[The Lahore High Court said the
practice was humiliating and casts suspicion on victims rather than the
accused.]
By Emily Schmall and Zia
ur-Rehman
The practice — banned
in neighboring Afghanistan, India and Bangladesh — continues to take place
in Pakistan and more than a dozen other countries where it is seen as a measure
of virtue and of whether a woman is trustworthy.
If two fingers can be easily
inserted into the vagina, supporters of the practice say, it shows that a woman
is not a virgin, and thus lacks moral authority to make an assault or rape
accusation.
The petitioners — a group of women
that includes a sociologist, a journalist, an activist, a lawyer and a
psychologist, as well as a member of the lower house of Parliament — argued
that examining whether the hymen was intact had no scientific or legal bearing
in sexual violence cases, and violated constitutional rights to privacy and
dignity.
The Lahore High Court, in the
province of Punjab, agreed on Monday.
“It is a humiliating practice,
which is used to cast suspicion on the victim, as opposed to focusing on the
accused,” Justice Ayesha A. Malik wrote.
The ruling was immediately hailed
across Pakistan, with no high-profile public critiques, suggesting it has
widespread support.
Women’s rights activists called it
a necessary step toward improving the investigative and judicial process for
victims of sexual violence in a country where rape convictions are rare.
“We hope that the judgment will be
implemented by all government authorities across the country to ensure that
such unlawful practices are immediately prohibited,” said Farieha Aziz, a
Karachi-based rights activist and one of the petitioners.
Shireen Mazari, the human rights
minister in the government of Prime Minister Imran Khan, wrote in a tweet on Monday that the ruling was a “landmark
judgment” against a “demeaning and absurd” practice.
Editorials in English-language
Pakistani newspapers also praised the ruling. “A raped woman needs justice, and
that certainly doesn’t require her sexuality to be placed in the dock,”
one editorial in The News said Wednesday.
Sameer Khosa, a lawyer representing
the petitioners, said the court’s judgment could pave the way for a ban on such
testing elsewhere in Pakistan.
“It will also end character
assassination and humiliation of victims of rape and sexual assault in court
proceedings,” Mr. Khosa said.
The Sindh Province’s court in
Karachi, which is hearing a similar petition, asked the authorities in December
to present guidelines on forensic examinations in sexual assault cases
consistent with internationally recognized practices.
The Supreme Court of Pakistan has
rejected claims in recent years that a woman’s accusation of rape can be
dismissed on the basis of a “virginity test.”
In its judgment, the Lahore court
cited a 2010 Supreme Court case in which the justices ruled that even if a woman
did not pass the test, “no blanket authority can be given to rape her by anyone
who wishes to do so.”
In its ruling, the Lahore court
also considered Pakistan’s international obligations. It pointed out that the
country is a signatory to the United Nations Convention on the Elimination of
All Forms of Discrimination against Women. Experts charged with implementing
that treaty have said there is no scientific or medical basis for “virginity
testing” in sexual violence cases.
The World Health Organization and
United Nations said in a 2018 report urging countries to ban the practice that
it “reinforces sociocultural norms that perpetuate women’s inequality,
including stereotyped views of female morality and sexuality, and serves to
exercise control over women and girls.”
Still, the W.H.O. says the practice
persists in at least 20 other countries, where it is used not just in criminal
sexual violence cases, but also before a marriage or even, in Indonesia, to
assess employment eligibility.
Legislation in New York State was
proposed in 2019 to ban the practice after the
rapper T.I. revealed that he took his daughter to a gynecologist every
year to ensure that her hymen was still intact.
In Pakistan, President Arif Alvi
issued an ordinance outlawing the so-called two-finger test nationwide in
response to protests over a
grisly rape on a highway near Lahore in September. The ordinance,
however, will lapse after 120 days unless it is voted into law by Parliament,
which is unlikely to happen.
The presidential ordinance also
says men convicted of rape can be sentenced to chemical castration.
In a religiously conservative
country where trust in police and the judicial system is low, a “virginity
test” provides a further obstacle for rape victims and their families,
activists say. They have demanded that investigators rely more heavily on
standard DNA kits to determine the validity of rape accusations.
Dr. Qarar Abbasi, a senior police
surgeon in Karachi and a member of a Sindh Province reform committee, said the
tests were taught in medical school textbooks and used as a point of reference
for legal practitioners.
He said the committee was updating
the medical curriculum and hoping to hire more women doctors who specialize in
forensic medicine in government hospitals, where the police bring evidence, as
well as offer them “training to familiarize themselves with modern medico-legal
practices in the cases related to violence against women.”
Emily Schmall reported from New
Delhi, and Zia ur-Rehman from Karachi, Pakistan.
