LHC declares two finger, hymen tests illegal and unconstitutional

The Lahore High Court has declared the two-finger test (TFT), an old practice of examining sexual assault survivors, as “illegal” and “discriminatory”, saying that it has “no forensic value” in such cases.

Justice Ayesha A Malik issued a 30-page detailed judgment on various petitions filed by different petitioners, including PML-N MNA Shaista Pervez Malik, who had challenged the old method in the LHC contending that the TFT was disrespectful, inhumane and violated women’s fundamental rights. They had prayed to adopt more scientific methods of investigate claims of rape and sexual assault.

The verdict stated that the virginity test offends the personal dignity of the female victim and therefore is against the right to life and right to dignity enshrined in Article 9 and 14 of the Constitution.

“The virginity tests are discriminatory against the female victim as they are carried out on the basis of their gender, therefore offends Article 25 of the Constitution. Consequently to the extent that the 2020 Guidelines, SOPs and the 2015 Instructions mandate the TFT or the hymen test for the purposes of ascertaining the virginity of the victim are declared to be illegal and against the Constitution and the Federation and Provincial Government should take necessary steps to ensure that virginity tests are not carried out in medicolegal examination of the victims of rape and sexual abuse.

“The provincial government should devise appropriate medico-legal protocols and guidelines, along with standard operating procedures in line with international practice that recognise and manage sensitively the care of victims of sexual violence. This includes regular training and awareness programmes so that all stakeholders understand that virginity tests have no clinical or forensic value.”

Earlier, the Punjab government had called for stopping the TFT practice in the province and issued 22 revised guidelines for medically examining the female survivors of sexual assault.

According to the guidelines, the local examination should be detailed in lithotomy position, including inspection, bilateral digital traction and speculum examination. Inspection should be done both with a naked eye, magnifying lens and by use of Glaister Keen glass rod as mentioned in the prescribed proforma. “TFT must not be performed.”

In the previous proceedings, the Punjab government had submitted that the TFT had limited evidentiary value vis-à-vis determination of virginity and, therefore, should be struck off the protocol of medico-legal certificate.

The federal government has disapproved of the TFT, recommending that it should not be part of any medico-legal examination report in rape/sexual assault cases.

The Ministry of Law and Justice had also intimated Additional Attorney General Chaudhry Ishtiaq Ahmed Khan about the recommendation.