No More Dignity Trials
Lamented as a colonial relic but also labeled as pejorative and contemptuous, the “two finger test” has been used to ascertain whether or not a victim is “habituated to sexual intercourse”. Glumly, this archaic test is not only notorious for violating the privacy and integrity of a rape survivor, its affirmative findings have also contaminated the criminal justice system with a cornucopia of judgments presuming the victims’ consent on the pretext of their sexual history, pronouncing them as women of ‘easy virtue’ and rendering their testimony mendacious. To quote an instance, the Lahore High Court in Naveed Masih v The State (2008) declined to rely upon the statement of the victim since the “medical report revealed that hymen of victim was torn and the vagina admitted two fingers easily”. Such rulings have sponsored the perception that a woman with a sexual history is presumed to have consented forever and so can never be raped.
To our consternation, this preposterous medical practice not only strikes at the autonomy of a woman but also accounts for the eroded trust of rape survivors in the judicial system of Pakistan and its failure to perpetrate the perpetrators. Like every dark cloud having a silver lining, the recent judgment of Lahore High Court delivered by Justice Ayesha A Malik outlawed the ‘two finger test’ and observed it as a ‘blatant violation’, ‘inhumane’ and devoid of any ‘scientific or medical basis’. Moreover, the judgment expressly directed the Punjab law enforcement authorities to ensure that ‘the practice does not continue’. Expectedly, the judgment was eulogized and feted as a landmark ruling across the country and also received international appreciation.
The question which now comes to mind is whether this judgment is a ‘national victory’ in the truest sense. It has been noted in Hassan ShehJahan v FPSC that,
“Constitutional architecture of a provincial High Court provides that while it enjoys judicial power to examine all laws or actions of the Federal, Provincial and Local Governments or authorities, it can only do so if the cause of action arises or the respondent government or authority is located within the territorial jurisdiction of this court i.e. within the province. As a corollary, the relief granted or the writ issued by the high court also remains within the territorial jurisdiction of this court and can only benefit or affect a person within the territorial jurisdiction of the High Court.”
Similarly, the Lahore High Court’s decision to render the ‘two finger test’ ‘unconstitutional’ and its directions to discontinue the practice only extends to the provincial boundary of Punjab. In order to ensure the abolition of this ludicrous medico-legal practice across Pakistan, it is imperative for other provincial courts to follow the precedent established by the Lahore High Court. Unsurprisingly, the Anti-Rape Ordinance 2020 has also expressly abolished the intrusive ‘two finger test’, which extends to the whole of Pakistan. It is pertinent to highlight that an Ordinance lapses after four months of its promulgation, as per Article 89 of the Constitution of Islamic Republic of Pakistan, 1973. In order to survive, the Ordinance will have to be signed into permanent legislation upon the expiry of four months. Inopportunely, there is a prevailing risk to the future of the Ordinance turning into permanent legislation because the introduction of chemical castration as punishment for sex offenders has been visualized as an ‘immature response’ to a grave offence like rape. More evidence-based investigation is needed for effective solutions to strengthen the criminal justice system.
The aforesaid recommendation brings us to question whether the victory in terms of abolition of the ‘two finger test’ is decisive. Well, it is certainly not. It is high time for Pakistan to demonstrate further support towards rape survivors by realizing the significance of DNA evidence in the investigation of sexual offences. Article 164 of the Qanun-e-Shahadat Order, 1984 provides that any evidence which has become available as a consequence of advancement in science or technology is admissible. The technician who performs a DNA test is an expert witness whose opinion is validated under Article 59 of the said Order. The expert evidence/opinion is seen as corroboratory evidence in Pakistan which explains why the DNA is not regarded as primary evidence in Pakistan. In lay terms, a case cannot be decided on the basis of DNA evidence wholly in the absence of any other primary evidence, such as oral evidence. An example was seen in the case of Zainab where DNA evidence was the only conclusive evidence.
On account of the accuracy, legitimacy and reliability of properly collected, preserved and analyzed DNA evidence, it is axiomatic that DNA evidence deserves to be treated as primary evidence itself. In Salman Akram Raja v Government of Punjab, the Supreme Court of Pakistan made an effort to cure the deficiency of a focused legal framework for the use of DNA evidence. DNA evidence was considered as a means to identify perpetrators with a high degree of confidence. It was further held that DNA technology would improve the position of courts to arrive at a conclusion whereby the real culprits would be incarcerated, potential suspects would be deterred and the wrongfully accused/involved would be exculpated. At the same time, the court presaged that DNA evidence was not infallible and should not be taken as conclusive proof. Even though the judgment exhorted the use of DNA evidence, it also raised a furrowed brow on its reliability and advanced its usage as corroboratory evidence. Similarly, in Khizar Hayat v Additional District Judge, the court pointed out that human error in judgment, while conducting a DNA test, could not be ruled out.
We fail to realize that DNA in itself is not unreliable science, but its reliability may be endangered by specious outcomes caused by human error. In Pakistan, evidence is mostly collected, preserved and sealed by medical officers who do not possess the indispensable expertise for the task entrusted to them. An article authored by Alefia T Hussain, a freelance journalist, quoted Dr Arif Rasheed Malik, who oversees surgeon medico-legal duties in Punjab, to reportedly have said that even though Primary and Secondary Health Departments barred ad hoc medical persons to undertake medico-legal work, inexperienced post-graduate trainers were still being inducted by teaching teams as regular doctors. Medico-legal work then gets led by newly recruited medical persons through the Punjab Public Service Commission after training for one to three months only.
One solution may be to solely entrust the tasks concerning collection and preservation of evidence required for DNA testing to a “forensic team”. This will not only ease the process of collection of evidence for DNA testing but also increase the accuracy of its results and, therefore, remove the reluctance of courts to treat it as conclusive evidence. As for the legal framework to allow admissibility of DNA evidence, it is notable that Section 510 of the Criminal Procedure Code of Pakistan governs the admissibility of a report by a chemical examiner i.e. a serologist and shelters him or her from appearing before the court. It is now a dire need to immediately include ‘DNA report’ under Section 510 alongside ‘report by serologist’ so that the former becomes evidence that is admissible per se.
Since the landmark judgment under discussion has been delivered by a female judge, another key dimension warranting attention is the relationship between increased female representation and enhanced dispensation of justice. The entire system of delivery of justice needs to be more cognizant of issues of representation. It is perhaps fair to say that an increased number of female advocates, judges and even medico-legal officers can be associated with increased reporting and conviction rates.
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.