What the LHC Decision on the Virginity Test Means

The mere thought of a traumatized female rape victim having to go through something as gruesome as the compulsory two-finger virginity test is enough to send shivers down anybody’s spine. Thankfully, the Lahore High Court, through a landmark judgment, has now stopped that from happening. The appalling two-finger virginity test as a forceful requirement in rape cases has finally been scrapped in the province of Punjab.

Unsurprisingly, it took a female judge, Justice Ayesha A. Malik, to deliver that judgment. Praise must also be attributed to the various journalists, lawyers, academics, politicians, celebrities and activists who contributed to the superhuman effort that ultimately led to the abolishment of this abysmal practice. Make no mistake, this is a crucial victory for Pakistan.

But, before talking about what the ruling means to a country ranked the 6th most dangerous in the world for women (https://poll2018.trust.org/), please spare a thought for the hapless victims who had to go through such an archaic and horrific practice. Under the now-defunct process, female rape victims had to undergo what is described by activist and survivor Mukhtar Mai as a ‘second trauma’ through the two-finger virginity test. The test gets performed to ascertain whether or not a rape victim is a virgin. The name of the test automatically explains its process: the horrid and invasive procedure involves one or more (usually two fingers) to be inserted inside the vagina. If the test proves that the victim is not a virgin, then absurdly, it also supposedly indicates that she is immoral and cannot accuse anyone of rape. This unnecessary approach only further disheartens and discourages an already jolted woman. As if the trauma of being raped has not been bad enough, she must undergo this ‘second trauma’ as well.

Countless individuals, institutions and organizations globally have panned this test and justifiably so. Some of the most noteworthy critics include the likes of UN Women, the World Health Organization (WHO) and the United Nations Human Rights Council (UNHRC, OHCHR). The Human Rights Watch (HRW) has even tore into the scientific logic behind the test, revealing that forensic and medical experts refer to the test as “unscientific, inhuman and degrading” and that “the finger test has no forensic value.” These views have been fiercely compounded by Justice Malik in the Lahore High Court judgment.

How did such an abhorrent practice ever come into prominence? As far as the Pakistani context is concerned, prior to 2006, a rape victim was subject to the controversial Hudood Laws where a woman’s word was arguably as worthless as it is today. Under these laws, a woman had to produce 4 eyewitnesses to establish the crime of rape and for it to have any legal standing. It was only in November 2006 that the Women’s Protection Bill was passed by Parliament amending the draconian law and bringing sexual assault under criminal law i.e. the Pakistan Penal Code. This led sexual assault cases to be tried by judges in criminal courts.

However, over the years, as women surpassed one hurdle, another one surfaced. A female victim’s character was subjected to more scrutiny than the heinous nature of the violation against her. Judges, moulded by masculine toxicity and debatable mindsets would reflect stereotypes about what a righteous woman should be like, constantly questioning her morality. Such stereotypes would often prove to be detrimental stumbling blocks for victims. An example for this is the Lahore High Court judgment in Fahad Aziz v the State (2008) where a victim’s claim was controversially disregarded as she was known to be a woman of ‘easy virtue’. The two-finger virginity test – as you guessed it – is a test of supposedly determining moral compass.

In a country with widespread underreporting of sexual assault, a judgment of this caliber banning the invasive test is worth its weight in gold. The abolition of the compulsory virginity test will serve as an instrument of encouragement and undoubtedly lead to more victims coming forward. More crimes against women will finally be reported which will automatically lead to more investigations. The expected outcome is that there will be more convicted culprits behind bars.

The judgment sets out another positive message that collective force does make a difference. What started out as a petition by a group of women ended up being a High Court ruling. It has taken years of effort in the making but victims can now finally breathe a huge sigh of relief. Also exemplary is how the judgment has been delivered by a woman judge. If a woman in authority, such as Justice Malik, can do something like this (which politicians have struggled to do), imagine what other women in power can achieve in future if given the right, and rightful, opportunities and access.

The law indicates that a judgment by a provincial High Court serves as a persuasive and not binding precedent. What this essentially means is that other provinces are not bound by the judgment of a High Court in another province, unless the Supreme Court also endorses and settles the law. However, the ruling at one provincial High Court can be used as precedent to support another ruling. As Punjab stands tall, there is extraordinary optimism that other provinces will follow suit. With a similar petition pending in the Sindh High Court, the country is hopeful that the ruling in Sindh will follow what has been laid out by the court’s Punjabi counterparts. Although the virginity test had been a common custom during the colonial era, it is also worth noting that, disappointingly, Pakistan is the slowest country out of the subcontinent to ban this practice (India banned it in 2013 and Bangladesh did the same 5 years later). Yet, better late than never, as the Lahore High Court’s ruling has, thankfully, instilled some hope.

To every victim out there, we are all so sorry it took so long. A battle has been won but the war is far from over. Hum sab aapke sath hein! (We are all with you!)

The views expressed in this article are those of the authors and do not necessarily represent the views of CourtingTheLaw.com or any organization with which they might be associated.

Sara Shafi

Author: Sara Shafi

The writer has pursued an LLB degree from the University of Nottingham.

Fahd Ahmed

Author: Fahd Ahmed

The writer holds a BSc degree in Economics from LUMS and an MSc degree in Banking and Finance from Kings College London.

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