As a law student, I am constantly looking to glean insight into the laws of other countries, particularly those that affect women’s rights. While perusing the website of Human Rights Watch, one of the world’s leading organizations that monitors human rights violations globally, I came across an article that turned my stomach: “India: Prohibit Degrading ‘Test’ for Rape.”
With the advent of crime shows that focus on sex crimes, most Americans know that if a rape victim goes to the hospital following a sexual assault, she or he will be subject to further embarrassment and seeming violation in the form of a rape kit. The collection of solid evidence, any lawyer will tell you, is intrinsic to success during trial. To be sure, this procedure is so intrusive that many women choose not to go through with it at all. And those who do are the first to tell you how terrible it truly was.
Turn now to India. In the world’s largest democracy, female rape victims are subjected to what, at least in this country, would be considered further assault. The test involves a doctor inserting fingers into the survivor’s vagina to determine whether the hymen was broken. (The article goes into greater detail that you can read for yourself if you wish.) Within the borders of India itself, medical jurisprudence, relied on by none other than the country’s doctors, lawyers, and judges, acknowledge that the test is outdated.
Human Rights Watch in September released a report based on interviews with 44 activists, rape survivors and their parents, lawyers, doctors, judges and forensic experts in Mumbai and Delhi. One of the most important findings was that the evidence collected from this test is “scientifically baseless.” This apparently useless information is still being collected from women rape survivors in many an Indian state and further traumatizing the victims. Speaking to Human Rights Watch, one rape victim recalls of her exam, “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.'”
There is movement in the court system, albiet incremental. The Indian Supreme Court, whose opinions are binding for the lower courts, ruled that findings from the finger test are “hypothetical and opinionative” and cannot be used against the rape victim at trial. Though this has helped curtail the practice, it is still a far cry from standardizing medical treatment in a way that shows sensitivity to the survivor. And governments in Maharashtra and Delhi continue to recommend the finger test to collect forensic evidence.
The issues surrounding this practice dig deeper into India’s general malaise or apathy toward rape victims. Doctors themselves have testified that the finger test is painful for the survivor. One doctor told Human Rights Watch that a sexual assault victim over the age of 12 or 13 is often viewed, by both doctors and law enforcement, as trying to falsely frame someone. This results in further trauma: they may go so far as to say to her “why are you crying, you have only been raped?”
Indian Government: please take note of HRW’s report. Sexual assault survivors need support and legal recourse not further pain and violation. The Indian court system is one that allows for legislative reform. Use this power to prohibit the finger test and standardize treatment, train professionals on how to deal properly with victims, and allow the abatement of further trauma to ensue.