The Lahore High Court has held that 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 unconstitutional.
The court held that such tests are unscientific having no medical basis and also offends the personal dignity of the female victim.
Justice Ayesha A. Malik held that such tests are discriminatory and against the right to life and right to dignity enshrined in Article 9 and 14 of the Constitution of Pakistan. The court also directed the Federation and Provincial Government to take necessary steps to ensure that virginity tests are not carried out in medico legal examination of the victims of rape and sexual abuse.
The court declared thus while disposing writ petitions challenging the use and conduct of virginity tests specifically being the two finger test and hymen examination in cases of rape or sexual abuse.
In its judgment, the court refers to various research reports and observed that 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.
A reference has also been made about the judgment of Supreme Court of India in Lillu @ Rajesh & ANR v State of Haryana wherein it has been held that:-the two finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. The Court also referred to Allahabad and Gujarat High Court judgments. "These courts 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 judge said.
Following are some of the observations made in the judgment:
Virginity testing is highly invasive, having no scientific or medical requirement, yet carried out in the name of medical protocols in sexual violence cases. It is a humiliating practice, which is used to cast suspicion on the victim, as opposed to focusing on the accused and the incident of sexual violence. This in effect amounts to gender based discrimination as it is neither a medical condition which requires treatment nor does it provide any clinical benefit to the victim. Its sole purpose is to determine whether the victim is habituated to sexual intercourse so as corroborate her statement on the charge of rape and sexual abuse. When seen in the context of an investigation into the incident of sexual violence, whether the victim was previously accustomed to sexual intercourse is hardly the determinative question. The issue is whether the accused committed rape on the victim in the time and circumstances complained of. If the victim, is found to not be a virgin, it cannot and does not suggest that she was not raped or sexually abused. What it does is place the victim on trial in place of the accused and shifts the focus on her virginity status. In this regard, the victim's sexual behaviour is totally irrelevant as even the most promiscuous victim does not deserve to be raped, nor should the incident of sexual violence be decided on the basis of a virginity test. When seen in the context of fundamental rights Article 9 of the Constitution provides for the right to life and liberty as per law and Article 14 of the Constitution provides for the fundamental rights of dignity of man. These rights ensure that life is to be lived with a dignified existence protecting one from degradation and ensuring accessibility to a decent physical, social and cultural environment. It also protects a person from structured stigmatizing as stereotype discrimination adversely impacts the dignity of a person. Furthermore, it ensures that right to receive healthcare of a high standard and to the highest attainable standard of physical and mental health.
The virginity test by its very nature is invasive and an infringement on the privacy of a woman to her body. It is a blatant violation of the dignity of a woman. The conclusion drawn from these tests about a woman's sexual history and character is a direct attack on her dignity and leads to adverse effects on the social and cultural standing of a victim. It is also discriminatory as the test is carried out primarily to ascertain whether or not she is sexually active, for which there appears to be no justification as being sexual active is irrelevant to the incident of rape or sexual abuse. If at all, there is any testing of the status of the hymen, it can only be for medical purposes with respect to injury or treatment. However, there is no justification for such information to be used for the purposes of determining whether or not the incident of rape or sexual abuse took place.
Change can only be brought about when the people responsible for the change understand and acknowledge the reasons for changing old practices which no longer find any justification. Merely documenting change and not implementing change does not mean that the Federation or the Provincial Government have acted in accordance with the Constitution, the law and international obligations. Hence a concerted effort must be made so as to ensure that virginity tests are stopped in totality.
The court also noted that the 2020 Guidelines do not categorically prohibit virginity testing, rather they attempt to camouflage the issue so as to continue this practice. 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 bench added.
Indian Courts on Two Finger Test
Recently, the Jammu and Kashmir High Court had directed all the health professionals of Union Territory of Jammu & Kashmir, and Union Territory of Ladakh "to strictly desist from undertaking 'two finger test' known as 'per-vaginum examination' on the rape survivors".
In January, last year, the Gujarat High Court held that the "archaic and outdated" practice of two-finger test, conducted to determine the virginity/consent of a rape victim, is unconstitutional. In 2013, the Supreme Court had observed in the case Lilu @ Rajesh v State of Haryana and another that the 'two finger test' will violate the woman's right to privacy and dignity. In December 2019, the Supreme Court again disapproved the use of this test in sexual offence cases, and called for a report from state governments on a query as to whether it has been done away with.
Case: Sadaf Aziz vs. Federation of Pakistan [WP No.13537 of 2020]