LAHORE: The Lahore High Court has declared that the two-finger test (TFT) and the hymen test for the purposes of ascertaining virginity of a female victim of rape or sexual abuse are illegal and unconstitutional.

“The virginity test offends 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,” says a 30-page judgement authored by Justice Ayesha A. Malik, allowing two identical petitions against the practice of the objectionable test.

The judge also declared that the 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.

The judge further declared the 2020 guidelines, SOPs and 2015 instructions, by the health department and medico legal, to the extent of mandating the two-finger test or the hymen test for the purposes of ascertaining the virginity of the victim are illegal and against the Constitution.

She ordered the federation and provincial governments to 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 has also been asked to devise appropriate medico-legal protocols and guidelines, along with SOPs in line with international practice that recognise and manage sensitively the care of victims of sexual violence.

The SOPs should include regular training and awareness programmes so that all stakeholders understand that virginity tests have no clinical or forensic value, says the ruling.

Justice Malik remarks that the change can only be brought about when the people responsible for the change understand and acknowledge the reasons for changing old practices which no longer find any justification.

“Merely documenting change and not implementing change does not mean that the federation or the provincial government have acted in accordance with the Constitution, the law and international obligations. Hence a concerted effort must be made so as to ensure that virginity tests are stopped in totality,” she adds.

The judge notes that the medical forensic examination report should use appropriate language to describe the victim and her state and should totally restrain from commenting as to whether or not rape or sexual abuse has taken place.

The damage caused by such comments and use of words describing the woman as habituated to sex or regularly involved in sexual intercourse can have far reaching effects on the victim socially as well as mentally and personally. She maintains that the sensitivity is the need of the victim, who has experienced physical and psychological trauma and may have physical injuries as well as psychological injuries.

Justice Malik had reserved the verdict on Nov 10.

On Monday, the verdict was announced by Justice Faisal Zaman Khan since Justice Malik went abroad on ex-Pakistan leave.

The petitions were filed by PML-N MNA Shaista Pervez Malik and women rights activists, academics, journalists and advocates were petitioners in the other. They include Sadaf Aziz, Farida Shaheed, Farieha Aziz, Farah Zia, Sarah Zaman, Maliha Zia Lari, Dr Aisha Babar and Zainab Husain.

Barrister Zameer Khosa and Sahar Zareen Bandial mainly represented the petitioners.

Additional Advocate General Jawad Yaqoob had presented a Punjab government notification about abolition of the TFT while then additional attorney general Ishtiaq Ahmad Khan had told the court that the federation did not dispute the contentions of the petitioners to the extent that the TFT should not be conducted.

“The competent authority has been pleased to notify the revised guidelines and pro forma for medico-legal examination of female survivors/victims of sexual assault for implementation in all public sector hospitals/institutions in the Punjab with immediate effect,” states a notification issued by the specialized healthcare and medical education department.

The petitions filed in March last year mainly pleaded the intrusive and demeaning practice whereby medico-legal officers perform a hymen test and a “two-finger test” as part of medical evaluation of women victims is unreliable and unnecessary and has no scientific basis.

The petitions explained that the TFT usually involved inserting two fingers into the vagina, and was based on the flawed assumption that a woman “habituated to sexual intercourse” was less likely to have been raped. The test was usually used in Pakistan despite calls for its revocation by healthcare professionals and human rights organisations world over.

Published in Dawn, January 5th, 2021