In many countries around the world – still more than 20 as of late 2018 – the state of a woman’s vagina is given more importance than her words. Virginity testing is, indeed, still common practice in these countries and affects two main categories of women: the survivor of rape wishing to get justice, and the to-be married. In the latter case, the test aims at assessing the ‘purity’ or ‘chastity’ of the women by verifying the presence of their hymen (e.g. in 2018, Moroccan civil society started an important movement against the virginity test imposed on to-be married women through a very explicit slogan : « my vulva belongs to me »). In the former case, the one discussed more in-depth below, the main practice imposed on rape survivors is the famous ‘two-finger test’.
It is a very straightforward test: the doctor inserts two fingers in the vagina of the survivor to assess its size and elasticity. Depending on the result, the doctor draws a conclusion on the sexual habits of the survivor. This conclusion is then used in trial in favor of, or (much most likely) against, the testimony of the survivor. If she is considered sexually active – oftentimes deemed an “immoral behavior” – she will lose credibility and the rape case will be discarded. Not only is this conclusion disturbingly wrong but it also reduces the crime of rape to an act of penetration of the vagina. Although in concordance with the legislations of the countries where the test is performed, this highly conservative interpretation of the crime is inconsistent with the reality of its commission.
In October 2018, a UN joint statement by the World Health Organization, the Office of the High Commissioner for Human Rights and UNWOMEN called for the ban of any kind of virginity testing, including the two-finger test. The UN agencies recalled that these tests lack medical utility and scientific veracity in establishing any sexual activity, and can have a deeply harmful impact on the survivor (for an in-depth analysis of the relevance of such test and its harmful consequences see here). This call, long awaited, is of great support to the human right defenders, NGOs and other entities fighting to eradicate the practice. It may also bolster State-level developments with the same aim.
The call mirrors the international standards on prosecuting sexual violence, according to which the sexual past, behavior or habits of a survivor cannot be taken into consideration by judges. See, for example, the Rules 70 and 71 of the Rules of Procedure and Evidence of the ICC according to which “Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of the sexual nature of the prior or subsequent conduct of a victim or witness”. Taking this into account, “a Chamber shall not admit evidence of the prior or subsequent sexual conduct of a victim or witness”.
Indeed, virginity testing also constitutes a violation of the survivor’s international human rights, which dictate a right to non-discrimination on the basis of sex, physical
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and sexual integrity, prohibition of cruel, inhuman or degrading treatments, right to privacy, equality before the Courts and Tribunals and equal protection of the law (see mainly articles 2,3, 7,17,14, 26 of the International Covenant on Civil and Political Rights).
Recent developments in a number of countries indicate a move in the right direction, as called for by the UN. One example is the welcome, albeit tardy, decision of the Supreme Court of Bangladesh rendered in April 2018 (5 years after a petition was filed by six national human rights organisations calling for the ban of the practice), confirming the lack of scientific and legal merit of the two-finger test. The Supreme Court ordered medical personnel not to administer the test, and ordered judicial personnel not to give the test ‘results’ any weight in the courtroom.
A few years prior, in 2014, the Indian Ministry of Health and Family Welfare issued progressive Guidelines on “Medico-legal care for survivors/victims of Sexual Violence”. The Guidelines explicitly state that “Per vaginum examination, commonly referred to by lay persons as ‘two-finger test’, must not be conducted for establishing an incident of sexual violence and no comment on the size of vaginal introitus, elasticity of the vagina or hymen or about past sexual experience or habituation to sexual intercourse should be made is it has no bearing on a case of sexual violence”. In it important to note that the Guidelines were adopted
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following the horrendous fatal gang-rape of a young women in a New Delhi bus, in December 2012. Under the pressure of the national and international community (See the headlines of Huffington Post, The New York Times, Human Rights Watch, Le monde, UN here and here), a Committee was created in order to look at the national criminal system regarding sexual assaults (laws, medical-legal examination, necessary reforms). In 2013, a 600pages long report was submitted and then used as the roots of the Guidelines. The Verma Committee strongly and explicitly condemned the two-finger test. However, as determined by Human Rights Watch, the Guidelines are – since then – regrettably only implemented in 9 of the 29 states of India, and the practice is still very prominent.
Legislative changes can nevertheless be a useful first step in the eradication of the harmful practice. More countries need to develop guidelines to prohibit the use of the two-finger test, as well as any virginity testing. Then the policies must be followed up with sound implementation and enforcement.
Other measures can, and should, be taken by countries to heed the call of the UN to fully eradicate the practice, protect survivors of further harm, and render courtrooms more just. Two fingers cannot tell the truth.
[I would like to sincerely thank Alix Villemain for her helpful input. — Dorine Llanta]
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INTLAWGRRLSDorine Llanta is a Legal Researcher at Women’s Initiative for Gender Justice, working specifically on the ‘Call It What It Is Campaign’ launched in December 2018. She is also a PhD Candidate at the University of Perpignan (France). Her research focuses on the repression and accountability of sexual violence in international and national settings. Prior to her current role, Dorine worked with the Centre for International Justice of Amnesty International, based in The Hague, and focuses on ICC-related legal analysis. She participated in the organisation of Amnesty International’s side-event at the 17th Assembly of States Parties to the Rome Statute on the accountability for crimes committed in Nigeria. She also worked as a legal advisor to Asylum Access Ecuador, an NGO providing legal assistance to asylum-seekers in Ecuador, South America. Through these experiences she gained substantive expertise on the prevention and accountability for sexual and gender-based violence.
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