Virginity testing law: pre-empting legal loopholes

A new piece of legislation proposed by the government will make it a criminal offence for anyone caught testing to confirm if a girl or woman is a virgin, and, if found guilty, they can be sentenced up to five years in prison.

There is very little information and research on whether virginity tests have been carried out in Malta, and, so far, there is also no mention of virginity testing in Maltese law. Since October 2018, the UN Human Rights, UN Women and World Health Organisation have all called for a ban on virginity testing, as it is a painful, humiliating and traumatic practice that constitutes violence against women.

Virginity testing, a gynaecological examination conducted under the belief that it determines whether a woman or girl has had vaginal intercourse, must end. The term “virginity” is not a medical or scientific term. Rather, the concept of “virginity” is a social, cultural and religious construct that reflects gender discrimination against women and girls.

Many countries, mostly those with heavy gender discrimination against females, such as Bangladesh, India and Egypt, have introduced similar legislation before us, and it would not go amiss if we were to learn from their practices and experiences. In the UK, for example, the government had made it illegal to carry out, offer or aid and abet virginity testing or hymenoplasty in any part of the UK, as part of the Health and Care Act 2022. It is also illegal for UK nationals and residents to do these things outside the UK.

Virginity testing and hymenoplasty are ‘honour-based’ abuse. Women and girls are coerced, forced and shamed into undergoing these procedures, often pressurised by family members or their intended husbands’ families, in the name of supposedly upholding the honour and fulfilling the requirement that a woman remains ‘pure’ before marriage.

As with other forms of so-called ‘honour-based’ abuse, these practices often take place behind closed doors in highly conservative communities and cultures. Because of this, the number of women and girls who are subjected to these practices is not known. Although prevalence is unclear, there is evidence of women and girls being under intense pressure to undergo virginity testing and hymenoplasty, more so now that we are seeing growing Muslim and other conservative religious local communities around our country.

Victims may also take years to come forward. As such, the physical signs of abuse may not be present at the time of disclosure, but psychological damage is likely to remain. This should be taken into account when interacting with victims of these practices.

Unlike our abortion law, where there is no extra-territorial jurisdiction, the UK law extends the criminality of virginity testing beyond its national borders. The reason behind such an exceptional measure is that there is a risk that women and girls may be taken abroad and subjected to virginity testing and hymenoplasty (as is often seen with so-called ‘honour-based’ abuse offences, such as female genital mutilation or forced marriage). This means that UK nationals and residents who carry out a virginity test or hymenoplasty outside the UK also commit an offence in the UK.

We have to be careful about ensuring that this ban on virginity tests does not end up being a false victory. One common way to circumvent such new legislation would be surgery disguised as “hymenoplasty”, unless, that is, the law clearly and specifically bans such types of surgery.

The government must make it a point to include hymenoplasty surgery in the new measures and recognise that the two issues are inextricable from each other. If we do not ban them, we risk creating a loophole where victims are still subjected to abuse connected to being virgins and are consumed by the fear of needing to be virgins.

Hymen surgery could easily be accessed across the globe via clinics advertised on the internet, with people able to book procedures with just a few days' notice. The government must properly understand the issue.

The government’s pledge to outlaw virginity testing will be undermined unless fake surgery touted as “virginity repair” is also banned. While the law will ostensibly criminalise the invasive and unscientific “tests” offered by some private clinics to determine whether someone is a virgin through an examination to see if the hymen is intact, there do not seem to be any plans to ban a procedure some doctors claim can “restore virginity” by constructing a layer of skin at the entrance to the vagina to create the illusion of an unbroken hymen.

Efforts to ban virginity testing will be compromised if procedures that “repair or reconstruct” the hymen are not also made illegal. Neither has any medical benefit, and both are harmful practices that create and exacerbate social, cultural and political beliefs that attach a false value to women and girls in relation to their sexual histories.

Admittedly, a law that bans virginity testing strengthens the physician’s refusal. However, such a law ignores the broader goal of enabling children to navigate the path to making responsible decisions about sexuality. That goal is not achieved by a law banning virginity testing, but by communicating the strong interdisciplinary professional consensus on the importance of open and honest communication between parents and children about sex, parental respect for the emerging agency of adolescents, and the rights of adolescents to medical confidentiality and privacy.