Ms Sajal Rasool is a research assistant at the Pakistan Centre of Legal Research and Publication (PCLRP). She is also a columnist at HumSub and works in the capacity of Information Secretary in Pakistan's Youth General Assembly. She can be reached at [email protected]
The Two Finger Test (TFT), also known as the virginity test, is an insertion of two fingers inside the vagina in order to test the laxity of vaginal muscles. The test is supposed to determine whether a woman has ever been subjected to or engaged in sexual intercourse.1 The paper aims to assess whether the two finger test violates national and international law. It also seeks to prove that the consequences associated with this practice are detrimental to one’s physical and psychological well-being.
The significance of the paper is based on the thesis that the two finger test is nothing but a mere misogynistic and unjustified assumption that those women who are habitual to sex are less likely to have been raped. This paper also appreciates the ruling made by the Lahore High Court (LHC) on 4th January, 2020 regarding the elimination of the archaic test.2
According to World Health Organization (WHO), the two finger test or virginity testing involves an inspection of female genitalia, which is meant to determine whether a woman has had sexual intercourse.3 It is a practice that perpetuates gender discrimination and inequality and so is contradictory to Article 25 of the Constitution of Pakistan, that is, equality of citizens as it is carried out only on the female victims of sexual assault.
Violating the National and International Law
The test also offends Article 14 and Article 19 of the Constitution as the test is related to the security and dignity of a woman. By its very nature, a virginity test is an invasion of the privacy of a victim’s body.4 It becomes a blatant violation of women’s dignity especially when it is performed without her informed consent.5 It was also held in the case of Lilu @ Rajesh and Anr v State of Haryana6 that the two fingers test is a violation of women`s rights to privacy.
The test is also regarded as a violation of international human rights mainly the prohibition against cruel, inhumane, and degrading treatment under Article 16 of the United Nations Convention Against Torture (UNCAT) and Article 7 of the International Covenant on Civil and Political Rights (ICCPR) as the practice is cruel and humiliating and conducted in a manner which indirectly punishes and intimidates the innocent victim.7
The International Conference on Population and Development (ICPD) Report published in 1994 also issued a call to eliminate all those practices that are grounded in the idea of sexual discrimination.8 The 1993 Vienna World Conference on Human Rights and the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) also made a declaration with a view to abolishing the archaic prejudicial and customary practices,9 including TFT.
Akin to Torture
The situation intensifies when the victim is required to go through a vicious cycle of pain and torture. One social worker worded her experience as ”I felt that this is so unfair to be sexually abused and then have to go through such a vicious process of torture”.10 Besides being a form of torture, the two finger test can have a deadly effect on the lives of victims.
Instances can found where women commit suicide or are killed11 in the name of family honor just because they could not qualify the so-called test, thus violating the fundamental right to life of the victim. The adverse effects are more or less a mimic of the original act of sexual violence, thus leading to re-stigmatization12 and insults after an assault.
Risk of Infection
Bring threatened by virginity testing, some females, for the purpose of preserving their virginity, tend to insert unhygienic materials such as raw meat or toothpaste into their vaginas to give it a resemblance of an intact hymen which is likely to cause infections.13 In addition, the two finger test is associated with a range of health problems.14 Due to its forcible and invasive nature, the examination itself can become the cause of bleeding and infection.
Even if performed with the examinee’s consent, the test can still cause the victim to catch certain diseases because, in many parts of the world, virginity testing is performed by untrained and non-professional individuals in un-hygienic settings with a lack of necessary medical equipment and repetitive usage of the same gloves,15 thus increasing the risk of sexually transmitted diseases and human immunodeficiency viruses.16
We all know that the primary and foremost duty of a medical professional is to safeguard the health of his/her patients. The duty was reaffirmed in the 1964 World Medical Association’s Declaration of Helsinki.17 Hence, an analogy can be drawn that medical experts who perform the two finger test undermine the fundamental ethical principle, that is, do not harm.
In one of its handbooks, WHO concluded that the degrading virginity or the two finger test had no scientific validity.18 This is why many countries including Afghanistan, Bangladesh, Egypt, and India have made criminal laws to punish those who perform the examination.19 Pakistan’s Ministry of Human Rights also accepts that the survivors (examinees) are either completely unaware or not provided with enough details to refuse these tests.20
Consequently, women who get this test unwillingly reach a heightened risk of suffering from various psychiatric illnesses. The documented harms resulting from this test include loss of self-esteem, depression, guilt, panic, worsened self-respect, intense anxiety, feelings of disgust, and dysfunctional sex life. Psychological harm has already been reported in four studies.21
A survey of forensic physicians conducted in Turkey found that 93% of respondents agreed that the two finger test leads to psychological trauma and 60% agreed with the assertion that the test causes the loss of self-esteem.22 Detailed interviews with medical experts who perform the two finger test reveal that the test can cause victims to develop feelings of rejection and weakened self-confidence;23 victims have been reported to suffer severe mental torment.24
Moreover, in Palestine, the focus discussion groups revealed that the examinees of the two finger test were ”extremely fearful of and indeed felt terrorized by [the experience]. …Their feelings of fear and invasion were manifested in a variety of ways: by their refusal to sit on the examination chair, through crying, screaming, pushing, freezing-up, being silent, fainting, etc”.25
On the other hand, it is even more heart-wrenching to note that even certified virgins are not safe and are at a much higher risk of becoming the victims of forced prostitution and other forms of violence.26 They are more likely to be subjected to sexual violence in those communities where sex with a virgin is believed to be more pleasurable or is considered as a cure for sexually transmitted diseases and human immunodeficiency viruses.27
Also, the practice of enrolling or employing only virgins promotes discrimination, be it educational or employment. In light of the above discussion, it can be concluded that the two finger test has a ruinous effect on a victim’s physical, psychological, and sexual well-being. The pernicious effects of such practice cause immediate and long-term consequences and deliver irreparable damage to those who deserve sympathy.
Pakistan Criminalizes the Two Finger Test
According to WHO, the examination has no scientific or clinical merits.28 The distensibility of the hymen meant for an indication of sexual intercourse is not letter-perfect.29 Paksitani Justice Ayesha A. Malik delivered a judgment that abolishes the archaic and outdated virginity test and excludes it from the ambit of a criminal investigation. Justice Ayesha A. Malik also urged people to make themselves aware of the reasons for calling this practice illegal and unconstitutional.
She says that ”change can only be brought about when the people responsible for the change understand and acknowledge the reasons for changing old practices which no longer find any justification. Merely documenting change and not implementing change does not mean that Federal or Provincial Government have acted in accordance with the Constitution, the law and international obligations. Hence a concerted effort must be made so as to ensure that virginity tests are stopped in totality”.30
It is important for all, especially health care providers, to understand that the two finger test has no clinical or scientific value. Health educators are requested to update medical textbooks to reflect this evidence as well as work on bursting myths and misconceptions regarding intact hymens.
Health care professionals must realize their obligation to provide medically accurate and reliable information. They should also ensure that the victims of sexual assault are not re-victimized in the process of medical care. Their job is to provide sensitive, effective, compassionate, and confidential medical care.
1 Aruna Kashyap, Reena Reddy, and Chloë Fussell, ”Dignity on trial: India’s Need for Sound Standards for Conducting and Interpreting Forensic Examinations of Rape Survivors,” Human Rights Watch, accessed March 1, 2021, https://www.hrw.org/report/2010/09/06/dignity-trial/indias-need-sound-standards-conducting-and-interpreting-forensic.
2 M Ilyas Khan, ”Pakistan court outlaws ‘virginity tests’,” BBC, Jan. 05, 2021, https://www.bbc.com/news/world-asia-55541447.
3 WHO, ”Eliminating virginity testing: An interagency statement,” accessed March 1, 2021, https://apps.who.int/iris/rest/bitstreams/1157258/retrieve.
4 Nadera Shalhoub-Kevorkian, ”Imposition of virginity testing: a life-saver or a license to kill?” Social Science & Medicine 60, no. 6 (2005): 1187-1196, https://doi.org/10.1016/j.socscimed.2004.07.015; Elif Gürsoy and Gülsen Vural, ”Nurses’ and Midwives’ Views on Approaches to Hymen Examination,” Nursing Ethics 10, no. 5 (2003): 485-496, https://doi.org/10.1177/096973300301000505.
5 Independent Forensic Expert Group, ”Statement on virginity testing,” Journal of Forensic and Legal Medicine 33 (2015): 121-124, https://doi.org/10.1016/j.jflm.2015.02.012.
6 Lillu @ Rajesh & Anr vs State Of Haryana, (2013) 14 SCC 643, https://indiankanoon.org/doc/78844212/.
7 Daniel Pollack, ”Virginity testing: International law and social work perspectives,” International Social Work 51, no. 2 (2008): 262-267, https://doi.org/10.1177/0020872807085864.
8 United Nations, Report of the International Conference on Population and Development, A/CONF.171/13/Rev.1 (1995), https://www.un.org/en/development/desa/population/events/pdf/expert/27/SupportingDocuments/A_CONF.171_13_Rev.1.pdf.
9 United Nations General Assembly, Convention on the Elimination of all Forms of Discrimination against Women, Thirty-fourth session, A/RES/34/180.
10 Shalhoub-Kevorkian, ”Imposition of virginity testing,”.
11 Shalhoub-Kevorkian, ”Imposition of virginity testing,”.
12 Mehri Robatjazi et al., ”Virginity Testing Beyond a Medical Examination,” Global Journal of Health Science 8, no. 7 (2016): 152-164, https://www.ccsenet.org/journal/index.php/gjhs/article/view/52613.
13 Le Roux L. Harmful traditional practices, male circumcision, and virginity testing of girls and the legal rights of children. Cape Town: University of Western Cape; 2006 (https:// etd.uwc.ac.za/bitstream/handle/11394/1995/ Le%20Roux_LLM_2006.pdf?sequence=1&isAllowed=y).
14 Rose McKeon Olson and Claudia García-Moreno, ”Virginity testing: a systematic review,” Reproductive Health 14, no. 1 (2017): 1-10, https://reproductive-health-journal.biomedcentral.com/track/pdf/10.1186/s12978-017-0319-0.pdf; Independent Forensic Expert Group, ”Statement on virginity testing,”.
15 Pollack, ”Virginity testing,”.
16 Suzanne Leclerc-Madlala, ”Protecting girlhood? Virginity revivals in the era of AIDS,” Agenda 17, no. 56 (2003): 16-25, https://www.jstor.org/stable/4066360.
17 World Medical Association. Declaration of Helsinki: ethical principles for medical research involving human subjects. JAMA. 2013;310(20):2191–4. doi:10.1001/ jama.2013.281053
18 ”UN: WHO Condemns ‘Virginity Tests’,” Human Rights Watch, accessed March 1, 2021, https://www.hrw.org/news/2014/12/02/un-who-condemns-virginity-tests.
19 Sophia Jones, ”Virginity Testing: A Global Crisis,” Marie Claire, October 30, 2019, https://www.marieclaire.com/politics/a29491715/virginity-testing-laws-regulations/.
20 ”Two-finger test violates constitutional rights: MOHR tells court,” Samaa, Oct. 13, 2020, https://www.samaaenglish.tv/news/2020/10/two-finger-test-is-a-violation-of-constitutional-rights-mohr-tells-court/.
21 Shalhoub-Kevorkian, ”Imposition of virginity testing,”; Virginity Testing Beyond a Medical Examination. Robatjazi M, Simbar M, Nahidi F, Gharehdaghi J, Emamhadi M, Vedadhir AA, Alavimajd H Glob J Health Sci. 2015 Nov 18; 8(7):152-64. [PubMed]; Kashyap, Reddy, and Fussell, ”Dignity on trial,”; Gürsoy and Vural, ”Approaches to Hymen Examination,”.
22 Virginity examinations in Turkey: role of forensic physicians in controlling female sexuality. Frank MW, Bauer HM, Arican N, Fincanci SK, Iacopino V JAMA. 1999 Aug 4; 282(5):485-90. [PubMed]
23 Kashyap, Reddy, and Fussell, ”Dignity on trial,”.
24 Virginity Testing Beyond a Medical Examination. Robatjazi M, Simbar M, Nahidi F, Gharehdaghi J, Emamhadi M, Vedadhir AA, Alavimajd H Glob J Health Sci. 2015 Nov 18; 8(7):152-64. [PubMed]
25 Berkoff MC, Zolotor AJ, Makoroff KL, Thackeray JD, Shapiro RA, Runyan DK JAMA. 2008 Dec 17; 300(23):2779-92. [PubMed]
26 Erika R. George, ”Virginity Testing and South Africa’s HIV/AIDS Crisis: Beyond Rights Universalism and Cultural Relativism Toward Health Capabilities,” California Law Review 96, no. 6 (2008): 1447–1517, accessed March 1, 2021, https://www.jstor.org/stable/20441056.
27 Leclerc-Madlala, ”Protecting girlhood?”; Ansuyah Maharaj, ”Virginity testing: a matter of abuse or prevention?” Agenda 15, no. 41 (1999): 96, https://www.tandfonline.com/doi/pdf/10.1080/10130950.1999.9675767.
28 WHO, ”Eliminating virginity testing,”.
29 Adams J, Harper K, Knudson S, Revilla J. Examination findings in legally confirmed child sexual abuse: it’s normal to be normal. Pediatrics 1994;94(3):310–3. [PubMed] [Google Scholar]; Heppenstall-Heger at al., ”Healing Patterns in Anogenital Injuries: A Longitudinal Study of Injuries Associated With Sexual Abuse, Accidental Injuries, or Genital Surgery in the Preadolescent Child,” Pediatrics 112, no. 4 (2003): 829-837, https://doi.org/10.1542/peds.112.4.829.
30 ”Two Finger Test On Rape Victims Unconstitutional, Violates Personal Dignity Of Woman, Holds Lahore High Court, Quotes Indian Precedents,” LiveLaw, January 4, 2021, https://www.livelaw.in/foreign-international/two-finger-test-virginity-rape-victim-personal-dignity-of-womanlahore-high-court-167921.
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