Justice Ayesha A. Malik of Lahore High Court has ruled that two fingers virginity tests to examine rape victims offends the dignity of the women and hence it is unconstitutional. In Pakistan the two-fingers method to determine whether the victim has suffered rape or not has been used for a long. Such an act is against the Article 9 and 14 of Pakistan’s constitution, which protects the dignity and security of a person. It is also against Article 25 which states that they are discriminatory against the female victim because they are carried out on the basis of a victim’s gender
Previously, the two finger tests were used to check virginity of a woman, and in some cases as forensic analyses for rape victims. The practice is inappropriate, unscientific, unconstitutional, and discriminatory against women. This is why LHC has directed the government to devise appropriate medico-legal strategy for identifying rape victims.
What Are Two-Finger Virginity Tests?
These types of tests originated from places where there was no education or doctors to perform the required examinations (like ethnic tribes of Africa). Most commonly, an older or experienced woman used to perform this test, and doctors of Pakistan were also doing the same. Such tests directly or indirectly contribute towards the same societal menace that oppresses women despite being them the victim. Such methods of determining the happening of such incidence are equal to victim-blaming, which was also witnessed in the recent motorway rape case.
To check, the doctor has to insert two fingers in the female vagina to check laxity and hymen. The level of muscle laxity and presence of hymen may determine whether the woman had sexual intercourse. However, medical professionals have widely disproved this method as it has no clinical basis. There is no such form of examination that can prove whether a woman had sex or not and absence or presence of hymen also doesn’t tell if a woman is sexually active. Therefore, the two-finger test is completely unnecessary and derogatory towards woman.
In Pakistan, there already is a culture of shifting the blame of rape on the victim (particularly if it is a woman) than on the perpetrator. The fact was highlighted well in the anti-rape protests in the country that happened after a woman was gang-raped on a motorway in Lahore.
Is It Sexual Violence Itself?
Alarmingly, two-finger virginity tests were a long-standing tradition in many countries. Such tests might be considered a part of examining rape survivors but they are not only unnecessary but also a violation of women’s dignity. They can worsen the survivor’s sense of disempowerment and lead to re-victimization.
The result of this unscientific test can impact judicial proceedings greatly. It often proves detrimental for the victim and favorable for the perpetrator. In most cases, it leads to perpetrators being proved not guilty. Even after violating women’s rights to physical integrity and disempowering them, the processstill failed to deliver justice for this crime of rape. Forced virginity tests contributed in masculine fear and intimidation that prevented women from exercising their legal rights.
How Pakistan Will Test Rape Victims Now?
LHC has issued guidelines about medico-legal practices and ordered to abandon the two-finger test. According to the Women Protection Act 2006, the new examination of a victim shall take place only after judicial order and written consent from victims. Adult victims can give consent for themselves while guardians can write for minor victims.
According to Section 299 of the Pakistan Penal Code, authorized Woman Medical Officer (WMO) will conduct the test. The rape victim or guardian (in case of minor) can legally refuse to undergo medico-legal test or evidence collection. This examination will involve the use of naked eye, magnifying lens and Glaister Keen glass rod.
Prominent members of PML-N filed the petitions against virginity tests along with women rights activists, advocates, journalists, and academics.
It has been a monumental judgment in the history of women’s rights in Pakistan.