Article 640 of the Penal Code 2017 prohibited virginity testing in a limited set of circumstances. By narrowing the circumstances of the prohibition, it has, in turn, legalised virginity testing.
The article is problematic in several respects:
· It does not cover other forms of inhumane and degrading gynaecological examinations like forceful spermatozoa swabs and rectal examinations.
· It only prohibits forensic medicine officials whereas a wide variety of informal and formal health practitioners perform these examinations.
· It is classified after the provision of rape and is a subsection of a provision on sexual assault (not amounting to penetration). As such, it has been read by courts only to refer to victims of rape and sexual assault and not other women such as women in custody and women defendants.
· It refers to the victim’s consent whereas there are no proper procedures for obtaining informed consent in Afghanistan. Moreover, it ignores the fact that a victim enters the system at her most vulnerable and is never autonomous in her decision-making.
· It does not address the reality that courts often drawn adverse inferences on the victim’s credibility if victim’s consent is not given.
· It allows the court to bypass victim’s consent by order of court, rendering the consent exception redundant, and causing the legal position on virginity testing to fall back to its original position before Article 640 was enacted.
Forced gynaecological examinations and rectal examinations continue to be widely practised in forensic medicine commission, health clinics and hospitals on women in custody, women defendants and rape victims alike. They are also performed on minors and on rare occasions, they are performed by male doctors.
Though the Ministry of Public Health has issued a Gender-Based Violence Treatment Protocol 2014, most health practitioners are not aware the protocol exists and the conduct of the examinations are carried out in an inhumane and degrading manner.
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