‘He [the doctor] put his fingers in my vagina; he looked at me, and said you are not [a] virgin. He seemed to enjoy that — not just my suffering, but also touching me’ (Kumar, 2019).
Voices like these, speaking of instances rife with ‘abuse’, ‘shame’, and ‘relived trauma’, reflect the ‘violence’ faced by the victims of virginity testing in Afghanistan. On October 11, Afghanistan’s Independent Human Rights Commission (2020) released an official report highlighting the rampant performance of virginity testing despite the Penal Code (2017), which makes it punishable, unless conducted with a woman’s ‘consent’ and a ‘court order’. As per the study, in a staggering ninety-two per cent of cases, women in Afghanistan were forced to undergo virginity tests ‘illegally’ (without their ‘consent’ and a ‘court order’). Although the report claims that these tests had been performed ‘forcefully’ and ‘illegally,’ I argue that the retained penal provision in itself (and the impunity on grounds of consent and court order) violates the right to equality. I also argue, inter alia, that the provision is based on gender-stereotypes and sexist narratives that associate purity and modesty to women, depriving them of control over their sexualities and bodies.
Lack of Scientific Basis and Clinical Merit
Virginity testing typically involves insertion of fingers into the female genitalia to inspect the laxity of vaginal muscles or inspection of the hymen (a thin fold of mucous membrane situated at the orifice of the vagina) to assess if a woman has engaged in pre-marital sex or to check habituation to vaginal intercourse (Olson and García-Moreno, 2017). The test is, however, crude, unreliable and unscientific. There is abundant medical literature suggesting the test lacks merit, since the hymen can be torn during physical activity or while using a tampon, and also since many are born without it (Glinski, 2020). However, regardless of the scientific inaccuracy, I argue the practice to be intrinsically unjust, a position which would not be different if the tests were to be accurate, given the human rights violations involved.
Violation of Right to Equality
The Constitution of Afghanistan (2004) provides for equality before law and prohibits discrimination based on sex under Article 22. Furthermore, Article 7, obligates Afghanistan to observe its ratified international instruments including the United Nations Charter and the Universal Declaration of Human Rights of 1948 (“UDHR”). As an international obligation, right to equality is entrenched in many such instruments, such as in Article 7 of the UDHR (1948), Article 26 of the International Covenant on Civil and Political Rights (1966) and Article 1 of the Convention on the Elimination of All Forms of Discrimination against Women of 1979 (“CEDAW”).
Article 640 of the Penal Code allows forensic examination of a woman’s hymen, with her consent and upon a court order (when accused of premarital intercourse). I argue that the harmful consequences of this provision are experienced exclusively by women. Based on their “virginity-status”, they are publicly shamed, imprisoned and killed for family honour, if found to have engaged in premarital sex (Ahmadzai and Sadeghzadeh, 2017). Even though virginity cannot be scientifically proven for either of the sexes, the provision only puts women through this invasive practise. There is no comparable social construct that controls the bodies or sexualities of men before marriage. It stigmatizes them for being ‘impure’, ‘unchaste’, and lacking ‘virtue’ (ibid.). Since only women face the repercussions of this provision, it is clearly discriminatory.
Gender-Stereotyping and Sexism
The provision also stems from gender-stereotypes and archaic and regressive roles traditionally associated to women. Article 5 of CEDAW (1979) obligates states to eliminate all social or cultural patterns, and customary practises based on sexist stereotypical notions and prejudicial roles. While interpreting it in R.K.B. v. Turkey (2012), where a woman employee alone was dismissed for an extra-marital affair with a married male colleague, the CEDAW Committee observed the dismissal to be discriminatory since it arbitrarily condemned an adulterous act of a woman, while tolerating the same for the man, perhaps passing it as ‘normal’.
Article 640 rests on similar patriarchal foundations. It bases itself on stereotypes which dictate that female sexuality should be carefully circumscribed within the bounds of marriage to ensure a woman’s purity. It associates ‘virtue’ and ‘family honour’ to the female body and views women as ‘carriers-of-honour’ (Dupree and Gouttierre, 1997), ideas which are representative of benevolent sexism (Glicke and Fiske, 1997). It also stereotypically advances an expected standard of ‘morality’ and ‘modesty’ for women. While ensuring that their modesty does not stand corrupted, it advances social constructs (World Health Organization, 2018) of “virginity” and “purity”, which need to be ‘protected’ and guarded from ‘other’ men, the former by their fathers until marriage, and the latter by their husbands. Consequently, it polices their bodies, their sexualities and autonomies, positioning men as their gatekeepers (an instance of paternalism and protectionism).
Susceptible to Misuse
By allowing testing with ‘consent’ and ‘court order’, the provision becomes a means of evasion. Since it is framed in a language that is vague and extremely susceptible to misuse, it opens deceitful gateways to perform virginity tests forcefully. In fact, even where a woman consents, it may not be of her own volition. There exist several instances when a woman is forced to undergo a test, such as to get rid of allegations of pre-marital sex and prove her virginity to her future husband, or to prove rape (Afghanistan’s Independent Human Rights Commission, 2020). This leaves her with no alternative, making it impracticable to ascertain if her consent was ‘free’ enough to fall within the exclusionary ground.
I also argue that retention of the provision based on a court order lacks merit and defies logic, since a court sanction cannot take away from the intrinsic nature of the very act (in being invasive, discriminatory and degrading) and the fundamental wrongness that lies at the root of virginity testing. In various instances, courts in other South-Asian jurisdictions like India (2013) and Bangladesh (South Asian Citizens Web, 2013), while citing human rights violations, have continuously expressed their strong refusal to allow virginity testing [such as in the Indian case laws of Surjit v. Kanwaljit Kaur (2003) and Rajiv v. Meetu Bharti (2015)]. Similarly, in the case of Lillu v. State of Haryana (2013), the Indian Supreme Court condemned the procedure of virginity testing stating that it arbitrarily interferes with a woman’s privacy and is cruel, inhuman and degrading.
The Abuse that Does Not End: Virginity Tests are More Harmful than they Seem
The construct of virginity, by relying on stereotypical notions of purity and modesty, reinforces sexual non-permissiveness as the norm for women. While doing so, it oppresses them, and upon a violation of that norm, subjects them to inhuman virginity testing. However, the social construct of virginity and the subsequent testing has far-reaching dangerous consequences for women. The myth that women who are virgin must bleed on their first night has given rise to hymen-reconstruction, also called, hymen-repair surgeries, where vaginal tissues are fused together with stitches days before wedding, so that a woman bleeds when the tissue is torn on her first time having intercourse (Pazhohish, 2017). These so-called “revirginisation surgeries” are medically unnecessary, besides being invasive and degrading. Particularly in cases involving rape victims or assault survivors, they make the victim relive her trauma and mimic the original act of sexual assault, leading to re-victimization, unending anxiety, depression and post-traumatic stress (Crosby et al., 2020). In order to end this practice, a step in the right direction would be to amend Article 640 and prohibit virginity testing completely without allowing for any “grounds for impunity.” Sustained sensitisation and awareness programmes which educate people about the inaccuracy of hymen tests would be a positive step that needs to be taken to end “virginity testing,” even though they may face difficulties in challenging the cultural norms which regard virginity and purity highly. Additionally, health professionals and public health community (given that they are regarded and relied on for their expertise) should also abstain from performing these tests, which can put an end to this inhumane and cruel practice.
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