In Sadaf Aziz & Others v Federation of Pakistan & the Province of Punjab (2020), the Lahore High Court was faced with two petitions by a group of human rights campaigners concerning a public interest claim. The petitions had been filed in the interest of and for the benefit of the victims of sexual violence who are subject to virginity testing. The virginity testing comprises the “two-finger test” and the “hymen test”. The basis for these tests is that it ascertains whether the victim is sexually active and thus determining whether rape or abuse has occurred.
The Petitioners argued that the tests are irrelevant for the charge of rape or sexual abuse, particularly, since its omission in s.151(4) of the Qanun-e-Shahadat Order 1984, under the Criminal Law (Amendment) (Offences Relating to Rape) Act 2016, and the absence of it being a requirement under s.164A of the Criminal Procedure Code 1898. It is reasoned that while the tests are conducted seeking the victim’s consent, the victim is not adequately made aware of the purpose behind the examination nor is she informed properly, with “sufficient sensitivity” as to what the examination entails. Moreover, female medical practitioners do not inform the victim they could refuse examination altogether if they wanted to. The Petitioners contend that the tests are not necessary, nor reliable or relevant for investigating incidents of rape or sexual abuse.
The medico-legal report only documents the victim’s state as “habituated to sex” or “not a virgin”, which is completely immaterial for investigations. The derogatory language further stigmatizes the victim, causing social and personal trauma. Through the reading of the reports, Courts are quick to conclude the virtue of the victim. The Petitioners, also, argue that Pakistan is a signatory state to several international treaties that denounce the use of virginity testing to conclude rape or abuse. This includes the Convention Against Elimination of All Forms of Discrimination Against Women 1979; Art 5 of the Universal Declaration of Human Rights 1984 (UDHR), Art 7 of the International Covenant on Civil and Political Rights 1966 (ICCPR), Art 16 of the Convention against Torture and other Cruel, Inhuman or Derogatory Treatment or Punishment 1984 (CAT), Art 12 of the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR). Furthermore, the tests constitute action against human dignity, which is enshrined and protected under Art 14 of the Constitution of Pakistan 1973.
The Respondents to the claim comprised primarily of the Federation of Pakistan and the Province of Punjab and their associate bodies and organizations. Both the Additional Attorney General of Pakistan and the Additional Advocate General of the Province of Punjab, through their separate statements, made it clear in court that in principle neither the Federation nor the Province contests the stipulations made by the Petitioners in their petition. The Respondents argue that the matter was taken into due consideration even before the petition. In light of those considerations, new guidelines are already underway. Also, Respondent No 7, the Ministry of Human Rights for the Government of Pakistan, and Respondent No 8, the National Commission for Human Rights, have stated through their written submissions, that the tests were carried out by authorized women medical officers. Although they admit, the law does not require such tests necessary to ascertain incidents of rape or sexual abuse, they nevertheless continue to take place under ignorance of the law.
Respondent No 5, the Punjab Forensic Science Agency (PFSA) has stated that they do not rely on the virginity test report to collect forensic evidence in rape and sexual abuse cases. It states that they carry semen detection and DNA profiling instead. Moreover, the PFSA has issued clear guidelines on packaging and transportation of such biological material for forensic DNA analysis, which is in line with international standards; thus, further evidencing that they do not require the “two-finger” test reports. Similar comments were testified before the court by Respondents No 1 and No 2, namely, the Secretary of Health and Specialized Healthcare & Medical Education Department, and the Surgeon Medico-Legal Punjab.
District Judge Ayesha Malik held that as part of an investigation of an incident of rape or sexual abuse the victim is required to undergo a medico-legal examination, once a complaint of rape or sexual abuse is registered with the relevant Police Station through a First Information Report (FIR). The medical examination of the terms of section 164A of the Criminal Procedure Code, which calls for a medical examination of the victim.
The Judge then went on to discuss other Guidelines and Instructions particularly, Clause 14 and 15 of the 2020 Guidelines, for carrying out medical examination of incidents of rape or sexual abuse, which expressly prohibits the “two-finger” test to not be performed. However, an interpretation of Clause 15 in conjunction with the Performa for the Medico-Legal Examination, which read that observations by the naked eye, digital traction, and instrument examination require inspection of the hymen to determine if it was torn, fresh, or old. The important aspect of this is that the clause allows a “per-vaginum” examination where required and a “per-vaginum” examination is understood to mean the “two-finger” test. Therefore, it was in the courts’ view, that the “per-vaginum” examination is likely to create confusion as to whether the “two-finger” test is required to be carried out.
Drawing on the medico-legal literature of virginity testing, Judge Ayesha Malik concluded that the virginity test is not a scientifically nor medically relevant consideration when determining a victim of rape or sexual abuse. Moreover, research report findings from the World Health Organization (WHO) and United Nations Office on Drugs and Crime state that vaginal laxity is not an indicator of sexual intercourse. The court noted several Indian cases, both at the state level High Court(s) as well as the federal Supreme Court, both of which have outlawed the virginity test in 2013. Similarly, another reference was made to the Bangladesh High Court, which is 2018, also outlawed the virginity test.
Based on Pakistan’s international commitment to treaties and in light of fundamental rights, Judge Ayesha Malik held that the practice of virginity testing was highly invasive, which infringed the privacy of a woman, and was a blatant disregard of a woman’s dignity, and had no scientific basis to determine rape or sexual abuse. The continued practice of the medico-legal examination was “humiliating” and only cast suspicion on the credibility of the victim’s case. The result of which was gender-based discrimination. All things considered, Judge Ayesha Malik allowed the petition and hence outlawed the use of virginity testing.
A copy of the judgment can be found here.
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