The practice of the ‘virginity test’ or ‘two-finger test’ (TFT) has been followed in Pakistan, and is a relic of British India. TFT is a gynecological examination conducted to examine whether a woman or girl has had vaginal intercourse or not. In most cases, it is practiced to check whether the virginity of the rape survivor is intact by assessing the elasticity of the vaginal orifice by the insertion of two fingers. Further, this practice has been used as an official test by various countries to check the veracity of rape complaints by the victim. Though the test is not a legal requirement, it has made its place in the legal jurisprudence. The test has been conducted to check whether a rape survivor is “habituated to sexual intercourse”. One such instance of use of this practice could be traced back to 2008 in Naveed Masih vs State. The Lahore High Court refused to rely on the testimony of the rape survivor and instead took into consideration the two finger test. The medical report in the Naveed Masih case revealed that the “hymen of the victim was torn and vagina admitted two fingers easily”.
Recently, the Pakistan Supreme Court banned the practice of TFT. The court, while considering a criminal appeal by a rape accused, took into consideration the legal validity of the virginity test into account. The court in Atif Zareef vs. The State relied upon modern forensic science and Pakistani constitutional law to examine the test’s need and legality. The court also noted that the rape crimes committed are seen from a patriarchal lens by questioning the sexual conduct of the survivor. In this particular case, the test was set to focus on the moral conduct of the survivor by questioning her sexual character. The court also observed the medical language to be patriarchal and ‘riddled with gender biases.’
On the constitutionality of ‘sexual history’ determined from the test, the court held that determination of sexual history and dragging it to defy the rape complaint violates Article 4(2)(a) of Pakistan’s Constitution. Article 4(2)(a) holds that “no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with the law.” Reliance is also placed upon Article 14 of the Constitution, which talks about an individual’s dignity and makes it inviolable. Previously, the full bench of Federal Shariat Court of Pakistan, while deliberating upon the validity of Article 151(4) of the Qanun-e-Shahadat order 1984, which states that a rape survivor was of a generally immoral character to vitiate her credibility, held that this provision is repugnant and inadmissible after Pakistan’s Criminal Law Amendment Act, 2016. Moreover, the Punjab Witness Protection Act, 2018 under Section 12(3) categorically forbids the courts to note questions against the survivor on any previous sexual behavior. The Lahore High Court before the appeal to the Supreme Court also relied upon the judgment of the Indian Supreme Court pronounced in Rajesh & another v. State of Haryana, where it was held that this test violates the rights of a rape survivor in terms of right to privacy, physical and mental integrity, and dignity.
It is also pertinent to note that TFT has been seen as a violation of human dignity and human rights on international platforms for unreasonable and unnecessary interference with a woman’s reputation. In 2018, the United Nations (UN) Human Rights Council, UN Women, and the World Health Organization (WHO), jointly called for a ban on this practice. The UN agencies noted the term virginity as neither scientific or medical but as having evolved through social, cultural, and religious constructs. Article 2(d) and 2(f) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) prohibits any discriminatory practice against women by public authorities or any person. Article 7 of the International Covenant on Civil and Political Rights (ICCPR) further prohibits any “cruel, inhuman or degrading treatment.” The aim of Article 7 is not to protect the physical integrity but also the dignity and mental integrity of an individual. However, apart from being a violation of human rights and dignity, TFT also adversely affects health. The examination through such methods in case of rape causes extreme pain, leading to trauma and re-victimization of the individual concerned.
According to the WHO, women in at least 20 counties are subjected to this cruel violation of human rights, including Belgium, Netherlands, and Britain. In 2018, Afghanistan criminalized TFT through its new penal code, though the final decision was left to the courts’ discretion. However, the practice is still rampant in Afghanistan, showcasing how states find it difficult to counter the prevalence of TFT. Women have faced violation of human dignity as the practice of TFT continues even after sanctions from international instruments.
Since the ban on the practice by international organizations derives from various treaties and conventions, there lies a sense of ambiguity. It does not directly hold the states accountable for continuation of the practice and leaves a void for debate and discussion. Therefore, there is a need for a special convention or treaty on the international platform to ban the practice of TFT. This should follow from the line of reasoning adopted by the Supreme Court of Pakistan, holding TFT as violative of the dignity and rights of women which are non-negotiable. Presence of any specialized sanction on this practice will also define the ambit of TFT, while expressly discussing the nuances of the practice that need to be banned.
Shaileshwar Yadav is a student coordinator of the Centre for Research and Studies in Human Rights (DNLU).