Citing Indian judgments, Lahore HC says ‘two finger tests’ are unconstitutional

New Delhi, January 5: The Lahore high court has held that the so-called ‘virginity tests’ such as the ‘two-finger test’ and the hymen test carried out on victims of rape and sexual assault are unconstitutional.

Justice Ayesha A. Malik held that such tests were discriminatory and against the right to life and right to dignity enshrined in the constitution of Pakistan, The Wire reported.

“The virginity test by its very nature is invasive and an infringement on the privacy of a woman to her body. It is a blatant violation of the dignity of a woman. The conclusion drawn from these tests about a woman’s sexual history and character is a direct attack on her dignity and leads to adverse effects on the social and cultural standing of a victim,” the court held.

The court also referred to a judgment by the Indian Supreme Court in Rajesh & another v State of Haryana where the apex court had held that the ‘two-finger test’ and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. It held that there was consensus that ‘virginity tests’ like the ‘two finger test’ and hymen test could not indicate definitively that there was any sexual violence.

Additionally, the Lahore high court also referred to judgments by the Allahabad and Gujarat high courts. “These courts have all held that there is no scientific or medical basis to carry out virginity testing in the form of two finger test or to rely on the status of the hymen whether it is torn or intact as it has no relevance to the investigation into the incident of rape or sexual abuse,” the judge said while disposing of writ petitions challenging the use and conduct of virginity tests.

The court also said that such tests were unscientific, had no medical basis and also offended the personal dignity of the female victim. “It is a humiliating practice, which is used to cast suspicion on the victim, as opposed to focusing on the accused and the incident of sexual violence. This in effect amounts to gender based discrimination as it is neither a medical condition which requires treatment nor does it provide any clinical benefit to the victim,” the court observed.

“The issue is whether the accused committed rape on the victim in the time and circumstances complained of. If the victim, is found to not be a virgin, it cannot and does not suggest that she was not raped or sexually abused. What it does is place the victim on trial in place of the accused and shifts the focus on her virginity status. In this regard, the victim’s sexual behaviour is totally irrelevant as even the most promiscuous victim does not deserve to be raped, nor should the incident of sexual violence be decided on the basis of a virginity test,” the judgment by the Lahore high court read.

Furthermore, it directed the federal and provincial governments to take steps to ensure that virginity tests are not carried out in medico-legal examinations of victims of rape and sexual abuse.

After the Supreme Court of India found the test to be violative of fundamental rights, the Ministry of Health and Family Welfare in 2014 issued guidelines for medico-legal care for survivors of sexual violence. They sought to eliminate practices such as the “two-finger test”. However, a report in 2017 by Human Rights Watch found that doctors continue to conduct the “invasive, humiliating, and inhumane finger test to make degrading characterisations”.

The Lahore high court, apart from asking the government to mandate such tests as ‘illegal’, also said the government must make a ‘concerted effort’ to ensure that the practice does not continue.

“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,” the judgment read.

https://thewire.in/south-asia/lahore-high-court-two-finger-tests