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Those who practise in the field of sexual offences know that the condition of a hymen has very little bearing on proving whether or not sexual activity has taken place. Recently, however, increased attention is being paid to the issue of ‘virginity testing’, an examination to see if the hymen is intact, and to hymenoplasty, a surgical procedure to ‘reconstruct’ the hymen by restoring the layer of membrane at the entrance to the vagina (‘Treated worse than an animal’, Sky News 2/7/21, Ashish Joshi). The Sunday Times reports that at least 22 private clinics across the UK offer hymenoplasty (‘Restoring virgins’ is a big earner for British Surgeons, Shanti Das, 12/1/20). This highly invasive procedure usually lasts for an hour and can cost several thousands of pounds. An investigation conducted by the BBC has found that it is also being offered in British medical clinics for just £150 to £300, making it widely accessible (‘Virginity-repair’ surgery set to be banned, Poonam Taneja, BBC News, 15/7/21).
Both the World Health Organization and the United Nations consider ‘virginity testing’ a violation of human rights. Hymenoplasty also raises many issues: the permissibility of some forms of gendered surgery as opposed to others; the meaning of ‘cosmetic surgery’ and ‘harm’; and the role of criminal law in determining what we – and others – can do to our bodies. For example: where do we draw the line between the decision to have the (apparently increasingly popular) vaginal tightening procedure and so called ‘hymen repair’ surgery?
This article focuses on two connected questions. First, there is the question of true consent to a procedure, particularly when it comes to patients who are under the age of 16. Second, even where true consent may exist, there is the question of whether the law, criminal or otherwise, should allow anyone to perform or undergo hymen surgery if the procedure is not a medical necessity.
In practice, the procedures focus on women and girls, and operate within a misogynist culture of purity and chastity; campaigners stress the links with parental pressure and forced marriages (see: Girls forced to undergo ‘medieval’ virginity tests at UK clinics, Maya Oppenheim, The Independent, 12/1/21; (‘Virginity-repair’ surgery set to be banned, Poonam Taneja, BBC News, 15/7/21). Girls and young women may be compelled or coerced to participate by their parents, perhaps to please the family of a potential suitor who has sought a certification of virginity. Consent, then, can be a complex issue. Paragraph 17 of the General Medical Council’s Good Medical Practice (2019) requires medical professionals to be ‘satisfied that [they] have consent or other valid authority’ for any examination, investigation or treatment. Yet, even in the GMC’s Decision Making and Consent Guidance (2020), consent receives no strict definition, and the means by which it should be sought and confirmed no consistent approach.
In the context of girls, ie patients who are under 16, medical professionals must be especially vigilant. There is good reason to discuss the procedures in the absence of parents or other figures of authority, so as to gather information that goes beyond a simple ‘yes or no’ and to determine true consent. In the context of young women, the regulatory framework may still need to be more stringent. While some of the pressures that apply to those under 16 fade for older patients, misogynist influences, and the potential for external pressures do not simply vanish; medical professionals should remember that. There is much to be said for consulting with the patient one-on-one, even if the patient is an adult.
For medical professionals, para 49 of the GMC’s consent guidance provides some consideration of what a doctor might do if they disagree with a patient’s choice of a particular option:
If after discussion you still consider that the treatment or care would not serve the patient’s needs, then you should not provide it. But, you should explain your reasons to the patient and explore other options that might be available, including their right to seek a second opinion.
But this does not help in a situation where the doctor offers the procedure and so plainly approves of its use.
One way forward would be for professionals to be more nuanced, no matter the age of the patient. If a doctor becomes concerned that the motivating factor for a patient’s request for ‘virginity testing’ or hymen surgery is a desire to adhere to misogynist standards of ‘purity’ and ‘virginity’, then a careful examination of the patient’s reasons and their best interests may well warn against providing it. This, however, requires a more interventionist approach than medical professionals are used to, since the precise motivations for patients’ decisions are usually beyond the regulatory obligations about consent. Still, given the concerns of campaigners and the ease with which authoritative figures in a patient’s life can be coercive, there may be good reason for a regulatory framework that requires medical professionals to take more responsibility for the procedures that they provide, in some instances for significant financial gain.
Where there is no consent, the procedures violate both regulatory obligations and criminal law prohibitions (most obviously, falling outside the medical treatment exception to consent not being a defence to actual or grievous bodily harm: R v Brown [1994] 1 AC 212). Where there is consent, the picture becomes more complicated.
One approach would be not to pay attention to consent, at all. Richard Holden MP has proposed the introduction of a clause to the Health and Care Bill seeking to ban both virginity testing and hymenoplasty, which, if implemented, could leave doctors or midwives who perform either facing imprisonment. Mr Holden’s earlier Private Members’ Bill, the Virginity Testing (Prohibition) Bill is, at the time of writing, still under consideration in the House of Commons. Clause 1 begins as follows:
1. A person who—
(a) carries out a clinical procedure for the purpose, or purported purpose, of establishing if another person is a virgin,
(b) sells a product intended for the purpose, or purported purpose, of establishing if another person is a virgin, or
(c) advertises such a procedure or product, commits an offence.
2. It is a defence for a person charged with an offence under this section who is a registered medical professional to prove that they had good medical reason for their action.
The drafting is straightforward. Nevertheless, this provision does not necessarily address hymen surgery, certainly not with any clarity. To cover that, we might use the model of s 1(1) of the Female Genital Mutilation Act 2003 (FCMA 2003), which provides that a person is guilty of an offence if they excise, infibulate or otherwise mutilate ‘the whole or any part of a girl’s labia majora, labia minora or clitoris’. Section 1(2) excludes from committing an offence those who are approved to perform surgical operations, which are either (a) ‘necessary for [the girl’s] physical or mental health’ or carried out ‘on a girl who is in any stage of labour, or has just given birth, for purposes connected with labour or birth’. In assessing necessity, s 1(5) excludes anyone’s belief that the operation ‘is required as a matter of custom or ritual’.
Clarity is essential and should not be so difficult to achieve. An example to prohibit hymen surgery, drawing an analogy with s 1 of the FCMA 2003, could be as simple as follows:
1. A person is guilty of an offence if they excise, or stitch together, the edges of another person’s hymen.
2. No offence is committed under sub-section 1 where an accredited medical person performs the acts described in sub-section 1 as part of an approved surgical operation that is necessary for the patient’s physical or mental health.
A further sub-section could be drafted to provide a restriction similar to s 1(5) of the FCMA 2003, excluding considerations of ‘custom or ritual’. From the perspective of statutory drafting, then, the prohibition of hymen surgery should not pose any special difficulties.
That said, it seems naïve to ignore the potential biases in this prohibition. Misogyny exists in many forms, and across many cultures and societies; it helps little to rank them in order of the most to the least misogynist, or worst to least bad. It is important to recognise that prosecutions would be most common against people of certain racial and religious groups. This, at least, is what the campaigners are saying: Payzee Mahmood, for example, identifies the particular challenges within Iranian and Kurdish communities (Sky News). Freedom charity founder, Aneeta Prem, has highlighted that there has been ‘a rise in calls for help from girls and women from South Asian backgrounds’ (bbc.in/3yoArNZ).
On the one hand, the law must be careful in articulating its justification to impose such prohibition. Any piece of legislation that has a heightened impact on certain groups must be scrutinised carefully, particularly when those groups already suffer discrimination. On the other hand, this is an area in which the law must take the lead and choose between opposing sets of values. The idea that the law must sidestep cultural conflicts is, frankly, weak and unrealistic.
But is the criminal law the most appropriate route? Some fear criminalising the procedures would just drive prospective patients underground. Further, it must be acknowledged that the criminal law has not dealt well with such issues in the past. Two notable examples are the decisions of R v Brown [1994] 1 AC 212, in which the House of Lords partly relied on homophobic bias to decide that consent was not a defence to actual or grievous bodily harm, and, more recently, R v BM [2018] EWCA Crim 560, in which the Court of Appeal became distracted by the unusual types of body modification in question, rather than focusing on the key issue of medical regulation.
Or should the responsibility fall to the regulatory bodies whose duty it is to ensure that the individuals they oversee and quality-assure do, in fact, meet the high standards expected of them? Those bodies certainly may be better placed to design and prescribe a test – similar to the statutory framework monitoring FGM – that confirms both true consent and that the procedure is necessary for the mental or physical health of the patient. It would also fall to those bodies to devise an effective way of monitoring its proper application, perhaps by including a requirement that the patient be assessed by a second independent practitioner before any procedure is undertaken, and that all such procedures be reported and open to scrutiny. That approach might better allow sensitivity to circumstance, avoiding both a blanket prohibition, and the certain harm that a Brown – and FGMA 2003 – inspired approach might entail.
Evidently, these questions are difficult and criminal law has history of being a blunt instrument in areas raising such sensitive issues. Either way, the issues are broad, ranging from the meaning of ‘cosmetic’ to the role of medical professionals in making decisions about the motivating factors in patients’ choices. One lesson, however, does seem clear: going forward, there must be close engagement not only with medical practitioners, but also with patients, campaigners and affected groups.
Alex Benn is a barrister at Red Lion Chambers. Alex is also a senior lecturer in law at University College, Oxford, specialising in criminal and discrimination law, and the author of various articles, including for the Criminal Law Review and the Oxford Human Rights Hub Journal.
Those who practise in the field of sexual offences know that the condition of a hymen has very little bearing on proving whether or not sexual activity has taken place. Recently, however, increased attention is being paid to the issue of ‘virginity testing’, an examination to see if the hymen is intact, and to hymenoplasty, a surgical procedure to ‘reconstruct’ the hymen by restoring the layer of membrane at the entrance to the vagina (‘Treated worse than an animal’, Sky News 2/7/21, Ashish Joshi). The Sunday Times reports that at least 22 private clinics across the UK offer hymenoplasty (‘Restoring virgins’ is a big earner for British Surgeons, Shanti Das, 12/1/20). This highly invasive procedure usually lasts for an hour and can cost several thousands of pounds. An investigation conducted by the BBC has found that it is also being offered in British medical clinics for just £150 to £300, making it widely accessible (‘Virginity-repair’ surgery set to be banned, Poonam Taneja, BBC News, 15/7/21).
Both the World Health Organization and the United Nations consider ‘virginity testing’ a violation of human rights. Hymenoplasty also raises many issues: the permissibility of some forms of gendered surgery as opposed to others; the meaning of ‘cosmetic surgery’ and ‘harm’; and the role of criminal law in determining what we – and others – can do to our bodies. For example: where do we draw the line between the decision to have the (apparently increasingly popular) vaginal tightening procedure and so called ‘hymen repair’ surgery?
This article focuses on two connected questions. First, there is the question of true consent to a procedure, particularly when it comes to patients who are under the age of 16. Second, even where true consent may exist, there is the question of whether the law, criminal or otherwise, should allow anyone to perform or undergo hymen surgery if the procedure is not a medical necessity.
In practice, the procedures focus on women and girls, and operate within a misogynist culture of purity and chastity; campaigners stress the links with parental pressure and forced marriages (see: Girls forced to undergo ‘medieval’ virginity tests at UK clinics, Maya Oppenheim, The Independent, 12/1/21; (‘Virginity-repair’ surgery set to be banned, Poonam Taneja, BBC News, 15/7/21). Girls and young women may be compelled or coerced to participate by their parents, perhaps to please the family of a potential suitor who has sought a certification of virginity. Consent, then, can be a complex issue. Paragraph 17 of the General Medical Council’s Good Medical Practice (2019) requires medical professionals to be ‘satisfied that [they] have consent or other valid authority’ for any examination, investigation or treatment. Yet, even in the GMC’s Decision Making and Consent Guidance (2020), consent receives no strict definition, and the means by which it should be sought and confirmed no consistent approach.
In the context of girls, ie patients who are under 16, medical professionals must be especially vigilant. There is good reason to discuss the procedures in the absence of parents or other figures of authority, so as to gather information that goes beyond a simple ‘yes or no’ and to determine true consent. In the context of young women, the regulatory framework may still need to be more stringent. While some of the pressures that apply to those under 16 fade for older patients, misogynist influences, and the potential for external pressures do not simply vanish; medical professionals should remember that. There is much to be said for consulting with the patient one-on-one, even if the patient is an adult.
For medical professionals, para 49 of the GMC’s consent guidance provides some consideration of what a doctor might do if they disagree with a patient’s choice of a particular option:
If after discussion you still consider that the treatment or care would not serve the patient’s needs, then you should not provide it. But, you should explain your reasons to the patient and explore other options that might be available, including their right to seek a second opinion.
But this does not help in a situation where the doctor offers the procedure and so plainly approves of its use.
One way forward would be for professionals to be more nuanced, no matter the age of the patient. If a doctor becomes concerned that the motivating factor for a patient’s request for ‘virginity testing’ or hymen surgery is a desire to adhere to misogynist standards of ‘purity’ and ‘virginity’, then a careful examination of the patient’s reasons and their best interests may well warn against providing it. This, however, requires a more interventionist approach than medical professionals are used to, since the precise motivations for patients’ decisions are usually beyond the regulatory obligations about consent. Still, given the concerns of campaigners and the ease with which authoritative figures in a patient’s life can be coercive, there may be good reason for a regulatory framework that requires medical professionals to take more responsibility for the procedures that they provide, in some instances for significant financial gain.
Where there is no consent, the procedures violate both regulatory obligations and criminal law prohibitions (most obviously, falling outside the medical treatment exception to consent not being a defence to actual or grievous bodily harm: R v Brown [1994] 1 AC 212). Where there is consent, the picture becomes more complicated.
One approach would be not to pay attention to consent, at all. Richard Holden MP has proposed the introduction of a clause to the Health and Care Bill seeking to ban both virginity testing and hymenoplasty, which, if implemented, could leave doctors or midwives who perform either facing imprisonment. Mr Holden’s earlier Private Members’ Bill, the Virginity Testing (Prohibition) Bill is, at the time of writing, still under consideration in the House of Commons. Clause 1 begins as follows:
1. A person who—
(a) carries out a clinical procedure for the purpose, or purported purpose, of establishing if another person is a virgin,
(b) sells a product intended for the purpose, or purported purpose, of establishing if another person is a virgin, or
(c) advertises such a procedure or product, commits an offence.
2. It is a defence for a person charged with an offence under this section who is a registered medical professional to prove that they had good medical reason for their action.
The drafting is straightforward. Nevertheless, this provision does not necessarily address hymen surgery, certainly not with any clarity. To cover that, we might use the model of s 1(1) of the Female Genital Mutilation Act 2003 (FCMA 2003), which provides that a person is guilty of an offence if they excise, infibulate or otherwise mutilate ‘the whole or any part of a girl’s labia majora, labia minora or clitoris’. Section 1(2) excludes from committing an offence those who are approved to perform surgical operations, which are either (a) ‘necessary for [the girl’s] physical or mental health’ or carried out ‘on a girl who is in any stage of labour, or has just given birth, for purposes connected with labour or birth’. In assessing necessity, s 1(5) excludes anyone’s belief that the operation ‘is required as a matter of custom or ritual’.
Clarity is essential and should not be so difficult to achieve. An example to prohibit hymen surgery, drawing an analogy with s 1 of the FCMA 2003, could be as simple as follows:
1. A person is guilty of an offence if they excise, or stitch together, the edges of another person’s hymen.
2. No offence is committed under sub-section 1 where an accredited medical person performs the acts described in sub-section 1 as part of an approved surgical operation that is necessary for the patient’s physical or mental health.
A further sub-section could be drafted to provide a restriction similar to s 1(5) of the FCMA 2003, excluding considerations of ‘custom or ritual’. From the perspective of statutory drafting, then, the prohibition of hymen surgery should not pose any special difficulties.
That said, it seems naïve to ignore the potential biases in this prohibition. Misogyny exists in many forms, and across many cultures and societies; it helps little to rank them in order of the most to the least misogynist, or worst to least bad. It is important to recognise that prosecutions would be most common against people of certain racial and religious groups. This, at least, is what the campaigners are saying: Payzee Mahmood, for example, identifies the particular challenges within Iranian and Kurdish communities (Sky News). Freedom charity founder, Aneeta Prem, has highlighted that there has been ‘a rise in calls for help from girls and women from South Asian backgrounds’ (bbc.in/3yoArNZ).
On the one hand, the law must be careful in articulating its justification to impose such prohibition. Any piece of legislation that has a heightened impact on certain groups must be scrutinised carefully, particularly when those groups already suffer discrimination. On the other hand, this is an area in which the law must take the lead and choose between opposing sets of values. The idea that the law must sidestep cultural conflicts is, frankly, weak and unrealistic.
But is the criminal law the most appropriate route? Some fear criminalising the procedures would just drive prospective patients underground. Further, it must be acknowledged that the criminal law has not dealt well with such issues in the past. Two notable examples are the decisions of R v Brown [1994] 1 AC 212, in which the House of Lords partly relied on homophobic bias to decide that consent was not a defence to actual or grievous bodily harm, and, more recently, R v BM [2018] EWCA Crim 560, in which the Court of Appeal became distracted by the unusual types of body modification in question, rather than focusing on the key issue of medical regulation.
Or should the responsibility fall to the regulatory bodies whose duty it is to ensure that the individuals they oversee and quality-assure do, in fact, meet the high standards expected of them? Those bodies certainly may be better placed to design and prescribe a test – similar to the statutory framework monitoring FGM – that confirms both true consent and that the procedure is necessary for the mental or physical health of the patient. It would also fall to those bodies to devise an effective way of monitoring its proper application, perhaps by including a requirement that the patient be assessed by a second independent practitioner before any procedure is undertaken, and that all such procedures be reported and open to scrutiny. That approach might better allow sensitivity to circumstance, avoiding both a blanket prohibition, and the certain harm that a Brown – and FGMA 2003 – inspired approach might entail.
Evidently, these questions are difficult and criminal law has history of being a blunt instrument in areas raising such sensitive issues. Either way, the issues are broad, ranging from the meaning of ‘cosmetic’ to the role of medical professionals in making decisions about the motivating factors in patients’ choices. One lesson, however, does seem clear: going forward, there must be close engagement not only with medical practitioners, but also with patients, campaigners and affected groups.
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