Two-Finger Virginity Test And Its Implications In Pakistan
Women in a male-dominated country like Pakistan are already at a socio-political disadvantage and fighting the growing gender exploitation and patriarchy that is deeply entrenched in the society. This vulnerability makes them subject to common occurrences of violence and abuse, predominantly, sexual violence. Instead of countering these prevalent crimes by ensuring implementation of laws and replacing the redundant pieces of legislation with new laws that conform to the changing social circumstances, the government puts in certain practices that have no legal grounds. One of them is the two-finger virginity test that determines whether a rape survivor is ‘habituated to a sexual intercourse.’
The two-finger virginity test is a physical examination of a women’s vagina to figure out the laxity of vaginal muscles and whether the hymen is distensible or not. In short, the medico-legal officer inserts two fingers inside the vagina in a quest to examine her sexual activity. In case, the vagina accepts fingers easily, that lays out the presumption of the woman being sexually active while difficulty in penetrating concludes the hymen being intact declaring the woman to be a virgin.
Historically, the practice of carrying out two-finger test is a remnant of the past, particularly, the colonial period and with the partition of British India in 1947, the test was inherited by both Pakistan and India. Some sources also reconcile this with the frequent practices of the British and French who introduced the concept of classifying ‘true virgin’ and ‘false virgin’ and thus the test was primarily used to distinguish the two.
Due to the societal norms in Pakistan, this test creates many problems for women who have experienced any sort of sexual violence. According to Section 164A Code of Criminal Procedure, the victim shall be examined by a registered medical practitioner. Further, 164A (4) and (7) explicitly state that the report shall ‘specifically’ record the consent of the victim and failure to do so would render it unlawful. However, in most cases the victim is coerced to consent for the purpose of carrying out the examination, and is entirely unaware of the reason behind such test. Under any circumstances, if the vagina accepts the two fingers, the victim regardless of her age and marital status is presumed to be engaging in sexual activity. This adds a mental toll for married women, as the burden shifts from the incident to their character and discourages others to report such horrific crimes, creating an impunity for the perpetrators.
In Fahad Aziz v. State (2008), the court disregarded the victim’s stance, as to them she appeared as a woman of ‘loose character.’ Similarly, the Lahore High Court in Naveed Masih v. State (2008), refused to rely on the victim’s statement when the medico-legal team concluded that the woman was habituated to sexual intercourse.
What outweighs all these hurdles is that this medical test has no sufficient scientific basis. According to the World Health Organization, the examination is not supported by any scientific merit or clinical indication as the appearance of a hymen is not a reliable indication of intercourse and there is no known examination that can prove a history of vaginal intercourse. The term ‘virginity’ is a social, cultural and religious construct with neither medical nor scientific basis. Furthermore, the two-finger test also violates the human rights of the victim.
Pakistan is bound by its constitutional arrangements as well as international obligations. The test is violative of the right to human dignity as enshrined under Article 14 of the Constitution of Islamic Republic of Pakistan, 1973 and Article 25(2) as it applies mainly to ‘woman’ been discriminating on the basis of sex. To add, Pakistan is a party to several international legal instruments and such a test violates Article 5 of Universal Declaration of Human Rights (UNDHR), Article 7 of the International Covenant on Civil and Political Rights (ICCPR) and Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Earlier, in 2013, the Supreme Court of India in the case of Lilu Alias Rajesh and Others v. State of Haryana (2013) declared the two-finger test unconstitutional on the basis of it violating the right of rape survivors to privacy, physical and mental integrity and dignity. The bench even held that even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent. The High Court in Bangladesh also outlawed the two-finger virginity test in 2018.
The unprecedented decisions of both the Indian Supreme Court as well as Bangladesh High Court and the rising concerns by the general public compelled the Pakistani judiciary to take action. On 6 January 2021, the Honorable Justice Ayesha Malik in her landmark judgment declared the ‘two-finger virginity test’ illegal in response to a petition filed earlier at the Lahore High Court. The court declared that two-finger test and the hymen test carried out for the purposes of ascertaining the virginity of a female victim of rape or sexual abuse is unscientific or having no forensic value in the case of sexual violence. “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,” the court held.
The unprecedented verdict was applauded across Pakistan with no high-public profile critiques, suggesting it had widespread support. What is more important is that the abolishment of the two-finger test has put an end to reviving the re-traumatization that women previously faced. Although, the decision is limited to the province of Punjab yet a precedent has been set for other provinces to follow. One must believe that it is now imperative for the government to ensure its implementation as well as design more mechanisms to counter the growing gender-based violence.