Two days after she was raped, the 18-year-old lay spread-eagled on a white sheet at a public hospital in Delhi. Her salwar was removed by a nurse and the kameez bunched up above her navel. Two male doctors arrived. She went stiff as, without a word, they started examining her pelvic region. All of a sudden, two gloved fingers went deep inside her vagina. She cried out in pain. Silent and aloof, they merely wiped their fingers on glass slides and left. They had neither asked her permission nor explained to her why they did what they did: The two finger test (TFT).

Widely performed across India, TFT checks the elasticity of a victim's vagina. Going by the number of fingers admitted, a doctor gives his opinion on whether a woman is "habituated to sex" or not. There is no law in India that says doctors need to do it. The Indian Evidence Act, amended in 2002, forbids reference to past sexual history in rape. In 2003, the Supreme Court called TFT "hypothetical" and "opinionative". Most countries have scrapped it as archaic, unscientific and invasive of privacy and dignity. Sharp criticism has come from the Justice J.S. Verma Committee, which submitted its report on criminal laws to protect women on January 23. The report says, "Sexual assault is a legal issue and not a medical diagnosis." The size of the vaginal opening has no bearing on a case of sexual assault, it emphasises. "The two-finger test must not be conducted," it concludes. The report also proposes barring doctors from giving observations on whether a victim is "habituated" to sexual intercourse or not.

There is protest in the air. 'Prohibit the two-finger test' is a slogan a thousand angry voices chanted on the streets of Delhi hours after the Republic Day parade on January 26. Signature campaigns are doing the rounds. "The Government needs to prohibit the degrading practice," urges Kavita Krishnan, national secretary of the All India Progressive Women's Association.

"There is no scientific basis to this test," says forensic expert and lawyer Dr Indrajit Khandekar of Mahatma Gandhi Institute of Medical Sciences, Sevagram, in Wardha, Maharashtra. Results change according to the size of fingers, he explains. "There is also no defined scale for measuring vaginal laxity." Old tears on the hymen and vagina also do not prove that a girl or woman is "habituated to sex". According to Dr N. Jagadeesh, forensic expert and jurist at Vydehi Institute of Medical Sciences, Bangalore, these can be caused by exercise, physical activity, injury, tampons or fingers, apart from sex. "Some women also have very elastic hymens that do not easily rupture during sex," he says.

At the root of the problem is a colonial legal relic that defies logic in the new millennium. Pratiksha Baxi, who teaches at the Centre for Law and Governance in JNU, says, "The French medical jurist, L. Thoinot devised the test around 1898 to tell 'true virgins' from 'false virgins', a term for women with elastic hymens that allow penetration without tear." In India, almost every textbook on medical jurisprudence has blindly promoted TFT, including A Text Book of Medical Jurisprudence and Toxicology by Jaising P. Modi, one of the most-read forensic primers.

While medical evidence is crucial in rape trials, defence lawyers use such textbooks and doctor's comments to make a case that the victim is of dubious character. "They ask in what position she was raped, for how long, if there was penetration, raise hundreds of irrelevant questions about her character," says Baxi, who sat through rape trials across district courts for her research. Section 155(4) of the Indian Evidence Act of 1872 held till 2002 that "when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character". The section was repealed but that psyche continues.

A 2010 report, Dignity on Trial, by international NGO Human Rights Watch, shows how judges link 'character' with the finger test. In 2009, in the case of Musauddin Ahmed, the Supreme Court found the 13-year-old Mira Begum "a woman of easy virtue", because her TFT stated that she was used to sexual intercourse. The High Court of Himachal Pradesh in 2007 convicted Yatin Kumar as medical reports showed the victim was not "habituated to sex". The doctor had inserted two fingers "with difficulty" which had led to bleeding. In a 2006 case in Patna High Court, Hare Krishna Das was acquitted of gang rape as the doctor testified that the victim's hymen had an old tear and she was "habituated" to sex. The judge claimed she had "loose" morals.

The problem is, hospitals across India ask doctors to state in the medical exam form whether the hymenal orifice admitted one or two fingers, the vaginal opening was narrow or roomy, injuries were fresh or old. If a doctor writes "no rape" or "attempt to rape", the accused gets undue advantage in court. If a doctor inscribes, "She is habituated to sexual intercourse", it is used as evidence to demolish a woman's character and disqualify her testimony.

Dr Jagadeesh blames the absence of a uniform and modern protocol for examining rape in India. "Progressive countries investigate what leads to the loss of evidence," he says. Only about a third of victims globally show physical injuries. Obvious signs of injury are not always present in a rape. A woman may have been unconscious. Delayed medical exam can also give negative results, semen may get washed or rapists may use condoms. Courts do not usually consider these.

Doctors deepen the misery

It came as a shock when, in the wake of the Delhi gang rape case, "survivors" appeared in silhouette on TV and talked about their trauma at the hands of doctors. "Inexperienced doctors are a huge problem as victims get traumatised further and vital evidence is lost," says Dr Khandekar. "There is little focus on forensic science at the MBBS level."

Legal changes may have played an insidious role. From 1997, the law stipulated that only female doctors could handle medical exam of rape victims. "Most of them were in obstetrics," says Dr Jagadeesh. In fact, TFT may have come into general practice from gynaecology, where it is used to check labour progress. "This left 50 per cent of MBBS students, the males, without any practical exposure to such procedures." But with shortage of female staff, the laws were amended again in 2005. Now a 'registered medical practitioner' of any gender and from any field can take up such cases, subject to the victim's consent. Such changes have introduced more physicians to these sensitive exams. But many do not have the skill.

A rape victim is brutalised twice in India: First by the rapist and then by the state. In between, various agencies step in, each looking at the victim through their own prisms of preconceptions and prejudices. But the way doctors manage a sexual assault case is crucial to the way India can resolve its emerging rape crisis.