The two-finger test is a violation of the constitutional rights of the people of Pakistan, the Ministry of Human Rights said in its reply in the petition challenging virginity tests in Pakistan.
In Pakistan, virginity tests are conducted on rape survivors to check if they have had sexual intercourse before. The petition, which was filed on March 12, argues that tests such as the ‘two-finger test’ and examination of the hymen are medically incorrect and should be banned.
“Pakistan is a signatory to the UN Convention of the Elimination against Discrimination against Women Rights and is committed to upholding and protecting the rights of women including their right to dignity and life,” the ministry said in its reply submitted on Tuesday.
“The express reference to the TFT does not find mention in the law, however, the practice is upheld through jurisprudence developed over the years by the courts,” the ministry added. “Most countries across the world have abolished the TFT. Reliance for evidence is now placed on DNA testing, forensic evidence collected from the place of occurrence of the offenses as well as the victim’s person (but not involving the TFT).”
The MOHR agrees that the “TFT is a violation of the constitutional right to dignity of women guaranteed by Article 14 and right to be protected from discrimination, and considers it to be a form of violence on women as stated by Guidelines for the Medico-legal Care for Victims of Sexual Violence issued by the World Health Organization.”
The ministry further said that it does not support the use of phrases such as “habitual to sexual act” or “woman of easy virtue” while referring to women in medical reports.
The case will be heard by Justice Ayesha A Malik of the Lahore High Court on October 14.
Virginity tests are commonly performed on rape survivors in Pakistan. There are two ways in which they are conducted:
The hymen is a thin membrane that surrounds the opening of the vagina. This test assumes that only the hymen of women who have engaged in sexual activity is torn. There are, however, a number of reasons why a woman hymen could’ve been torn such as physical activity, horse riding, and working in the fields, among others.
One or more fingers are inserted inside the vagina to assess the size of the vaginal opening to check penetrability. This test assumes that if the vagina admits two or more fingers then the woman is likely to have been sexually active.
“The premise of the tests is 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 [women] who have suffered as a result of covert use of force should be presumed to have consented,” the petition states.
The World Health Organisation has clearly said that there is no medical basis for such tests, says the petition.
“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,” it adds. Such tests are banned in India and Bangladesh.
In Pakistan, the ways through which the authorities get the consent of rape survivors for these tests is questionable, says the petition.
The survivors are “either completely unaware or not informed in enough detail with sufficient sensitivity,” it says. They are not informed that they have the right to refuse to consent to these tests. They don’t realise that they have “consented to the disclosure of the results of these tests to third parties”.
“Instead of punishing violence against women, the reliance of the justice system on such tests actually results in a far more insidious form of violence upon women inflicted by the State itself,” the petition adds.