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Thursday, May 23, 2024

Op-ed: There is no legal basis for two-finger virginity testing on women

Abolishing the two finger virginity test will be one step in correcting a justice system that is inherently biased towards women. From the time of the registration of the complaint to the police to the sentencing of the perpetrator, in Pakistan, it is a national habit to question the chastity or purity of the victims character as opposed to the bodily violation she has suffered at the hands of the perpetrator.

2020 will go down in history as the year in which gendered discourse frequently saw the light of day in Pakistan. From the debate triggered by the slogan ‘Mera Jism Meri Marzi’ post Aurat March, to the recent Motorway rape case, civil society and the state alike have never before realized the need for gender sensitive legal and policy reform, to this extent. two finger virginity test 

The discourse is ought to have far reaching implications, as the media, talk-show hosts and legislators analyze the systemic issues in our society and how they are to be addressed.

One result of the incessant discussions has been the introduction of piece-meal legislation: Zainab Alert, Recovery and Response Bill, 2020 aimed at raising alert, response and recovery of missing and abducted children after the unfortunate rape and murder of innocent minor Zainab.

Petition to abolish the two finger virginity test 

Another pragmatic legal development has been the submission of a petition in the Lahore High Court (LHC) regarding the abolishment of the two finger virginity test conducted on rape victims. In March 2020, a band of women (journalists, activists, and academics) filed the petition in the LHC demanding a ban on the controversial test that is not only unreliable but also extremely humiliating for women to endure, especially if they are rape survivors.

The petition was filed by Sadaf Aziz, Farida Shaheed, Farieha Aziz, Farah Zia, Sarah Zaman, Maliha Zia Lari, Dr. Aisha Babar, and Zainab Husain. Their petition was recently clubbed together with another that had been filed by PML-N MNA Shaista Parvez Malik with Sahar Zareen Bandial and Barrister Sameer Khosa as lead counsel, and heard by the LHC earlier this month.

Read More: Woman gang-raped infront of husband, children in Sargodha

The petitioners seek a declaration that the use of virginity tests (including the two-finger test and hymen examinations) on women in any circumstance – but especially as part of an investigation of a claim of rape or sexual assault be made entirely illegal, unlawful, and in violation of the Constitution of Pakistan, 1973.

The petitioners also sought that the direct use of phrases such as “habituated to sex” and women being of “easy virtue” or “loose morals” be discontinued as part of the medical reports issued by physicians / medico-legal officers in cases of rape and sexual assault.

Reply of the provincial health authorities

Last week, the government submitted its joint reply to the two petitions that had challenged the medically unreliable test which is meant to indicate the status of a woman’s virginity. The provincial health authorities have told the Lahore High Court that the two-finger virginity test, an old practice of examining sexual assault survivors, has limited evidentiary value and will be abolished from the protocol of medico-legal certificate (MLC) unless necessitated.

“It is not objective of the medical examination of female victim of sexual assault to comment about character of the examinee neither two finger virginity test is being practiced with that objective nor it has any strong evidentiary value related to determination of virginity,” says a joint reply by the Punjab Specialised Healthcare and Medical Education Department, the Primary and Secondary Healthcare Department and surgeon medico-legal Lahore.

Read More: Maulana Tariq Jameel remarks on co-education, rape split Pakistani social media

Responding to the points raised in the petitions, the government’s reply states that only authorised women medical officer (WMO) conduct the TFT and that too after obtaining expressed and written consent of the victim or her guardian. “In case of refusal by the victim, the medical examination is not conducted and the referring court is informed in writing,” it says.

Justice Ayesha A. Malik will resume hearing on the petitions on Nov 6 when the petitioners will appear with their rejoinders.

The premise of the two finger virginity test

This examination usually takes two forms: (i) an inspection of the hymen for tears or the size of the vaginal opening; and (ii) a “two-finger test” in which one or more fingers are inserted in the vagina to assess the size of the vaginal opening and to check the degree of vaginal penetrability and whether the vestibule is congested due to the use of force.

As per the petition, the premise upon which the test is based is that if the vagina admits two or more fingers with relative ease, the woman is likely to be previously sexually active and the ease with which the fingers penetrate the woman is assumed to be in direct proportion to her sexual experience.

Similarly, the state of the hymen is supposed to be indicative of prior sexual experience, which apart from being inaccurate, is also completely irrelevant to a charge of rape following the omission of section 151(4) from the Qanun-e-Shahadat Order, 1984 by the Criminal Law (Amendment) (Offences Relating to Rape) Act 2016.

Read More: Tackling rape: Our national habit is to weep after every tragedy

The premise of the tests are also 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 victims who have suffered as a result of covert use of force could be presumed to have consented.

The World Health Organization have clearly stated that there is no medical basis for the conclusions in either case. 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.

Furthermore, international human rights organizations have also condemned the use of virginity tests as a gross violation of human rights. It is clear therefore that women are subjected to this extremely invasive and unlawful test, not on the basis of any sound medical practice, or to reach a scientifically sound conclusion, but on pre-conceived notions of the physiology of a sexually “chaste” woman and the morality of a rape victim.

Gendered discourse: Can the two finger virginity test be abolished?

However, the question now is, can the current debate centered around the fundamental rights of women, and patriarchal notions imbedded in our system lead to the complete  abolishment of this antiquated, invasive and fundamentally flawed practice?

Abolishing the two finger virginity test will be one step in correcting a justice system that is inherently biased towards women. From the time of the registration of the complaint to the police to the sentencing of the perpetrator, in Pakistan, it is a national habit to question the chastity or purity of the victims character as opposed to the bodily violation she has suffered at the hands of the perpetrator.

The same has been seen by the CCPO’s remarks questioning the motorway rape victim’s time of travel and choice of route rather than immediately condemning the heinous act.

Read More: Rape victims don’t lose honour, the rapists do! – Maleeha Hashmey

The inherent bias against women in the medico-legal procedure

The test leads to dismissal of complaints filed by victims of physical abuse. The Lahore High Court in Fahad Aziz v State (2008) disregarded the victim’s rape complaint as “she appeared to be a woman of easy virtue [and] indulged in sexual activities”.

Similarly in another decision by the Federal Shariat Court in 2006, the accused was acquitted of all rape charges as the “victim girl was of easy virtue and though she was unmarried and of 16 years, but had lost her virginity”.

The test is not a legal requirement but a medical practice that has become part of legal jurisprudence. The findings of the test are relied upon by courts to presume consent. Thus a woman with a sexual history is assumed to consent forever more and therefore can never be raped.

The two finger test: In contravention with fundamental rights

The practice of virginity testing is a gross and unacceptable violation of a woman’s right to privacy and dignity guaranteed by Article 14 of the Constitution. It is important to note that under Article 14 the dignity of an individual is “inviolable” without any qualification. In fact, even invasions of privacy can only be justified only on the basis of law.

As per the petition, there is no law that sanctions or requires the conduct of virginity tests on women. Thus, the conduct of tests involving penetration of a woman’s vagina by a stranger to reach (medically unreliable) conclusions of about her past sexual activity, which become part of public record, is a clear and extreme violation of her privacy as well as her dignity.

Read More: Conviction rate in rape cases under 3% in Pakistan: report

The invasive nature of the virginity tests, and the physical and mental suffering associated with them, leaves no room for doubt that these tests violate both the dignity and the privacy of the victim.

Virginity tests are not necessary for the prosecution of offences of rape as they are not relevant to any material fact within the trial. Virginity tests are a sexual invasion of an individual’s physical body and result in penetration of a part of the body of the victim – they constitute a gross violation of a woman’s right to bodily integrity and thus should be completely be abolished.

The author is a graduate from the Lahore University of Management Sciences. She is currently a case lawyer at Justice Project Pakistan and a member of the GVS editorial board. The views expressed in this article are the authors own and do not necessarily reflect the editorial policy of Global Village Space.