Afghanistan did not ban virginity testing; it regulated it.

Afghanistan did not ban virginity testing; it regulated it.

This February, the Afghanistan government enacted a new Penal Code, a first since 1967. The international community praised the government for living up to their promise to ban virginity testing. But, instead, a closer reading will show otherwise.

Article 640 of the new Penal Code “criminalises” virginity examination, a first in Afghanistan’s legal history. But the new law permits a virginity examination if conducted with the consent of the victim, or, following a court order. So, what has Article 640 actually changed?.

Courts in Afghanistan are allowed to order women to be examined, with or without her consent. This new law is both confusing and terrifying because it has empowered the courts — the very institution it ought to prohibit — the power to order women to be examined.

Humaira Rasouli, Executive Director, Medica Afghanistan opening the Conference for Justice for Victims of Forced Gynecological Examinations, Kabul, Afghanistan (March 2018)

One in fact wonders, what the purpose of consent is, if courts can readily overrule it?

Although compassionate judges may check that consent was informed and voluntary, there are virtually no consent procedures in Afghanistan. Few women have access to adequate legal counsel. Corruption is at an all-time high. There’s pressure on all sides to consent especially under circumstances of arrest and detention..

Before Article 640 was enacted, virginity examination was an unregulated cultural practice. So in the absence of legal exceptions like “consent” or “court order”, we would have been able to argue that virginity examination was a crime of torture. Indeed, the government acknowledged this before the UN Committee Against Torture in 2017.

Now with Article 640, women will continue to be tortured for evidence — and we would spend our days in court stuck arguing “consent” and “court order”. In most cases, we are only appointed at a later stage. So by the time we contest, the damage will already have been done. What we really needed was an unequivocal prohibition to end this once and for all.

We missed the mark. The objective of a Penal Code was to punish crimes against women and not permit easy exceptions. The law should have and indeed could have inherently recognized and corrected this. And so for as long Article 640 remains, the government runs the risk of being complicit in torture.

By: Natasha Latiff, Humaira Rasouli
Special thanks to their contributions: Alana Chloe Esposito & Shannon Raj Singh

Natasha Latiff is Founder /Legal Counsel of @SAHR and Women For Justice Organisation. Advise lawyers in Afghanistan, Asia/MENA on human rights issues.

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