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Two-finger, hymen tests of rape survivors declared ‘illegal and unconstitutional’

Virginity tests are invasive, have no medical requirement, rules LHC

SAMAA | - Posted: Jan 4, 2021 | Last Updated: 10 months ago
SAMAA |
Posted: Jan 4, 2021 | Last Updated: 10 months ago

Photo: Online

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The Lahore High Court has ruled that the two-finger and hymen tests of rape survivors are 'illegal and unconstitutional'. Justice Ayesha A Malik announced on Monday the verdict in the petition challenging the virginity tests of rape survivors. The 30-page verdict said "virginity testing is highly invasive, having no scientific or medical requirement, yet carried out in the name of medical protocols in sexual violence cases." The "humiliating practice is used to cast suspicion on the victim, as opposed to focusing on the accused and the incident of sexual violence." The court has ordered the following in the case: The 2020 guidelines, SOPs, and the 2015 instructions that mandate the two-finger test or the hymen test for the purposes of ascertaining the virginity of the victim have been declared illegal and against the Constitution Two-finger test and hymen tests carried out for the purpose of ascertaining the virginity of a rape survivor are unscientific and have no forensic value. A virginity test offends the personal dignity of the female victim and therefore is against the right to life and right to dignity enshrined in Pakistani law. Virginity tests are discriminatory as they are carried out on the basis of the gender of the survivors. The federal and Punjab governments should take the necessary steps to ensure that virginity tests are not carried out in the medicolegal examination of the victims of rape and sexual abuseThe Punjab government should devise appropriate medico-legal protocols and guidelines in line with international practices that recognise and manage sensitively the care of victims of sexual violence. The verdict said that these tests are 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," it added. Cases should be investigated on the basis of whether the accused person raped the survivor or not. "If the victim is found to not be a virgin it cannot and does not suggest that she was not raped or sexually abused." This shifts the focus of the case on the virginity status of the survivor, it said. "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 verdict added. Punjab banned the two-finger test for rape and sexual violence survivors on November 13. The case A group of women had moved the Lahore High Court on March 12, 2020. PML-N MPA Shaista Pervez Malik also filed a separate petition. 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. What are virginity tests? Virginity tests are commonly performed on rape survivors in Pakistan. There are two ways in which they are conducted: Inspection of the hymen 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. Two-finger test 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.
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The Lahore High Court has ruled that the two-finger and hymen tests of rape survivors are ‘illegal and unconstitutional’.

Justice Ayesha A Malik announced on Monday the verdict in the petition challenging the virginity tests of rape survivors.

The 30-page verdict said “virginity testing is highly invasive, having no scientific or medical requirement, yet carried out in the name of medical protocols in sexual violence cases.” The “humiliating practice is used to cast suspicion on the victim, as opposed to focusing on the accused and the incident of sexual violence.”

The court has ordered the following in the case:

  • The 2020 guidelines, SOPs, and the 2015 instructions that mandate the two-finger test or the hymen test for the purposes of ascertaining the virginity of the victim have been declared illegal and against the Constitution
  • Two-finger test and hymen tests carried out for the purpose of ascertaining the virginity of a rape survivor are unscientific and have no forensic value.
  • A virginity test offends the personal dignity of the female victim and therefore is against the right to life and right to dignity enshrined in Pakistani law.
  • Virginity tests are discriminatory as they are carried out on the basis of the gender of the survivors.
  • The federal and Punjab governments should take the necessary steps to ensure that virginity tests are not carried out in the medicolegal examination of the victims of rape and sexual abuse
  • The Punjab government should devise appropriate medico-legal protocols and guidelines in line with international
    practices that recognise and manage sensitively the care of
    victims of sexual violence.

The verdict said that these tests are 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,” it added.

Cases should be investigated on the basis of whether the accused person raped the survivor or not. “If the victim is found to not be a virgin it cannot and does not suggest that she was not raped or sexually abused.” This shifts the focus of the case on the virginity status of the survivor, it said.

“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 verdict added.

Punjab banned the two-finger test for rape and sexual violence survivors on November 13.

The case

A group of women had moved the Lahore High Court on March 12, 2020. PML-N MPA Shaista Pervez Malik also filed a separate petition.

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.

What are virginity tests?

Virginity tests are commonly performed on rape survivors in Pakistan. There are two ways in which they are conducted:

  • Inspection of the hymen

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.

  • Two-finger test

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.

 
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