Sexual violence is no longer thought of as acts related to desire or lust. Feminists have argued that they may be an exercise of power and control rooted in misogyny that dehumanises some members of society. Unfortunately, the systems we’ve created to respond to such acts are also embedded in patriarchal values. Hence, nearly a decade after the Supreme Court banned the invasive two-finger test in medical examinations following sexual assault, the SC iterated that view again recently, warning medical professionals performing the test can face action for misconduct.
The court pointed out that the test has no scientific value, can be traumatising to a survivor of sexual assault, and is patriarchal and sexual. Indeed, the test is used to state whether the survivor is “habituated” to sex, which the court noted has no bearing on whether or not she was sexually assaulted. Acknowledging that the ruling alone may not trickle down into practice, the court also ordered the circulation of the Union government’s 2014 guidelines on handling sexual assault among hospitals, the education of medical providers on the correct procedure and the review of medical curricula. While the court’s focus is on the medical establishment, it is necessary that states also take it upon themselves to educate trial court judges, the police as well as the legal fraternity.
The ruling should also prompt the establishment to review other antiquated practices that bear little to no value in trying cases of sexual violence and yet are followed almost by rote. One example is potency tests on those accused—including minors—in crimes of sexual violence. The test may only have value if the accused invoked impotence as a defence, yet, the test can only determine whether the person was impotent during the test. Further, when the definition of rape has been expanded beyond peno-vaginal penetration, the test can be meaningless—a throwback to the misunderstanding of sexual violence as related to desire and lust.
In light of the SC’s order, the Union and state governments must also review procedures in the medico-legal handling of sexual violence, draw up better practices and educate every level of stakeholder in implementing them. Sexual violence affects the body and mind of a survivor and her family. It has long been accepted that the journey through the criminal justice system will re-traumatise her. But it should not, and the court’s intervention should be an opening to do better.