6.2.1. The nature, origin and practice of virginity testing
Chapter 2 traced the origin and nature of virginity testing, which was historically linked with ilobola (bride price) and honour to the girl’s family, predominantly in the KwaZulu- Natal province. The father used his daughter‘s virginity as a bargaining tool in matrimonial matters as part of the isiZulu culture.470F471 It was, however, abrogated because of industrialisation and only resuscitated as part of the cultural rites that were reinvented at the advent of democracy in South Africa, for Africans to re-identify with their oppressed traditions. Virginity testing was also re-energised to curb the social ill of HIV/AIDS. This is so, since the province was described as “the epicentre of the global epidemic of HIV/AIDS”.471F472 It is estimated that almost 1.7 million persons are
469 See Kandala & Komba fn 313.
470 See Odeku fn 313.
471 See Addison fn 1.
472 See Mokoboto-Zwane fn 89.
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living with HIV/AIDS in the province.472F473 Reportedly, 12% of teenagers and youth ranging from 15 to 24 years old, are infected.473F474
Virginity was found in this chapter to be an elusive concept, although concepts such as virginity, virgin, chastity and culture were critically discussed. This only confirms that virginity testing has no diagnostic, forensic, or legal value, which only subjected girls that are tested to a plethora of harmful consequences, which were frowned upon by the South Africa’s Commission for Gender Equality.
This illusive concept has been made part of the cultural heritage in the Zulu Kingdom, where there is an annual reed dance celebrated publicly and virgins are given certificates. Both King Goodwill Zwelithini and the former President Jacob Zuma have attended and addressed participants about the importance of virginity testing as the girl’s responsibility to protect the nation against HIV/AIDS. This, however, serves as a perpetuation of patriarchy, especially considering that a former frequent participant in the reed dance has given birth to a child allegedly fathered by the former President.
This shows the double standard and perpetuation of patriarchy and cannot be defended as a cultural practice, which aims at preserving young women’s virginity for marriage.
Virginity testing only serves to subordinate girls’ gender position, which ironically contributes to the increase of pregnancy and greater risk of HIV/AIDS.474F475 This is so, because virginity and honour is reinforced in girls, whereas courting girlfriends is key in being identified and recognised as a boy or a man.475F476 This reintroduces historical ideals of male power and privilege, wherein high value or even one’s family name is attributed to girls’ chastity and virginity.476F477 It is a sexual double standard in which male sexual activities are visible and somehow normal, whilst females’ activities are cultural scrutinised. This cultural scrutiny accepts male infidelity and expects female monogamy. This leads to a fatal example of a cultural supposition that sex with a virgin is a cure for HIV/AIDS.477F478 The irony of virginity testing as a cultural norm, is that girls
473 Ibid.
474 Ibid.
475 See Behrens fn 2.
476 See Leclerc-Madlala fn 102.
477 Ibid.
478 Ibid.
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and women are sexually promiscuous and spread HIV/AIDS whilst a girl virgin is seen as a saviour because of her virginal purity.
6.2.2. Human rights instruments and virginity testing
Chapter 3 identified and briefly outlined international and regional human rights instruments that deal with the practice of virginity testing. Rights in the Bill of Rights of the South African Constitution that deal with the cultural practice of virginity testing were also identified. In addition to South Africa being a signatory to a number of these international and regional instruments, it is also constitutionally obliged to consider international law when interpreting the rights that are contained in the Bill of rights.
The common thread in these instruments, is the fact that virginity testing has been singled out as part of the harmful cultural practices against girls and young women which have to be prohibited. The human rights and international law framework is traced as far back as 1950, when the United Nations believed that such cultural practices were beyond its competency. This stance has however changed over time, with the involvement of NGOs and minority groups who are adamant that these harmful practices must be eradicated.
The Committee on the Convention on the Elimination of all forms of Discrimination against Women (CEDAW), as well as the International Bill of Women’s Rights have clearly criticised the legalisation of virginity testing in terms of section 12 of the Children’s Act. Its strongest recommendation is that virginity testing should not be allowed at all because it is a practice that differentiates girls based on sex and cannot be justified as culture. It is found to be an affront of several rights contained in both international and national law. It is, additionally, not in the best interest of children, as their consent is not really considered. Although it can be described as culture, which is a Constitutionally entrenched right in terms of sections 30 and 31, it cannot be practiced, as it infringes on other fundamental rights in the Bill of Rights.
The so-called cultural right to virginity testing is not absolute and should be subject to the limitation of rights clause to decide if it can be a justifiable limitation of the rights to equality, dignity, and bodily integrity of these girls.
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6.2.3. Constitutional and human rights evaluation of the practice of virginity testing
Chapter 4 appreciated the fact that cultural practices were marginalised for a long time, this does not, however, open a flood gate for cultural practices to be practiced outside the Constitutional framework. Section 12 of the Children’s Act was therefore a compromise between the traditionalists and the abolitionists, which allows virginity testing to be practiced, subject to certain requirements. The requirements include an age limit of 16 years, consent of the child, all children (boys and girls), and the fact that results should not be publicised.
Section 12 has been found wanting when evaluated against international law and national law. It erodes the rights of girls and young women, which are protected by the Universal Declaration of Human Rights (UDHR), amongst other international laws. It can also be referred to as sexual assault within the international human rights context, as decided by an American Court of Human Rights. The requirements in the section are also flagrantly disregarded, when only girls and sometimes girls as young as 5 years of age are tested. The right to equality was shown to be unashamedly infringed upon, when virginity testing was used as a prerequisite for young women in the UThukela District Municipality in KwaZulu-Natal, to receive a tertiary bursary. Their right to bodily freedom and security of the person was eroded repeatedly when the continuation of the bursary was conditional on the young women being tested every University recess to ensure that they were still virgins. Virginity testing is unfair discrimination based on several rights in the equality clause and failed the limitation test dismally.
6.3. A comparative perspective of virginity testing in selected African