Bangladeshi rape
victims not only suffering from grave physical and mental trauma for rape
rather we can marked it as first phase of the torture which open multi windows
to be persecuted further. The path way to get justice for rape victim is very
stony in this country. Rape victims are usually treated judgementally from the
moment they call up the incident. Indeed the victim needs to start her struggle
towards justice. Victims are stricken by social stigma, repeated utterance of
her harrowing experience in every steps of getting justice, maligned two-finger
test, dishonour during trial by questioning chastity, humiliation by defence
counsel during cross examination etc. Investigating agencies also highly relies
on two-finger test to frame charge against rapist. Consequently, victims are
disinclined to report the crime due to the fear of losing her privacy again
after the occurrence of a monstrous crime against her. Despite that, if one
justice seeker shows courage to go to court, becomes frustrate and hopeless at
one point about the minimum chance of getting fare justice. As a result, either
she doesn’t pursue the case properly or withdraw her complaint to become hassle
free.
Yet
we can change the scenario by altering the horrendous two-finger test of the
victim, amending the patriarchal legal provision of questioning character,
introducing technology during investigation and so on. The horrific two-finger
test is nothing but an extra torture and cruel treatment to the victim to prove
the crime. The two-finger test or virginity test allows doctor to inspect the
hymen of women who have been raped and also test vaginal size and laxity to
decide whether the victim is habituated to sexual intercourse.
While there is no scientific or legal connection
between rape, and habituation to intercourse, this evidence is frequently used
in our criminal justice system to conclude whether rape took place or not. As
if rape can only be committed against a virgin girl. What happen if somebody
has previous sexual orientation like a married lady is being raped? It
indicates that our total system is only focusing to a woman who has no prior sexual
experience and others are disqualified to get justice! Additionally, if the
rape survivor passes the test then she is to be treated as virgin that means
she rape was not took place or alternatively, if she fails, it indicates she is
sexually habituated which ultimately favors the accused.
Moreover the
size of vaginal opening varies among women; the hymen is a flexible membrane
which can be ruptured before sex due to many reasons. While gang rape happened
the fact that finding habituation may be a result of that gang rape itself.
Gang rape is more severe in nature than rape which needs to be addressed
specifically by the law. Regrettably we do not have any separate provision to
deal with the offence of gang rape except any woman or child dies in
consequence of gang rape or injury causing out of rape. Incident may become
more brutal if it commits against a pregnant woman.
However,
there are too many variables to determine the flexibility of the vagina e.g.
the size of doctor’s finger, perception of easy accessibility of the doctor may
varies from person to person, experience etc. Additionally, rape can also be
committed by partial penetration of penis; complete penetration or ejaculation
is not at all necessary to prosecute the rapist. Even someone can bring
allegation of rape against an individual with whom she is habituated to sex
before. Habituation to intercourse itself is not a ground not to be raped.
Albeit sexual violence by
means and manner other than penile-vaginal penetration is common and may take
the form of penile-anal penetration, penile-oral penetration, finger-vaginal
penetration or object-vaginal penetration but these are not recognised as any
form of sexual violence in our country. One may merely bring an action for hurt
or grievous hurt for these. Nevertheless, these are sexual assaults also and
cannot be proved by outrageous two-finger test.
Furthermore,
there is no sufficient and well equipped medical arrangement for this test in
every hospital and often it is done by male doctor and male assistant in an
open place which is a serious violation of right to privacy. Indeed this
virginity test is a further arrangement of traumatization, aggression to her
dignity, sexual violence by the system. However, forensic medical evidence can
play crucial role to convict the accused but these issues should be dealt more
sensitively. That is why; set up a separate designated
room for forensic and medical examination of victims is crying need for us to
avoid the infringement of privacy. There must be provisions to provide
alternative clothing for the victims and smooth collection of medico legal
cases evidence keeping in mind the sensitivity of the circumstances. To do any
sort of medical examination for a rape victim if the doctor is male, a female
attendant must be there and while carrying out medical tests no third person
must be present in the room other than the doctor. Counselling should also be
provided to victim to address
the psycho-social impact of sexual violence and to alleviate her woes. However,
doctors should not use the term rape in their opinion as it is purely legal
matter which will ultimately determined by the court what we observed in Banani
rape case rather they can say whether there is any evidence of forceful
intercourse. Media should also be sensitive in reporting these incidents.
The World Health Organization’s
guidance on the medical examination of rape survivors highlights that even a
speculum examination of the vaginal walls to locate injuries “may be
particularly difficult for the patient, as it may remind her of the assault.
Even so concerned are not taking consent of the rape survivor to carry out the
test. They presume
that consent is not particularly important, as filing an FIR is deemed to
entail any necessary examinations which is a misconception. Informed consent of
the victim should be taken before any examination and
informing to parent/guardian in case the victim is under aged or not in a
position to give her consent. Names of examination, intended
sample, purpose of analysis and how the procedure may be carried out has to be
informed to the victim.
To come to a conclusion against this invasive human right
violating, the Bangladesh Legal Aid and Services Trust (BLAST); seven others
human rights, women rights, legal service organizations and two other
individuals filed a public interest litigation before the High Court Division
(HCD) challenging the test in 2013. In response, the HCD issued a rule against
the legality and authenticity of the outdated draconian practice of two-finger
test. The court also ordered to frame a guideline to eliminate this practice of
the test and arrange sensitivity training for the medical personnel who will
deal the matter. However, regrettably the rule still remains pending before the
court. Nevertheless, criminal justice experts,
lawyers, police and forensic specialists have demonstrated that this kind of
test has neither evidentiary value nor scientific merit rather breaches
national and international human rights standards, compounds the victim’s
trauma and paradoxically amounts to a further sexual assault.
Hence, we should not
waste more time to abolish this terrific and unscientific process to prove rape
case. Government must take immediate step(s) to eliminate two-finger test and
to formulate a comprehensive medical guideline for forensic medical care for
sexual assault. Otherwise, victim will not only abused by the rapist but also
infringed by the state as well.
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