For a failing state and deeply misogynist society, a section of Pakistan’s judiciary is proving to be a beacon, albeit faint, of hope. That, at least, is the message for those still optimistic about the future of India’s deeply troubled western neighbour.

The cause for this optimism is a recent judgment by Lahore High Court which, extensively citing Indian judicial verdicts, has termed the so-called ‘virginity tests’ routinely conducted on survivors of rape or sexual assault a ‘blatant violation of the dignity of a woman’ and held them to be unconstitutional.

Justice Ayesha A. Malik held that the ‘two-finger test’ and the ‘hymen test’ were discriminatory and against the right to life and right to dignity enshrined in Pakistan’s Constitution.

Referring to a judgment by the Indian Supreme Court (Rajesh & another v State of Haryana) wherein the apex court had held that the two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity, and dignity, Justice
Malik’s verdict iterates that virginity tests do not definitively indicate that there was any sexual violence or prove its absence.

Quoting various Indian
High Court judgments, the judge observed: “These courts have all held there is no scientific or medical basis to carry out two-finger virginity tests or to rely on the status of the hymen (whether it’s torn or intact) as it has no relevance to the investigation into an incident of rape or sexual abuse. 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. This in effect amounts to gender-based discrimination as it is neither a medical condition which requires treatment nor does it provide any clinical benefit to the victim.”

It is obvious to any thinking person that a rape victim’s sexual history is irrelevant to the prosecution of sexual assault charges and this has been settled law in liberal democracies the world over for a while now.

But the problem in Pakistan in particular and across South Asia in general is that social practices militate against this basic principle. For example, it is a long-established custom in these parts across communities that a bride’s virginity is tested by looking for blood stains on a white sheet after the wedding night. The sheet is checked by the family and the groom has to declare before elders whether the bride was a virgin. It is a small step from placing a premium on the ‘purity’ of a woman by an overwhelmingly patriarchal social structure to letting a rape victim’s previous sexual activity influence the prosecuting, defending or judging of a sexual assault case.