The High Court today prohibited the controversial use of “two-finger test” conducted for the rape victims to prove the rape.

Saying that the test has no scientific and legal merit, the court also ordered the authorities concerned to strictly follow the healthcare protocol in assessing for the rape victims.

The HC bench of Justice Gobinda Chandra Tagore and Justice AKM Shahidul Huq came up with 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 so that the lower court judges and investigation officer of the rape cases will follow the HC order.

It also ruled that the lawyers cannot ask any question to the rape victims during the trial proceedings so that their dignity is hampered.

The judges said in the petition that “two-finger test” has no evidential value and scientific merit.

TWO-FINGER TEST: VIOLATION OF PRIVACY

The two-finger test or virginity test allows doctors to inspect the hymen of women who have been raped. This is also supposed 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, including in 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. Thus, this test, even if the report is affirmative, cannot ipso facto, gives rise to presumption of consent,” 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.

In 2013, Bangladesh Legal Aid and Services Trust [BLAST] moved the High Court challenging the test. In response, the HC in October that year questioned the legality and authenticity of the test. It also issued a rule asking the government to explain why the test will not be declared illegal.

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 recognises that the test is “unscientific” and “horrendous.”