- Judge directs authorities to arrange workshops for healthcare professionals
LAHORE: The Lahore High Court (LHC) on Friday ordered disciplinary action and initiation of contempt proceedings against doctors who are conducting the “two-finger test” in violation of an earlier prohibition in cases related to rape and sexual offences.
Justice Tariq Saleem Sheikh presided over a post-arrest bail case filed by petitioner Muhammad Akram in the case.
The petitioner is accused of sexually assaulting the complainant, a third-year student, at gunpoint on July 29, 2022, and recording indecent video clips. He also threatened to publish the clips on the internet if she informed anyone of the assault.
While the petitioner denied all allegations, the complainant’s medico-legal certificate and DNA test report proved him guilty of sexual assault. Police also recovered the pistol he allegedly used.
Before dismissing the bail, Justice Sheikh pointed out that the doctor performed the two-finger test on her during the medical examination.
Upon this, he specified seven key points for strict compliance and urged concerned authorities to arrange workshops for healthcare professionals to communicate what procedures need to be followed when examining survivors of sexual assault and rape.
The judge further directed them to ensure that medical opinions in cases involving rape and sexual assaults are in tune with the current definition of rape under section 375 of the Pakistan Penal Code (PPC).
The justice stated that all medical examinations, including DNA tests, of rape and sexual violence victims should be conducted under section 164-A and section 164-B of the Code of Criminal Procedure (CrPC) respectively.
The seven-point statement also asked to ensure strict compliance with section 13(I) of the Anti-Rape (Investigation and Trial) Act, 2021 and to prohibit the use of the two-finger test during medical examinations of women and girls who have allegedly been victims of rape or sexual assault.
The judge particularly directed medical examiners to refrain from commenting on the victim’s past sexual history unless it is relevant to their physical condition and that they do not make findings, such as whether the patient is “habituated to sexual intercourse,” based on a medical examination.
Justice Sheikh stated that authorities should initiate appropriate proceedings against individuals who conduct the two-finger test in contravention of the law.
“The SOPs for medico-legal examinations of victims of sexual violence should be updated in conformity with WHO Guidelines and circulated and made readily available in all government healthcare facilities,” he stated.
Concluding the judgement, Justice Sheikh stated, “To sum up, the two-finger test is not mandated by any law. It is a medical practice that has been incorporated into legal jurisprudence as a criterion for determining a victim’s character and, consequently, her consent, which is crucial in finding out whether rape occurred. However, this test has questionable probative value and infringes upon the survivor’s fundamental rights.”
He highlighted that rape and sexual assault victims have long-term emotional, physical, and social impacts, including depression, guilt, diminished interest in sex, breakups of relationships, obsessive concern for safety, and loss of trust.
“Inserting fingers into the rape survivor’s vaginal or anal orifice can cause additional trauma because it not only replicates the original act of sexual violence but can also be painful. Owing to its invasive and forcible nature, the examination can cause genital injury, bleeding, and infection,” he stated. “The shame, guilt, and humiliation that the victim feels during the test may lead to panic attacks, shocks, and trauma.”
In Pakistan, under section 164-A of CrPc, the victim is required to undergo a medical examination as a part of the investigation relating to an offence committing rape, unnatural offence, sexual abuse or any attempt thereof.
