Pakistan Court Bans Unscientific 'Virginity Tests' on Rape Survivors
The Lahore High Court said the tests were "invasive and an infringement on the privacy of a woman."
A court in Pakistan's Punjab province ordered the immediate suspension of virginity tests on female rape survivors in a ruling on Monday, according to Al Jazeera.
The decision in Pakistan's most populous province was the first of its kind in the country, according to CNN, and is widely seen by activists as a landmark ruling for women's rights.
Lahore High Court Justice Ayesha A. Malik declared that the practice of virginity testing was "invasive and an infringement on the privacy of a woman to her body" in a 30-page judgment.
Virginity tests, also known as hymen examinations or "two-finger" tests, are a vaginal examination meant to determine if a person has had sex. The World Health Organization (WHO) has confirmed that the test has no scientific merit and is not a reliable way to confirm if someone has had penetrative sex.
Despite lack of scientific evidence behind virginity tests, a 2018 report from UN Human Rights, UN Women, and the WHO found that virginity testing is a long-established tradition in at least 20 countries around the world.
Although the tests are not mandated by law in Pakistan, they are frequently used in criminal proceedings in rape and sexual assault cases, according to Al Jazeera. The tests rely on the unscientific and misogynist assumption that a woman who has had sexual intercourse is less likely to have been raped.
Natasha Latiff, the legal director for the organization Strategic Advocacy for Human Rights, worked to prohibit the use of virgnity testing in Afghanistan. The cultural roots of virginity tests "lie in the connection that is often drawn between sexual violence and honor," she told Global Citizen.
"The practice serves no purpose in the legal process except to shame victims who are supposedly 'habituated to sex,' preventing them from claiming the status of the victim," she said.
Experts, including the WHO and other UN agencies, have stressed that "virginity" is not a medical or scientific term but has been culturally and socially constructed. The emphasis on a women's virginity reflects gender discrimination against women and girls.
Justice Malik also noted that courts often use language that reflects their own biases about sexuality and that the language used in court often carries judgment about a woman's character.
The organization Human Rights Watch reported that virginity test results are often used to accuse rape survivors of illegal sexual intercourse and treat them like criminals.
"It is a humiliating practice, which is used to cast suspicion on the victim as opposed to focusing on the accused and the incident of sexual violence," Justice Malik wrote in her judgment.
The examinations can also cause additional pain to the survivor as it can mimic the original act of sexual violence and cause re-traumatization and re-victimization. Human Rights Watch argued that since the procedures are often performed without consent, virginity testing can constitute sexual assault itself.
The international community has recognized that virginity tests violate human rights under Article 7 of the International Covenant on Civil and Political Rights and article 16 of the Convention against Torture. Pakistan has ratified both conventions.
However, Latiff noted that other forms of vaginal and rectal examinations are not included in the ruling, and that could mean that other forms of inhumane treatment are still not prohibited.
Latiff also pointed out that the ruling only specifies testing done on rape victims within the judicial process. However, virginity testing is performed outside the judicial process and Latiff called for laws that expressly prohibit all forms of examinations.
"Today's judgment was a welcome development," said human rights activists, petitioners, lawyers, and journalists who had been calling for the ban in a statement read in the Lahore High Court case, according to Al Jazeera.
"[It is a] much needed step in the right direction for improving the investigative and judicial processes and making them fairer for victims of sexual assault and rape," the statement continued.
Latiff echoed their concerns. “It is highly likely that the practice will continue unless and until all the actors who are involved in the process vigorously and proactively intervene before the examination is done: judges, prosecutors, forensic medicine authorities, nurses, police officers and victim advocates,” she said.
Latiff also stressed the need for cultural changes and education about the practice. “Many victim advocates and prosecutors will also continue to hold the view that these tests actually help victims prove their case - without which, it would be difficult to convict an offender,” she said.
The decision to ban virginity tests is from only one of Pakistan’s five high courts that are under the superintendence of the Supreme Court and will only be applied in Punjab.
However, Latiff still hopes that the decision will act as the legal precedent in cases involving virginity testing throughout Pakistan.
Many see banning virginity testing as only the first step of reform to end abuses against Pakistani women by the criminal justice system.
UPDATE, Jan. 7, 11:00 a.m ET: This story has been updated to include commentary from human rights lawyer Natasha Latiff.