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‘Medical officers should focus on rape, not survivor’s sexual history’

Supreme Court declares two-finger test unconstitutional

SAMAA | - Posted: Mar 25, 2021 | Last Updated: 10 months ago
Editing & Writing | Yasal Munim
SAMAA |
Posted: Mar 25, 2021 | Last Updated: 10 months ago

Photo: Online

The Supreme Court has said that medico-legal officers should focus on whether a person was raped or not rather than commenting on a survivor’s sexual history.

In a ruling on January 4, the court declared the two-finger test of rape survivors to be unconstitutional. The written order, authored by Justice Mansoor Ali Shah, was released on Thursday.

“Modern science thus shows that the two-finger test must not be conducted for establishing rape-sexual violence, and the size of the vaginal introitus has no bearing on a case of sexual violence,” the order said.

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

“The status of the hymen is also irrelevant because hymen can be torn due to several reasons such as cycling, riding among other things. An intact hymen does not rule out sexual violence and a torn hymen does not prove previous sexual intercourse.” The hymen must be treated like any other part of the genitals while documenting examination findings in cases of sexual violence, it said. “Only those findings that are relevant to the episode of sexual assault, i.e., findings such as fresh tears, bleeding, oedema, etc., are to be documented.”

It added, “Rape is a crime and not a medical diagnosis to be made by the medical officer treating the victim…[T]he only statement that can be made by the medical officer is whether there is evidence of recent sexual activity and about injuries noticed in and around the private parts.”

The medical officer should provide adequate healthcare and comfort to the victim and assist the prosecution with appropriate medical evidence, the order said.

Practitioners should collect evidence to determine if the alleged victim was subjected to rape, and not determine her virginity or chastity, it remarked.

Related: Two-finger test violates constitutional rights: MOHR tells court

Medical language is riddled with gender biases and immediately calls into question the character of the rape survivor. “It is used to support the assumption that a sexually active woman would easily consent for sexual activity with anyone.” If the victim had lost her virginity earlier, it does not give anyone the right to rape her. Rape is also seen as a crime of lust and passion rather than a crime of control. In rape cases, the suspects are on trial and not the survivor. The courts must discontinue the use of painfully intrusive and inappropriate expressions, like “habituated to sex”, “woman of easy virtue”, “woman of loose moral character”, and “non-virgin”, for the alleged rape victims even if they find that the charge of rape is not proved against the accused. Such expressions are unconstitutional and illegal.

“A rape victim stands on a higher pedestal than an injured witness, for an injured witness, gets the injury on the physical form while the rape victim suffers psychologically and emotionally,” it added.

Rape case

The court was hearing the case of a woman was who raped by five men on August 28, 2012.

Three men, identified as Sher Baz Khan alias Sheru, Atif Zareef, and Nafees Ahmed, have been sentenced to life imprisonment in the case, while two others, Sajjad Hussain alias Jajji and Waqas Hameed, are still on the run.

The court has instructed the Punjab IG to personally supervise the case. He has been directed to submit a progress report in a month.

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