By Sarthak Gupta 28 June 2021
In January 2021, the Supreme Court of Pakistan in a three-judge bench delivered a consequential judgment, deliberating on the matter of “virginity test” also known as the “two-finger test” in rape cases. The court Atif Zareef v The State held that recording a rape victim’s sexual history through a two-finger test and determining her character in order is to discredit her integrity is unconstitutional and unscientific justification.
The genesis of the “two-finger test” also called as pre-vaginal or hymen test is very historic and has been conducted on rape survivors/victims in Pakistan. The practice is an intrusive physical examination of the elongation of her vaginal orifice by penetration of two fingers in her vagina and assessment of the integrity of her genitals primarily the hymen, ascertaining prior virginity of the rape victim. These practices are formulated in misogyny, and with myth, those women who aren’t virgins are “unchaste” and “impure” and are used to weaving out their sexual activeness as consent to sexual intercourse, therefore not having any legal rationale. The court putting reliance on medical language observed that the practice is unscientific and has no attribute in rape cases, and it is patriarchal, “riddle with gender biases.”
The Court opined that the two-finger test and determining whether “the vagina admits two-finger easily or not” is antithetical and detrimental to the life, liberty, body, reputation of the victim, and violates Article 4[2][a] of the Pakistan Constitution. Article 14 of the Constitution encapsulates that dignity shall be inviolable, as a consequence, disclosing a rape survivor’s sexual history diminishes her “individuality, identity, sovereignty, and freedom”, lowering her intrinsic worth and violating her right to dignity protected by Article 14 of the Constitution, which is an inherent right not subject to the law. Furthermore, Article 14[2] mandates, that individual can’t be subjected to torture for obtaining evidence, and this practice violates the right to freedom from torture because the assessment is often humiliating, denigrating, and sometimes performed without the consent of the victim in a manner that is tailored to coerce and condemn.
The court further place reliance on the judgment of the Federal Shariat Court of Pakistan in the Mukhtar Ahmad case, where it was held that provisions of Article 151[4] of the Qanun-E-Shahadat Order 1984 [Qanun Order] which impose to show that the victim was generally immoral to undermine her credibility, are repugnant to the Injunctions of Islam. And this examination is inadmissible in evidence after the omission of Article 151[4] of the Qanun by the Criminal Law Amendment (Offences Relating to Rape) Act, 2016. Notwithstanding, Section 12[3] of the Punjab Witness Protection Act, 2018 along with Article 146 Qanun Order, where courts are expressly forbidden from questioning the victim about any previous sexual conduct with an exception of factual circumstance’s demand.
The Supreme Court of Pakistan also relied on the rationale of the Supreme Court of India deliberated in Rajesh & another v. State of Haryana which held that the virginity test violates the rape victim’s right to privacy, physical and mental integrity, and dignity as an individual. As a rule, even if the test is affirmative, this assessment cannot ipso facto contribute to a conclusion of consent.
ICCPR, 1976, [to which Pakistan is a signatory] under Article 17 and United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, obliges that rape victim/survivors are entitled to legal assistance that is not traumatic or infringes on their physical or mental integrity or dignity. Survivors of sexual violence have a lawful obligation to such assistance, which the state has to provide. There should be no capricious or unlawful infringement with their privacy, and necessary procedures should be made to assure their safety. UN Human Rights Committee gave this contention in L.N.P v. Argentina, giving reliance to the CCPR General Comment under Article 3, asserting that a survivor’s sexual behavior would not be taken into account for determining her legal rights and protection from rape.
Being an invasive examination without evidentiary value or scientific merit, the practice of virginity tests can result in adverse health implications. Hence, it is also a violation of the right to the highest attainable standard of health under Article 12 of ICESCR, another international obligation of the state. Furthermore, United Nations Special Rapporteurs on Violence against Women, its Causes and Consequences, and on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, have asserted that virginity test is the sexual violence and in addition, it constitutes a gross form of ill-treatment and custodial violence.
Pakistan also being a signatory to the CEDAW, 1979, is obligated to prohibit all forms of discrimination against women under Articles 2(d) and 2(f). United Nations have advocated banning such virginity test which is prevalent in more than 20 countries, a form of gender discrimination and violation of human rights. Together with UN Women and WHO, UN Human Rights have said, that this violence against women and girls, humiliating practice must end.
To perpetuate Pakistan’s Constitution moralities inconsistent with International law and commitments, the Supreme Court of Pakistan held that the practice of the two-finger test is a violation of human rights enshrined in Pakistan’s Constitution hence declared unconstitutional in the eyes of law. The court observed that the sexual history is evident and shouldn’t be admitted to support myths, that sexual history may have led to consent or became less worthy of belief.
Consequently, the Lahore High Court in Sadaf Aziz v. The Federation of Pakistan also held that the two-finger test is unconstitutional. Justice Ayesha A. Malik opined that the virginity test is unscientific and had no medical basis, violates safety, and personal dignity, and is inconsistent with rights enshrined in the Constitution of Pakistan under Article 9 and Article 14. The practice also violates the notion of equality under Article 25 of the Constitution as they are carried out based on gender. The Court went ahead and issued direction to the Federation and Provincial Government to take the incentive to ensure such practices are not carried further in the medico-legal assessment of the rape and sexual abuse victim, and to form “appropriate medico-legal protocol and guidelines and standard operating procedures” inconsistent with International practices and obligations.
Both Supreme Court and High Court judgments received well-appreciation for their rationale[s]. Constituting that the” two-finger or virginity” test is unconstitutional, these cases delineate the potential of the Constitution of Pakistan as a transformative Constitution and a way forward to gender-equality legislation in the state. With documenting the change and directing the government[s] to ensure that such rampant practices are stopped in totality, the judgment ensured the change with responsible character. Subsequently, to prevent and respond to sexual violence cases, the government ought to structure a framework with adherence to the Constitution and International commitment which is comparative to the framework crafted by UN Women. Recognizing victim constitutional right[s], their implementation for maintaining the principle of equality and justice in sexual violence cases.