August 31, 2023
DHAKA – The two-finger test or virginity test in rape cases was a violation of fundamental rights of the survivours, the High Court observed in the full text of a verdict.
The test was neither scientific nor reliable, said the verdict, originally delivered in 2018 banning the two-finger test (TFT).
“The forensic experts/physicians while examining the survivors/victims of rape and the investigation officers while investigating the rape cases shall not ask any question about their previous sexual experience, and accordingly, shall not opine as to or use the degrading words ‘habituated to sexual intercourse’ in the medical certificates/reports and police reports respectively,” the HC bench of Justice Gobinda Chandra Tagore and Justice AKM Shahidul Huq said in the 62-page text released recently.
The court also ordered the government authorities concerned to take necessary steps so that the “Health Response to Gender-Based Violence Protocol for Healthcare Providers” is strictly followed during examinations of rape victims.
The verdict came after rights organisations Ain o Salish Kendra, Bangladesh Legal Aid and Services Trust, Bangladesh Mahila Parishad, Brac, Manusher Jonno Foundation, and Naripokkho, and physicians Ruchira Tabassum Naved and Mobarak Hossain Khan filed a writ petition challenging the legality of the two-finger test in October 2013.
The petitioners said the test had no evidential value or scientific merit.
It is humiliating, degrading, and a violation of women and girls’ fundamental rights to equality and dignity. Many women reportedly refuse to undergo the test due to its invasive and humiliating nature, and are thus denied justice, the petition stated.
The full text of the verdict said for examination of deep-seated vaginal injuries, the matter must be referred to a gynaecologist to identify the injuries or for medical reasons.
“The per speculum examination shall not be compulsorily done in the case of children/young girls when there is no history of penetration and visible injuries.”
The HC also directed the government to appoint adequate numbers of trained female forensic experts/physicians and nurses for the medical examination of rape survivors.
“Such examinations shall be conducted in the presence of a female police officer, a female relative of the survivor/victim and a nurse preferably by female forensic experts/physicians with the fully informed consent of the survivors/victims or the guardians. In the cases of minors, the forensic experts/physicians, nurse, police and others concerned shall maintain the privacy, bodily integrity and confidentiality of the survivors/victims.
“The Nari O Shishu Nirjaton Daman Tribunal shall ensure that no lawyer generally asks any question to the survivors/victims of rape, which is degrading to their privacy, bodily integrity, modesty, prestige and dignity and not relevant to the determination of the fact of rape.”