidence Collection) kit for India.
The kit consists of all equipment required to conduct the examination, a proforma for recording the nature of injuries and history of assault, and a protocol for maintaining a foolproof chain of custody. There are guidelines for providing medical support, and body charts to precisely record injuries. It also has a section for providing psychological and legal support to the victim.
Yet, even after 10 years of concerted efforts by CEHAT to have this kit and protocol implemented in public hospitals, only three hospitals in Mumbai have done so to date - Rajawadi hospital in Ghatkopar, and the Bhabha hospitals in Bandra and Kurla. Concerned authorities cite cost and lengthy processes as reasons for its non-implementation. "In fact, the SAFE procedure can be completed in just 30 minutes," counters Deosthalee. "But convincing the authorities is an uphill task."
Tulpule sees a ray of hope on the horizon, though. The Government of India is currently considering amendments in the rape laws of the country, and has called for experts' recommendations from various fields. This may, then, be just the right opportunity for CEHAT and Human Rights Watch to get their voices heard.
By arrangement with WFS