How LHC Righted A Wrong By Abolishing Two-Finger Test For Rape Survivors

How LHC Righted A Wrong By Abolishing Two-Finger Test For Rape Survivors
Editor’s note: The controversial two-finger virginity test for victims of rape and sexual abuse was recently abolished by the Lahore High Court. We welcome the landmark judgement authored by Justice Ayesha Malik. The LHC judgement and the petition that sought abolishment of the controversial test have been summarised by Barrister Muhammad Ahmad Pansota and Ahtasham Mukhtar in this write-up.

Brief Background:
The Petition challenged the use and conduct of virginity tests specifically being the two-finger test and hymen examination in cases of rape or sexual abuse. The Petitioners sought a permanent restraint against the use, conduct or facilitation of virginity tests by the Respondents and sought a direction to ensure that necessary and proper measures are taken with respect to the physical and mental health and safety of the women undergoing the medico-legal examination. The Petitioners further prayed that the Respondents should rely on scientific methods of investigation as the virginity test is neither scientific nor medically required to establish the incident of rape or sexual abuse.
Virginity testing essentially comprises of the two-finger test and the hymen test. The justification for both tests is to ascertain whether the victim is sexually active. [Issue].

The Case of the Petitioners:
Petitioners argued that the tests are irrelevant for the charges of rape or sexual abuse, particularly after the omission of Section 151 (4) of the Qanun-e-Shahadat Order, 1984 (QSO) under the Criminal Law (Amendment) (Offences Relating to Rape) Act, 2016 (Amendment Act, 2016).

Section 151 QSO, 1984: Impeaching credit of witness: The credit of a witness may be impeached in the following ways by the adverse party or with the consent of the Court, by the party who calls him:
(4) when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.

Learned counsel argued and pointed out certain irregularities in the procedure of the tests, such that, the victim is not informed that why such an act is being done and that the victims are not informed of their right that they can refuse for such a test to be conducted. Learned counsel stated that the medico-legal examination reports rely on words such as habituated to sex or not a virgin which are totally irrelevant for the purposes of the incident under investigation and at the same time such derogatory language stigmatizes the victim, causing social and personal trauma.

Pakistan is a signatory to several international treaties which totally denounce virginity testing; hence Pakistan is obligated to maintain its international commitments pursuant to Article 5 of the Universal Declaration of Human Rights, 1984 (UDHR), Article 7 of the International Covenant on Civil and Political Rights, 1966 (ICCPR) and Article 16 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 (CAT). It is also against Article 12 of the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR). They also stated that the Pakistan is also a signatory to and has ratified the Convention Against Elimination of All Forms of Discrimination Against

Women, 1979 (CEDAW), which prohibits all forms of discrimination against women and declares the two- finger test as discriminatory such that it amounts to a denial of rights to female victims of rape on the basis of her gender. It is argued that virginity tests violate the given standards of the right to human dignity as enshrined in Article 14 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution). It also violates the right of privacy with respect to women and her right over her own body and it violates Article 25 of the Constitution as it is specifically applied to female rape or sexual abuse victims making negative inference to her character in order to justify the incident of rape and sexual abuse but is not used where the victim is a male. Learned counsel also rely on a large variety of international literature by the WHO, UN Human Rights Office and UN Women wherein it is reported that virginity testing is associated with a series of adverse physical and psychosocial effects, that it has no evidentiary value, that it violates bodily integrity and the privacy of rape victims and unjustifiably subjects them to further trauma.

The response by the Respondents:
That it was argued that in principle the Federation and the Province do not dispute the contentions of the Petitioners to the extent that the two-finder test should not be conducted. Additional Adv. General Argued that new guidelines are under consideration.

It was stated that women in sexual abuse and rape cases are examined by authorized women medical officers in terms of Section 164A of the Cr.PC and that a detailed procedure has been prescribed to preserve the rights and dignity of the victim. Ministry of Human Rights categorically stated that two-finger test is a violation of the constitutional right to dignity of women who are victims of rape and sexual abuse.

Punjab Forensic Science Agency, one of the Respondent, stated that they do not rely upon virginity tests as they rely on scientific testing methods by collecting forensic evidence in rape or sexual cases. Hence, they carry out semen detection and DNA profile development in rape or sexual abuse cases.

Secretary Health and Specialized Healthcare and Medical Education Department and as well as Surgeon Medico Legal Punjab submitted that the privacy of woman victim is maintained. It was stated that digital examination is required to assess the status of the hymen, capacity, size, torn plus information regarding the history on sexual intercourse but the women medical officer cannot write words such as habitual to sex in any report.
Surgeon Medico Legal Punjab, appeared in person and explained that the examination of the hymen is necessary for the provision of adequate and effective investigation as to determine the injuries, determine tears, laceration, bruises, abrasions, swellings and hyperaemia where sexual violence is alleged. It is noted that Government of Punjab placed before the Court draft guidelines including which have been devised consequent to the issues raised through the instant writ petition. It was stated that these new guidelines have been devised consequent to the issues raised through the instant writ petition.

Specialized Healthcare and Medical Education Department presented a copy of Guidelines for the Examination of Female Survivors/Victims of Sexual Abuse 2020 which contains the proforma of the report to be filled by the women medical officer. Clause 14 of such Guidelines 2020 states that two-finder test must not be performed. The Petitioner argued that Guidelines 2020 have not prohibited hymen testing hence virginity testing continues even under 2020 Guidelines. Therefore, it is argued that Respondents have retained the ability to conduct virginity testing have not taken decisive steps towards the eradicating the same.
It was also argued that the process under the Instructions Regarding the Conduct of Medicolegal and Post- mortem Examination, 2015 (2015 Instructions) and now the 2020 Guidelines is not victim sensitive and meaningful consent is not obtained before carrying out the medico-legal examination.

Opinion of the Court
Nature of Medico-Legal Examination:
The medical examination is mandatory in terms of Section 164A of the Cr.PC in cases of rape or sexual abuse. As per this section, the report requires a description of material taken from the body of the victim for DNA profiling, marks of injury, in any, on the body of the victims; general mental condition of the victim and all other material particulars with reasons for each conclusion arrived at. Importantly the report has to specifically record the consent of the victim or of her natural or legal guardian to such examination.

Guidelines and Instructions
The Respondent Health Department issued Notification which established a three-tier structure for conducting medico-legal work. The initial medico-legal examination is carried out by Medical Officers in Rural Health Centres, Tehsil Headquarters Hospital and District Headquarters Hospitals. The second tier consists of the District Standing Medical Board (“District Board”) where re-examination is required, and the third tier is the Surgeon Medico Legal Punjab. The Surgeon Medico Legal Punjab is the Chairman of the Provincial Standing Medical Board, which is also the final appellate authority against the decisions of the District Boards.

As per the SOPs and 2015 Instructions the examination of a female victim of sexual abuse or rape involves three steps, that is observation through naked eye, digital examination and speculum examination. In comparison Clause 14 of the 2020 Guidelines provides for a two-step process, essentially being inspection with naked eye and thereafter, bilateral digital traction or speculum examination.

The Surgeon Medico Legal Punjab further stated that the hymen test or two-finger test is required to correlate the victims’ statement with the history of the victim. In this regard, he stated that the findings regarding the rupture of hymen, if fresh or old is done through bilateral digital examination and also

through inspection of the naked eye. As per his contention, it is necessary to carry out these tests in order to adequately and effectively ascertain whether the incident of sexual abuse or rape did in fact take place. In his professional opinion the hymen is ruptured in very rare cases while carrying out certain sporting activities or cycling and therefore, the reliance on the status of the hymen in no manner prejudices the rights of female victims. Consequently, this means that in terms of the 2020 Guidelines virginity testing through bilateral digital traction and digital examination or even per-vaginum examination may be carried out and the two-finger test will not be carried out where the victim is a minor, presumably a virgin. However even in such cases the status of the hymen is examined to confirm her virginity.

The Consequences
From a bare reading of the 2020 Guidelines and the Proforma and the filled in reports, it appeared that the process of virginity testing through two fingers or hymen examination are standardized and form the basis of the medical officers’ opinion or the court’s opinion on the virtue and character of the victim. Often enough the opinion of the medical officer is carried into the judgments of the court and language such as habituated to sex, women of easy virtue, habitual to sexual intercourse, indulging in sexual activities are used to describe the victim. The basis being that a woman habituated to sex, is likely to have raised a false charge of rape or sexual abuse.

There is no law governing the requirements of virginity testing specifically the two-finger test and the hymen test. Reliance is placed by the Respondents on A Textbook of Medical Jurisprudence and Toxicology (Modi’s Textbook), this book provides the methodology for the examination of the hymen and justifies the same on the strength of establishing whether or not the victim is a virgin. He emphasized on the concept of false charges which is common in rape cases, hence it is necessary to examine the veracity of the victims’ statement by checking her virginity.
Medical and Scientific Views on Virginity Tests
The uses and impact of medico-legal evidence in sexual assault cases: A global review commissioned by the World Health Organization. As per the review, the relevant features of a medico-legal examination in cases of sexual violence are the written consent from the victim, medical history of the victim, the sexual assault history with relevant details including the date, time and location of the occurrence as well as details of the assailant.
As per a report published in 2018 by the World Health Organization and United Nations Human Rights titled Eliminating Virginity Testing: An Interagency Statement, virginity testing is unscientific, medically unnecessary and unreliable and it can be painful, humiliating and traumatic for the victim.

Judicial Review
The issue of virginity testing has been considered by the Supreme Court of India in its judgment dated 11.04.2013 titled Lillu Rajesh & ANR v State of Haryana wherein it has been held that: -
The two-finger test and its interpretation violate the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent.

In Shahzad alias Shaddu and others vs. The State (2002 SCMR 1009) the august Supreme Court of Pakistan held that:

We have also examined the question as to whether any advantage can be taken by the petitioners on the allegation that prosecutrix was a girl of an easy virtue. The answer would be in negative as blanket authority cannot be given to ravish the modesty of such-like girls.

International Obligations
The international obligations cast a responsibility on the Government of Pakistan to ensure that all necessary steps are taken to prevent discrimination and specifically to prevent carrying out virginity testing, as globally it is accepted that virginity testing does not establish the offence of rape or sexual abuse nor does past sexual conduct have any relevance in the medico-legal examination which aims to collect evidence on the charge of sexual violence. In this regard, the Criminal Law (Amendment) (Offences Relating to Rape) Act, 2016 deleted Article 151(4) of the QSO which effectively prohibits adopting a line of questioning on the character of the victim. In this regard, it is noted that Section 13 of the Anti-Rape (Investigation and Trial) Ordinance, 2020 (“2020 Ordinance”) specifically prohibits the two-finger virginity testing for the purposes of medico-legal examination of a victim related to Scheduled Offences. It also specifically provides that any evidence to show that the victim is of immoral character shall be inadmissible.

Fundamental Rights
When seen in the context of fundamental rights Article 9 of the Constitution provides for the right to life and liberty as per law and Article 14 of the Constitution provides for the fundamental rights of dignity of man. These rights ensure that life is to be lived with a dignified existence protecting one from degradation and ensuring accessibility to a decent physical, social and cultural environment. It also protects a person from structured stigmatizing as stereotype discrimination adversely impacts the dignity of a person. The virginity test by its very nature is invasive and an infringement on the privacy of a woman to her body. It is 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.

Medical forensic examination report should use appropriate language to describe the victim and her state and should totally restrain from commenting as to whether or not rape or sexual abuse has taken place. The damage caused by such comments and use of words describing the woman as habituated to sex or regularly involved in sexual intercourse can have far reaching effects on the victim socially as well as mentally and personally.

Furthermore, despite the fact that the Government of Punjab and the Surgeon Medico-Legal Punjab have emphasized on the efforts made with reference to the 2020 Guidelines, The Ladyship find the same to be totally lacking in protocols and guidance. There is no evidence on how to ensure that proper consent is obtained, what is to be explained, what language is to be used and how to interact with the victim. Under the circumstances, the 2020 Guidelines should be revised so that all required protocols and instructions as detailed above and as per international practice are included.

In view of the aforesaid, these petitions are allowed in the following terms:-

(i) It is declared that two finger test and the hymen test carried out for the purpose of ascertaining the virginity of a female victim of rape or sexual abuse is unscientific having no medical basis, therefore it has no forensic value in cases of sexual violence;

(ii) It is further declared that virginity test offends the personal dignity of the female victim and therefore is against the right to life and right to dignity enshrined in Article 9 and 14 of the Constitution;

(iii) It is also declared that virginity tests are discriminatory against the female victim as they are carried out on the basis of their gender, therefore offends Article 25 of the Constitution;

(iv) Consequently, to the extent that the 2020 Guidelines, SOPs and the 2015 Instructions mandate the two- finger test or the hymen test for the purposes of ascertaining the virginity of the victim are declared to be illegal and against the Constitution and the Federation and Provincial Government should take necessary steps to ensure that virginity tests are not carried out in medico- legal examination of the victims of rape and sexual abuse;

(v) The Provincial Government should devise appropriate medico-legal protocols and guidelines, along with standard operating procedures, in line with international practice that recognize and manage sensitively the care of victims of sexual violence. This includes regular training and awareness programs so that all stakeholders understand that virginity tests have no clinical or forensic value.