Women had petitioned Lahore High Court to outlaw the test
The Punjab government has done away with the two-finger test for rape and sexual violence survivors.
Punjab Additional Advocate General Jawwad Yaqoob presented a government notification in the Lahore High Court on Friday. Justice Ayesha A Malik heard multiple petitions filed by women against the two-finger test.
The notification, issued by the Punjab Specialised Healthcare and Medical Education Department, outlined the proper way to conduct examinations of rape or sexual violence survivors, including separate procedures for girls, virgins and non-virgins.
The new rules for medico-legal examinations of female survivors has to be implemented at all public sector hospitals/institutions in Punjab.
To start with, the medico-legal examination of a female victim should be undertaken only on the judicial order as per Women Protection Act, 2006 and after obtaining written expressed consent of the victim or parents/guardian if the victim is under 18.
It can only be performed by an authorized women medical officer or board under Section 299-C of the Pakistan Penal Code.
The notification also noted that victims or guardians have the right to refuse medico-legal examination or collection of evidence or both but their refusal will not be used to deny treatment to the survivor after sexual violence as per the Injured Persons (Medical Aid) Act, 2004.
SOPs such as soliciting biodata, details of history, history of changing clothes, bath, stool or urine passed and a detailed type of violence and its location on the body must be noted by the MLO. A detailed description of the use of any weapon, drugs/alcohol, verbal threats etc should also be noted.
In case of children illustrative books, body charts or a doll can be used if available to elicit the history of the sexual assault. When it is difficult to get that information, the MLOs have been told to call an expert like a paediatrician or psychiatrist.
It noted that an examination of the victim’s genitalia can be conducted as per the rules but a two-finger test must not be performed. This line has been written in all caps and made bold.
If a woman reports within 96 hours of the assault, all evidence including swabs must be collected, based on the nature of the sexual assault.
In Pakistan, virginity tests are conducted on rape survivors to check if they have had sexual intercourse prior to the assault. The assumption is that a woman must be a virgin for her to be raped, said lawyer Maliha Zia Lari, one of the petitioners in the case.
Such tests are an inaccurate way of testing for rape and they violate a woman’s space and dignity, she added.
The petition argues that it has now “conclusively established that these so-called ‘tests’ have no scientific or medical basis.” They are an “extreme invasion of women’s privacy and bodily integrity as well as a source of re-traumatisation.”
There is “no place for these outdated practices under the Constitution,” says the petition.
The petition has asked for such tests to be declared illegal and discontinue phrases such as “habituated to sex”, “easy virtue” and “loose morals” while referring to women in medical reports.
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.
The Ministry of Human Rights had told the court on October 14 that the two-finger test is a violation of the constitutional rights of the people of Pakistan
“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.
The ministry agreed 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 also said 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.