The politics of rape trial evidence

October 18, 2020

Earlier this month, the Punjab government finally announced that it was doing away with the two-finger test for rape trials

Since 2013, Pakistani courts have been saddled with the question of how law enforcement agencies must treat rape survivors/victims.

Should DNA testing be allowed? Should medico-legal officers be allowed to penetrate women’s genitalia to confirm an incident of rape? To what extent is a rape victim’s agency her own once she decides to report her assault?

In Pakistan, it seems as though the agency of victims is at the behest of society and the state.

One such instance where the agency and dignity of rape victims is compromised is the two-finger test. Medico legal officers, at the time of reporting, are required to conduct a test by inserting two fingers into a victim’s vagina to test whether she has been a victim of rape. This is judged by checking whether her hymen is intact. Not only does this test relive the memory of rape for a woman by reasserting violence and pain, but it also finds no scientific support as being a credible source of evidence in trials.

Furthermore, in addition to the practice in principle being violent and humiliating, its practical implementation is more so. The country has a limited number of female medico-legal officers. The ones appointed to carry out such tests have no sensitisation as to their conduct around victims. They rarely have a sense of women’s agency, their privacy and their comfort. Everything, even in the state’s mind, is attached to honour.

Perhaps this is why several brave and determined advocates challenged this practice before the Lahore High Court in 2019. The petition correctly alleged, amongst other things, that the test was a grave violation of women’s right to dignity and privacy under Article 14 of the constitution. Government officials, also amongst other things, aimed to clarify that the test did not relate to women’s characters, but was meant for gathering evidence. The state seemed to be completely oblivious to the evident implications of this practice. What use did a practice which had no scientific value have for victims of rape?

Under Section 375 of Pakistan’s Penal Code, the key ingredient in an offence of rape is the lack of consent. The contention is therefore always whether the intercourse was ‘non-consensual’. With the use of practices such as the two-finger test, the focus shifts to women’s virginity. If her hymen is broken, for whatever reason, a woman’s character is pre-determined. She is not a virgin, and is therefore not entitled to justice. Her ‘character’ is defined by her hymen. And her rape complaint is diminished because for the state, relief depends on the virtue of a woman. It is alleged as practice by opposing counsel then that the victim, who failed the two-finger test, ‘was not raped’. She ‘consented’ to the intercourse. The divorce between rape and a woman’s character is fundamentally what is needed within society.

Procedures like the two-finger test only serve to deter victims from reporting incidents of rape. Women in Pakistan navigate their spaces in a way that avoids blaming and shaming. 

To a large extent, Pakistani society unilaterally seeks reasons for why a woman was raped. What was her character? What was she wearing? What was her conduct? This attitude seeps into how the state sees the women it is bound to protect. All testing and investigation are geared towards the same questions. What did the woman do? That is what the two-finger test represents. It represents society’s idea of rape victims. It aims to respond to the question that everyone seems to want to ask: but, what did she do?

After the horrific Motorway rape incident that shook the nation in September 2020, the CCPO of Lahore made certain remarks that attributed fault to the rape victim, and the comments took Pakistan by storm. There were calls for the CCPO’s resignation and for an overhaul of the criminal justice system. The debate was shifting towards a clearer focus. Society was slowly moving to question from the “whose fault is it?” mindset and accept that “it’s never her fault”.

On the basis of these shifting conceptions and litigation pending before the Lahore High Court, the Punjab government earlier this month announced that it was doing away with the test. This was a welcome move, but one that came after much chastisement. One must applaud the state for finally listening to the people of Pakistan. But more so, one should applaud the people of Pakistan for finally taking a stand for vulnerable victims.

Procedures like the two-finger test only serve to deter victims from reporting incidents of rape. Women in Pakistan navigate their spaces in a way that avoids blaming and shaming. If the objective of any rape-related inquiry is to find fault in the victim’s character, even by implication, then by that logic, the women of Pakistan would perhaps consider themselves to be better off without reporting the act of sexual violence. As soon as the state undertakes practices such as the two-finger test; it becomes complicit.

Ultimately, the state must always remember – its duty is to protect the survivor/victim, and not the perpetrator. Its job is to ensure that survivors/victims of rape are given added protections as opposed to being deprived of them.

The writer is a lawyer. She tweets at @noorejazch

The politics of rape trial evidence in Pakistan