Dissecting Rape, Virginity Test, and Consent as a defence-plea
“Prosecution is bound to prove its case beyond any reasonable shadow of doubts”, this is the universally accepted inalienable principle that regulates the conviction of an under-trial accused. This rule is also based on an Islamic law maxim, “It is better that ten guilty persons be acquitted rather than one innocent person be convicted”[1]. Moreover, for the accused to be afforded the right of benefit-of-doubt, it was not necessary that there should be many circumstances creating uncertainty, and if a single circumstance is creating doubt in a prudent mind then the benefit of the same shall be given to the accused as a matter of right[2]. These are the rights of an accused.
On the other hand, it is also an accepted principle of criminal administration of justice that “No offence should go unchecked and no offender should go unpunished”. And true that rape as an offence is reprehensible, deplorable, despicable, extremely repugnant, and unforgivable, indefensible, outrageous, besides a non-compoundable. However, how much detestable it is, it is still an offence, and to convict an accused, it too must pass through the above-mentioned test of “proof beyond a reasonable shadow of doubt”.
Rape has been defined as under section 375 of the Pakistan Penal Code. The act would fall in the category of this penal provision if sexual intercourse has been committed by a man with a woman under provided five circumstances—the most important aspect is “without consent” of the prosecutrix. However, if the act has been committed with the consent of each party then it falls in the category of “Fornication” under section 496-B in the case of the Pakistan Penal Code, or within the ambit of “Zina” in the case of Islamic Law. So, “consent” is one of the major defence that often has been taken by an accused under trial. Therefore, the prosecution is bound to prove that the act was committed “without consent” or the “consent has been taken fraudulently or forcibly”.
It is not astonishing that, at the end of the trial, allegations are mostly found false. How much gruesome or heinous is the offence would be in its nature, still it can be allegedly false. In this regards, historically, the textbooks on Medical Jurisprudence shows that women do allege falsely rape. Therefore, to verify the allegations of rape, medical evidence was given ample space in its trial.
Two assertive books that have been used for long in Indian and Pakistani jurisdictions are Modi’s Medical Jurisprudence and Parikh’s Medical Jurisprudence. Old versions of these books provide that medical evidence was more reliable than the claims of women, and scientific evidence of a woman’s “habituation” to sex—two fingers test i.e. virginity test, the state of her hymen, and injuries on her body, etc. were used to undermine claims of rape.
Modi’s book[3] shows that the “principle of false charges” was commonplace in rape complaints in India. And Modi also believed that in certain situations women consent to intercourse and then bring a false charge to blackmail a man. These ideas are also available in editions of Parikh’s Medical Jurisprudence. He even went one step ahead and said that the “rape is an allegation, easily made—hard to prove and harder to disprove[4]”. To prove his stance, he describes various artificial injuries, including self-inflicted vulvar and vaginal injuries—the important one is the irritation of the vagina using chilies in pre-partition India.
Therefore, these textbooks emphasize that medical tests, including the virginity test, are the most important in order to find out the true facts of the alleged rape. These books and several others, treat the medical assessment of virginity as closely connected to the determination of rape. Two methods were provided for the virginity test: one, the two-fingers-test (which involves the certification by a doctor that the vagina can admit one, two, or more fingers easily or tightly to demonstrate sexual habituation) and second, an assessment of the state of the hymen.
In India, the learned trial courts regularly used these two pieces of evidence in the determination of rape. Until the Indian Supreme Court in Lillu alias Rajesh Vs State of Haryana[5] held that “the two-fingers-test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to a presumption of consent”. In the same vein, the honourable Lahore High Court has also held this test unconstitutional in its recent most verdict[6].
It is admitted that the virginity test is violative of the victim’s fundamental right[7], an unlawful intrusion on the right of privacy and sanctity of a woman. Yes, it degrades and humiliates the victim. Moreover, as per International Covenant on Economic, Social, and Cultural Rights 1966; United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, and now WHO guidelines[8], the rape survivors are entitled to legal recourse that does not retraumatize them or violate their physical or mental integrity and dignity[9]. However, this is one side of the picture.
We live in a society where our research conducted by Rai Bahadur Jaising P. Modi in his life showed that to get a false conviction of an innocent man, chilies were used to irritate the vagina and to take it for medical examination in a swelling form. Notwithstanding, if one himself fought a case for an alleged accused of rape, one would know that mature parties commits this act mostly out of love which afterward converted into fraud. And if female got pregnant then the families in order to save their honour in society has to take the stance that rape has been committed. Because if it is proved that the act was the result of love not force then the accused would be acquitted[10].
And with respect to dignity, the male accused would also be a child, minor, and mostly under 18 years of age. His parents too have the same love for him as the victims’ parents. And it has been seen that in most of the mature cases of rape, the act was the result of love, which due to unfortunate circumstances have to be converted into rape.
Be that as it may, the question is what if after abolishing the virginity test, the accused takes the plea that the act was the result of love not force, hence, it does not fall within the ambit of rape. How can he prove the same? Since now the precedents provide that DNA is no requirement, torn clothes are no requirement, eye-witnesses are no requirement, injuries on the body of victim are no requirement, delay in lodging FIR is no fatal, sole statement of prosecutrix is sufficient, and now lastly the defence plea, taken by the alleged accused that the prosecutrix has had the relationships with him and the act was not done “without consent” rather the same was the result of love, is also held to be unprovable and inadmissible.
As Parikh once said that “rape is an allegation, easily made—hard to prove and harder to disprove”, it has now become the ever most difficult case to disprove.
To conclude, because the “prosecution is bound to prove its case beyond any reasonable shadow of doubts”; therefore, if a woman alleges that she is a virgin and she has been subjected to rape, then she must prove the same—either through a virginity test i.e. two-fingers-test or through other modes of Forensic Science, and the defence must not be taken away the right to take a plea—that the woman is not virgin. The accused too has a fundamental right to a fair trial under Article 10-A of the Constitution, 1973, besides victims' right to privacy. And whenever two possible interpretations are possible, a view favourable to the accused must prevail, because the accused is the blue-eyed child of the law, not the prosecution. Because it is an offence having capital punishment as a sentence; therefore, a balanced approach is advisable to be adopted through considering the test admissible in evidence for a complainant alleging virginity.
Hafiz Muhammad Azeem.
The writer is an Assistant District Public Prosecutor and got 1st position in competitive exams of the prosecution. He holds an LL.M. from the Punjab University, writes on various topics, and teaches law. He can be reached at Khokhar.azeem@yahoo.com. His articles can also be accessed on hmazeem.blospot.com.
[1] See, Ayub Masih’ case, (PLD 2002 SC 1048).
[2] See, Tariq Pervaiz’s case, (1995 SCMR 1345) and Mst. Asia Bibi’s case, (PLD 2019 SC 64).
[3] Modi’s Medical Jurisprudence.
[4] Parikh’s Medical Jurisprudence.
[5] See, Lillu and others Vs State of Haryana, (2013) 14 SCC 643.
[6] See, Sadaf Aziz etc Vs Federation of Pakistan, etc (W.P.No.13537 of 2020).
[7] See, State of Punjab Vs Ramdev Singh, AIR 2004 SC 1290.
[8] See, < https://www.who.int/reproductivehealth/publications/infographics-end-virginity-testing/en/> accessed on 06-02-2021.
[9] See, Lillu and others Vs State of Haryana, (2013) 14 SCC 643.
[10] See, Uday Vs State of Karnataka [2003] INSC 106.
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