LAHORE: The Lahore High Court directed the provincial government to initiate appropriate proceedings against doctors who conduct the two-finger test in cases involving rape and sexual assaults in contravention of the law.
The court observed that despite the rulings of the Supreme Court and the High Court and the statutory prohibition, doctors continue to perform the tests across the province.
The court held that those who do so are liable to disciplinary action for misconduct and contempt of court.
The court directed the government to update the SOPs for medico-legal examinations of victims of sexual violence in conformity with guidelines of the World Health Organization (WHO) it circulated and made readily available in all government healthcare facilities. The court also directed the government to conduct workshops for healthcare professionals to communicate the procedure for examining survivors of sexual assault and rape.
The court passed this order during the proceedings of a petition of Muhammad Akram seeking post-arrest bail in a rape case against him and threatening the victim to put her video clips on the internet if she told anybody about the incident. The court dismissed the bail application and observed that no case for bail was made out.
The court directed the registrar to send a copy of this order to the Chief Secretary of Punjab for compliance. The court also directed the provincial government to ensure that medical opinion in cases involving rape and sexual assaults is in tune with the current definition of rape under section 375 PPC.
Also, to ensure that the medical examinations of the victims of rape and sexual violence are being conducted in accordance with section 164-A Cr.P.C. and DNA test as per section 164-B Cr.P.C., the court added.
The court, taking note of the complainant's medico-legal certificate, said the doctor performed the two-finger test on her during the medical examination, which is very disturbing. The court said where the results of a two-finger test are affirmative, courts and lawyers frequently conclude that the victim is habituated and assume that she was violated with her consent, thus undermining her moral standing and casting doubt on the credibility of her testimony.
The court said the rape and sexual assault victims have long-term emotional, physical and social impacts, including depression, guilt, diminished interest in sex, break-ups of relationships, obsessive concern for safety and loss of trust.
The cumulative effect of all the relative provisions is that the court added that putting questions to a rape victim in cross-examination and leading any other evidence about her alleged general immoral character to impeach her credibility is prohibited.
The court, therefore, directed the government to ensure that medical examiners refrain from commenting on the victim's past sexual history unless it is relevant to their physical condition and that they do not make findings, such as whether the patient is "habituated to sexual intercourse" based on a medical examination.
The court said the two-finger test 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. The court added that the shame, guilt, and humiliation that the victim feels during the test may lead to panic attacks, shocks and trauma.
The court observed that under international law, rape survivors are entitled to legal recourse that does not re-traumatize or damage their bodily or mental integrity and dignity. The court added that they also have the right to have medical procedures performed in a way that respects their right to consent and are conducted in a compassionate, humane and non-degrading manner.
The courts in our country have also denounced the virginity test. In Sadaf Aziz case, the high court determined that virginity testing contravenes women's fundamental rights the court added.
The parliament enacted the Anti-Rape (Investigation and Trial) Act 2021. Section 13(1) thereof expressly prohibits two-finger virginity testing for the medico-legal examination of a victim. It adds that no probative value shall be attached to it. Any law does not mandate the two-finger test. The court concluded that this test has questionable probative value and infringes upon the survivor's fundamental rights.
Copyright Business Recorder, 2023
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