Recording Sexual History Of Rape Victim By Carrying Out "Two-finger Test" Or "Virginity Test" Unconstitutional: Pakistan Supreme Court

The Supreme Court of Pakistan observed that recording sexual history of the victim by carrying out "two-finger test" (TFT) or the "virginity test" is unconstitutional.Dragging sexual history of the rape survivor into the case by making observations about her body including observations like "the vagina admits two fingers easily" or "old ruptured hymen" is an affront to the reputation and honour of the rape survivor and violates Article 4(2)(a) of the Constitution, which mandates that no action detrimental to the body and reputation of person shall be taken except in accordance with law, the bench comprising Justices Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah observed.The bench said that the expressions, like "habituated to sex", "woman of easy virtue", "woman of loose moral character", and "non-virgin" should be avoided by the Courts as they are unconstitutional and illegal.While considering a criminal appeal by rape accused, the court considered the issue whether recording sexual history of the victim by carrying out "two-finger test" (TFT) or the "virginity test" has any scientific justification or evidentiary relevance to determine the commission of the sexual assault of rape. The court also considered the question whether "sexual history", "sexual character" or the very "sexuality" of a rape survivor can be used to paint her as sexually active and unchaste and use this to discredit her credibility; and whether her promiscuous background can be made basis to assume that she must have consented to the act?Medical Tests Not To Determine Virginity Or chastity Referring to Medical literature, the court observed that Medical language of MLC is riddled with gender biases and immediately calls into question the character of the rape survivor. The court said that the examination of a rape victim by the medical practitioners and use of the medical evidence collected in such examination by the courts should be made only to determine the question whether or not the alleged victim was subjected to rape, and not to determine her virginity or chastity. It said:Due to a combination of lack of training, inexperience the medico-legal certificate's (MLC) casually report the two finger test, to show that the vagina can admit phallus-like fingers to conclude that the survivor was sexually active at the time of the assault or a 'virgin" as perceived by the society. Neither of these tests have any basis in medical science. Medical language of MLC is riddled with gender biases and immediately calls into question the character of the rape survivor. It is used to support the assumption that a sexually active woman would easily consent for sexual activity with anyone. The World Health Organization (WHO), the Office of the High Commissioner of the United Nations and the United Nations Entity for Gender Equality and the Empowerment of Women in "Eliminating Virginity Testing: An Interagency Statement" proclaim, "the practice is a violation of the victim's human rights and is associated with both immediate and longterm consequences that are detrimental to her physical, psychological and social well-being." In view of this firm and reliable Interagency Statement, examination of a rape victim by the medical practitioners and use of the medical evidence collected in such examination by the courts should be made only to determine the question whether or not the alleged victim was subjected to rape, and not to determine her virginity or chastity.If the victim had lost her virginity earlier, it does not give to anyone the right to rape herThe bench added that the courts should also discontinue the use of painfully intrusive and inappropriate expressions, like "habituated to sex", "woman of easy virtue", "woman of loose moral character", and "non-virgin", for the alleged rape victims even if they find that the charge of rape is not proved against the accused. Dragging sexual history of the rape survivor into the case by making observations about her body including observations like "the vagina admits two fingers easily" or "old ruptured hymen" is an affront to the reputation and honour of the rape survivor and violates Article 4(2)(a) of the Constitution, which mandates that no action detrimental to the body and reputation of person shall be taken except in accordance with law. Similarly Article 14 of our Constitution mandates that dignity shall be inviolable, therefore, reporting sexual history of a rape survivor amounts to discrediting her independence, identity, autonomy and free choice thereby degrading her human worth and offending her right to dignity guaranteed under Article 14 of the Constitution which Right to dignity under Article 14 of the Constitution is an absolute right and not subject to law. Dignity means human worth: simply put, every person matters. No life is dispensable, disposable or demeanable. Every person has the right to live, and the right to live means right to live with dignity. A...

Recording Sexual History Of Rape Victim By Carrying Out "Two-finger Test" Or "Virginity Test" Unconstitutional: Pakistan Supreme Court

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