A Broken Hymen Cannot Be Held To Measure Someone's Sexual Activeness

The Supreme Court (SC) banned the misogynistic and archaic two-finger test that seeks to assess a broken hymen on October 31st in its hearing. Though previously prohibited in 2013, the test was still executed by various medical professionals and institutions on women.

The SC had already made its mind known about this practice in 2013 when it slammed the practice on the grounds of it being an intrusive unnecessary practice. Additionally, in 2018 WHO, the United Nations of Human Rights, and UN Women resonated with the same sentiments and expressed the test as a violent practice against women. However, the test continued to be carried out covertly and overtly against women. 

Can a broken hymen determine a person's habituation of sexual activity? 

The two-finger test is conducted by a medical professional where two fingers are inserted into a vagina to check its elasticity and the untouched nature of the hymen. 

If the hymen was broken or the vaginal walls are loose, a verdict of the patient being sexually active was passed by the medical professionals involved. 

The test was carried out to ascertain if a survivor indeed suffered rape, as it was held that a sexually active person cannot be sexually assaulted as their hymen is already ruptured. 

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The medical effectiveness of the test on a broken hymen 

The test was considered baseless because the hymen can break into a person's life at any time without having necessarily engaged in sexual activities. A hymen can break while doing exercises such as swimming, cycling, or training. Sometimes people are even born without a hymen. Therefore, a broken hymen cannot be held to measure someone's sexual activeness. 

Someone's habituation of sexual activity or inactivity cannot be held as a measure for vetting if the said person suffered a sexual crime. 

The survivor's testimony of the sexual crime being perpetuated has no connection with their sexual history or if they are habituated to sex, the latter being what the test chased. 

Here's what the SC bench had to say about the hideous tests assessing a broken hymen

"The so-called test is based on the incorrect assumption that a sexually active woman cannot be raped. Nothing could be further from the truth – a woman’s sexual history is wholly immaterial while adjudicating whether the accused raped her," said Justices Hima Kohli and DY Chandrachud. 

Slamming the practice, the SC came up with the statement while revising the Jharkhand High Court hearing of acquitting Rai for his sexual crimes against a minor after which he set the victim on fire. The SC sentenced Rai to life imprisonment. 

The heinous act was committed in 2004 and the victim succumbed to their injuries shortly after. The medical board during that time had subjected the minor to this sexist test. 

In SC's 2013 hearing of the test, it had stated the following: “two-finger test violates the right of rape survivors to privacy, physical and mental integrity and dignity”. 

The Verma Committee dispensing justice during the Nirbhaya case had recommended banning the test and asked the medical board to come up with unintrusive tests to determine whether a sexual crime has been perpetrated. 

Speaking on the matter the SC bench in its hearing on the 31st said "It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped, merely for the reason that she is sexually active."

Steps taken by the SC to abolish the test 

This test that only retraumatises and assigns shame to sexually assaulted victims has been asked to be removed from all medical curriculums in the country and all medical professionals are advised against performing it. 

“Any person who conducts the two-finger test or per vaginum examination in contravention of the directions of this court shall be guilty of misconduct,” said Justice Chandrachud. 

The views expressed are the author's own.