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Health And Care Act 2022

Contents

Part 5: Virginity Testing and Hymenoplasty Offences

Virginity testing offences: England and Wales

Section 136: Offence of virginity testing: England and Wales

  1. Section 136(1) makes it an offence under the law of England and Wales for a person to carry out virginity testing. The person must either be in England and Wales or, if the person is outside the United Kingdom, they must be a United Kingdom national or habitually resident in England and Wales. The victim of the testing does not need to be a United Kingdom national or resident.
  2. Section 136(2) defines virginity testing as the examination of female genitalia, with or without consent, for the purpose (or purported purpose) of determining virginity. As it is not in fact possible to determine whether a woman or girl has ever had sexual intercourse by examining their genitalia, the person carrying out the testing would either have the belief that they could make such a determination from the examination, or making such a determination would be the ostensible reason for carrying out the test. The purpose, or purported purpose, which the person carrying out the test has is the mens rea, or mental element, of the offence.
  3. There is no reliable way of establishing virginity, nor is there any clinical reason to know if a woman or girl is a virgin. As such, the purpose of a healthcare, safeguarding or forensic examination would never be to establish virginity or otherwise, and a defence to this effect has therefore not been included in the offence.
  4. "United Kingdom national" is defined in Section 136(4).
  5. Section 136(5) defines "female genitalia" as a vagina or vulva.

Section 137: Offence of offering to carry out virginity testing: England and Wales

  1. Section 137(1) makes it an offence:
    1. For a person in England and Wales to offer to carry out virginity testing in the UK, or to make an offer to carry out testing which has a sufficient jurisdictional connection, or
    2. A UK national or habitual resident of England and Wales to make an offer to carry out virginity testing anywhere.
  2. Offering is included as a separate offence, so that people who are offering the service can be prevented from going ahead with testing and potential victims can be protected. Section 137(2) states that virginity testing has "sufficient jurisdictional connection" for the purposes of subsection (1)(a) if it is carried out on (a) a UK national, or (b) someone who is habitually resident in the UK.
  3. Subsection (3) gives the same meaning to "United Kingdom National" as section 136(4) and virginity testing has the meaning given by section 136(2).

Section 138: Offence of aiding or abetting etc a person to carry out virginity testing: England and Wales

  1. Section 138(1) makes it an offence under the law of England and Wales for a person who is in England and Wales, or a person outside England and Wales but who is a United Kingdom national or habitually resident in England and Wales, to aid or abet, counsel or procure the commissioning of virginity testing which has a sufficient jurisdictional connection. Subsection (2) defines this as the person being tested being in the United Kingdom or being a UK national or habitual resident.
  2. This offence would cover the case where, for example, a father makes arrangements from within England and Wales for the testing of his (UK national or habitual resident) daughter to take place overseas. It would also cover the case where, for example, a woman makes arrangements from England for her niece (not a UK national or habitual resident) to be tested in Scotland, while she remains in England. It would also be an offence for a parent (a UK national or habitual resident of England and Wales) who travels overseas with their daughter to make arrangements for, or assist with, the testing of their daughter while there, provided she is also a UK national or habitual resident.
  3. This offence is primarily aimed at the case where the person carrying out the test is outside the UK and is not a UK national or habitual resident. If they were a UK national or habitual resident, they would be guilty of an offence under section 136, and a UK national or habitual resident of England and Wales who aids and abets, or encourages or assists, that offence would be liable under existing inchoate offences, including if they were outside the UK. But as it might be difficult to establish the nationality or habitual residence of the person carrying out the test, the offence does not depend on the tester being a foreign national. Subsection (3) makes it clear that the inclusion of these offences does not affect the existing rules on secondary liability in relation to the main offence of virginity testing.

Section 139: Virginity testing offences in England and Wales: penalties

  1. Section 139(1) deals with the mode of trial and maximum penalties for the new offences in England and Wales. They are triable either way and carry a maximum 5-year custodial sentence on indictment and an unlimited fine, or both.
  2. The maximum sentence reflects the long-term physical and psychological detrimental effects virginity testing can have on the victim.
  3. Section 139(2) refers to the length of imprisonment for a summary only conviction, which is currently 6 months in England and Wales. Paragraph 24(2) of Schedule 22 to the Sentencing Act 2020 1 increases the magistrate courts’ powers to impose imprisonment from 6 months to 12 months. This has yet to be commenced. Once it is commenced, a summary only conviction of a virginity test tried in a magistrate’s court will be able to carry the maximum prison sentence of 12 months.

Virginity testing offences: Scotland

Section 140: Offence of virginity testing: Scotland

  1. Section 140(1) makes it an offence under the law of Scotland for a person to carry out virginity testing. The section replicates the England and Wales offence in section 136 for Scotland, so that the person must either be in Scotland or, if the person is outside the United Kingdom, they must be a United Kingdom national or habitually resident in Scotland.

Section 141: Offence of offering to carry out virginity testing: Scotland

  1. Section 141(1) replicates section 137 for Scotland, so that it is an offence:
    1. For a person in Scotland to offer to carry out virginity testing in the UK, or to make an offer to carry out testing which has a sufficient jurisdictional connection (as defined in section 141(2)), or
    2. A national of the United Kingdom or habitual resident of Scotland to make an offer to carry out virginity testing anywhere.

Section 142: Offence of aiding or abetting etc a person to carry out virginity testing: Scotland

  1. Section 142(1) replicates for Scotland the England and Wales offence of aiding or abetting etc the carrying out of virginity testing, so that it will be an offence under the law of Scotland for a person who is in Scotland, or a person outside Scotland but who is a United Kingdom national or a habitual resident of Scotland, to aid, abet, counsel, procure or incite the carrying out of virginity testing that has a sufficient jurisdictional connection (as defined in section 142(2)).

Section 143: Virginity testing offences in Scotland: penalties and supplementary

  1. Section 143(1) deals with the mode of trial and maximum penalties for the new offences in Scotland (sections 140, 141 and 142). They carry a maximum summary custodial sentence of 12 months or a maximum 5-year custodial sentence on indictment or an unlimited fine or both. The maximum sentence reflects the long-term physical and psychological detrimental effects virginity testing can have on the victim.
  2. Section 143(2) provides that a person committing the virginity testing offence outside of Scotland may be prosecuted, tried and punished for the offence in (a) a sheriff court district where they are apprehended or in custody or (b) a sheriff court district where the Lord Advocate decides.

Virginity testing offences: Northern Ireland

Section 144: Offence of virginity testing: Northern Ireland

  1. Section 144(1) makes it an offence under the law of Northern Ireland for a person to carry out virginity testing. The section replicates the England and Wales offence in section 136 for Northern Ireland, so the person must either be in Northern Ireland or, if the person is outside the United Kingdom, they must be a United Kingdom national or habitually resident in Northern Ireland.

Section 145: Offence of offering to carry out virginity testing: Northern Ireland

  1. Section 145(1) replicates section 137 for Northern Ireland, so that it is an offence:
    1. For a person in Northern Ireland to offer to carry out virginity testing in the UK, or to make an offer to carry out testing which has a sufficient jurisdictional connection (as defined in section 145(2)), or
    2. A national of the United Kingdom or habitual resident of Northern Ireland to make an offer UK to carry out virginity testing anywhere.

Section 146: Offence of aiding or abetting etc a person to carry out virginity testing: Northern Ireland

  1. Section 146(1) replicates for Northern Ireland the England and Wales offence of aiding or abetting etc the carrying out of virginity testing, so that it will be an offence under the law of Northern Ireland for a person who is in Northern Ireland, or a person outside Northern Ireland but who is a United Kingdom national or a resident in Northern Ireland, to aid, abet, counsel or procure the carrying out of virginity testing that has sufficient jurisdictional connection (as defined in section 146(2)).

Section 147: Virginity testing offences in Northern Ireland: penalties

  1. This section deals with the mode of trial and maximum penalties for the new offences in Northern Ireland. They are triable either way and carry a maximum 5-year custodial sentence on indictment or an unlimited fine, or both.
  2. The maximum sentence reflects the long-term physical and psychological detrimental effects virginity testing can have on the victim.

Hymenoplasty Offences: England and Wales

Section 148: Offence of carrying out hymenoplasty: England and Wales

  1. Section 148(1) makes it an offence under the law of England and Wales for a person to carry out hymenoplasty. The person must either be in England and Wales or, if the person is outside the United Kingdom, they must be a United Kingdom national or habitually resident in England and Wales (subsection (3)). The victim of the hymenoplasty does not need to be a United Kingdom national or resident.
  2. Subsection (2) of section 148 defines hymenoplasty as the reconstruction of the hymen, with or without consent. The expert panel were clear that the benefits of an outright ban outweigh any argument that women and girls’ autonomy is undermined by no longer having access to the procedure.
  3. The expert panel confirmed that there is never a medical or clinical need to reconstruct the hymen. As such, a defence to this effect has not been included in the offence.
  4. "United Kingdom national" is defined in subsection (4).

Section 149: Offence of offering to carry out hymenoplasty: England and Wales.

  1. Section 149(1) makes it an offence:
    (a) for a person in England and Wales to offer to carry out hymenoplasty in the UK, or to make an offer to carry out hymenoplasty which has a "sufficient jurisdictional connection", or
    (b) for a UK national or habitual resident of England and Wales to make an offer to carry out hymenoplasty anywhere.
  2. Offering is included as a separate offence, so that people who are offering the service can be prevented from going ahead with the procedure and potential victims can be protected. It will also give effect to the expert panel’s recommendation that the advertising of hymenoplasty be banned, because a person who arranges for an advertisement to be published offering their hymenoplasty services would be making an offer. Subsection (2) states that hymenoplasty has "sufficient jurisdictional connection" for the purposes of subsection (1)(a) if it is carried out on a (a) UK national, or (b) someone who is habitually resident in the UK.
  3. Subsection (3) gives the same meaning to "United Kingdom National" as section 148(4) and hymenoplasty has the meaning given by section148(2).

Section 150: Offence of aiding or abetting etc a person to carry out hymenoplasty: England and Wales

  1. Section 150(1) makes it an offence under the law of England and Wales for a person who is in England and Wales, or a person outside England and Wales but who is a United Kingdom national or habitually resident in England and Wales, to aid or abet, counsel or procure the carrying out of hymenoplasty which has a sufficient jurisdictional connection. Subsection (2) defines this connection as the person undergoing the procedure either being in the United Kingdom or being a UK national or habitual resident.
  2. This offence would cover the case where, for example, a father makes arrangements from within England and Wales for his (UK national or habitual resident) daughter to have the procedure overseas. It would also cover the case where, for example, a woman makes arrangements from England for her niece (not a UK national or habitual resident) to have the procedure in Scotland, while she remains in England. It would also be an offence for a parent (a UK national or habitual resident of England and Wales) who travels overseas with their daughter, and who makes the arrangements for, or assists with, their daughter undergoing the procedure while there, provided she is also a UK national or habitual resident.
  3. This offence is primarily aimed at the case where the person carrying out procedure is outside the UK and is not a UK national or habitual resident. If they were a UK national or habitual resident, they would be guilty of an offence under section 148, and a UK national or habitual resident of England and Wales who aids and abets, or encourages or assists, that offence would be liable under existing inchoate offences, including if they were outside the UK. But as it might be difficult to establish the nationality or habitual residence of the person carrying out the hymenoplasty, the offence does not depend on the person carrying out the procedure being a foreign national. Subsection (3) makes it clear that the inclusion of these offences does not affect the existing rules on secondary liability in relation to the main offence of hymenoplasty.

Section 151: Hymenoplasty offences in England and Wales: Penalties

  1. Section 151(1) deals with the mode of trial and maximum penalties for the new offences in England and Wales. They are triable either way and carry a maximum 5 year custodial sentence on indictment or an unlimited fine, or both.
  2. The maximum sentence reflects the long-term physical and psychological detrimental effects hymenoplasty can have on the victim.
  3. Subsection (2) refers to the length of imprisonment for a summary only conviction, which is currently 6 months in England and Wales. Paragraph 24(2) of Schedule 22 to the Sentencing Act 2020 2 increases the magistrate courts’ powers to impose imprisonment from 6 months to 12 months. This has yet to be commenced. Once it is commenced, a summary only conviction of hymenoplasty tried in a magistrate’s court will be able to carry the maximum prison sentence of 12 months.

Hymenoplasty offences: Scotland

Section 152: Offence of carrying out hymenoplasty: Scotland

  1. Section 152(1) makes it an offence under the law of Scotland for a person to carry out hymenoplasty. The section replicates the England and Wales offence in section 148 for Scotland, so that the person must either be in Scotland or, if the person is outside the United Kingdom, they must be a United Kingdom national or habitually resident in Scotland.

Section 153: Offence of offering to carry out Offering hymenoplasty: Scotland

  1. Section 153(1) replicates section 149(1) for Scotland, so that it is an offence:

    2. (a) for a person in Scotland to offer to carry out hymenoplasty in the UK, or to make an offer to carry out the procedure which has a sufficient jurisdictional connection (as defined in section 153(2)), or

    (b) for a national of the United Kingdom or habitual resident of Scotland to make an offer to carry out hymenoplasty anywhere.

Section 154: Offence of aiding or abetting etc a person to carry out hymenoplasty: Scotland

  1. Section 154(1) replicates for Scotland the England and Wales offence of aiding or abetting etc. the carrying out of hymenoplasty (section 150), so that it will be an offence under the law of Scotland for a person who is in Scotland, or a person outside Scotland, but who is a United Kingdom national or a habitual resident of Scotland, to aid, abet, counsel, procure or incite the carrying out of hymenoplasty that has a sufficient jurisdictional connection (as defined in section 154(2)).

Section 155: Hymenoplasty offences in Scotland: penalties and supplementary penalties

  1. Section 155(1) details the mode of trial and maximum penalties for the new offences in Scotland. They carry a maximum summary custodial sentence of 12 months or a maximum 5 year custodial sentence on indictment or an unlimited fine or both. The maximum sentence reflects the long-term physical and psychological detrimental effects hymenoplasty can have on the victim.
  2. Subsection (2) provides that a person committing the hymenoplasty offence outside of Scotland may be prosecuted, tried and punished for the offence in a sheriff court district where they are (a) apprehended or in custody or (b) a sheriff court district where the Lord Advocate decides.

Hymenoplasty offences: Northern Ireland

Section 156: Offence of carrying out hymenoplasty: Northern Ireland

  1. Section 156(1) makes it an offence under the law of Northern Ireland for a person to carry out hymenoplasty. The section replicates the England and Wales offence in section 148 for Northern Ireland, so that the person must either be in Northern Ireland or, if the person is outside the United Kingdom, they must be a United Kingdom national or habitually resident in Northern Ireland.

Section 157: Offence of offering to carry out hymenoplasty: Northern Ireland

  1. Section 157(1) replicates section 149(1) for Northern Ireland, so that it is an offence:
    (a) for a person in Northern Ireland to offer to carry out hymenoplasty in the UK, or to make an offer to carry out the procedure which has a sufficient jurisdictional connection, or
    (b) for a national of the United Kingdom or habitual resident of Northern Ireland to make an offer to carry out hymenoplasty anywhere.

Section 158: Offence of aiding or abetting etc a person to carry out hymenoplasty: Northern Ireland

  1. Section 158(1) replicates for Northern Ireland the England and Wales offence of aiding or abetting etc. the carrying out of hymenoplasty (section 150), so that it will be an offence under the law of Northern Ireland for a person who is in Northern Ireland, or a person outside Northern Ireland, but who is a United Kingdom national or a habitual resident of Northern Ireland, to aid, abet, counsel or procure the carrying out of hymenoplasty that has a sufficient jurisdictional connection (as defined in section 158(2)).

Section 159: Hymenoplasty offences in Northern Ireland: Penalties

  1. Section 159 deals with the mode of trial and maximum penalties for the new offences in Northern Ireland. They are triable either way and carry a maximum 5 year custodial sentence on indictment or an unlimited fine, or both.
  2. The maximum sentence reflects the long-term physical and psychological detrimental effects hymenoplasty can have on the victim.

Consequential Amendments

Section 160: Consequential amendments relating to Part 5

  1. Section 160 introduces Schedule 16, which contains some consequential amendments to other legislation in connection with the creation of the new offences of carrying out, offering and aiding or abetting etc virginity testing and hymenoplasty.
Schedule 16: Virginity testing and hymenoplasty: consequential amendments
  1. The new offences for England and Wales are inserted into section 65A of the Police and Criminal Evidence Act 1984 and the offences for Northern Ireland are inserted into Article 53A of the Police and Criminal Evidence (Northern Ireland) Order 1989 by paragraphs 1 and 2 of this Schedule. Additional powers, such as in relation to taking and retaining samples such as fingerprints and DNA, are available for investigations into the offences listed in these provisions. A similar amendment is made in relation to Scotland, by adding the Scottish offences to section 19A of the Criminal Procedure (Scotland) Act 1995 (paragraph 5 of this Schedule). Paragraph 3 also inserts the new offences at paragraph 25A (England and Wales), 43A (Scotland) and 68 (Northern Ireland) of Schedule 7A to the Criminal Justice and Public Order Act 1994. This section lists the offences for which cross-border powers of arrest are available.
  2. The new offences for England and Wales are inserted into section 51C of the Crime and Disorder Act 1998 (paragraph 7 of the Schedule). This would enable virginity testing and hymenoplasty cases involving children to be taken over and proceeded with without delay by the Crown Court where the Director of Public Prosecutions gives a notice. An amendment concerning procedural matters for the new offences is made in relation to Scotland by adding the Scottish offences to section 271BZA of the Criminal Procedure (Scotland) Act 1995 (paragraph 6 of this Schedule). This would enable evidence to be given in advance by children in solemn cases.
    • An amendment is made in relation to Scotland by adding the Scottish offences to Schedule 1 to the Protection of Vulnerable Groups (Scotland) Act 2007 (paragraph 8 of this Schedule). This amendment relates to vetting and barring of individuals who work with children and vulnerable adults, and is temporary, pending the repeal of the relevant provisions by the Disclosure (Scotland) Act 2020.
  1. The new offences for England and Wales are also inserted into Schedule 4 to the Modern Slavery Act 2015 (paragraph 9 of the Schedule) meaning that a victim of trafficking or exploitation will not have the automatic defence in section 36B of the 2015 Act in relation to a virginity testing or hymenoplasty offence.

1 Sentencing Act 2020 (legislation.gov.uk)

2 Sentencing Act 2020 (legislation.gov.uk)

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