The Lahore High Court (LHC) has banned two-finger virginity tests (TFT) for examination of rape victims while terming the entire practice as “illegal and unconstitutional” in the 30-page judgement by Justice Ayesha A Malik.
In the 30-page verdict of a petition challenging the two-finger virginity and hymen tests of rape survivors, the judge wrote that this practice is “offends the dignity of the female victim” and was contradictory to Article 9 and Article 14 of the Constitution, which protects the right to life and right to dignity of a person.
The judge called the these barbaric tests discriminatory as they are carried out of the basis of the gender of the rape victim which contradicts Article 25 of the Constitution.
Justice Ayesha A Malik emphasized in her verdict that “virginity testing is highly invasive, having no scientific or medical requirement, yet carried out in the name of medical protocols in sexual violence cases.”
She noted that the “humiliating practice is used to cast suspicion on the victim, as opposed to focusing on the accused and the incident of sexual violence.”
The judge directed the federal and provincial governments to end this unnecessary practice and “ensure that virginity tests are not carried out in medico-legal examination of the victims of rape and sexual abuse”.
She also directed the Punjab government to devise an “appropriate medico-legal protocol and guidelines” in line with international practices which signify the need to “recognize and manage sensitively the care of victims of sexual violence”.
“This includes regular training and awareness programmes so that all stakeholders understand that virginity tests have no clinical or forensic value,” the Judge wrote in the verdict.
She emphasized the need to investigate rape cases on the basis of whether the accused person raped the survivor or not rather than looking into the victim’s sexual past.
“If the victim is found to not be a virgin it cannot and does not suggest that she was not raped or sexually abused.” she added in her verdict.
“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,” she added in her 30-page judgement.
The petition was originally filed by PML-N member of the National Assembly Shaista Pervez Malik, including several women rights activists, journalists and advocates. Some of them included Sadaf Aziz, Farida Shaheed, Farah Zia, Sarah Zaman, Maliha Zia Lari, Dr Aisha Babar and Zainab Husain.
Farieha Aziz who was also part of the petition also took to Twitter informing about the verdict.
The judgment in our petition challenging the two-finger and hymen tests was announced today. The two finger and hymen tests have been declared illegal and unconstitutional. You can read the complete judgment here:https://t.co/imI3EBKwDb pic.twitter.com/ZweaxEIooF— Farieha Aziz (@FariehaAziz) January 4, 2021
About Virginity Tests
In Pakistan, there is an assumption that a woman needs to be a virgin in order to be raped and these two-finger virginity tests are carried out to determine whether the victim was sexually active prior to the assualt.
However, these tests have no scientific or medical standing and cannot determine whether or not a woman had sexual intercourse prior to being raped. Such a practice is even banned in India and Bangladesh.
During the two-finger virginity test, it is first determined whether the hymen of a woman is torn or not. A torn hymen is considered to be an indication of sexual activity which is highly untrue.
There are a number of reasons why a hymen of a women can be torn, including physical activity, bike riding, horse-riding and several other scenarios while in no way it clarifies anything regarding the sexual abuse which would automatically result in a torn hymen.
The test further the size and ‘natural elasticity’ of the vaginal opening of a woman. This test assumes that if a vagina can admit two fingers or more then the woman was previously sexually active while focusing on the victim’s past and less on the rape itself.
It is pertinent to mention that in Pakistan we are testing the natural elasticity of a vagina (which is different for each individual) to determine whether someone is rape or not.
However, the judge noted that. “Neither the size of the vaginal opening, nor the ease with which the fingers can be admitted, or the state of the hymen are medically sound indications of prior sexual activity,”
“The premise of the tests is flawed because of the underlying assumption that only the overt use of force can result in a lack of consent to a sexual encounter and [women] who have suffered as a result of covert use of force should be presumed to have consented,” the verdict added.