Call for reform: Pakistan must ban two-finger test for rape – and now

2017 will go down in history as the year mainstream discourse on sexual violence was finally forced to confront the universal impunity enjoyed by perpetrators of assault.

Unfortunately, these global developments have failed to trigger any corresponding debate on the inability of Pakistan’s criminal justice system to provide redress to survivors.

In a country where conviction rates for rape are less than 4% and the National Police Bureau records an average of over 3,000 reported cases every year, the need for gender-sensitive legal and policy reform has never been more critical.

In recent years, any attempts to end impunity have focused on the introduction of piecemeal legislation, which whilst important for political visibility of the women’s movement, has failed to translate into increased conviction rates.

Key amongst the reasons underlying the limited impact of legislative developments in sexual assault is the central role played by gender stereotypes and biases in judicial proceedings in Pakistan.

From the time of the registration of the complaint by the police to the sentencing of the perpetrator, whether or not the victim’s character is in line with what is deemed “chaste” or “pure” has a far greater bearing on the outcome of the case rather than the nature of the violation she has suffered.

Stereotypes pertaining to what is a “good woman” remains the primary consideration for police, prosecutors and judges to decide whether or not a victim’s claim of rape deserves reliance.

In many ways, the decision to come forward and report the crime is the first instance where the criminal justice system begins to view the victim with suspicion.

It is presumed that a woman with honour would never bring shame upon herself by admitting that she had been raped. A “true victim” in many ways is one that never comes forward.

Under the Pakistan Penal Code, Section 375, lack of consent on the part of the alleged victim is the primary ingredient for categorising an act of intercourse as rape.

The existence of consent or lack thereof cannot be objectively quantified and thus it falls on the judge to decide whether or not to believe a victim’s account as reliable.

Reported judgements are littered with references to a victim’s “loose morals” and “easy virtue” which are taken as irrefutable evidence that she consented to the alleged act, thereby rendering her testimony as false.

For instance, the Lahore High Court in Fahad Aziz vs State, 2008 disregarded the victim’s rape complaint as “she appeared to be a woman of easy virtue [and] indulged in sexual activities”.

Similarly, in another decision by the Federal Shariat Court in 2006, the accused was acquitted of all rape charges as the “victim girl was of easy virtue and though she was unmarried and of 16 years, but had lost her virginity”.

The determinative nature of the victim’s character to judicial decision-making is reinforced by the reliance on outdated “medical tests” called two-finger rape tests.

Need for reform

A relic of British India, the archaic test involves inserting two fingers into the vagina of the victim in order to determine whether or not she is “habituated to sexual intercourse”.

The test is not a legal requirement but a medical practice that has become part of legal jurisprudence.

The affirmative findings of a test, that is deeming the victim to be habituated to sexual intercourse if her vagina admits two fingers, are relied upon by courts to presume consent. Thus a woman with a sexual history is assumed to consent forever and, therefore, she can never be raped.

For instance, the Lahore High Court in Naveed Masih vs State, 2008, refused to rely upon the victim’s statement as the “medical report revealed that hymen of victim was torn and vagina admitted two fingers easily”.

On the other hand, the High Court accepted the testimony of the victim in Amanullah vs State, 2009 as her “vagina admitted two finger tightfully and painfully which showed that sexual intercourse had been firstly committed with her [committed for the first time] and further that she was not a woman of easy virtue and was not used to committing sexual intercourse”.

Former British colonies, including India, Malaysia and Bangladesh, have progressively began banning reliance on these tests.

There is a growing recognition that not only is there no scientific link between the laxity of one’s vagina and sexual history, a victim’s character is irrelevant to the alleged act being adjudicated upon.

Additionally, in order to protect victims, most countries have promulgated character-shield laws that bar the introduction of evidence pertaining to the character or sexual history.

However, not only does Pakistan continue to hold on to the two-finger test but its victims must withstand aspersions on their character and sexual histories during the course of the rape trial which often lasts for several years.

In fact, the character of the victim is the primary accused in the trial, with the conduct of the accused being a secondary consideration.

It is thus little surprise that not only are convictions low, but victims themselves prefer to reach informal settlements with the accused rather than put up with a trial.

Legal and policy reform barring gender stereotypes pertaining to the character of the victims from legal proceedings on sexual assault is urgently needed.

Whilst social norms pertaining to acceptable behaviour will not change overnight, the criminal justice system has an obligation to institute gender-sensitive mechanisms that provide adequate redress to victims without subjecting them to additional violations of their privacy and dignity.

Only then can the recent legislative amendments achieve their desired impact.

This article first appeared on Dawn.