Over the years, healthcare professionals and human rights organizations have condemned the practice of Virginity Testing as it is harmful, invasive, unethical and violative of universally guaranteed human rights. Similarly, the changing socio-legal outlook has pushed for eliminating sexual violence against women in most countries and has highlighted the routine and frequent use of Virginity testing as an archaic practice. Consequently, the judicial outlook of the same has seen drastic changes as the virginity testing has been proved scientifically invalid on many grounds. Therefore, the article aims at analysing the recent judgement of the Lahore High Court, wherein the court held such a practice to be held unconstitutional, scientifically invalid, and invasive of women’s right to privacy and bodily autonomy.
Medical Inadequacy of Virginity Testing
The two most common ways of conducting the test are 1) Hymen examination, and 2) Two Finger test, conducted under the pretense that the sexual activity can be determined by the general appearance of the female genitalia. However, neither one of the techniques are scientifically valid and have been negated on many grounds, as the mere physical appearance of the hymen cannot determine previous sexual activity. Moreover, the virginity testing has proved to have adverse consequences to women’s physical and psychological health. The invasive and forcible nature of the practice has proved to cause bleeding, infections, increased risk of catching STIs, depression, anxiety, social isolation, and fear of death amongst the victims.
Violation of International Obligations
The International treaties, commentaries and agreements conducted under the UN recognise certain practices like virginity testing as violative of international human rights standards. This is prescribed under many formulated laws like the 1993 Vienna World Conference on Human Rights, and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) demand the states to work towards eliminating all practices that discriminate against women. Additionally, the 1995 Beijing Declaration and Platform for Action of the Fourth World Conference on Women calls upon states to do away with unnecessary practices and coercive medical practices. In essence the practice of virginity testing is incompatible with the following internationally recognised rights available to all:
- The right to be protected from discrimination based on sex
- The right to life
- The rights to privacy and physical integrity
- The right to be free from torture or cruel, inhuman or degrading treatment or punishment
- The right to the highest attainable standard of health
- The rights of the child
Virginity Testing Outlawed
Traditionally, Virginity testing has been taking place to assess the “purity” and “chastity” of young unmarried women to judge their character and social standing. It is often done through means of threat and coercion. Such practices perpetuate socio-cultural norms of gendered violence and women inequality, violating well established human rights principles and undermining bodily autonomy. However, in some countries such practices also form a part of the medico-legal system used to determine the likelihood of the occurrence of rape or other sexual violence on the victim. Hence, this judgement from Lahore High Court is a milestone in itself as it champions and recognises women’s rights in the mainstream.
The Lahore High Court on January 4, 2021 in the case of Sadaf Aziz v. The Federation of Pakistan, declared virginity and hymen tests for ascertaining virginity of female victims of rape to be unconstitutional. The Court pronounced that they are a direct attack on the dignity of women and violative of freedoms guaranteed under the Constitution.
While relying on the Indian Supreme Court precedent ofLilu@Rajesh and Anr. v. State of Haryana and the recent observations of the Gujarat High Court in the case of State of Gujarat v. Rameshchandra Ramabhai Panchal, the Lahore High Court declared such tests discriminatory, intrusive, unscientific, and in contravention with Right to life and Dignity enshrined under Article 9 and 14 of the Constitution of Pakistan.
The facts of the case are as follows: Petitioners, a diverse group of socially conscious individuals speaking in the interest of victims of rape and violence during the medico-legal examination comprising of virginity tests conducted by the Authorities (Respondents) stated that such tests were irrelevant after the omission of Section 151 (4) of the Qanun-e-Shahadat Order, 1984 in the Amendment Act 2016 and Section 164A of the Criminal Procedure Code not prescribing for the same. The Respondents argued that the two-finger test has been expressly prohibited in the Guidelines 2020 and is only done when the same is deemed necessary.
The Court rejected the plea of the Respondents, stating that upon the bare reading of the guidelines the two-finger test is still permissible without an informed and meaningful consent. Further, mentioning that such a test is often regarded as a character determinant for the woman who was a victim of a sexual offence. The Court relying on various data analysis of international institutions and international jurisprudence on the matter concluded that virginity tests are “invasive and an infringement on the privacy of a woman to her body”.
The Court laid down that the examination of the hymen should only be done for treatment and medical purposes and not to determine the virginity status of the victim, which is discriminatory under Article 25 of the Constitution. Further, specifying that proper protocols should be laid out to execute medico-legal examinations of victims.
Court Upholding Women’s Dignity
In a patriarchal society, the rape victims are often considered to be social outcasts and they face discrimination despite being victims of such a heinous crime. The practice of carrying out virginity tests for validating the assertions of an offence essentially shifts the focus on the victims of sexual assault rather than the accused, and forces the victims to endure ‘double trauma’ in hopes of getting justice. In the words of the Court itself, the virginity tests are a blatant violation of the dignity of the women and the conclusion that she has been sexually active should have no bearing in determining the sexual offences against her. This judgement singulises the sexual offence as an act which has to be viewed independently and not to have the virginity status of the woman as a mitigating factor in determining the possibility of the offence.
Further, this judgement lays emphasis on the fact that merely acting in accordance with the law and international obligations cannot ensure change. However, change can be brought about if the authorities are sensitised in their dealing with women and make a ‘concerted effort’ to deal with sexual offences beyond the lens of prejudices and stereotypes.
What it Means for Women?
Despite the concerted efforts of international organizations in highlighting the problem related to virginity testing, it is however, still adopted as a preferred method by medical professionals around the world. It forms a basis of conviction in rape cases by ascertaining the character and choices made by the women in her life under the lens of judicial scrutiny coupled with moral and social prejudices.
With the backdrop of large scale protests against the increasing rape cases and vicitm blaming in the country, the judgement of the Lahore High Court voicing out against victim shaming and demarcating the rights of a women in her personal life, is a huge breakaway from the existing deeply rooted rape culture in the country. It highlights the need for understanding the implications of old and outdated practices still carried on in modern society. It emphasised that carrying out needed reforms such as banning virginity tests in totality at the grass root level is instrumental for ensuring safety and up-liftment of women in the society.
Author: Sukhman Sandhu is pursuing B.A. LL.B. (Hons.) from Rajiv Gandhi National University of Law (RGNUL), Punjab, India.