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Petitioner: Sadaf Aziz and others VS Respondent: Federation Of Pakistan and others
Court Name: Lahore High Court Judge(s): Ayesha A. Malik Title: Sadaf Aziz and others vs Federation Of Pakistan and others Case No.: Writ Petitions Nos. 13537 and 27421 of 2020 Date of Judgment:2021-01-04 Reported As: KLR 2021 Criminal Cases 1, 2021 P Cr. L J 205 Result: Petition allowed
JUDGMENT
JUDGMENT AYESHA A. MALIK, J.---This petition along with connected W.P. No.27421/2020 challenges the use and conduct of virginity tests specifically being the two finger test and hymen examination in cases of rape or sexual abuse. The Petitioners seek a permanent restraint against the use, conduct or facilitation of virginity tests by the Respondents and seek a direction to ensure that necessary and proper measures are taken with respect to the physical and mental health and safety of the women undergoing the medico-legal examination. The Petitioners further pray that the Respondents should rely on scientific methods of investigation as the virginity test is neither scientific nor medically required to establish the incident of rape or sexual abuse. The case of the Petitioners 2. The Petitioners before the Court in the instant petition are a group of diverse women, who have been working in the public sphere, in the academia, as a sociologist, journalist, activist, lawyer and psychologist and in W.P. No.27421/2020, the Petitioner is a member of the National Assembly of Pakistan. These petitions have been filed in the interest of and for the benefit of victims of sexual violence who are subjected to virginity testing. The case of the Petitioners is that the Respondents carry out virginity testing as part of the medico-legal examination in cases of rape and sexual abuse. Virginity testing essentially comprises of the two finger test and the hymen test. The justification for both tests is to ascertain whether the victim is sexually active. They argue that the tests are irrelevant for the charge of rape or sexua l abuse, particularly after the omission of section 151(4) of the Qanun-e- Shahadat Order , . 1984 (QSO ) under the Criminal Law (Amendment) (Offences Relating to Rape) Act, 2016 (Amendment Act, 2016 ). Learned counsel argued that the circumstances in which the tests are conducted is such that first the consent is obtained from the victim for the purposes of carrying out the examination, however , the victim is neither aware of the reasons for carrying out either of the tests nor is she informed properly , with sufficient sensitivity , as to what the examination entails. Furthermore, generally the victim is not informed by the female
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medical practitioners that she can refuse to be tested. It is also argued that the virginity tests are neither necessary nor reliable or relevant for the purpose of investigation into the incident of rape or sexual abuse. Learned counsel state that the medico-legal examination reports rely on words such as habituated to sex or not a virgin which are totally irrelevant for the purposes of the incident under investigation and at the same time such derogatory language stigmatizes the victim, causing social and personal trauma. They relied on reported judgments to show how the virginity test is considered by the Courts to conclude about the virtue of the victim. It is their case that the practice of carrying virginity tests is still prevalent notwithstanding the fact that Article 151(4) of the QSO has been deleted and that section 164A of the Criminal Procedure Code, 1898 ("Cr.P.C.") does not require the same. It is also their case that there is insuf ficient understanding on the relevancy of the virginity test and that there is not enough training with reference to the female medical officers appointed, who carry out the virginity tests and fill in the medico-legal report. Learned counsel stated that Pakistan is a signatory to several international treaties which totally denounce virginity testing, hence Pakistan is obligated to maintain its international commitments pursuant to Article 5 of the Universal Declaration of Human Rights, 1984 (UDHR ), Article 7 of the International Covenant on Civil and Political Rights, 1966 (ICCPR ) and Article 16 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 (CAT). It is also against Article 12 of the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR ). They also stated that the Pakistan is also a signatory to and has ratified the Convention Against Elimination of All Forms of Discrimination Against Women, 1979 (CEDA W), which prohibits all forms of discrimination against women and declares the two finger test as discriminatory such that it amounts to a denial of rights to female victims of rape on the basis of her gender . It is argued that virginity tests violate the given standards of the right to human dignity as enshrined in Article 14 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution ). It also violates the right of privacy with respect to a women and her right over her own body and it violates Article 25 of the Constitution as it is specifically applied to female rape or sexual abuse victims making negative inference to her character in order to justify the incident of rape and sexual abuse but is not used where the victim is a male. Learned counsel also rely on a large variety of international literature by the WHO, UN Human Rights Office and UN Women wherein it is reported that virginity testing is associated with a series of adverse physical and psychosocial effects, that it has no evidentiary value, that it violates bodily integrity and the privacy of rape victims and unjustifiably subjects them to further trauma. The response by the Respondents 3. The Respondents before the Court are the Federation of Pakistan and Province of Punjab. Both have made a statement before the Court through Mr. Ishtiaq Ahmad Khan, Additional Attorne y General for Pakistan and Mr. Muhammad Shan Gull, Additional Advocate General Punjab that in principle the Federation and the Province do not dispute the contentions of the Petitioners to the extent that the two finger test should not be conducted. Mr. Muhammad Shan Gull, Additional Advocate General Punjab informed the Court on 11.09.2020 that the matter in issue is under due consideration before the competent authority and in this regard, new guidelines are under consideration. 4. Report and parawise comments on behalf of Respondent No.7, Ministry of Human Rights, Government of Pakistan and Respondent No.8, National Commission for Human Rights through its Chairman, have been filed. In terms thereof, it is stated that women in sexual abuse and rape cases are examined by authorized women medical officers in terms of section 164A of the Cr.P.C. and that a detail procedure has been prescribed to preserve the rights and dignity of the victim. It is further stated that the said section does not require the two finger test, however it is noted that the practice to carry out the tests notwithstanding the amendments in the law continues. As per the report and parawise comments filed by Respondent No.7, it is categorically stated that two finger test is a violation of the constitutional right to dignity of women who are victims of rape or sexual abuse. 5. Respondent No.5, Punjab Forensic Science Agency ("PFSA ") is also before the Court and has filed its report and parawise comments in which they have stated that they do not rely upon virginity tests as they'. rely on scientific testing methods by collecting forensic evidence in rape or sexual abuse cases. Hence they carry out semen detection and DNA profile development in rape or sexual abuse cases. It is also stated that the PFSA has
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issued guidelines for rape and sexual abuse cases with respect to the collection and packaging and transportation of biological material for forensic DNA analysis, which is in line with the international practice. Hence to the extent of PFSA it does not require or rely on virginity testing. 6. Report and parawise comments on behalf of Respondents Nos.1 and 2, Secretary Health and Specialized Healthcare and Medical Education Department and as well as Surgeon Medico Legal Punjab have been filed in W.P. No.27421/2020. As per their report and parawise comments, the health department has issued instructions prescribing the manner for examination of female victims of rape or sexual abuse which includes digital examination, speculum examination and specimen collection. It is also stated that an effort has been made to improve upon the manner of examination of female victims as well as of collecting evidence and on ensuring that the consent of the victim is obtained with due sensitivity . Further that the privacy of women victim is maintained; that the victim is examined by a female medical officer and that the medico-legal findings are carefully and clearly documented in the medico-legal report. In this regard, it is stated that digital examination is required to assess the status of the hymen, capacity, size, torn plus information regarding the victims history on sexual intercourse but the women medical officer cannot write words such as habituated to sex in any report. In terms of the report and parawise comments, the medico-legal report proforma requires physical examination which is by naked eye as well as digital and instrumental examination. In this context information on the rupture of hymen, if present, fresh or old is also required. It is also stated that the two finger test and hymen test is part of the digital examination and bilateral digital traction and is a necessary step as per textual protocol for the medical examination of female victims of rape and sexual abuse. It was however clarified that the two finger test is not conducted unless it is deemed necessary. By way of explanation, it was stated that in cases of minor girls, it is mandatory to inspect the hymen in detail to determine whether it is intact and if not then the nature of the injury. 7. Professor Doctor Arif Rasheed Malik, Chairman Department of Forensic Medicin e KEMU, Surgeon Medico Legal Punjab, appeared in person and explained that the examination of the hymen is necessary for the provision of adequate and effective investigation and there are instructions in aid of the process, so as to determine the injuries, determine tears, laceration, bruises, abrasions, swellings and hyperemia where sexual violence is alleged. He clarified that women medical officers are not allowed to write words like habituated to sex and cannot comment on the character of the victim. However , as per his understanding a report has to be given on the- status of the hymen as the element of the victims virginity is relevant. In this regard, the Surgeon Medico Legal Punjab, categorically stated that digital examination will be conducted where-ever deemed necessary as it is an integral part of the process. In this regard, it is noted that the Government of Punjab placed before the Court draft guidelines including the proforma for medico-legal examination of female victims of rape or sexual abuse, which are to be implemented in all hospitals within the Province of Punjab. It was stated that these new guidelines have been devised consequent to the issues raised through the instant writ petitions. 8. During the course of arguments, Respondent, Specialized Healthcare and Medical Education Department presented a copy of Notification dated 10.11.2020 stating therein that the Guidelines for the Examination of Female Survivors/V ictims of Sexual Abuse (2020 Guidelines ) have been issued which contains the proforma of the report to be filled by the women medical officer. In terms of the arguments made by the Respondents, the 2020 Guidelines apparently redress the grievance of the Petitioners as it prohibits the two finger test. The Respondents have specifically relied on Clause 14 of the 2020 Guidelines, which states that two finger test must not be performed. However the Petitioners, having gone through the contents of the 2020 Guidelines raised objections with reference to the same. The Petitioners argued that the 2020 Guidelines have not prohibited virginity testing rather has left the matter open ended such that even though the two finger test has been prohibited, hymen testing has not been prohibited hence virginity testing continues even under the 2020 Guidelines. It was further argued that the 2020 Guidelines emphasizes on information with reference to the status of the hymen, which is essentially to conclude that the character of the victim is questionable as is her honesty and the truthfulness of her statement. Learned counsel for the Petitioners while reading Clauses 14 and 15 of the 2020 Guidelines state that it provides for bilateral digital traction which essentially is a check on the status of the hymen stretching the hymen at 6 and 12
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o'clock positions and further that in "terms of the proforma provided for the medic o-legal report there is a specific requirement for determining whether the hymen is intact or torn and whether the tear is fresh or old. Therefore, it is argued that the Respondents, have retained the ability to conduct virginity testing and have not taken decisive steps towards the eradicating of the same. 9. On the basis of what has been argued, the Petitioners case essentially is that there is no medical or scientific basis to continue with virginity testing that is the two finger test or to test the status of hymen; that it violates the fundamental rights of the female victim s such that it denies the female victim the dignity of life that she is guaranteed under the Constitution; that it breaches her right to privacy over her body and her personal life; that it is discriminatory as virginity testing is only done for female victims so as to discredit her. It has also been argued that the process under the Instructions Rega rding the Conduct of Medico-legal and Postmortem Examination, 2015 (2015 Instructions" ) and now the 2020 Guidelines is not victim sensitive and meaningful consent is not obtained before carrying out the medico-legal examination. Opinion of the Court Nature of Medico-Legal Examination 10. As part of the investigation of the incident of rape or sexual abuse, the victim is required to undergo a medico- legal examination, once a complaint of rape or sexual abuse is registered with the relevant Police Station through a First Information Report. The victim, accompanied with a parent or a guardian, is presented before a medical officer for the medical examination which leads to the preparation of the report of medico-legal examination of the victim. This medical examination is mandatory in terms of section 164A of the Cr.P.C., which calls for a medical examination of the victim of rape where an offence of committing rape or sexual abuse is under investigation. The section sets out the procedure to be followed for a medico-legal examination in the following terms: 164A. Medical examination of victim of rape, etc.-(I) Where an offence of committing rape, unnatural offence or sexual abuse or attempt to commit rape, unnatural offence or sexual abuse under section 376, section 371 or section 377B respectively of the Pakistan Penal Code, 1860 (Act XLV of 1860) is under investigation, the victim shall be examined by a registered medical practitioner , in the case of female victim by a female registered medical practitioner , immediately after commission of such of fence: Provided that in all cases, where possible, the female victim shall be escorted by a female police officer or a family member from a place of her convenience to the place of medical examination. (2) The registered medical practitioner to whom such victim is sent under subsection (1) shall, without delay , examine the victim and prepare a report of examination giving the following particulars, namely:-- (a) name and address of the victim and of the person by whom she was escorted; (b) age of the victim; (c) description of material taken from body of the victim for DNA profiling; (d) marks of injury , if any , on body of the victim; (e) general mental condition of the victim; and (f) other material particulars in reasonable detail. (3) The report under subsection (2) shall state precisely the reasons for each conclusion arrived at. (4) The report under subsection (2) shall specifically record that consent of the victim or of his or her natural or legal guardian to such examination had been obtained. (5) The exact time of commencement and completion of the examination under subsection (1) shall also be noted in the report. (6) The registered medical practitioner shall, without delay , forward the report to the investigation officer who shall forward it to the Magistrate along with other requirements as specified under clause (a) of subsection (1) of section 173. (7) Nothing in this section shall be construed as rendering lawful any examination without consent of the victim or of any person authorized under subsection (4). As per the Section, the victim has to provide her name, address and age including the name of the person with whom she was escorted. The report requires a description of materials taken from the body of the victim for DNA
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profiling, marks of injury , if any, on the body of the victim; general mental cond ition of the victim and all other material particulars with reasons for each conclusion arrived at. Importantly the report has to specifically record the consent of the victim or of her natural or legal guardian to such examination. Guidelines and Instructions 11. The Respondent Health Department issued Notification dated 28.10.2002 which establishes a three tier structure for conducting medico-legal work. The initial medico-legal examination is carried out by Medical Officers in Rural Health Centers, Tehsil Headqu arters Hospital and District Headquarters Hospitals. The second tier consists of the District Standing Medical Board ("District Board" ) where re-examination is required and the third tier is the Surgeon Medico Legal Punjab. The Surgeon Medico Legal Punjab is the Chairman of the Provincial Standing Medical Board, which is also the final appellate authority against the decisions of the District Boards. The Medico Legal Officers and the District Board fall under the control and supervision of Primary and Secondary Healthcare Department whereas the office of the Surgeon Medico Legal Punjab is an attached department of the Specialized Healthcare and Medical Education Department. They also issued Standard Operating Procedures for Medico Legal Examination of Women Survivors ("SOPs "), which includes the Performa to be used for medico-legal examination reports in all cases of sexual violence. As part of the SOPs there is an Operating Manual on Standard Operating Procedures, which essentially provides guidance to the doctors who perform the medico-legal examination in cases of rape or sexual abuse. The Surgeon Medico Legal Punjab issued the 2015 Instructions, which detail the general instructions for conducting the medico-legal examination. The SOPs have statedly been replaced by the 2020 Guidelines, which were notified on 10.11.2020. Despite the statements of the Federation and the Government of Punjab that these virginity tests have been stopped, it is necessary to examine the requirements provided under the SOPs and the 2015 Instructions in comparison with the 2020 Guidelines to note whether virginity testing is still required under the 2020 Guidelines. 12. As per the SOPs and 2015 Instructio ns the examination of a female victim of sexual abuse or rape involves three steps, that is observation through naked eye, digital examination and speculum examination. The 2015 Guidelines referres to digital examination to ascertain the status of the hymen. It also refers to bimanual traction. These terms are not defined anywhere in the SOPs or 2015 Instructions, however as per the reply filed by the Surgeon Medico Legal Punjab digital examination is performed to assess the vaginal canal and to report any bleeding/stains etc. Furthermore that the two finger test is part of the digital examination and bilateral digital traction is done to determine the status of the hymen. Therefore, as per the admitted position, digital examination and bilateral digital traction are terms used for virginity testing. In comparison Clause 14 of the 2020 Guidelines provides for a two-step process, essentially being inspection with naked eye and thereafter , bilateral digital traction or speculum examination. Clauses 14 and 15 of the 2020 Guidelines read as follows:- "14. Local examination should be detaile d in lithotomy position including inspect ion, bilateral digital traction and speculum examination. Inspection should be both with naked eye, magnifying lens and by use of Glaister Keen glass rod as mentioned in prescribed Proforma. TWO FINGER TEST MUST NOT BE PERFORMED . - Bilateral digital traction of the labia majora makes the hymenal edges visible. This maneuver stretches the hymen at 6 and 12 o'clock positions and any tear at these areas become evident and visible. - Specular examination of the vaginal canal should be performed only in mature women. An appropriate sized speculum is introduced into the vagina to inspect the conditions of vaginal mucosa, its rouginess and to locate any bleeding, injury or any other condition of the vaginal mucosa and cervix. Preferably , this examination should be performed in operation theatre or in well equipped medico-legal clinic under general anesthesia, if needed. 15. Digital and speculum examination must not be done when hymen is found intact. Per speculum examination is not a must in the case of children/ young girls when there is no history of penetration and no visible injuries. The examination and treatment as needed may have to be performed under general anesthesia in case of minors and when injuries inflicted are severe. If there is vaginal discharge note its texture, color and odour etc." In terms of the 2020 Guidelines the first step is an inspection with the naked eye and then a bilateral digital traction of the hymen and a speculum examination in mature woman. The term mature woman is not defined but it appears to suggest married women as they are not virgins hence the need for a speculum examination. Furthermore, digital
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examination meaning the two finger test is specifically prohibited in Clause 14 of the 2020 Guidelines but as per Clause 15 it is not done where the hymen is intact, meaning that it can be done where the hymen is not intact. As per the attached Proforma for Medico Legal Examination ("the Proforma" ) observations by naked eye, digital traction and instrument examination require inspection of the hymen to determine if torn, fresh or old. Interestingly it also allows a per-vaginum examination where required and per-vaginum examination is understood to mean the two finger test. The case of the terms digital examination bilateral digital traction and per-vaginum examination is likely to create confusion as to whether the two finger test is required to be carried out and will mean the continued practice of virginity testing as it is set in the process and procedures carried out over the years. Hence the 2020 Guidelines continues with the practice of virginity testing and has only attempted to confuse the issue rather than prohibit it. 13. The Surgeon Medico Legal Punjab, Lahore appeared and explained that digital examination is conducted as it is considered a necessary step in the textual protocol for medical examination of female victims of sexual abuse; that the two finger test is only conducted if deemed necessary and only through authorized women medical officers and that the consent of the victim is always obtained as per the given proforma. Further that the hymen test or two finger test is required to correlate the victims statement with the history of the victim. In this regard, he stated that the findings regarding the rupture of hymen, if fresh or old is done through bilateral digital examination and also through inspection of the naked eye. As per his contention. it is necessary to carry out these tests in order to adequately and effectively ascertain whether the incident of sexual abuse or rape did in fact take place. In his professional opinion the hymen is rupture d in very rare cases while carrying out certain sporting activities or cycling and therefore, the reliance on the status of the hymen in no manner prejudices the rights of female victims. 14. In this context, it is clear from a reading of the 2020 Guidelines that the Respondents still require virginity testing and although the 2020 Guidelines specifically state that the two finger test must not be performed, it is qualified such that it is not performed where the hymen is found intact.…
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