Virginity Test Violation against Article 21

Virginity testing is widely practised in several countries, both legally and illegally to determine the “purity” of a woman. It not only causes medical harm to the woman whose sexuality is under question but also violates her human rights, specifically her Right to Privacy guaranteed under Article 21 of the Constitution. This article provides a brief understanding of virginity testing and establishes whether it violates Article 21. It also provides a summary of the views adopted by international law in this regard.

“Respect the red colour of the sindoor rather than the red colour of supposed authenticity.”

Introduction

A virgin is interpreted as someone who has not engaged in sexual intercourse.[1] The concept of virginity has no scientific or medical roots. It is only a religious, social and cultural construct rooted in the stereotyped notion of the harmful female sexuality.[2]In many societies, even to this date, women are considered the property of fathers and husbands and their bodies, mere objects of male dominance valued based on its “purity.”[3] Such an attitude has created a framework for a feeling of entitlement among men to control the female sexual behaviour and in some cases even mandate obedience and warrant punishment. This has led to discriminatory practices and violence against women perpetuating harmful practices such as virginity testing, in violation of her basic human rights. 

Virginity Testing

A virginity test is a gynaecological examination based on the belief that it determines whether the woman being examined has had vaginal intercourse.  Practised in at least 20 countries, women and girls are forced to undergo this test by parents, potential partners as a criterion of eligibility for marriage or employers. Performed by doctors, community leaders and in some cases even police officers it determines a woman’s honour, virtue and social value.[4]

Procedure: The “two-finger” test is performed by inspecting the hymen by inserting two-fingers to test the laxity of the vaginal muscles, which determines if the woman or girl is “habituated to sexual intercourse.”[5] The presence of a hymen also serves as an indicator of a woman’s virginity.

Reasons:It is common practice in certain cultures that proof of woman’s virginity is provided before marriage. The certificate of virginity or the “proof of the blood,” caused by tearing of hymen, is considered a necessity to consummate the marriage.[6]In some regions, the test is performed to determine the “character” of a rape victim. In other countries, it is considered as an eligibility criterion for employment.

Reliability of the test: The appearance of the hymen varies according to an individual’s estrogen levels, age, pubertal status and the method of examination[7] and an intact hymen has no definite anatomical correlation. Further, a hymen regenerates rapidly and hence even a woman who has engaged in intercourse can have regrown it. In some cases, women are born without a hymen while others lose theirs at an early age due to strenuous physical activities like swimming. Lastly, it is extremely difficult to differentiate between abnormal hymen findings and naturally occurring anatomical variations.[8]

With regard to the two-finger test, the size and laxity of vaginal muscles vary widely and is dependent on innumerable causes, one of which is sexual intercourse. Thus, there is no scientific validity for any form of virginity tests and the results yielded from these tests are unreliable.

Harmful Consequences of Virginity Testing: Virginity testing is associated with several adverse physical and psychological impacts to the extent of damaging genitalia and irrecoverable mental trauma. Forced to meet the societal standards, some women insert unhygienic material such as toothpaste or meat to resemble a hymen. Documented harms of virginity testing include anxiety, worsened self-respect and body image, panic attacks, isolation from family and friends, dysfunctional sex life and in some cases even a fear of death.[9] In some extreme cases, it has resulted in attempted suicide and honour killing.

Does the Virginity Test violate Article 21?

Article 21[10] of the Constitution states that “no person shall be deprived of his life or personal liberty except according to the procedure established by law.” In Surajit Singh Thind v. Kanwaljit Kaur,[11] the Punjab and Haryana Court first addressed the question of whether performing the virginity test amounts to a violation of Article 21. In this case, the husband filed an application for conducting virginity test of wife to prove the consummation of the marriage. The Court held that the examination of a woman’s virginity is in violation of her right to privacy under Art.21. The Court also held that the virginity test cannot constitute the sole basis for proving consummation of the marriage.

In matters of rape, the Supreme Court in Lilu alias Rajesh and Anr. v. State of Haryana[12] held that the two-finger test to determine virginity is unconstitutional. The Court further held that the previous sexual experience of the victim is irrelevant in determining the quality of consent given by the victim. The Court held that the result of the virginity test is merely opinionative and hypothetical and hence does not form conclusive evidence in rape matters. In 2014, the Union Health Ministry framed guidelines for the medical examination of rape victims based on the Justice Verma Committee report. These guidelines expressly outlawed the two-finger test declaring it unscientific.

The judiciary in State of Gujarat v. RameshchandraRamabhai Panchal,[13] reaffirmed the unconstitutionality of the two-finger test. The Court stated that the two-finger test and its interpretation in matters of rape violate the right of rape survivors to physical and mental integrity and dignity and privacy. Thus, even if the result of this test is in the affirmative, it cannot ipso facto be considered a presumption of consent.

Virginity Test under International Law

In October 2018, the United Nations Organisation explicitly called for an international ban on virginity testing.[14]According to an interagency statement released by the UN,[15] A virginity test is in violation of the following human rights:

  • The right to be protected from discrimination based on sex: Virginity tests violate the right to be protected from discrimination on the basis of sex since the harmful consequences of the test are to be experienced exclusively by women and girls. The roots of this test itself are based in the patriarchal system of gender discrimination and violence against women.
  • The right to life: In certain countries like Afghanistan, women are murdered after undergoing virginity test under the guise of honour killing.[16]In some cases, women have even attempted suicide. Therefore, this test is in violation of the right to life.
  • The right to privacy and physical integrity: Virginity testing infringes an individual’s right to make an independent decision about an examination which can cause lasting physical, psychological and socio-economic impacts on her.[17] Further, the test is performed on survivors of rape who have already been deprived of their integrity and dignity, causing yet another violation of human rights.[18]
  • The right to be free from cruelty or torture, inhuman or degrading punishment or treatment: Virginity testing is a humiliating, degrading method of an examination conducted in a manner to intimidate and punish. The UN Special Rapporteurs on Violence against Women has stated that virginity testing is a form of sexual violence amounting to a gross form of ill-treatment and custodial violence.[19]
  • The right to the highest attainable standard of health: The test results hold no evidentiary or scientific merit and cause adverse health outcomes through an invasive examination of female genitalia.[20] Thus, it violates the right to the highest attainable standard of health.
  • The rights of the child: Often forcefully subjected to examination, children form a vulnerable group. The performance of virginity testing on children violates their international right to protection, participation and non-discrimination.[21]Thus, the Committee of the Rights of the Child and the Convention on Elimination of Discrimination Against Women have jointly endorsed provisions calling upon states to end the traditional practices harming girls, including virginity examinations.[22]

Conclusion

In Indonesia, an invasive virginity testing determines the eligibility for employment as a police officer.[23] In India,[24] Pakistan,[25] Bangladesh,[26] has recently banned the use of virginity test to determine the previous sexual activity of rape victims. In Turkey, women applying for government jobs, girls applying to nurse colleges, women arrested for political activism, or “immodest behaviour” are mandatorily subject to a virginity test.[27] In Afghanistan, the result of an indefinite virginity testing can sentence a girl to 15 years of prison.[28]It is time to rethink this social construct of virginity.

The nomenclature of the hymen as a seal is an indicator of the level of materialization of women done by this society. Virginity testing in rape victims is a sexual assault on traumatised women, an unscientific and demeaning procedure on already brutalized rape victims. It isunreliable and medically unnecessary. The government and international agencies must take the initiative to ban the evil of virginity testing. They should strive to enact policy frameworks and supportive legislations for the sustained elimination of virginity testing. Medical professionals should be made aware of the health and human rights violated while conducting the virginity test. Communities should organise awareness campaigns to delineate honour and purity from virginity.

Virginity testing is, as declared by the UN, a “painful, humiliating and traumatic practise constituting violence against women.[29]It is a violation of a woman’s right to privacy under Article 21. It is time that the world realised that Virginity is not a badge of honour and a hymen does not determine her sexual habits.


[1]https://archive.org/details/harperslatindict00lewi

[2]https://apps.who.int/iris/bitstream/handle/10665/275451/WHO-RHR-18.15-eng.pdf?ua=1

[3]https://apps.who.int/iris/bitstream/handle/10665/275451/WHO-RHR-18.15-eng.pdf?ua=1

[4]https://www.who.int/news-room/detail/17-10-2018-united-nations-agencies-call-for-ban-on-virginity-testing

[5]https://www.nytimes.com/2010/09/14/health/14glob.html?scp=1&sq=rape%20test&st=cse

[6]https://books.google.co.in/books?id=Pj4CAAAAYAAJ&pg=PA211&dq=the+nuptial+sheets+blood+virginity&redir_esc=y&hl=en#v=onepage&q=the%20nuptial%20sheets%20blood%20virginity&f=false

[7]https://www.hrw.org/legacy/reports/2001/safrica/

[8]http://hesp-news.org/2018/02/25/myths-surrounding-virginity-a-guide-for-service-providers/

[9]https://apps.who.int/iris/bitstream/handle/10665/275451/WHO-RHR-18.15-eng.pdf?ua=1

[10] Constitution of India, art 21.

[11] Surjit Singh Thind v. Kanwaljit Kaur, AIR 2003 P H 353

[12]Lilu @ Rajesh v. State of Haryana, (2013) 14 SCC 643.

[13] State of Gujarat v. RameshchandraRamabhai Panchal, 2020 SCC Online Guj 114.

[14]https://www.who.int/news-room/detail/17-10-2018-united-nations-agencies-call-for-ban-on-virginity-testing

[15]https://apps.who.int/iris/bitstream/handle/10665/275451/WHO-RHR-18.15-eng.pdf?ua=1

[16]https://www.usip.org/publications/2018/07/new-afghan-law-preserves-virginity-tests-women

[17]https://www.un.org/en/universal-declaration-human-rights/

[18]https://www.ohchr.org/Documents/ProfessionalInterest/BangkokRules.pdf

[19]https://www.ohchr.org/Documents/ProfessionalInterest/BangkokRules.pdf

[20]https://www.refworld.org/pdfid/4538838d0.pdf

[21]https://www.ohchr.org/Documents/ProfessionalInterest/crc.pdf

[22]https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch.aspx?SymbolNo=CEDAW/C/GC/31/CRC/C/GC/18

[23]https://www.hrw.org/news/2014/11/17/indonesia-virginity-tests-female-police

[24]http://womenpla.net/two-finger-rape-test-now-banned-in-india/

[25]https://www.dawn.com/news/1377364/its-time-pakistan-banned-the-two-finger-test-for-decoding-consent-in-rape-trials

[26]https://www.dhakatribune.com/bangladesh/court/2018/04/12/high-court-bans-two-finger-tests-rape

[27]https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1457&context=hrbrief

[28]https://thewire.in/health/afghanistan-women-virginity-tests

[29]https://www.who.int/news-room/detail/17-10-2018-united-nations-agencies-call-for-ban-on-virginity-testing

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