Sexual health human rights and the law

46 | Sexual health, human rights and the law
Female virginity testing. In some parts of the world,
female virginity is considered a precondition for
marriage, and some marriage traditions include
practices to confirm that the bride is a virgin. This is
often done through the tradition of showing to the
bride and groom’s families the blood-stained sheets
after the wedding night (520). Virginity testing covers
a variety of practices to test whether a girl or woman
has had sexual intercourse, based on the belief that
female virginity can be reliably and unambiguously
verified. These tests can be highly intrusive, and not
only are they degrading, humiliating and painful
for the woman involved but also detrimental to her
reproductive and sexual health. For example, the
emphasis on virginity may divert attention from the
need for safer sex practices and information about
risks to sexual health; anal sex may replace vaginal
sex before marriage, because it seems “safe” from the
perspective of appearing to preserve virginity and
avoiding pregnancy, but it can be unsafe in terms
of sexual transmission of infections, including HIV.
Furthermore, female virginity testing is a violation of
the right to non-discrimination, the right to physical
and psychological integrity, the right to respect for
one’s private life, and the right not to be subjected
to cruel, inhuman and degrading treatment (56, 521,
522). Some national courts have upheld these human
rights standards. In Nepal, for example, the Supreme
Court recognized women’s right to have control over
their own bodies when it nullified the Virginity Test
Order of Kathmandu District Court in 1998 (523).
5.3 Conclusion
Sexual violence and sexuality-related violence
occur in all parts of the world. Some people may be
especially vulnerable to such violence, including
women, children, people in custodial situations,
people with disabilities, and/or people whose real
or perceived sexual orientation or gender identity
is deemed unacceptable. Violence in any form is
detrimental to mental and physical health and other
aspects of well-being.
Sexual and sexuality-related violence includes, but
is not limited to, sexual assault and rape, forced and
early marriage, trafficking into forced prostitution,
harmful traditional practices such as FGM, and
honour killings. Such violence takes place in intimate
personal environments, such as marriage and
domestic settings, and is also used as a weapon of
war in conflict settings. Often it is committed by
people in positions of authority and responsibility
for the safety and well-being of others, for example
in detention facilities. In health-care settings,
violence that has an impact on sexual health
includes forced sterilization and forced virginity
testing. Health-care providers may inflict violence
on their patients because of their real or perceived
sexual orientation or gender identity.
Different forms of sexual and sexuality-related
violence are violations of human rights. In
accordance with human rights standards, states
must adopt legislative, administrative, social,
economic and other measures necessary to prevent,
investigate and punish acts of violence including all
forms of sexual violence, whether perpetrated by the
state or by private persons, and they must provide
support and assistance to the victims of violence,
including access to health services. States should
also provide effective remedies, compensation and
mechanisms for seeking redress. This obligation
applies with respect to all persons, regardless of
their sex, gender, age, sexual orientation, gender
identity, marital or other status, and irrespective of
who it was that committed violence against them, in
whatever context. Laws can play an important role
in fostering the recognition of all forms of violence
as a human rights violation and a crime. They can
be crucial in setting guarantees and frameworks for
government actions to prevent, eliminate and deal
with the consequences of violence, and a number of
countries in different regions have developed laws in
line with these human rights standards.
5.4 Legal and policy implications
On the basis of the human rights standards described
in this chapter, and in order to safeguard sexual health
and well-being, the following questions should be
examined by those who are responsible for setting
enabling legal and policy frameworks.