January 4th, 2021
By Rehan Piracha
In a historic judgment, the Lahore High Court on Monday banned the two-finger test and the hymen test of female rape victims across the country, declaring the procedures unscientific, discriminatory, illegal, and unconstitutional.
In March 2020, a group of women – journalists, activists, and academics moved the court demanding a ban on the controversial test that is not only unreliable but also extremely humiliating for women to endure, especially if they are rape survivors.
The petition was filed by women including Sadaf Aziz, Farida Shaheed, Farieha Aziz, Farah Zia, Sarah Zaman, Maliha Zia Lari, Dr. Aisha Bedar, and Zainab Husain. Their petition was then clubbed together with another that had been filed by PML-N MNA Shaista Parvez Malik with Sahar Zareen Bandial and Barrister Sameer Khosa as lead counsel.
In her judgment, Justice Ayesha A Malik declared that the two-finger test and the hymen test carried out for the purposes of ascertaining the virginity of a female victim of rape or sexual abuse is unscientific having no medical basis. Therefore, the test has no forensic value in cases of sexual violence, she said in her judgment.
The court also declared the test to be unconstitutional and discriminatory towards women. “It is also declared the virginity test offends the personal dignity of the female victim and therefore is against the right to life and right to dignity enshrined in Article 9 and 14 of the Constitution,” Justice Malik said in her verdict, adding that the ‘virginity tests are discriminatory against the female victim as they are carried out on the basis of their gender, therefore offends Article 25 of the Constitution’.
The court directed the Federation and the Provincial Government to take necessary steps to ensure that virginity tests are not carried out in the medico-legal examination of the victims of rape and sexual abuse. “Consequently to the extent that the 2020 Guidelines, SOPs, and the 2015 Instructions mandate the two-finger test or the hymen test for the purposes of ascertaining the virginity of the victim are declared to be illegal,” the judgment said.
The high court directed that the Provincial Government should devise appropriate medico-legal protocols and guidelines, along with standard operating procedures, in line with the international practice that recognizes and manage sensitively the care of victims of sexual violence. The judge also called for regular training and awareness programs so that all stakeholders understand that virginity tests have no clinical or forensic value.
‘An end of character assassination’
Sarah Bandial, the counsel for one of the petitioners, told Voicepk.net that the judgment was significant in that it has declared the use of virginity tests and the hymen test in cases of rape and sexual abuse as having no medical basis or scientific value. Bandial said the verdict would end the character assassination of victims of rape and sexual assault in court proceedings.
“Medico-legal examinations of rape victims/victims of sexual abuse have often relied on the absence of the hymen and in other instances ease with which the vaginal canal permits two fingers to draw adverse conclusions regarding the victim’s character, often using terms such as ‘habituated to sex’, and thereby her likelihood to have consented to the sexual activity,” she said, adding that such conclusions have on occasion been relied upon by courts of law to grant acquittals.
“The Lahore High Court’s decision strongly rejects the character assassination of victims of rape/sexual assault, and the propensity to club female victim’s within the binaries of the ‘moral/virgin woman’ worthy of the law’s protection and the ‘immoral/habituated woman’ whose testimony regarding assault/rape is to be disbelieved, Bandial said.
Sameer Khosa, another counsel in the petitions, said the judgment was the much-needed step in the right direction of improving the investigative and judicial processes in rape and sexual assault cases. He hoped that the verdict will be implemented by all concerned authorities to ensure that such unlawful practices are immediately discontinued and prohibited. “The medico-legal examinations are carried out in a manner that safeguards the physical and mental well-being of all victims of sexual assault,” he said.
Test is unscientific
In her judgment, Justice Ayesha Malik said globally the tests are neither considered to be medically or scientifically viable for investigating sexual violence.
“In this context, there are volumes in international publications issued by the WHO, United National Human Rights, and UN Women, who have also deprecated the practice of virginity testing. These reports and statements make it clear that internationally there is clarity and consensus that virginity tests by way of the two-finger test and hymen test cannot indicate definitively that there was any sexual violence,” the judgment read.
Similarly, the judge said courts in India, Bangladesh, and the European Court of Human Rights have ‘all held that there is no scientific or medical basis to carry out virginity testing in the form of two-finger test or to rely on the status of the hymen whether it is torn or intact as it has no relevance to the investigation into the incident of rape or sexual abuse’.
The court noted that international conventions have also opposed virginity testing. “The United Nations Committee on the Elimination of All Forms of Discrimination against Women and the United Nations Committee on the Rights of the Child, the United Nations Special Rapporteur in Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the United Nations Special Rapporteur on Violence Against Women, its Causes and Consequences have all declared virginity testing to be a harmful practice.”
Pakistan, which has ratified the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), has to ensure that all necessary steps are taken to prevent discrimination and specifically to prevent carrying out virginity testing, as globally it is accepted that virginity testing does not establish the offense of rape or sexual abuse nor does past sexual conduct have any relevance in the medico-legal examination which aims to collect evidence on the charge of sexual violence, the court said.
‘No clarity in 2020 guidelines, SOPs, instructions 2015’
The government had claimed that the new guidelines had banned virginity testing of female victims of rape or sexual abuse. However, the court noted that there was no clarity whether the virginity testing was banned as the hymen test could still be carried out if it is warranted medically or for treatment purposes, adding that the medico-legal examination proforma still required the medical officer to stipulate the reasons for carrying out the hymen test.
Similarly, the court stated that notwithstanding the promulgation of the 2020 Ordinance which specifically prohibits the two-finger test by way of Section 13, the Federal Government has taken no steps to enforce the requirements of the 2020 Ordinance or any steps to create awareness and training in order to change the habits of the medico-legal officers in carrying out the virginity test. “As the concept of virginity testing is ingrained in the processes of the medico-legal examination without proper training and awareness programs, there can be no success in bringing the tests to an end,” the judgment read.
‘Punjab ML Surgeon unaware of changes’
The court also expressed surprise that the Surgeon Medico-Legal Punjab, who had defended the two-finger test and hymen test on the basis of medical protocols, was unaware that the virginity tests were no longer recognized under the updated medical protocols. “It is vital that Respondent No.11 (Surgeon Medico-Legal Punjab) himself along with his department as well as Specialized Healthcare and Medical Education Department, Lahore are aware of updated medical protocols and forensic science with reference to the cases of sexual violence,” the judge said, adding that a concerted effort must be made so as to ensure that virginity tests are stopped in totality.
The petitions challenged the use and conduct of virginity tests specifically being the two-finger test and hymen examination in cases of rape or sexual abuse. The petitioners sought a permanent restraint against the use, conduct, or facilitation of virginity tests by the government. The petitioners pleaded with the court for a direction to ensure that necessary and proper measures are taken with respect to the physical and mental health and safety of the women undergoing the medico-legal examination.
According to the petitioners, the government should rely on scientific methods of investigation as the virginity test is neither scientific nor medically required to establish the incident of rape or sexual abuse. The petitions have been filed in the interest of and for the benefit of victims of sexual violence who are subjected to virginity testing.
The petitioners contended that the tests are irrelevant for the charge of rape or sexual abuse, particularly after the omission of Section 151 (4) of the Qanun-e-Shahadat Order, 1984 (QSO) under the Criminal Law (Amendment) (Offences Relating to Rape) Act, 2016 (Amendment Act, 2016).
The lawyers of the petitioners argued that the circumstances in which the tests are conducted is such that first the consent is obtained from the victim for the purposes of carrying out the examination, however, the victim is neither aware of the reasons for carrying out either of the tests nor is she informed properly, with sufficient sensitivity, as to what the examination entails. Furthermore, generally, the victim is not informed by the female medical practitioners that she can refuse to be tested. The lawyers argued that the virginity tests are neither necessary nor reliable or relevant for the purpose of investigation into the incident of rape or sexual abuse.
The petitioners stated that the medico-legal examination reports rely on words such as habituated to sex or not a virgin which is totally irrelevant for the purposes of the incident under investigation and at the same time such derogatory language stigmatizes the victim, causing social and personal trauma. Besides, the virginity test is also against international conventions to which Pakistan is a signatory.
Shireen Mazari, Federal Minister for Human Rights, praised the verdict calling it a landmark judgment. “Justice Ayesha Malik’s decision is a bold and clear judgment against the demeaning and absurd two-finger test,” she said in her tweet. “It also strengthens the ban placed on this test in the anti-rape ordinance against the detractors,” she added.
Justice Ayesha Malik's decision today is a bold and clear judgement against the demeaning and absurd "two-finger test". A landmark judgement indeed. It also strengthens the ban placed on this test in the anti-rape ordinance against the detractors.
— Shireen Mazari (@ShireenMazari1) January 4, 2021