Guest Author - Gina Cowley
Sexual assault shield statutes protect alleged victims from the introduction by the defense of irrelevant sexual behavior during the course of criminal proceedings. Evidence of reputation or opinion as to the character of the alleged victim is not properly admitted into evidence and with limited exceptions, specific instances of a woman’s conduct are likewise inadmissible during the trial of the accused. Some shield exceptions are: source of semen, injury or disease; prior false allegations of similar assault; and similar acts in the presence of the accused with persons other than the accused which occur at the same time as the incident giving rise to that for which the defendant is on trial. Similar acts with someone other than the accused outside of the presence of the accused in an attempt to show consent (“she did the same thing with that dude on Tuesday and consented to do the same with me on Friday”) is impermissible.
A sexual assault examination following the reporting of particular crimes is the epitome of intrusiveness save the attack itself. Swabbing – combing - photographs - questions – all necessary to obtain evidence of the alleged crime – occur as quickly as possible subsequent to the reporting of the assault. These examinations are necessary to protect the innocent.
I commend the advocates at Human Rights Watch for kicking us out of our comfort zone wherein the rights of the rest of the world are concerned. I would have never guessed that such a thing as the “finger test” existed on this planet in civilized society.
India sports a “finger test” for alleged sexual assault victims – the purpose of which is to test whether a woman who accuses a man of assault harbors a “narrow or roomy” orifice. According to “medical professionals,” who approve of the “exam,” the “laxity” of a woman and whether her orifice permits the insertion of “one or two fingers” (one finger being ok, two fingers being not ok) is a clear indicator of virginity or habitual sex respectively. The “evidence” of roominess is permissibly used in criminal court proceedings by defense attorneys on behalf of the alleged defendant. Human rights groups claim the finger test is unsound scientifically as the state of the hymen is not indicative of virginity in addition to the psychological trauma and pain suffered by the alleged victim during the administration of the finger exam.
Some Indian medical professionals claim that the “finger test” is only performed when a visual examination is insufficient to confirm an intact hymen. Other professionals claim that the “finger test” is only performed once the hymen is confirmed broken in order to understand laxity as it might pertain to habitual sex which is relevant to the defense of the alleged perpetrator in his criminal court proceedings.
I will forego my commentary as to the absurdity of the “finger test” wherein both scientific and legal soundness are concerned. I will write that there is a term more appropriate for your examination India medical examiners who utilize the “finger test” – and in this neck of the woods, you would be charged criminally for your conduct.