Afghanistan Independent Human Rights Commission (AIHRC)
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Most of the women accused of the crimes, defined by the judicial and justice organs as moral crimes undergo medical tests. They are introduced to forensic medicine by the Police, Attorney Office or Courts determine whether the victim or accused person has had sexual relation with someone. Forensic medical tests aiming to prove sexual intercourse or deflowering of virginity are usually carried out without the consent of the victims. The test result of the forensic medicine is usually accepted as a reliable proof in the justice and judicial organs without any objection. The accused person or victim would be punished according to the proof given by forensic medicine. The consent of the accused person or victim undergoes such test is not taken into consideration. At the same time, the result of such tests without consideration for its scientific and technical accuracy is considered acceptable by the justice and judicial organs. As a result, the victims of such crimes would be repeatedly victimized for the second and third times, and their human rights are further violated.
In recent years, cases of running away from home have increased and it has become a critical issue in many parts of the country. Running away from home may have various reasons and causes, but based on the assessments, domestic violence against women is considered the main reason. Most of those who run away from home try to get rid of violence, including forced marriage, or try to marry the person of their choice. When the security organs arrest such a couple, the girl would be arrested and punished on a charge of committing adultery, and the boy would be punished for crimes of kidnapping and committing adultery. To verify sexual intercourse, the security organs introduce the girl to forensic medicine for virginity and anal test or the act of sodomy. In some cases security organs arrest and detain boys and girls who are sitting together and talking with each other on charge of moral crimes and having sexual relations. After the arrest, they send them to forensic centers or local hospitals to test and verify if they have had any sexual relations or have committed crimes of adultery or sodomy. It is claimed that sometime those women who are arrested on any charge, are forced to virginity examination before entering the detention centers, so that the detainee or other persons would not claim that the women has been raped or sexually exploited by security officials. It must be said that the accuracy of this issue has not yet been verified by the AIHRC. Therefore, the AIHRC monitored such cases and the AIHRC’s staff collected information from some women’s prisons and detention centers through conducting interviews. The present report assesses the situation of these people; and evaluates the approach of customary proceedings of such cases in the justice and judicial organs in the country.
This report has been prepared for two main purposes: first, to present a general picture on the legal bases of forced gynecological test; and second, to evaluate and discuss conducting of gynecological tests including verification of hymen condition by medical doctors. First, we discuss the legal bases of gynecological test and then evaluate scientific fundamentals for the 4 checking of the virginity condition. Finally, the findings obtained by the AIHRC about women who are detained allegedly for having outside of marriage, sexual relations, and undergone virginity test would be explained. It is worth mentioning that the present report does not mean only to criticize, but the aim is the modification of the traditional mechanisms and method of handling such cases in the courts and ultimately to strengthen public access to justice and forensic medical services in the country, so that the people would be able to benefit from their human rights in accordance with the existing laws in the country. The AIHRC knows very well the role and importance of forensic medicine in ensuring justice and the rule of law in the country, therefore the AIHRC try to make its all-out efforts to contribute to the enrichment and modification of this area.
