Two Finger Test Must Not Be Conducted

Two Finger Test Must Not Be Conducted for Establishing Rape-Sexual Violence, Dragging Sexual History of The Rape Survivor Into The Case Is Unconstitutional: Pakistan High Court

The Pakistan Supreme Court on 4th January 2021, in the rape case, Atif Zareef and others vs The State upheld the conviction of the perpetrators which was recorded by the trial court and confirmed by the High Court, and also maintained the sentence passed on them by the High Court.
According to the Crime Report, Saadia Rani (“complainant”) while travelling with one Hameed Abbasi (PW-2), was intercepted on the roadway by the appellants and others, taken off-road and raped. After the gruesome act, the complainant, straight from the place of alleged occurrence, went to the police station and reported the matter. She nominated (i) Sajjad Hussain alias Jajji, (ii) Sher Baz Khan alias Sheru, (iii) Atif Zareef, (iv) Nafees Ahmed and (v) Waqas Hameed were nominated by her as having committed rape on her.
Sajjad Hussain alias Jajji and Waqas Hameed became proclaimed offenders, while Sher Baz Khan alias Sheru, Atif Zareef and Nafees Ahmed (“appellants”) were sent up for trial and found guilty of having committed rape on the complainant (PW-1). They were convicted under Section 376(2) of the Pakistan Penal Code, 1860 (“PPC”) and sentenced to death with the direction to pay Rs.500,000/- as compensation to the complainant or in default thereof to undergo simple imprisonment for six months by the trial court.
The appellants challenged their conviction and sentence in appeal before the High Court, and the trial court also sent the Capital Sentence Reference (CSR) to the High Court for confirmation of the death sentence or otherwise. The appeal and the CSR were heard together by the High Court. Vide the impugned judgment, the High Court maintained the conviction of the appellants, however, reduced their sentence to that of imprisonment for life and extended them benefit of Section 382-B, Cr.P.C. also.
The Court examined the following issues, namely –

  • Whether recording sexual history of the victim by carrying out “two-finger test” (TFT) or the “virginity test” has any scientific justification or evidentiary relevance to determine the commission of the sexual assault of rape?
  • Whether the myth that “unchaste”, “impure” or “immoral” women are more likely to consent to sexual intercourse and are not worthy of reliance have any legal basis?
  • Whether “sexual history”, “sexual character” or the very “sexuality” of a rape survivor can be used to paint her as sexually active and unchaste and use this to discredit her credibility?
  • Whether her promiscuous background can be made basis to assume that she must have consented to the act?

While deliberating upon these issues, the Supreme Court made the following observations: –

  1. Today, modern forensic science shuns the virginity test as being totally irrelevant to the sexual assault. It is time to get past the assessment of virginity and focus attention on appropriate medical care and psychological counseling. It will be illegal, irrelevant and wholly inappropriate to record a finding whether the victim was sexually active or not prior to and after the incident.
  2. Modern forensic science thus shows that the two finger test must not be conducted for establishing rape-sexual violence, and the size of the vaginal introitus has no bearing on a case of sexual violence. The status of hymen is also irrelevant because hymen can be torn due to several reasons such as cycling, riding among other things. An intact hymen does not rule out sexual violence and a torn hymen does not prove previous sexual intercourse.
  3. Dragging sexual history of the rape survivor into the case by making observations about her body including observations like “the vagina admits two fingers easily” or “old ruptured hymen” is an affront to the reputation and honour of the rape survivor and violates Article 4(2)(a) of the Constitution
  4. The courts should also discontinue the use of painfully intrusive and inappropriate expressions, like “habituated to sex”, “woman of easy virtue”, “woman of loose moral character”, and “non-virgin”, for the alleged rape victims even if they find that the charge of rape is not proved against the accused. Such expressions are unconstitutional and illegal.

– Esha Shah, Paralegal – POSH at Work

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