Lahore (Pakistan): The Supreme Court of Pakistan has deemed that the two-finger test undertaken to observe the sexual history of a victim as unconstitutional. A bench of Pakistan Supreme Court comprising of Justices Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah stated that the sexual history of a rape survivor should not be dragged onto a case.
The court also said that comments such as 'the vagina admits two fingers easily' or 'old ruptured hymen' outrage the reputation and dignity of the victim/rape survivor and that it is a violation of Article 4 (2) as per the Constitution of the Islamic Republic of Pakistan. The law also mandates that no action that causes physical harm and tarnishes the victim shall be taken, except in accordance with the law.
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The Pak Supreme Court led bench also specified that expressions like - 'habituated to sex', 'woman of easy virtue', 'woman of loose moral character and 'non-virgin' must be avoided as it is unconstitutional and illegal. The court while looking into a criminal appeal made by the rape accused, mulls whether the sexual history of the victim should be recorded via 'two-finger test' (TFT) or the 'virginity test' and whether it has any scientific justification or evidentiary relevance to determine the commission of the sexual assault of rape.
Also, the 'sexual history', 'sexual character' or the 'sexuality' of a rape survivor being used to degrade the morality of the woman or rape survivor to paint her as sexually active, unchaste has been questioned. The court also looked into whether the woman's promiscuity is taken into account if she had consented to the act.
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Medical Tests Not To Determine Virginity or Chastity
The Pakistan Supreme Court pointed out that language used by doctors looking into Medico-Legal Cases was covered with gender-biased terms and that it in a way questions the character of the victim.
"Due to a combination of lack of training, inexperience the medico-legal certificate's (MLC) casually report the two-finger test, to show that the vagina can admit phallus-like fingers to conclude that the survivor was sexually active at the time of the assault or whether a 'virgin' as perceived by the society. Neither of these tests holds any basis in medical science. The medical language of MLC 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 to sexual activity with anyone. The World Health Organization (WHO), the Office of the High Commissioner of the United Nations and the United Nations Entity for Gender Equality and the Empowerment of Women in 'Eliminating Virginity Testing: An Interagency Statement' proclaims, the practice is a violation of the victim's human rights and is associated with both immediate and longterm consequences that are detrimental to her physical, psychological and social well-being. In view of this firm and reliable Interagency Statement, examination of a rape victim by the medical practitioners and use of the medical evidence collected in such examination by the courts should be made only to determine the question of whether or not the alleged victim was subjected to rape, and not to determine her virginity or chastity," the Pak Supreme Court said.
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If Victim Lost Virginity, Doesn't Mean It Gives Anyone The Right To Rape Her
The Pak Supreme Court led bench made it clear that expressions such as 'habituated to sex', 'woman of easy virtue', 'woman of loose moral character and 'non-virgin' towards alleged rape victims should be discontinued, even though the charge of rape has not been approved against the accused.
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Evidence Relating to Sexual History Shouldn't Be Admitted In Order To Draw Inferences Supporting The Twin Myths
According to Pak SC evidence related to sexual history must not be admitted in order to draw inferences supporting the twin myths, as the complainant might have consented or become less worthy of belief.
"Section 12(3) of the Punjab Witness Protection Act, 2018 codifies this position when it obligates the court to forbid a question to the victim of a sexual offence relating to any sexual behaviour of the victim on any previous occasion with the accused or any other person, but also empowers the court to allow such a question if, in the court's opinion, it is a relevant fact in the case. To the same effect are the provisions of Article 146 of the QSO, under which the court may forbid such questions if it finds that they are 'indecent' or 'scandalous', but can allow them if they relate to facts-in-issue or to matters necessary to be known in order to determine whether or not the facts in-issue existed. However, while allowing or disallowing such questions the court must be conscious of the possibility that the accused may have been falsely involved in the case, and should balance the right of the accused to make a full defence and the potential prejudice to the complainant's rights to dignity and privacy, to keep the scales of justice even for both," the SC said.
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Two Finger Test Is Unconstitutional: Lahore High Court
The Lahore High Court while delivering a verdict earlier this year, stated the two-finger test and hymen test which is performed to ascertain the virginity of a female victim in cases of rape and sexual abuse as unconstitutional. The court also emphasised the fact that such tests do not hold scientific value or any medical basis and that it is an insult to the dignity of the victim. Justice Ayesha A Malik hearing the case observed that such tests are discriminatory and against the right to life and right to dignity enshrined in Article 9 and 14 of the Constitution of the Islamic Republic of Pakistan.
