LHC does away with archaic two-finger test for sexual assault survivors, terms them 'illegal'

Published January 4, 2021
The Lahore High Court (LHC) on Monday declared virginity tests, including the two-finger test (TFT) for examination of sexual assault survivors as "illegal and unconstitutional", saying they had "no forensic value" in cases of sexual violence. — File photo
The Lahore High Court (LHC) on Monday declared virginity tests, including the two-finger test (TFT) for examination of sexual assault survivors as "illegal and unconstitutional", saying they had "no forensic value" in cases of sexual violence. — File photo

The Lahore High Court (LHC) on Monday declared virginity tests, including the two-finger test (TFT) for examination of sexual assault survivors "illegal and against the Constitution", saying they had "no forensic value" in cases of sexual violence.

In a 30-page judgement, Justice Ayesha A. Malik wrote that the virginity test "offends the dignity of the female victim" and was contradictory to Article 9 and Article 14 of the Constitution, which are related to the security and dignity of a person.

The judgement declared that virginity tests are "discriminatory against the female victim as they are carried out on the basis of their gender [and] therefore offend Article 25 of the Constitution".

The judge directed the federal and provincial governments to take necessary steps to "ensure that virginity tests are not carried out in medico-legal examination of the victims of rape and sexual abuse".

She also directed the Punjab government to devise "appropriate medico-legal protocol and guidelines and standard operating procedures" according to established international practices to "recognise and manage sensitively the care of victims of sexual violence".

"This includes regular training and awareness programmes so that all stakeholders understand that virginity tests have no clinical or forensic value," Justice Malik wrote in the judgement.

The high court had reserved the judgement on two public interest petitions challenging the old practice in Nov 2020.

Punjab govt abolishes test

Before closing the hearing, Justice Malik had expressed her displeasure over the Punjab government’s slackness towards legislation to abolish the test. The judge noted that the government, despite an undertaking, failed to present a proposed draft of the legislation.

However, later that month, the provincial government had notified the abolishment of the test.

The guidelines issued to the medico-legal surgeons said the two-finger test must not be performed and the examination of a victim should be undertaken only on the judicial order as per Women Protection Act 2006 and with the written consent of the victim, if adult, and from the guardian, in the case of a minor victim.

The examination was to be conducted by an authorised woman medical officer (WMO) or board as per Section 299 of the Pakistan Penal Code. The survivor or in case of a minor, the guardian, can refuse either a medico-legal examination or collection of evidence or both and the refusal would not be used to deny treatment to the survivor after sexual violence.

"Inspection should be both with the naked eye, magnifying lens and by use of Glaister Keen glass rod. Two-finger test must not be performed," the department had instructed.

The petitions were filed by PML-N member of the National Assembly Shaista Pervez Malik and women rights activists, academics, journalists and advocates. They include Sadaf Aziz, Farida Shaheed, Farieha Aziz, Farah Zia, Sarah Zaman, Maliha Zia Lari, Dr Aisha Babar and Zainab Husain.

The petitions mainly pleaded that the intrusive and demeaning practice, whereby medico-legal officers perform a hymen test and the two-finger test as part of medical evaluation of women victims, was unreliable, unnecessary and had no scientific basis.

Advocate Sahar Zareen Bandial and Barrister Sameer Khosa represented the petitioners.

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