These Eaves
n January 5th, the Lahore High Court in Pakistan banned the “two-finger test” in rape examinations, ending the long-contested manual examination of the vagina involving the insertion of one or two fingers to determine its laxity and the presence of an intact hymen; the test aims to determine whether a woman — or anyone in possession of a vagina — is sexually active or has been the victim of sexual assault.
Pakistan is not alone in performing these degrading virginity tests that amount to little more than sanctioned gender-based violence, perpetuating the deeply entrenched socio-cultural discrimination against women, girls, female-presenting individuals, and the autonomy of their bodies.
Virginity testing has been documented in Afghanistan, Brazil, Egypt, India, Indonesia, Iran, Iraq, Jamaica, Jordan, Libya, Malawi, Morocco, Occupied Palestinian Territories, South Africa, Sri Lanka, Swaziland, Turkey, the United Kingdom of Great Britain and Northern Ireland and Zimbabwe,” stated the WHO’s interagency statement in 2018, following a lengthy global study on the practice.
And just last year rapper T.I. publicly admitted he’d been subjecting his daughter to the practice for years right here in the good ‘ol US of A, reminding us how dangerously fixated we are on the social construction of women’s virginity and her accompanying worth.
“The virginity examination itself can be painful and traumatic,” and “it is associated with a range of physical, mental and sexual and reproductive health problems,” WHO wrote of the practice. The Lahore High Court judge, Ayesha Malik, echoed these sentiments, stating the tests possessed "no forensic value.”
"It is a humiliating practice which is used to cast suspicion on the victim, as opposed to focusing on the accused and the incident of sexual violence,” ”Malik continued.
Sameer Khosa, a lawyer representing the petitioners in the case, says that the ban is but one bright piece in a complicated and painful puzzle; he explained that the judgement not only “abolishes this demeaning practice,” but instructs the relevant authorities and agencies to develop humane, inclusive, victim-centered guidelines for sexual assault examinations going forward.
Khosa wrote PULP about about what this ban means for Pakistan, the country’s evolving perception on gender and sex, and the women’s rights organizations that have championed the ban for years.
1. Can you give a brief overview of the history and dynamics leading up to the case? Why now?
The elimination of the Two Finger Test has been a longstanding demand of women rights organizations working in Pakistan. In 2018, Soch – a multilingual online news platform that raises awareness about current issues of Pakistan – released a video on how the courts in Pakistan require rape victims to go through the Two Finger Test:
Shortly after the release of the video, Soch’s Co-Founder and CEO – Mr. Sofyan Sultan – whom I have known both in a personal and professional capacity, discussed with me the possibility of challenging the said test. After our firm’s work on the matter, the eight petitioners from various walks of life in Pakistan contributed and brought their own input and became the Petitioners. The Petition was then filed in March 2020.
The case also needs to be viewed in the context of legal developments over the last 7-8 years with the Supreme Court mandating DNA testing in a 2013 judgment, and then amendments in the law in 2016 to require DNA testing.
2. Are there subtleties of the case that reports and articles have missed? What details or additional pieces of the ruling should we be thinking about?
Yes. I think two important aspects of the ruling need to be highlighted. Firstly, the judgment not only abolishes this demeaning practice, but also instructs the relevant agencies to develop guidelines for examination of victims of sexual assault that include:
(i) instructions on how to obtain proper consent from the victim for every test and procedure undertaken
(ii) how to interact with the victim
(iii) distinction between minors, adolescents and people with disabilities.
This is extremely important in ensuring that proper procedures are adopted to treat such victims with dignity.
Secondly, the judgment is very clear that each incident of rape or sexual abuse as reported in the medico-legal examination has to be in the context of tracing evidence and no more. This can be done through various methods and does not necessitate a virginity test, such as a speculum examination etc. Thus, the court defines the purpose and the method for undertaking such examinations so that each victim is treated with care and caution and no aspersions are cast on her character.
3. Can you talk a bit about your own opinion on virginity tests and offer some cultural context into when/how virginity tests became part of the cultural norm? I recognize many Muslims denounce this test, so it doesn’t seem intrinsic to religion.
There is no religious basis for such tests. Virginity tests originate from this obsolete idea of linking the chastity of a woman to her being a virgin. The perceived purity of the complainant – judged on the basis of her sexual conduct — was paramount in assessing the credibility of her statement / evidence regarding sexual assault.
The fundamental issues are two-fold: one, the idea that the two finger test or the hymen test give any medically reliable indication of virginity/penetration, and two, the linking of virginity with consent to a particular sexual encounter complained of.
4. Can you clarify the ruling for me? Justice Ayesha A. Malik said:
“Change can only be brought about when the people responsible for the change understand and acknowledge the reasons for changing old practices which no longer find any justification. Merely documenting change and not implementing change does not mean that the Federation or the Provincial Government have acted in accordance with the Constitution, the law, and international obligations. Hence a concerted effort must be made so as to ensure that virginity tests are stopped in totality."
I remain unclear whether the virginity test is still acceptable/legal for reasons outside of sexual assault and rape, or if it's been banned across the board as “proof” of anything? If the latter is true — that virginity tests are still acceptable in other situations in Pakistan society — what do you say to people who believe this isn’t good enough?
How do you ask a country to hold both pieces of this case — ie, this ban is a huge step forward in human rights, but we also need to keep pushing and eliminating this kind of gender-based violence and discrimination?
The judgment declares the practice of virginity tests in cases of sexual assault / rape as unlawful. The quoted paragraph is with reference to statements given by the state authorities, both in court and in public, declaring that the Two Finger Test had been abolished in such investigations.
The ruling is undoubtedly a huge step forward. Regarding sentiment that there is more to do, that is also perfectly valid — change often proceeds incrementally and this ruling is a step in the right direction which should be built upon.
5. How hopeful are you that this ruling in Punjab may serve as a precedent for petitions in other provincial high courts? I realize that a similar petition is currently pending in the Sindh High Court.
From my understanding, this is perhaps the most comprehensive judgment in this entire region on the issue. The petitioners in the case before the Sindh High Court have also sought abolition of virginity tests in rape cases. Even though technically a decision of the Lahore High Court does not operate as a binding precedent on the High Court of another province, I am hopeful that the findings of the court – including its direction to the Federal Government on prohibiting virginity tests – would serve as a helpful precedent to be followed.
