ENDING IMPUNITY OF VIRGINITY TEST AND HUMAN RIGHTS

Recently, the Pakistan Supreme Court banned the practice of 'virginity test' also known as
the 'two-finger test' (TFT). TFT is a gynaecological examination conducted to examine
whether a woman or girl had vaginal intercourse or not. In most cases, it is practised to
check whether the virginity of the rape victim is enacted or not by assessing the elasticity of
the vaginal orifice by the insertion of two fingers.

Further, this test is has been used by various countries to check the authenticity of rape
complaints. The Pakistan Supreme Court, while considering a criminal appeal on rape, took
into consideration the legal validity of the virginity test into account. The court in Atif Zareef
vs. The State relied upon modern forensic science and Pakistani constitutional law to examine
the test's need and legality. The court also noted that the rape crimes committed are often
seen through the patriarchal lens, by questioning the sexual conduct of the survivor. In this
particular case, the test was set to dilapidate the moral conduct by questioning the sexual
character of the victim. The court also observed the medical language to be patriarchal and
'riddled with gender biases.'

On the constitutionality of 'sexual history' determined from the test, the court held that
determination of sexual history and dragging it to defy the rape complaint violates Article
4(2)(a) of Pakistan's Constitution. Article 4(2)(a) holds that "no action detrimental to the life,
liberty, body, reputation or property of any person shall be taken except in accordance with the law."
Reliance is also placed upon Article 14 of the Constitution, which talks about an individual's
dignity and makes it inviolable. Previously, the full bench of Federal Shariat Court of
Pakistan, while deciding upon Article 151(4) of the Qanun-e-Shahadat order 1984, which
provided to show that a rape victim was of a generally immoral character to dilapidate her
credibility, held that this provision to be repugnant and inadmissible after Pakistan's
Criminal Law Amendment Act, 2016. Moreover, the Punjab Witness Protection Act, 2018
under Section 12(3) categorically forbids the courts to note questions against the victim on
any previous sexual behaviour. The Lahore High Court before the appeal to the Supreme
Court also relied upon the judgment of the Indian Supreme Court pronounced in Rajesh &
another v. State of Haryana, where it was held that this test violates the rights of a rape victim
to privacy, physical and mental integrity, and dignity.

It is also pertinent to note that TFT has been seen as a degradation of human dignity and
human rights on the international platforms for the unreasonable and unnecessary
interference with the woman's reputation. In 2018, the United Nations (UN) Human Rights,
UN Women, and the World Health Organization (WHO), jointly called for a ban on this
practice. The UN agencies noted the term 'virginity is neither scientific nor medical but has
evolved through social, cultural, and religious constructs. Article 2(d) and 2(f) of the
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
prohibits any discriminatory practice against women by public authorities or any other
person.

Article 7 of the International Covenant on Civil and Political Rights (ICCPR) further
prohibits any "cruel, inhuman or degrading treatment." The aim of Article 7 is not to protect
the physical integrity but the dignity and mental integrity of the individual. However, apart
from being a violation of human rights and dignity, TFT also adversely affects health. The
examination in case of rape causes extreme pain and mimic of the crime, leading to trauma
and re-victimization.

According to the WHO, women in at least 20 counties are subjected to this cruel violation of
human rights, including Belgium, the Netherlands, and Britain. In 2018, Afghanistan
criminalized TFT through its new penal code, though leverage was left upon the courts'
discretion. However, there is a need for a categorical international sanction on the
continuation of TFT on the Pakistan Supreme Court's lines, which has held that these rights
are non-negotiable.