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Virginity Test, Violations of Human Rights

In patriarchal societies and traditionalist cultures, where men have power over women and play the dominating role in society, women are burdened with maintaining and protecting the family’s honor. . In such cultures, virginity is of particular importance and its existence is measure of women's chastity and families pride themselves on this. According to traditional customs and beliefs and misconceptions regarding the anatomy of the female body, a woman is considered a virgin (abstemious) when her hymen is healthy and it is "broken" due to the first time intercourse occurs on the wedding night.

It is believed that the existence of blood in a marital environment (Bed) is sufficient proof of virginity and the lack of blood on the bed reveals the lack of virginity, suggesting the absence of virginity and previous illegitimate, premarital sexual relationship (affair) by a daughter.

Hence, failure to show “virginity” is always considered as anti-honor, unchastity and infamous behavior of the girl, her family, and even her tribes. Such events often lead to "honor killings" and "suicide" of the woman often carried out by close family members.

In this section, we need to explain the virginity membrane to further clarify its shape, anatomy, position and characteristic. A report published by the Afghanistan Independent Human Rights Commission (AIHRC) in 2002, described the concept of virginity as follow:

The hymen is a natural anatomical component of the reproductive system of the woman, a membrane that surrounds or partially covers the external vaginal opening. It is located at the intersection of the atrium and the vaginal canal and forms part of the vulva, or external genitalia, and is similar in structure to the vagina. The hymen has different shapes, made from a stretchy membrane, in some women it is thin and in some thick and somewhat rigid.

A study by Human Rights Physicians (HRP) in 2015 also revealed that the virginity membrane is relatively anemia (Less bloody) and even if it is torn, it may not have a significant bleeding effect. Forced penetration and non-use of lubricants may cause irritation in the vaginal wall and most likely cause shedding of blood in the bed, not injuries to the virgin membrane. Therefore, from a woman's first sexual intercourse, bleeding as usual should not be expected. According to the report, initial studies from the first experience of women's sexual intercourse in 1978 reveals that out of a total of 100 women in this study, 44% of them had not experienced bleeding during the first sexual intercourse, and 35% have had only partial bleeding. A 2008 study in the Netherlands showed that a total of 687 women, 40% of them did not experience bleeding during their first sexual intercourse.

Also, the report published by the AIHRC suggests that having constant sexual intercourse did not lead to changes in (Hymen) virginity membrane. In some cases, women who had already lost their virginity through previous sexual affairs still had an intact membrane (Hymen). The alternative is also true in some cases where women who are virgins have broken hymens. The virginity membrane (Hymen) of a woman after sexual intercourse can be damaged or torn in several places. This depends to the type of virginity membrane (Hymen) virginity, while many incorrectly believe that the absence of virginity (Hymen) means having an illegitimate sexual relationship. As mentioned above, in many existing cultures and traditional beliefs, the presence of virginity reflects the chastity and virtue of women. For this reason, after the wedding ceremony, the husband is asked to show bloody handkerchiefs to the family to make sure she is married to the virgin girl. In the absence of blood, women are sentenced to adultery and sent back to their father's house.

In these cultures, especially in the Afghan culture, since, virginity is considered to be an important and sensitive topic, it is referred to the Forensic Medical Centers for the examination of the Virgin Membrane to prove that a woman has had a sexual intercourse. Women are often referred to by law enforcement agencies to carry out such inspections on charges of prostitution, adultery, escape from the house, and sodomy (Anal sexual intercourse).

According to reports from the AIHRC, these tests were conducted in most cases by the presence of men, guards and often accompanied by threats, ridicule, and verbal humiliation. In Afghanistan, women are charged with moral crimes and sometimes are subject to multiple humiliating examinations. Firstly, in regard to being and not being sound in terms of Vaginal virginity, and if nothing is proven, it will once again be done in order to proof the relationship of sodomy. Also, a report published by the Afghanistan Forensic Science Organization (AFSO) entitled Scientific-Medical Evidence Surveys at Kabul's Primary Courts in 1396 shows that virginity tests are performed by observing and monitoring the virginity, and most often include a "two-finger examination.” The findings of this report indicate that the reports of the forensic medicine are being presented by the prosecutor when the author of the report is not present before the judge or the parties for the purpose of examining and approving the report of the judiciary.

In this case, the attorney and the judge cannot question the examiner about his findings or question the reliability of the content of the report. These tests take place when there is no explicit legal or procedural clarity on how to conduct these examinations. In addition, there is no legal standard for who should be referred to medical professionals for such a test and what criteria and under what conditions.

Reports and studies conducted by HRP, show that virginity examinations have no scientific or medical value. Because the virginity has no relationship with previous sexual intercourse and cannot determine whether the penetration into the virginity has taken place by a man’s penis or through or any other object. Virginity examinations also do not help in the diagnosis of sexually transmitted infections. A person with a sound virginity may have had or have not had intercourse or penetration, for this reason there may not be any trace of deprivation of virginity after sexual assault(rape). Because such examinations do not provide any information about the sexual background of a woman to determine whether a woman has been sexually assaulted or not. Therefore, virginity tests are not only meaningless in determining whether the women are a virgin or not, but also from a medical and scientific standpoint has not value. Value attributed to virginity is purely moral, social and cultural. Since these examinations are most of the time carried out forcefully and without the consent of women, they have serious physical, psychological, legal and social consequences.

According to research, virginity tests can damage the virginity and cause bleeding and infection in women. In addition, due to the invasiveness of these examinations, they have severe and negative effects such as depression, anxiety, self-disgust and self-worthless thinking on women, and they violate the independence of women in relation to their bodies. Virginity tests on their own will deprive some of the rights of women, such as marriage, education, and compensation for the illegal acts against them, which leads to the stigmatization of the dignity and honor of herself and as of family.

The virginity test, mandatorily and without the consent of women, is considered to be inhuman act, an invasion of privacy of women, and a form of torture that is prohibited in accordance with national laws and international conventions. The Constitution of Afghanistan, in the articles twenty-fourth and twenty-ninth, explicitly prohibits the violation of the privacy of individuals, discrimination, torture and violence. Also, the new Penal Code approved in 1395, explains, the prohibition of forced virginity testing, in Article 640, paragraph 2 as follows: "The execution of legal tests for virginity without the consent of the woman or the court order is prohibited, the perpetrator is sentenced to short term imprisonment, "The third paragraph of this article stipulates that forced test of virginity is considered as a crime:" Whenever the act set forth in article (2) of this article is committed using force, threat or intimidation, the perpetrator shall be sentenced to medium imprisonment " According to the provisions of this law, virginity testing is not strictly prohibited and women's consent is considered as the fundamental condition.

According to the Criminal Procedure Code of Afghanistan, approved in 2014, articles 44 and 49, one of the ways to prove offense, is the expert information that is scientifically established and effective in detecting crime and identifying the offender. The law has led policemen, prosecutors and judges to refer to experts for proving adultery, while there are many other ways to prove the crime of adultery that can justify judges in discovering truths and providing justice, which is one of the fundamental goals of the judiciary. Also, the third and fourth paragraphs of the Law on Forensic Medicine, adopted in 2008, state: "Specialized medical examinations are the necessary examinations and investigations that are carried out in criminal and civil cases by an expert in the field of legal medicine". Paragraph 6 of this article expresses this explicitly: "An expert in the field of forensic medicine justice is required to provide his professional opinion regarding any type of examination and the diagnosis of justice and medical practice." The use of the phrase "any type of examination" in this clause without any conditions constitutes a widespread abusive practice for the police and Prosecutors.

International treaties, such as the International Covenant on Civil and Political Rights, the Convention on the Prohibition of Torture and the Universal Declaration of Human Rights, condemn and prohibit the practice of forced and unconscionable virginity testing for women. Article 7 of the International Covenant on Civil and Political Rights states: "No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment. In particular, torture is defined in the first article of the Convention on the Prohibition of Torture, as follows: "Any intentional act that results in pain or severe physical or mental suffering for the purpose of obtaining information or confession him or a third person. “Similarly, the Universal Declaration of Human Rights in Article 12 recognizes the privacy of individuals and insists that this right be protected by law.

As a result, virginity testing is a discriminatory act that in all cases causes women's physical, mental and psychological suffering, contrary to the spirit of the constitution and international standards. When these inspections are carried out compulsively, it is a form of rape, sexual assault and a gross human rights violations. Still, virginity screening tests have no medical basis, and conducting such examinations to ensure women's virginity is a violation of medical and legal principles to do no harm and exercise internationally recognized medically sound practices. Therefore, it is necessary that all forms of virginity testing should become strictly forbidden and outlawed in Afghanistan, necessitating an amendment to Afghanistan’s procedural and substantive criminal laws. Further, awareness-raising and specialist programs for judges, prosecutors and police officers regarding the rules and procedures for using evidence, and expert opinions seem to be necessary, so that a criminal justice is achieved, and causes of the human rights violations of human is eradicate.

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