Recording Sexual History Of Rape Victim By Carrying Out "Two-finger Test" Or "Virginity Test" Unconstitutional: Pakistan Supreme Court

The Supreme Court of Pakistan observed that recording sexual history of the victim by carrying out "two-finger test" (TFT) or the "virginity test" is unconstitutional.

Dragging sexual history of the rape survivor into the case by making observations about her body including observations like "the vagina admits two fingers easily" or "old ruptured hymen" is an affront to the reputation and honour of the rape survivor and violates Article 4(2)(a) of the Constitution, which mandates that no action detrimental to the body and reputation of person shall be taken except in accordance with law, the bench comprising Justices Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah observed.

The bench said that the expressions, like "habituated to sex", "woman of easy virtue", "woman of loose moral character", and "non-virgin" should be avoided by the Courts as they are unconstitutional and illegal.

While considering a criminal appeal by rape accused, the court considered the issue whether recording sexual history of the victim by carrying out "two-finger test" (TFT) or the "virginity test"  has any scientific justification or evidentiary relevance to determine the commission of the sexual assault of rape. The court also considered the question whether "sexual history", "sexual character" or the very "sexuality" of a rape survivor can be used to paint her as sexually active and unchaste and use this to discredit her credibility; and whether her promiscuous background can be made basis to assume that she must have consented to the act?

Medical Tests Not To Determine Virginity Or chastity 

Referring to Medical literature, the court observed that Medical language of MLC is riddled with gender biases and immediately calls into question the character of the rape survivor. The court said that the examination of a rape victim by the medical practitioners and use of the medical evidence collected in such examination by the courts should be made only to determine the question whether or not the alleged victim was subjected to rape, and not to determine her virginity or chastity. It said:

Due to a combination of lack of training, inexperience the medico-legal certificate's (MLC) casually report the two finger test, to show that the vagina can admit phallus-like fingers to conclude that the survivor was sexually active at the time of the assault or a 'virgin" as perceived by the society. Neither of these tests have any basis in medical science. Medical language of MLC is riddled with gender biases and immediately calls into question the character of the rape survivor. It is used to support the assumption that a sexually active woman would easily consent for sexual activity with anyone. The World Health Organization (WHO), the Office of the High Commissioner of the United Nations and the United Nations Entity for Gender Equality and the Empowerment of Women in "Eliminating Virginity Testing: An Interagency Statement" proclaim, "the practice is a violation of the victim's human rights and is associated with both immediate and longterm consequences that are detrimental to her physical, psychological and social well-being." In view of this firm and reliable Interagency Statement, examination of a rape victim by the medical practitioners and use of the medical evidence collected in such examination by the courts should be made only to determine the question whether or not the alleged victim was subjected to rape, and not to determine her virginity or chastity.

If the victim had lost her virginity earlier, it does not give to anyone the right to rape her

The bench added that the courts should also discontinue the use of painfully intrusive and inappropriate expressions, like "habituated to sex", "woman of easy virtue", "woman of loose moral character", and "non-virgin", for the alleged rape victims even if they find that the charge of rape is not proved against the accused.  

Dragging sexual history of the rape survivor into the case by making observations about her body including observations like "the vagina admits two fingers easily" or "old ruptured hymen" is an affront to the reputation and honour of the rape survivor and violates Article 4(2)(a) of the Constitution, which mandates that no action detrimental to the body and reputation of person shall be taken except in accordance with law. Similarly Article 14 of our Constitution mandates that dignity shall be inviolable, therefore, reporting sexual history of a rape survivor amounts to discrediting her independence, identity, autonomy and free choice thereby degrading her human worth and offending her right to dignity guaranteed under Article 14 of the Constitution which Right to dignity under Article 14 of the Constitution is an absolute right and not subject to law. Dignity means human worth: simply put, every person matters. No life is dispensable, disposable or demeanable. Every person has the right to live, and the right to live means right to live with dignity. A person should live as "person" and no less. Human dignity hovers over our laws like a guardian angel; it underlies every norm of a just legal system and provides an ultimate justification for every legal rule. Therefore, right to dignity is the crown of fundamental rights under our Constitution and stands at the top, drawing its strength from all the fundamental rights under our Constitution and yet standing alone and tall, making human worth and humanness of a person a far more fundamental a right than the others, a right that is absolutely non-negotiable.

A woman, whatever her sexual character or reputation may be, is entitled to equal protection of law. No one has the license to invade her person or violate her privacy on the ground of her alleged immoral character. Even if the victim of rape is accustomed to sexual intercourse, it is not determinative in a rape case; the real fact-in-issue is whether or not the accused committed rape on her. If the victim had lost her virginity earlier, it does not give to anyone the right to rape her. In a criminal trial relating to rape, it is the accused who is on trial and not the victim. The courts should also discontinue the use of painfully intrusive and inappropriate expressions, like "habituated to sex", "woman of easy virtue", "woman of loose moral character", and "non-virgin", for the alleged rape victims even if they find that the charge of rape is not proved against the accused. Such expressions are unconstitutional and illegal.

Evidence relating to sexual history should not be admitted in order to draw inferences supporting the 'twin myths

The court further observed that the evidence relating to sexual history should not be admitted in order to draw inferences supporting the 'twin myths', namely, that by reason of that sexual history, it is more likely that the complainant may have consented or become less worthy of belief.

Section 12(3) of the Punjab Witness Protection Act, 2018 codifies this position when it obligates the court to forbid a question to the victim of a sexual offence relating to any sexual behavior of the victim on any previous occasion with the accused or any other person, but also empowers the court to allow such a question if, in the court's opinion, it is a relevant fact in the case. To the same effect are the provisions of Article 146 of the QSO, under which the court may forbid such questions if it finds that they are 'indecent' or 'scandalous', but can allow them if they relate to facts-in-issue or to matters necessary to be known in order to determine whether or not the facts in-issue existed. However, while allowing or disallowing such questions the court must be conscious of the possibility that the accused may have been falsely involved in the case, and should balance the right of the accused to make a full defence and the potential prejudice to the complainant's rights to dignity and privacy, to keep the scales of justice even for both. 

Lahore High Court Declared Two Finger Tests Unconstitutional

In a judgment delivered earlier this year, the Lahore High Court had 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.

Case:  Atif Zareef vs. State

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