Virginity test outlawed in Pakistan court

Human rights campaigners have welcomed a new decision made by the Pakistani Court outlawing the so-called “Virginity Tests” in rape examinations. It is a custom followed by people of an Islamic country and is used to assess a woman's so-called "honour". The rule implies in the regions of Punjab where practices such physical checks for an intact hymen and the invasive “two-finger test”, will come to an end. According to Lahore High Court judge Ayesha Malik, these tests are humiliating and have no forensic value. This test puts victims under psychological pressure. Moreover, it is described as a “second trauma” because the test causes additional pain and can mimic the original act of sexual violence.

Sheraz Ahmed, Program Officer at War Against Rape, asserts that the test is rape in itself. Rape victims frequently face social stigma, with sexual assaults often going unreported in the country. As per the Human Rights Commission of Pakistan, weak laws and complicated procedures for prosecution make punishing culprits particularly challenging. The test is a violation of human dignity, the right to life, the right to medical care. In short, it is discriminatory, as per Bandial. Additionally, activists and lawyers took the case to the Lahore High Court because of the parliament's ill will to abolish the practice. Though the decision applies to Punjab, Bandial said it is likely to set a precedent for other regions. The two-finger test is rape within itself as well. Usually, doctors conclude the sexual history of survivors, because if an unmarried woman is sexually active, it is considered morally wrong. We are aware that our body undergoes changes, and if she is an athlete or if she is married and going to have kids, who are we to judge her based on her experiences?

The principal part before performing this test should be to take consent from the victim. One should not be forced to do so. This test is a form of gender-based violence. This means, any act or threat of acts intended to hurt or make women suffer physically, sexually or psychologically, which affect women because they are women or affect women disproportionately. The central concern should be if the accused committed rape on the victim in the time and circumstances complained of. If the victim is not a virgin, it cannot and will not suggest that she was not raped or sexually abused. In the context of Fundamental Rights, Article 9 of the Constitution provides for the right to life and liberty as per law and Article 14 of the Constitution provides for the fundamental rights of the dignity of man. These rights defend a person against discrimination which negatively impacts the honour of an individual. Additionally, it ensures the right to receive health care of a high standard, and to the highest attainable standard of physical and mental health.

Pakistan ranks sixth on the list of the world’s most dangerous counties for women, with relatively few rapes cases being reported in the country. Survivors face social stigma, and in several cases, offenders have been convicted because of weak laws and complicated procedure. In September there was a national outrage in Lahore when a woman was gang-raped in front of her children when her car broke down. Because of this, protests across the country took place which led the president to approve a new rape bill designed to speed up trials. In the past few years, organizations have campaigned for an end to the practice globally. India outlawed the test in 2013 and its order was quoted by Justice Malik in her ruling in Pakistan. And Bangladesh outlawed the test in 2018.

All in all, a difference can only be made when people take responsibility for the change, understand it and acknowledge the cause for changing old practices which did not get any justice. Merely documenting change and not implementing it does not mean that the federation or the provincial government has acted by the Constitution, the law and international obligation. Steps should be taken to end testing which crushes the dignity of women and makes them feel the pain again. As mentioned, the two-finger test and the hymen test is not relevant it should be considered as unscientific and having no medical basis. All appropriate measures should be taken to eliminate detrimental, medically needless or, coercive medical interventions, and should ensure that all women are fully informed of the side-options, including benefits and potential side effects, by properly trained personnel. Community leaders, rights advocacy groups, feminists and human rights organizations should look after these situations and all possible risks, and evasion should be analysed to avoid unintended residue such as the practice of “going underground”.

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