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It's time Pakistan banned the two-finger test for decoding consent in rape trials
2017 will go down in history as the year mainstream discourse on sexual violence was finally forced to confront the universal impunity enjoyed by perpetrators of assault.
Unfortunately, these global developments have failed to trigger any corresponding debate on the inability of Pakistan’s criminal justice system to provide redress to survivors.
In a country where conviction rates for rape are less than 4% and the National Police Bureau records an average of over 3,000 reported cases every year, the need for gender-sensitive legal and policy reform has never been more critical.
In recent years, any attempts to end impunity have focused on the introduction of piece-meal legislation, which whilst important for political visibility of the women’s movement, has failed to translate into increased conviction rates.
Related: Female Pakistani journalists share stories of harassment at the workplace
Key amongst the reasons underlying the limited impact of legislative developments in sexual assault is the central role played by gender stereotypes and biases in judicial proceedings in Pakistan.
From the time of the registration of the complaint by the police to the sentencing of the perpetrator, whether or not the victim’s character is in line with what is deemed ‘chaste’ or ‘pure’ has a far greater bearing on the outcome of the case rather than the nature of the violation she has suffered.
Stereotypes pertaining to what is a ‘good woman’ remains the primary consideration for police, prosecutors and judges to decide whether or not a victim’s claim of rape deserves reliance.
In many ways, the decision to come forward and report the crime is the first instance where the criminal justice system begins to view the victim with suspicion.
It is presumed that a woman with honour would never bring shame upon herself by admitting that she had been raped. A ‘true victim’ in many ways is one that never comes forward.
Read next: Rape is not a number and it should never become only digits in a report
Under the Pakistan Penal Code, Section 375, lack of consent on the part of the alleged victim is the primary ingredient for categorising an act of intercourse as rape.
The existence of consent or lack thereof cannot be objectively quantified and thus it falls on the judge to decide whether or not to believe that a victim’s account is reliable.
Reported judgments are littered with references to a victim’s ‘loose morals’ and ‘easy virtue’ which are taken as irrefutable evidence that she consented to the alleged act and thereby rendering her testimony as false.
For instance, the Lahore High Court in Fahad Aziz v State (2008) disregarded the victim’s rape complaint as “she appeared to be a woman of easy virtue [and] indulged in sexual activities”.
Similarly in another decision by the Federal Shariat Court in 2006, the accused was acquitted of all rape charges as the “victim girl was of easy virtue and though she was unmarried and of 16 years, but had lost her virginity”.
The determinative nature of the victim’s character to judicial decision making is reinforced by reliance on outdated ‘medical’ tests called two-finger rape tests.
A relic of British India, the archaic test involves inserting two fingers into the vagina of the victim in order to determine whether or not she is “habituated to sexual intercourse”.
The test is not a legal requirement but a medical practice that has become part of legal jurisprudence.
The affirmative findings of a test i.e. deeming the victim to be habituated to sexual intercourse if her vagina admits two fingers, are relied upon by courts to presume consent.
Thus a woman with a sexual history is assumed to consent forever more and therefore can never be raped.
For instance, the Lahore High Court in Naveed Masih v The State (2008) refused to rely upon the statement of the victim as the “medical report revealed that hymen of victim was torn and vagina admitted two fingers easily”.
On the other hand, the Lahore High Court accepted the testimony of the victim in Amanullah v. State (2009) as “vagina admitted two finger tight fully and painfully which showed that sexual intercourse had been firstly committed with her [committed for the first time] and further that she was not a woman of easy virtue and was not used to committing sexual intercourse” [explanation added].
Former British colonies including India, Malaysia and Bangladesh have progressively began banning reliance on these tests.
There is a growing recognition that not only is there no scientific link between the laxity of one’s vagina and sexual history, a victim’s ‘character’ is irrelevant on the alleged act being adjudicated upon.
Additionally, in order to protect victims, most countries have promulgated character-shield laws that bar the introduction of evidence pertaining to the character or sexual history.
However, not only does Pakistan continue to hold on to the two-finger test but its victims must withstand aspersions on their character and sexual histories during the course of the rape trial which often lasts for several years.
In fact, the character of the victim is the primary accused in the trial, with the conduct of the accused being a secondary consideration.
It is thus little surprise that not only are convictions low, but victims themselves prefer to reach informal settlements with accused rather than put up with a trial.
Legal and policy reform barring gender stereotypes pertaining to the character of the victims from legal proceedings on sexual assault is urgently needed.
Whilst social norms pertaining to acceptable behaviour will not change overnight, the criminal justice system has an obligation to institute gender-sensitive mechanisms that provide adequate redress to victims without subjecting them to additional violations of their privacy and dignity.
Only then can the recent legislative amendments achieve their desired impact.
Are you a researcher or an activist working on issues of discrimination? Share your insights with us at blog@dawn.com
Zainab Z. Malik is a human rights lawyer, currently working with the Justice Project Pakistan. She has law degrees from the Lahore University of Management Sciences and Harvard Law School. She tweets @ZainabQ
The views expressed by this writer and commenters below do not necessarily reflect the views and policies of the Dawn Media Group.
Comments (93) Closed
Very nice piece of writing .... but there is no real effort on part of any related section to upgrade and update decrepit judicial system.
Wonderful article. It appears that the country laws are so outdated that it need fresh overhaul. Logic, which seems to be absent in many cases, should have a central place in the revised laws.
It is time Pakistan must ban the two finger test that was started by unkind and illiterate..
Pakistans record on sexual assault and sexual harrasment is abysmal. Federal and provincial Abodsmen have convicted a few but even those few have gotten pardoned by President. One by president Asif Ali Zardari and the second by current president Mamnoon Hussain.
Such a lame way! This shows that the entire globe is patriarchal! Oh my God! This is mere violation and it's like.... You're making fun of the victim! Such cases should be prosecuted with sensitivity! It's a matter of honor and soul. Whoever proposed this cheap test should be ashamed of himself / herself.
The fact that a woman is willing to have her chastity doubted by being brave enough to come forward is reason enough that the law should look at her sympathetically in a society like Pakistan's. To humiliate her further through such anachronistic and humiliating laws is despicable to say the least. I wasn't aware of these laws, thanks for pointing them out. Let's come into the 21stcenturytravelins century people.
Justice is the first thing to vanish from a nation when its on a path to self destruct. Its a shame, but there is no justice for anyone in Pakistan. Period.
Wow, unbelievable travesty of justice, Pakistan needs to change its archaic laws
Sad, almost physically sickening reading.
Hasan
In Shahnsha(emperor) Akbar days, rape was a crime. It does not matter whether victim was a prostitute.Therefore, woman's character is, and should be, irrelevant in this case.
However, consent is the main issue in defining rape, the world over, not only in Pakistan.
THIS really happens? We are still stuck in some prehistoric era? No wonder our legislative institutions produce nothing but food for talk shows. Shouldn't all men be ashamed for being silent witnesses (or at best; ignorant) about how their own mothers, daughters, sisters and wives are treated as livestock in our country?
As a son, husband and father, I am embarrassed. I did not know the victims are subjected to this inhumane treatment. Very sad.
DNA testing should of course be the first thing done by the authorities. Again the victim can get a FIR issued against the perpetrator so that something solid is done for the victim. On the other hand I wonder if the victim gives non truthful testimony there should be consequences for that as well. This way both the victim and the so callled perpetrator is protected. One of the things that is impossible to do with the two finger test is if what the woman is married or has had a divorce? If people were to stand up for there rights and the laws are followed while there will still be rape but at least reduced. There are rapes all over the world and also rape calls just to get revenge by woman.So some information is a must from the victim as well.
I wonder how does the two finger test apply to a victim of rape if she is already married.
How humiliating - enjoy your prehistoric 2-finger test. be backward.
Pakistan living in the dark ages.
Because of these pathetic and outdated laws most of the victims prefer silence to avoid more humiliation.
Wonderful article to raise social consciousness and inspiring women to fight for their rights. Maybe someone can translate and publish it in Urdu so that more people can benefit from it.
Very Informative, but very saddening to know how our justice system is utter garbage. It so badly needs a change in so many areas but what can one say when the Government itself stinks. Extremely frustrating!!!
What does character and previous sexual experience have to do with rape? Rape is an assault and is done against the will of a person, period. So in a way the law is giving a license to rape women. Vey unfair.
Very daring and informative article on the sensituve issue . New techniques of Medical science should be introduced for these cases. The researcher may contact to other countries.
Pakistan needs an overnight change which unfortunately will NEVER happen when it runs by baboons
Can't believe our laws in 2017 are still like that?
Thank you writing an eye opening article. You have educated me through your article on various levels.
We must stop these antediluvian test/practice.
So let's say a mature woman with 2-4 children is raped, and the two finger rule is applied - the findings will be that she consented? And then to make matters worse, she has to produce 4 witnesses?
So if a woman gives consent to one man she gives consent to all men. What a devious mindset to have this as law? Obvious a 'man' made law. No pun intended.
I honestly can't believe that this method is accepted by the judiciary. Even animals have better laws then so called Islamic republics. We should be ashamed of accepting such jungian and archaic methods. Regrettable thoroughly. There is no future.
Well done for high lighting this
Really??????????????
Thanks for bringing the topic to public attention. It is unbelievable that such a backward practice is still part of Pakistan in year 2017.
Is Pakistan a country where most of people are ignorant and uneducated ? Where this test stand when a married woman is raped ? Just like corrupt high ups rapists also get away due to their connections and notorious police help.
"TWO FINGER TEST?" REALLY?? WOW!!! STILL IN FORCE? WOW!!! I AM SPEECHLESS.
Kudos to the author for highlighting the issue. Salutes.
As a man I am ashamed of our law and how it is rigged against the week. Very sad
What a shame that this archaic piece of law is still in the statute.
It is common practice for girls also to indulge in masterbation. In such a case , a girl may fail five finger test, but that doesn't mean she consented to a rapist!
This test is just outrageous and must be abolished. That said rape is hard to prove in West too. Just today Paedophile priest Finian Egan was released after serving just 4 years in prison. That too when he was found guilty of raping girls 10 to 17 years old for over 30 years!!! We need highly trained detectives!!!
You want Pakistan to prosper ? Then simply make your leaders suffer. If our leaders want to have heart surgeries in UK then simply ban their travel and overnight fundings for local hospitals will increase ten fold. If you want justice, then simply make your leader suffer and they make necessary ammendments and will fight for justice. You want more connected Pakistan with better sanitation ? Simply force your leader to live in over flowing sewers and overnight conditions will improve. Pakistan will only prosper if theres an iron hand controling the people. We only understand fear and torture.
I don't understand why does the test even exist in the first place. Pathetic!
Amazingly summed it up... A great article to read after a long time.
When your entire government is corrupt, you expect our judicial system to be fully fit. Woo, we need some reality check here for all of us.
I'm shocked any saddened to know that in our judicial system the rape victims are being tried instead of the rapists. What a shame for our judicial system as well as our society as a whole for failing to provide justice to the victims of rape and sexual harassment.
good article but govt should take concrete steps to avoid the harassment cases
@shahid ehsan khalid The biggest womanizer of his time, was able to find the difference between a rape and a sex complain of a woman of easy virtue [and] indulged in sexual activities.
Amazing, so let's search what was the criteria he had to access this. The two finger rule is scrap and nonsense by the way. It does not prove anything.
Disturbing to hear that we have such malpractice
Excellent article. It shows the level of ignorance that we still live with each day in our country. More debates need to take place to change laws and peoples attitudes.
very well well argued. Rape is a very sensitive topic in our society and the onus should lie upon the accused to prove his innocence rather than the victim which is the case. The courts should realize that even a sex worker can file a complaint for rape as the crime has nothing to do with the morals of a victim
Thank you for highlighting this point.
outraged just by reading this ... I can't bear to think the trauma that our legal system inflicts on the victims. How ironical! Thanks for this brave and honest article.
Excellent piece of writing highlighting a very cruel practice of ignorant tribal societies still followed in 21st century.
Kudos to the writer
It's not that the universal appllication of two finger rules upon virgins, married and in-relationship women alike is sickening what's more detrimental is non-acceptance of DNA test as a testifying reality by Islamic Ideological Council. In a country with "male dominance" a nauseating reality, we have to cover a lot of ground. We definitely need these voices.
In my opinion, 99% of any proven rape case must go in favour of the victim. The accused male is invariably physically stronger and capable of forcing himself on to the victim against her will. It is really a grave form of violence and must be treated as such and punished.
First and foremost, the responsibility starts at our door step. Which requires giving enough confidence to our women that their loved ones shall standby them in times of distress. And later on can we only expect the courts and police to do justice. The reason women don't press charges are mostly related to their fear of persecution from the family itself. And that has to change.
Ms Malik: How much I appreciated your very thoughtful as well as useful writing. Unless people like you constantly keep reminding (conscience) by telling/writing men and general women what a society is doing against women is not civil and right, I think very little real progress will be achieved. Thanks.
Shocked that there is such a law or test even!
the real issues, that are not taken up for legislation due to social stigma attached to them, and low priority of the majority legislators that happen to be men.
Great article but it would be far more effective if it was in Urdu. People reading and commenting here are mostly already aware of these problems and they readily denounce it. However our uneducated masses which is a very big number will never read or understand this.
Eye opening article. Can't believe this is how we humiliate the female victims in our society.
It's shameful that how we treat woman in our society.I remember a video gone viral in which a rape victim a poor aged woman running and policeman who have committed this heinous crime was seen trying to capture her. Yet no severe action taken or justice happened seen to be done as to my knowledge because women was of low cast. Rape should be punishable to life imprisonment. Woman should be respected specially those who work hard for their daily livelihoods.
Excellent piece madam keep it up, this is voice of thousands of sisters.
Is it 2017 in Pakistan yet?
I some times wonder is Pakistan still stuck in 12 the century
Shameful! Unless Judges and law makers are educated or become victims this may never change.
Time to introduce DNA testing.
It is so shameful that this test is still permissible by law in 21st century. It is against the dignity of a women. Even marital rape is a crime. There are many right minded men and women members of National Assembly and can introduce this legislation as private members' bill and do not rest until the piece of this legislation becomes a law.
@Khurram And we claim to be a shariah based society. Where in shariah is this law? Pathetic.
This is an obsolete method and current day medico-legal officers do not practice it. Forensic sciences related to sexual assists and their investigations are at a much much advanced level. Judges and lawyers are not well versed with medical and forensic terminologies and the procedure adopted to examine a victim of sexual assault.
unbelievable and sickening!
How would they verify the if the victim of rape is male? As a matter of fact, rape does happens with male.
Need of the time. I have referred to this in my Urdu Op-Ed for a North American community newspaper.
Insane how women are treated in this country... and we claim to be Muslims. How can "Muslims" stand for this humiliation and injustice to women?
it is so shameful that Pakistan is still stuck in ninth century mentality.Any woman who claims to have been raped should be able to go any hospital and get an examination.the DNA test will help convict the rapist.
"JAHILIYA" IN IT'S TRUEST FORM.
in the Land of the Pious. a woman's dignity is measured by two fingers. have we lost all our values already? or do have a few left to lose?
The 'two-finger' test?? And the courts actually noting that in their judgements. That is insane! Thank you for raising these continuing archaic and non-sensical practices that should not even have been there in the 19th century.
The article re-affirms my belief that our society just came out of stone age. No equality of religions, races, sexes. We in fact just this inequality as our god given right. And last but not least, we live in a permanent denial mode. I don't see a light at the end of this long long tunnel.
A sensitive matter very well handled .
Two-finger test is not only illogical, archaic and degrading to the victim of a horrendous crime like rape, it also absurd by all legal and medical standards! A much needed article. Thank you for writing it, Zainab.
what non sense two finger one finger. medical evidence is sufficient to prove rape.
The weaknesses of the system are quite aptly highlighted by the writer. The lawmakers should take needed action. Having said that, the whole justice system is screwed. From police to courts. Alas!
Can former respected Justices initiate steps to protect the rights of the victims by rising above the archaic laws?
Unbelievable, thank you Zainab for an eye opening article.
The author is focusing on a test whether the rape victim was a virgin. Implication is that raping a non-virgin is not a crime. Utter nonsense, indicative of the barbaric past, the author included. Rape is a crime, nothing to do with virginity. What if the victim is married, as many have pointed out. To prove a rape, good luck with finding four male witnesses who witnessed the actual act!
@london kundon don't wonder. They are.
Great article, It's sad to see how hard it is for female victims to come forward.
For a country that holds the Honour of Women so highly, it is shocking that it treats the alleged victims of Rape with such dishonour and compounds the misery of the genuine victim. The issue is about consent. Once a woman says No it means No and becomes rape. Whether she is the wife, prostitute, maid, girlfriend etc.... The focus should be on evidence to support the credibility of her account especially in a digital world.
While this two finger test could be applied in case of unmarried woman wherein a tight vagina indicates her being chaste or virgin, what about a married woman being raped? How will this two finger test be applied on her? She may not be having the chaste characters then?
Well, with due respect to the writer's personal views, being a lawyer I feel that the writer has not given the practical hardships faced while conducting such cases....As a prosecutor I knw that in more than 90% of the cases the alleged victims are consenting parties.The real victims don't come forward.
The first thing about rape must be to start with believing the victim.
Only and only, if there is convincing evidence against the occurrence of such act then it may be disposed in favour of the attacker. Previous character of the victim has no bearing on the point in question. Period.
There is a web of taboo when it comes to reporting rape. The irony is that a society that seems to value virtue actually encourages people to commit rape - as no one will dare report it. Imagine how many 'respectable' husbands are unwittingly fathers to another man's child because the wife was too scared to tell him she was raped.
Yeah ! Accused should be put up to the trail and be punished.
thsi should be banned straightaway... sounds like living in stoneage still
I would slightly disagree here as due advancements in all fields including the medical as well, the two finger test is not solely relied upon nor conducted in isolation. Nowadays reiance is placed more on dna testing and also on the fact if there are marks of violence etc on the body of the victim. What needs to be emphasized is that the victim should promptly report the matter to police and to get medically examined at the earliest so that important evidence is not lost which could be helpful for dna analysis. Seminal stains, scratch marks and hair strands etc could be helpful if taken into account as and when the offence is committed.