Say it doesn't stop other unnecessary, invasive practices
The Punjab government’s notification banning the two-finger test for rape and sexual violence survivors is “hastily prepared, vague and deficient in material respects”.
The government submitted a list of guidelines for female medico-legal officers handling rape or sexual violence cases to the Lahore High Court on November 13. Judge Ayesha A Malik is hearing two separate petitions filed against the ‘two-finger test’ and other virginity testing practices.
The notification was issued by the Punjab Specialised Healthcare and Medical Education Department and outlined the way to conduct examinations of rape or sexual violence survivors, including separate procedures for girls, virgins and non-virgins.
However, the petitioners in the case say it isn’t enough. They called the guidelines “hastily prepared, with inadequate input, are vague, and are deficient in material respects, including with respect to providing adequate guidance to medico-legal officers in the appropriate manner of conducting the medico–legal examinations”.
When the Punjab government was asked in court whom it had consulted to prepare the guidelines, it was vague in its answer and only said a meeting was held with “the relevant secretaries” in attendance, according to the petitioners’ lawyer.
The petitioners said that while the guidelines inform MLOs about the need for consent from the survivors, they do not have adequate safeguards regarding securing consent and “continue to place an undue emphases on the status of the victim’s virginity, character and past sexual conduct, which has no legal relevance whatsoever to the question of whether an assault/incident of raped occurred”.
And while the notification bans the use of the two-finger test specifically, it does not ban or seek to discontinue all unwarranted invasive practices, noted the petitioners. One such practice is the hymen check, which the government has mentioned in its notification.
The notification urges MLOs not to use the terms “habituation to sex, easy virtue or loose morals” yet it still requires that the “report submitted to the court/police should be brief, concise, precise and without any ambiguity stating about recent or old loss of virginity as well as occurrence of recent sexual intercourse per-vaginum etc.”
The petitioners are in the process of placing their observations regarding the notified guidelines before the court.
The judge has reserved her verdict in the case.
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.