Gender Violence:The Health Impact – Discriminatory & Prejudicial Medical Practices: An Instrument of GV

by Ragamalika Karthikeyan

In the aftermath of a rape, survivors are told to follow certain protocol to ensure that forensic evidence can be collected properly. The National Commission for Women advises women specifically to not take a bath or change their clothes, to tell someone about the incident, file an FIR and get a medical examination done, in that order[1].

However, getting that medical examination is in itself a traumatic experience for most sexual assault survivors in India, as a result of archaic medical practices such as the ‘two-finger test’. Indeed, there are several medical practices in India, not limited to examination of rape survivors, which are themselves instruments of gender violence. We explore some of the most serious discriminatory and prejudicial medical practices in this post.

Pre-natal Sex Determination

Female foeticide is a horrible social reality in India. While the Government of India banned pre-natal sex determination in 1994[2], the female sex ratio is still dangerously low. In fact, while the overall sex ratio increased from 933 females per thousand males in 2001, to 940 in 2011, the child sex ratio has declined from 927 females per thousand males in 2001 to 919 in the latest census[3].

Yet, as per the National Crime Records Bureau (NCRB), only 221 cases of foeticide were registered in the country in the year 2013.[4] According to the NCRB, the rate of crime under this head is ‘negligible’[5].

So, unless we believe natural selection has significantly skewed the numbers against women, we must conclude that there are medical practitioners in the country who still perform sex-selective abortions. Thus, twenty years after the banning of pre-natal sex determination, policy makers and civil society will need to think about how to tackle this menace; moreover, it is imperative that this discussion goes beyond the rhetoric about ‘problems of implementation’. At the same time, the regressive attitudes that lie behind sex-selective abortions must not be confused with the right of a woman to have a safe abortion.

Medical Termination of Pregnancy

Abortions in India are allowed under the Medical Termination of Pregnancy Act, 1971, but conditions apply; because the sex of a foetus can be determined after 12 weeks, the law mandates that terminating a pregnancy between 12 and 20 weeks requires the consent of two qualified medical professionals. For pregnancies under 12 weeks, a woman has to depend on the judgment of a doctor, who has to be convinced, in ‘good faith’, of one of the following scenarios[6]:

• Risk to life, or physical/mental well-being of the woman
• Risk to life, or physical/mental well-being of the unborn child
• Contraceptive failure in case of a married woman
• Rape, as professed by the woman

Abortion law in India, therefore, is more population control-centric and has very little to offer in terms of rights-based delivery of a medical service. This has left a large population of women vulnerable to unhygienic and unsafe ‘quick fixes’, and expensive and sometimes illegal private healthcare.

Thus, the stigma surrounding pre-marital sex has forced several women to opt for unsafe methods of terminating their pregnancies. According to a study conducted in Manipur on data collected over 5 years, 76 per cent of the women who came in for an abortion of a first-time pregnancy were unmarried[7]. The Report of the Dialogue on Gender, Sex-Selection and Safe Abortion published by CEHAT also talks about the judgmental attitudes of medical service providers on abortions, leading to ‘verbal (and sometimes physical) abuses during service delivery’[8].

Legally, doctors only need the consent of the woman undergoing the procedure for performing an abortion. However, case studies show that several medical practitioners demand the ‘permission’ of the husband for performing the procedures[9], further minimising the right of an adult woman to her own bodily autonomy.

Thousands of woman die every year because of unsafe abortions. Policy makers must recognise this reality, and work towards making the medical termination of pregnancy rights-based, while also creating more awareness about the use of contraceptives.

Sexual Assault and the ‘Two-Finger Test’

Following the gang rape of a young medical professional in Delhi in December 2012, sexual assault laws were modified as per the Criminal Laws (Amendment) Act, 2013. The Act was revolutionary in changing the definition of sexual assault beyond peno-vaginal penetration, as per the recommendations of the Justice Verma Committee. However, despite changes in the law, the medical practices around examination of rape survivors continue to be problematic.

The first issue in this regard is that until recently, there was no standardised protocol for collecting forensic evidence in India. Essentially, the tests done on a survivor depended solely on her doctor. After years of public demand for standardisation of the procedure, the Ministry of Health and Family Welfare came up with guidelines for medical examination of rape survivors in March 2014. For the first time, the guidelines explicitly ban the conduct of a two-finger test in rape examinations; yet, this archaic medical procedure is still practiced in several hospitals across the country.

Over 115 years ago, French jurist L. Thoinot is believed to have been the first person to prescribe the two-finger test to determine the virginity of a woman or a child, in his book, ‘Medico-legal Aspects of Moral Offences’. In the India of 2014, this test is still performed on sexual assault survivors, to determine whether they were sexually active before the purported rape. Essentially, the test involves inserting two fingers into the vagina of the woman to ascertain its ‘elasticity’.

The problem with this medical practice is manifold. Firstly, the very suggestion that the sexual history of a rape survivor is of any value to an investigation of the crime is regressive. Secondly, the two-finger test, or the hymen tear test, is not medically conclusive on whether or not the survivor was raped, or on what the sexual history of a woman is.[10]

Thirdly, and most importantly, medical practitioners do not seek the explicit consent of the survivor for the two-finger test. Consent is sought for a bundle of procedures without informing the survivor of the exact nature of each test. By the very definition of sexual assault, this procedure without the consent of the survivor amounts to rape.

The ‘Not Injured, Not Assaulted’ Myth

Another major issue is that medical examinations of sexual assault survivors perpetuate stereotypes of who can and cannot be a victim. The stress on visible physical injury on the body of the survivor as evidence of whether or not she consented to sex goes against internationally accepted norms. This emphasis on injury fails to recognise that force need not always be physical. Medical examination of survivors does not take into account whether she was blackmailed, or forced to submit by other means.

Sensitisation of Medical Practitioners

Gender Violence is perpetuated by society, and medical practitioners are a part of the society that we live in. Thus, while laws around medical care may not always be discriminatory or prejudicial, in practice, women and girls are at the receiving end of archaic notions about gender and sexuality – even when it comes to something as critical as healthcare, something that not just policy makers, but the medical community and society as a whole needs to work on correcting.

[1] http://ncw.nic.in/MeeraDidiSePoochoEnglish/Chapter02.pdf

[2] Pre-Conception and Pre-Natal Diagnostics Techniques (PCPNDT) Act, 1994

[3] Census 2001, Census 2011

[4] Crime in India-2013, National Crime Records Bureau

[5] Pg 96, Crime in India-2013, National Crime Records Bureau

[6] Medical Termination of Pregnancy Act, 1971

[7] Characteristics of Primigravid Women Seeking Abortion Services at a Referral Center, Manipur. (Ibetombi T Devi, BS Akoijam, N Nabakishore, N Jitendra, Th Nonibala, 2007)

[8] Report of the Dialogue on Gender, Sex-Selection and Safe Abortion, CEHAT 2013

[9] Abortion Needs of Women in India: A Case Study of Rural Maharashtra (Manisha Gupte, Sunita Bandewar, Hemlata Pisal), CEHAT

[10] Dignity on Trial: India’s need for sound standards for conducting and interpreting forensic examinations for rape survivors. Human Rights Watch, 2010

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Ragamalika Karthikeyan is a Prajnya volunteer, and currently a fellow with PRS Legislative Research’s Legislative Assistants to Members of Parliament programme. A television journalist before she made the switch to policy research, Ragamalika is interested in issues surrounding gender, social hierarchies, and sanitation.