Endorsing stance of a petitioner, the Federal Ministry of Law has raised objections to subjecting the female victims of rape and sexual assault to the virginity test and said the test is in violation of the Article 14 of the Constitution.
The virginity test is the practice and process of determining whether a woman is a virgin –ie, whether she has ever engaged in, or been subjected to, sexual intercourse.
Presently, a writ petition is pending in the Lahore High Court (LHC), requesting the court to declare the virginity test unconstitutional. The law ministry has given written instructions to Additional Attorney General (AAG) Ishtiaq Ahmed Khan about its stance on the test – also called two-finger test.
The ministry has stated that the test is inconclusive.
"The said two-finger test and the manner in which it is conducted is against Article 14 of the Constitution which prescribes the fundamental right of ‘dignity of man’,” it said.
The ministry said previously, Article 151(4) of the Qanoon-e-Shahadat Order, 1984 permitted an accused to challenge the character of a victim of rape/sexual assault, as a defence. However, now Article 151(4) of Qanoon-e-Shahadat Order, 1984 has been omitted through Section 16 of Act No XLIV of 2016.
“One logical conclusion of such omission is that the two-finger test and the manner in which it is carried out, which amounts to challenging the character of a rape/sexual assault victim, cannot be permitted.”
The ministry also referred to the World Health Organisation (WHO) statement on the test as well as other cases and material from foreign jurisdictions.
In October 2018, the WHO, the UN Human Rights and the UN Women stated that virginity testing must end as it is a painful, humiliating and traumatic practice, constituting violence against women.
"In sum and substance especially in view of the statutory amendment pointed out above, the evidentiary value of the two-finger test is highly suspect. Hence, the two-finger test may not be a part of the medico-legal examination report in a rape/sexual assault case," said the ministry draft.
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