Justice Ayesha Malik’s January 4^th, 30-page judgement on the Two Finger Test and the Hymen Test has the potential of changing the course of how survivors of violence are dealt with, not just during the medical examination but also during courtroom proceedings. It has enabled a much-needed correction of a wrong, rebalancing the scales of justice from the unjust tilt it held for far too long.

The Lahore High Court, has given a detailed judgment on medical examinations, widely referred to as virginity tests, carried out as routine on women and girls who formally (by reporting the crime to the police) allege rape or sexual violence. The judgement declares the tests illegal, detailing three main areas under which the tests have been studied by the court: constitutional fundamental rights, the tests’ forensic value and Pakistan’s international obligations, best practices and jurisprudence.

The judgment has declared the two tests a humiliating, overly invasive practice, and unconstitutional in that they violate fundamental guarantees provided to all citizens under the constitution. The specific constitutional provisions highlighted in the judgment include the “right to life” (Article 9) and “dignity” (Article 14). The judgment further argues that because these tests are carried out only on women victims of violence because of their gender and used as a tool to “cast suspicion on the victim”, these tests are discriminatory and violate the spirit of Article 25.

However, one important fundamental right missed by the court judgement is that of “right to fair trial”. The acceptance of these tests as the main evidence to determine rape has undermined and prejudiced the prosecution’s case, created bias and unfairness and thus allowed due process to be severely affected. What this judgement does is inch closer to achieving this all-important, relatively new, constitutional guarantee under Article 10A.

While determining the utility and effectiveness of the tests, the court found the tests “unscientific” for ascertaining the virginity of a female victim and have “no forensic value in cases of sexual violence.” The judgment directs the federal and provincial governments to carry out necessary steps to ensure that these tests are no longer used and further directs the provincial government to redevelop procedures that are in line with international practice and align with a survivor centric approach. The judgement details that there is international “clarity and consensus” on the fact that these tests are not reliable and “neither considered medically or scientifically viable for investigating sexual violence”; quoting from the Independent Forensic Expert Group (composed of 35 experts from 18 countries) “...these tests are harmful to women, and serve as a form of social control of their sexuality.” Pakistan’s various international obligations and guidelines from the UN and the WHO; and Indian and Bangladeshi courts (both countries have judicial precedents outlawing this practice) and the European Court of Human Rights judgments have been relied on.

This judgement has filled many gaps. Over the past decade, lawmakers have passed various pro-women laws yet the judicial interpretation and explanation of the law has been rarer; this judgement breaks that silence. Secondly, the judgement has addressed an area of medical practice that is covered by secondary legislation in the form of Rules or Procedures and thus ignored by law makers while considering substantive law. Thirdly, by emphasising the 2016 Penal Code and Law of Evidence amendments which, among other provisions, detail how rape victims should be examined and the all-important omission of questioning “the immoral character” of a woman to discredit her allegation of rape, this judgement further strengthens the court’s reasoning for the irrelevancy of the two-finger and hymen tests.

One important fundamental right missed by the court judgement is that of “right to fair trial”.

These tests had been used to ensure that the patriarchal myths around rape, consent and sexuality, remain intact. What do the Two Finger and Hymn Tests determine? Firstly, the virginity (or not) of a woman is equated to whether there was consent; secondly, (and for all practical purposes secondary to determining virginity), to establish injury. Why is the test conducted to establish virginity? Because of the simplistic and archaic belief that ‘only a virgin can be raped’, and a ‘non-virgin’ is ‘less likely’ to be. These tests were one of the key arguments used by the defence to “establish consent”; and an entry point to question the character of the victim, and hence, discredit her case. The judgement has done well to delink consent and virginity and to emphasise instead that the only case to establish (and defend for the accused) is the one for which the victim is alleging rape. Quoting from an Indian judgement, it is stated by the LHC that “Whether a survivor is habituated to sexual intercourse prior to the assault has absolutely no bearing on whether she consented when the rape occurred. ... Indian Evidence Act, does not allow a rape victim’s credibility to be compromised on the ground that she is “of generally immoral character”. If this aspect of the rape law is understood, terminologies often used by judges and the defence such as “habitual to sex” and “of easy virtue” can be successfully challenged. The court also found the consent sought from women before a medical examination inadequate and expanded on the importance of informed consent.

Unfortunately, the judgement does not consider, nor challenge, the aspect of establishing “injury” as a reason to conduct the test. There is yet another myth widely flaunted among defence lawyers and accepted by judges that rape is always violent, and only physical injuries confirm struggle and help determine the lack of consent. Pakistani jurisprudence should now join the increasingly vast international judicial recognition that the test to determine rape is no longer “was the act against her will” which presupposes force, struggle and injury but rather “was the act without her consent.” To paraphrase a 1982 judgement of the House of Lords: It is wrong to assume that the woman must show signs of injury or that she must always physically resist before there can be a conviction for rape. We have found this assumption erroneous. The actus reus (the act) in rape, which the prosecution must establish for a conviction consists of a) unlawful sexual intercourse and b) absence of the woman’s consent. Many penal code provisions can be used to confirm that lack of consent does not always equate to force and struggle though judicial interpretation is much needed.

The most important aspect of this judgement is that it brings to the fore the victim’s perspective: the physical and psychological trauma, the discrepancy and imbalance that a medical examination causes the trial, with the unwarranted presumption that health professionals have the ability to determine virginity and the examination’s far-reaching legal presumptions of consent, character and credibility. This judgement brings forward the urgent need to adopt a rights-based approach with the right to health, life and dignity at the center, the ability for women and girls to claim these rights, the importance of due process that does not prejudice one party over another and the ultimate responsibility of the state apparatus: an accountable, just and responsive system that works for everyone.

The writer is a barrister. She tweets: @BenazirJatoi