On Monday, the courtroom of Justice Ayesha A. Malik of the Lahore High Court proclaimed a judgment that declared the Two-Finger Test (TFT) on survivors of sexual assault illegal and unscientific. The court further directed the provincial government to devise appropriate medico-legal protocols to replace the test.
This move comes after the provincial health authorities of Punjab, in early September, told the Lahore High Court that test has limited evidentiary value and will be abolished from the protocol of medico-legal certificate (MLC) unless necessitated. A joint reply by the Punjab Specialised Healthcare and Medical Education Department, the Primary and Secondary Healthcare Department and surgeon medico-legal Lahore stated:
“It is not objective of the medical examination of female victims of sexual assault to comment about the character of the examinee neither TFT is being practised with that objective, nor it has any strong evidentiary value related to the determination of virginity,”
Joint reply by the Punjab Specialised Healthcare and Medical Education Department
The court sought the Federal Law Ministry’s response after going through a statement by the World Health Organisation that contended that the TFT was disrespectful, inhumane and violated women’s fundamental rights, in addition to having no evidentiary value.
The law ministry observed that the manner in which the test was conducted violated Article 14 of the Constitution which protects the fundamental right to human dignity and the privacy that must be respected under all circumstances and that the right to privacy would take precedence over any other inconsistent provisions of the law. In addition to the TFT was an inconclusive test.
The Two-Finger Test was included in the law in 1984, during the height of the Zia Regime, that introduced a plethora of anti-woman laws which led to the mass movement of feminist and women’s groups. Even today Women’s Action Forum (WAF) or the Pakistan Women Lawyer’s Association (PWLA) — organisations that took to the street during Zia’s martial law — still recall the laws as “Kaley Qanoon” (Black Laws). Article 151(4) of the Qanoon-i-Shahadat Order of 1984 allowed the person accused of rape, to legally use the character of a woman as a defence. That is to say if a rapist could prove that the victim has a “bad character” (a euphemism for regular sexual activity) the rapist would not be punished. This meant that the question of consent was secondary to the proceedings, to prove that a woman had the right over her own body she first had to qualify to that right by being a “good woman”. This meant that consent and bodily autonomy were not extended to women as a fundamental right, but they had to gain by being a certain way. To establish the character of a woman, the TFT was put into place.
The test is essentially this: authorised women medical officer (WMO) conduct the test by inserting two fingers into the victim’s vagina. If the penetration is made without discomfort that means the victim is habitual of sexual activity (a correlation that has no scientific backing) hence one of a bad character.
But through Section 16 of Act No XLIV of 2016, Article 151(4) of the Qanoon-i-Shahadat Order of 1984 was omitted, which meant the character of a victim was no longer a legal defence, the test was kept in place. The Federal Ministry for Law observed that given the legal defence of character is no longer permissible, it is only logical that the tets should also be removed. The manner in which the test is carried out amounts to challenging a victim’s character which cannot be permitted, the ministry added.
The Lahore high court had two different petitions on the issue. The petitions had sought a declaration that these practices constituted a violation of women’s fundamental rights, including the rights to life, privacy, dignity, bodily integrity, access to justice, protection from cruel, inhumane and degrading treatment, and freedom from discrimination. The petitioners further contended that this test nurtures myths and inaccuracies about female anatomy by ignoring the prevalence of different forms of sexual violence against women and children.
The petition regretted that the test was still rife in the country despite calls for its revocation by healthcare professionals and human rights organisations the world over.
“The continued use of TFT and hymen tests does not lead to any evidence that should be considered relevant to a trial and is aimed solely at drawing conclusions about the character, morality, chastity, social standing, past sexual activity and credibility of women who have been victims of these crimes,” the petition stated.
Human Rights Watch, UN Human Rights Organisation and the World Health Organisation have called for the elimination of the TFT. The WHO has declared virginity testing “is unscientific, medically unnecessary and unreliable”.
The verdict comes as a milestone for better laws regarding victims of sexual assault and a move away from victim-blaming. In the legal system.
