Supreme Court of Pakistan: In a significant decision, the 3 Judge Bench of the Court comprising of Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah, JJ., while deliberating upon issues revolving around the scientific veracity of virginity tests to ascertain rape and questioning a woman’s sexual history in order to discredit her witness; held that a woman irrespective of her sexual character or reputation, is entitled to equal protection of law. The courts should 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.
Issues: In the instant appeal filed by the rape accused, the Court upon perusing the facts and arguments presented by the parties, formulated the following issues-
- Whether recording sexual history of the victim by carrying out “two-finger test” (TFT) or the “virginity test” has any scientific validation or evidentiary relevance to determine the commission of the sexual assault of rape.
- 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.
- Whether her promiscuous background can be made basis to assume that she must have consented to the act.
Perusing the aforementioned issues, the Court delved into the approaches of modern forensics vis-à-vis TFT and studies conducted by Pakistan’s National Commission on the Status of Women (NCSW) on the point. The Bench also took note of the approach taken by the World Health Organisation, the United Nations and United Nations Entity for Gender Equality and the Empowerment of Women on the matter. It was observed that Modern forensic science thus shows that the two finger test must not be conducted for establishing rape-sexual violence, and the size of the vaginal introitus has no bearing on a case of sexual violence. The status of hymen is also irrelevant because hymen can be torn due to several reasons such as rigorous exercising. An intact hymen does not rule out sexual violence and a torn hymen does not prove previous sexual intercourse. Hymen must therefore be treated like any other part of the genitals while documenting examination findings in cases of sexual violence. Only those findings that are relevant to the episode of sexual assault, i.e., findings such as fresh tears, bleeding, oedema, etc., are to be documented.
Considering the constitutional aspects, the Court stated that dragging sexual history of the rape survivor into the case by making observations about her body, is an insult to the reputation and honour of the rape survivor and violates Article 4(2)(a) of the Constitution of Islamic Republic of Pakistan. 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 is an absolute right and not subject to law. “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”.
The Court also pointed out the deep gender biases and inexperience which riddle the medico-legal certificates, like- casually reporting 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”; calling into question the character of the rape survivor etc. The Court stated that such callous approaches are used to support the assumption that a sexually active woman would easily consent for sexual activity with anyone. “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”.
The Court also pointed out that the omission of Article 151(4) Qanun-e-Shahadat Order, 1984 (which allowed the opinion of medical experts as to the virginity tests while deciding rape cases), clearly implies a prohibition on putting questions to a rape victim in cross-examination, and leading any other evidence, about her alleged “general immoral character” for the purpose of impeaching her credibility. The said omission also indicates the legislative intent that in a rape case the accused cannot be allowed to question the complainant about her alleged “general immoral character”.
As a final point, the Bench observed that, “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”.
[Atif Zareef v. The State, Criminal Appeal No.251/2020, decided on 04-01-2021]
Sucheta Sarkar, Editorial Assistant has reported this brief.
Note: The bench of Justice Ayesha A. Malik of Lahore High Court had also made similar observations in Sadaf Aziz v. Federation of Pakistan, wherein she held that virginity tests are invasive and blatantly violate the dignity of a woman.