Pakistan, after the partition of the subcontinent and its independence from British rule, inherited most of the British legal framework and its practices. An infamous practice inherited from colonial times, which has been twisting the knife for rape survivors for a very long time, has been the “two-finger test” supposedly used to determine virginity and consent in rape cases.
It is a deplorable failure of Pakistan’s criminal justice system that the conviction rate in rape cases is not even 5%. There can only be two reasons for such a negligible conviction rate. Either all rape accusations are false, or a major loophole exists in our criminal justice system which makes it easy for rape offenders to get away with such a heinous crime. No person of sound mind will agree with the first reasoning, which makes it evident that the second reason is the real cause for rape offenders getting a clean chit.
Until recently, rape survivors had to go to a medico-legal officer (MLO) for a physical examination after an incident of rape, where they had to go through the two-finger test to determine their consent, virginity and moral standing, which was no less traumatic than the rape itself. The test was based on the elasticity of a survivor’s vaginal muscles: if found less flexible, it was presumed that there had been no consent to intercourse and rape was more likely; if found more flexible, the misogynistic assumption was that the rape survivor was habituated to consensual intercourse and had not been raped.
Even a layperson, without any legal or medical knowledge, will agree that this test is entirely irrelevant for determining consent and rape. The test is scientifically and medically inaccurate because consent for sexual intercourse and rape has nothing to do with the elasticity of a vagina.
The test has been extremely problematic in more ways than one. First, it infers that a married woman, or a woman who has had sexual intercourse in the past, can never be raped based on the elasticity of her vagina. Secondly, the test allows a woman’s sexual history not only to be disclosed to others but also used against her, and no woman in a conservative society such as ours wants that. Furthermore, the results of the test, which are wholly inaccurate and irrelevant, embolden rape offenders to question the character of rape survivors and persuade the already male-dominated judiciary to decide the case in their favor.
Historically, the judiciary in Pakistan has been biased against women, especially when it comes to sexual offences, though these stereotypical mindsets have been evolving over time. It is due to such biases that rape and other sexual offences are significantly underreported in Pakistan. No woman will want to come forward to seek justice if she believes that the gatekeepers of law and justice themselves will turn a blind eye towards her plight. In most cases, rape survivors are not only frowned upon but also blamed for what happened to them. Such misogynistic bias among the police, judiciary and prosecution deters most women from speaking up and seeking justice. It also makes it very easy for sex offenders to not only tarnish the character of rape survivors but also get away with atrocious crimes.
The two-finger test has been condemned by many international health and human rights forums. The World Health Organization (WHO) has declared it unscientific, harmful and violative of women’s and girls’ human rights. The Human Rights Watch (HRW) had also appealed to the government of Pakistan to abolish the test for being an “abusive practice”. Most of the former British colonies abolished the test a long time ago, but in Pakistan it was not until recently that the Lahore Hight Court and the Punjab government finally banned it, which is highly commendable. Women in at least some parts of Pakistan can now breathe a sigh of relief as the abominable practice has been prohibited.
Earlier this year, a petition seeking to ban the two-finger test was filed in the Lahore High Court while President Dr Arif Alvi also approved the Anti-Rape (Investigation and Trial) Ordinance, 2020 after public uproar over the unfortunate motorway gang-rape incident.
Salient features of the Ordinance include the following:
- The Ordinance prohibits the use of the two-finger test and directs that its results cannot be used as proof or evidence in rape cases.
- Under the Ordinance, special courts are to be established to expedite rape cases and decide them preferably within four months.
- A national sex-offenders registry is to be created.
- Disclosing the identity of victims or their families is to be made a punishable offence.
- Under the Ordinance, anti-rape crisis cells are to be set up throughout the country which shall be responsible for conducting medico-legal examinations preferably no later than 6 hours after an incident has been reported.
- Officers who are negligent in investigating rape cases can face imprisonment up to 3 years with a fine.
- The Ordinance allows for the chemical castration of habitual sexual offenders.
The Ordinance is certainly a right step in the right direction but its promulgation alone is not sufficient to solve the entire problem. The Ordinance will need to be ratified by Parliament and passed as a law before it lapses. Its vigilant implementation will also need to be ensured.
The Lahore High Court has also declared the two-finger test “illegal” and “unconstitutional”. In her detailed and comprehensive judgment, Justice Ayesha A. Malik has stated that the test “…offends the dignity of the female victim.” The judgment further declares the test as “…discriminatory against the female victim as it is carried out based on gender, therefore, offends Article 25 of the Constitution.” The judge has also directed the government to take necessary steps to ensure that such a test is not part of the medico-legal examination of victims of rape and sexual assault and abuse.
It is regrettable for the entire country that it has taken us 73 years to realize that the test is merely a tactic to humiliate rape survivors already going through so much. It is evident that virginity, social circles, dressing, lifestyle and other such factors have nothing to do with the character or moral standing of a woman. Such factors certainly cannot be used as criteria to determine whether or not a woman has consented or if she has been raped.
Our society is already a living hell for women who have a myriad of problems to deal with every day. It is time to make this country a better place for them and spare them from these undignified atrocities by banning the two-finger test throughout the country and across the board.
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 he might be associated.