Lahore High Court: While deliberating upon the writ petitions challenging the use and conduct of ‘virginity tests’ especially “Two-finger Test” and “Hymen Examination” in cases of rape and sexual abuse, Ayesha A. Malik, J., held that the virginity tests, carried out for the purposes of ascertaining the virginity of female rape or sexual abuse victim, is unscientific and has no medical basis, therefore it is of no forensic value in cases of sexual violence. It was further held that the virginity tests offend the personal dignity of the female victim and therefore is against the right to life and right to dignity enshrined in Articles 9 and 14 of the Constitution of Islamic Republic of Pakistan, 1973.
Contentions: The petitions were brought before the Court by a group of diverse women, who have been working in the public sphere and one of the members of the National Assembly of Pakistan. They stated before the Court that the virginity tests are done upon a victim in order to ascertain whether they are sexually active. The petitioners put forth the following contentions –
- There is no medical or scientific basis to continue with virginity testing; that it violates the fundamental rights of the female victims such that it denies the female victim her fundamental rights of dignity and privacy that she is guaranteed under the Constitution.
- After the omission of Section 151 (4) of the Qanun-e-Shahadat Order, 1984 under the Criminal Law (Amendment) (Offences Relating to Rape) Act, 2016, tests are irrelevant for the charge of rape or sexual abuse. The virginity tests are neither necessary nor reliable for the purpose of investigation into the incident of rape or sexual abuse.
- Even though the consent of the victim is obtained before conducting the test, 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.
- The medico-legal examination reports rely on words such as “habituated to sex” or “not a virgin” which are irrelevant for the purposes of the incident under investigation and such derogatory language stigmatizes the victim, causing social and personal trauma. There is not enough training with reference to the female medical officers appointed, who carry out the virginity tests and fill in the medico-legal report.
- Pakistan is a signatory to several international treaties like UDHR, ICCPR, Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 which denounce virginity testing. Moreover, Pakistan has also signed and ratified Convention Against Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW), which prohibits all forms of discrimination against women and declares the two-finger test as discriminatory such that it amounts to a denial of rights to female victims of rape on the basis of her gender.
The respondents (Federation of Pakistan and Province of Punjab) did not dispute the contentions of the Petitioners to the extent that the two-finger test should not be conducted. They stated that the matter is under consideration with the competent authority and guidelines are in the process to be framed. It was clarified that the two-finger test is not conducted unless it is deemed necessary and that in cases of minor girls, it is mandatory to inspect the hymen in detail to determine whether it is intact and if not then the nature of the injury.
Upon perusal of the petitioners’ contentions and statements provided by the respondents vis-à-vis the prevalent scenario and after detailed scrutiny of the relevant Guidelines/ SOPs; the Court observed the Guidelines for the Examination of Female Survivors/Victims of Sexual Abuse, 2020 still calls for a virginity test albeit by confusing the issue rather forbidding it (it allows a “per-vaginum examination” where required and per-vaginum examination is understood to mean the two finger test). It was noted that a bare reading of 2020 Guidelines makes it clear that the process of virginity testing through two fingers or hymen examination are standardized and form the basis of the medical officer’s opinion or the court’s opinion on the virtue and character of the victim. Regarding the use of phrases like “habituated to sex” and “not a virgin” in medico-legal reports the Court noted that, “Often enough the opinion of the medical officer is carried into the judgments of the court and language such as “habituated to sex”, “women of easy virtue”, “habitual to sexual intercourse”, “indulging in sexual activities” are used to describe the victim. The basis being that a woman habituated to sex is likely to have raised a false charge of rape or sexual abuse”.
The High Court also referred to several decisions rendered by the Indian courts, most notably the Supreme Court of India’s judgment in Lillu v. State of Haryana, (2013) 14 SCC 643, wherein it was held that- the two finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity; therefore, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent. Judgments delivered by Allahabad HC in Akhtar v. State of U.P., 2014 SCC OnLine All 8922 and Gujarat HC in State of Gujarat v. Rameshchandra Ramabhai Panchal, 2020 SCC OnLine Guj 114 were also referred to.
It was also noted that Pakistan has signed and ratified several relevant International Treaties which cast an obligation upon the Government to ensure that all necessary steps are taken to prevent carrying out virginity testing, as globally it is accepted that virginity testing does not establish the offence 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.
Judge noted 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. It is a humiliating practice. 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. 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”.
With the aforementioned observations, the Court made the following declarations-
- 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, 1973.
- To the extent that the 2020 Guidelines, SOPs and the 2015 Instructions mandate the virginity tests are declared to be illegal and against the Constitution and the Federation and Provincial Government should 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 Provincial Government should devise appropriate medico-legal protocols and guidelines, along with standard operating procedures, in line with international practice that recognize and manage sensitively the care of victims of sexual violence.
[Sadaf Aziz v. Federation of Pakistan, WP No. 13537 of 2020, decided on 04-01-2021]
Sucheta Sarkar, Editorial Assistant has put this story together
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