Two men recently brutally raped a woman in front of her two minor children when her car broke down on the night of 10th September, 2020 on the motorway near Lahore. The psychological and physical aftermath of such a tragedy is unimaginable and the incident has once again served as a reminder of how in Pakistan the trauma of rape continues even after the incident itself. From the time the crime is reported to the time the investigation is concluded, the whole system continues to rape the victim psychologically and physically. Among such processes is the virginity test, commonly known as the two-finger or hymen test, which is another example of how a rape survivor is retraumatized. The test is a degrading inspection of the female genitalia and is still commonly and shamefully carried out in Pakistan for the purposes of a rape investigation.
In other parts of the world, rape-kits are used by medico-legal professionals to collect DNA samples and forensic evidence from a victim’s body, clothes and personal belongings following a sexual assault. In Pakistan, however, the report of the two-finger test continues to be used as evidence to determine whether a crime of rape has occurred. Pakistan’s medico-legal officers (MLOs) are usually ill-equipped, rape-kits are unheard of and DNA laboratories only a few in number. The whole system of dealing with rape survivors in Pakistan is inconsiderate, humiliating and against the basic rights of women to say the least.
Under the law, specifically Section 375 of the Pakistan Penal Code 1860, a lack of consent is the main criteria for establishing rape. Lawyers on both sides look for ways to determine whether or not an alleged rape had been non-consensual. This is where the two-finger test is used, rather abused. Every time a rape victim in Pakistan fails the virginity test, defense lawyers for the alleged perpetrators tend to malign the victim’s character, establishing that the act had been consensual in order to obtain freedom for the culprits. It is also a commonly held belief in society that the presence of hymen establishes a woman’s virginity, which has not been proven scientifically. Such an absurd belief is often used to establish the ‘purity’ or chastity of a woman’s character. If she is not found to be a virgin at the time of rape, she is considered “not virtuous” and held more liable to have consented to the alleged crime.
It is ethically and morally incorrect to connect a woman’s previous sexual history to her allegation of rape. Rape is a crime that needs to be punished irrespective of the victim’s past. Additionally, the two-finger test, which also checks the vaginal laxity of the victim, is highly inconclusive and unreliable, especially for married victims with children. The test is also highly subjective and often conducted by inexperienced or corrupt MLOs who often compromise the report in favour of the culprits. This is one of the many reasons that the heinous crime of rape remains largely unreported and unpunished in Pakistan.
Most countries have already abolished the two-finger test. The Bangladesh High Court abolished it in 2018, rightly proclaiming that,
“…the two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity.”
India abolished the test much earlier in 2013, citing that it had no scientific merit as evidence and was indecent, humiliating and unreliable. It is high time Pakistan abolishes this highly controversial test too. Continuing to carry out such a process can be characterized as legalized rape itself!
Physicians for Human Rights (PHR), an international human rights NGO, also confirmed in 2016 that the two-finger test had no scientific merit. The World Health Organization (WHO) classified the test as violence against women in 2014. WHO, UN Human Rights Council (UNHRC) and signatories of the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) have all issued a statement in 2018 calling for the elimination of this test. The International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966 and the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985 also require that rape survivors be treated “with compassion and respect for their dignity.’
The Pakistani government should immediately take steps to ban the two-finger test and ask all hospitals to set up forensic and medical examination rooms with professionally trained staff to deal with victims of sexual violence. The government should also facilitate the development of detailed guidelines for the examination, treatment and collection of evidence in rape cases and ensure strict compliance with these guidelines. The society also has to come together to help rape survivors heal mentally and physically. We have to stop questioning the victim’s character and blaming her for the crime instead of shaming the culprit. Pakistan has a long way to go in handling sexual violence cases, however, banning the two-finger test with immediate effect will be a step in the right direction.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which she might be associated.