LHC to initiate contempt for 'two-finger test'

Judge lays out seven points after dismissing bail plea of man accused of sexual assault

LAHORE:

The Lahore High Court on Friday ordered disciplinary action and initiation of contempt proceedings against doctors, who were conducting the "two-finger test", in violation of an earlier prohibition in cases related to rape and sexual offences.

The court’s directives came as Justice Tariq Saleem Sheikh was hearing a post-arrest bail plea filed by petitioner Muhammad Akram in a case.

The petitioner is accused of sexually assaulting the complainant, a third-year student, at gunpoint on July 29, 2022, and recording indecent video clips. He also threatened to share the clips on the internet if she informed anyone of the assault.

While the petitioner denied the allegations, the complainant's medico-legal certificate and DNA test report proved him guilty of sexual assault. Police also found the pistol he had purportedly used.

Before dismissing the bail, Justice Sheikh pointed out that the doctor had performed the two-finger test on the complainant during her medical examination.

The judge specified seven key points for strict compliance and urged the relevant authorities to arrange workshops for healthcare professionals to inform them about what procedures needed to be followed when examining survivors of sexual assault and rape.

Justice Sheikh further directed them to ensure that medical opinions in cases involving rape and sexual assaults were in tune with the current definition of rape under Section 375 of the Pakistan Penal Code (PPC).
The judge remarked that all medical examinations, including DNA tests, of rape and sexual violence survivors should be conducted under Section 164-A and Section 164-B of the Code of Criminal Procedure (CrPC), respectively.

The seven-point statement also asked to ensure strict compliance with Section 13(I) of the Anti-Rape (Investigation and Trial) Act, 2021 and to prohibit the use of the two-finger test during medical examinations of women and girls, who have allegedly been subjected to rape or a sexual assault.Justice Sheikh particularly directed medical examiners to refrain from commenting on the survivor’s sexual history unless it was relevant to their physical condition.
He also ordered them not to make their findings, including whether or not the survivor was "habituated to sexual intercourse”, based on a medical examination.

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The judge directed the relevant authorities to initiate appropriate proceedings against individuals, who conducted the two-finger test in contravention of the law.

“The SOPs [standard operating procedures] for medico-legal examinations of victims of sexual violence should be updated in conformity with the WHO [World Health Organisation] guidelines, circulated and made readily available at all government healthcare facilities,” he added.

"To sum up, the two-finger test is not mandated by any law. It is a medical practice that has been incorporated into legal jurisprudence as a criterion for determining a victim's character and, consequently, her consent, which is crucial in finding out whether [the offence of] rape occurred.

However, this test has questionable probative value and infringes upon the survivor's fundamental rights,” Justice Sheikh observed.

He highlighted that rape and sexual assault victims had long-term emotional, physical, and social impacts, including depression, guilt, diminished interest in sex, breakups of relationships, obsessive concern for safety, and loss of trust.

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"Inserting fingers into the rape survivor's vaginal or anal orifice can cause additional trauma because it not only replicates the original act of sexual violence but can also be painful. Owing to its invasive and forcible nature, the examination can cause genital injury, bleeding, and infection," he pointed out.

"The shame, guilt, and humiliation that the victim feels during the test may lead to panic attacks, shocks, and trauma," the judge noted while concluding his judgment.

In Pakistan, under Section 164-A of the CrPC, a survivor of a sexual assault is required to undergo a medical examination as a part of the investigation relating to an offence committing rape, unnatural offence, sexual abuse or any attempt to resort to these acts.