Forced Virginity-Testing is Unlawful and Offensive, and Will Not Prevent HIV-AIDS. 2/2/2016

Published by DAILYMAVERICK

The print media and social media have been abuzz with
the decision by the uThukela District Municipality in Kwazulu Natal to
put in place a bursary scheme for girls provided they remain virgins. I
did not respond immediately as I felt that it was important to discuss
the issue with a range of stakeholders. This article reflects on the
events in uThukela District in the light of broader issues that impact
negatively on the rights of women and girls.

 

Over
the last week, public debates have centred on the possible
contradictions between the constitutional rights with respect to
cultural rights, and the rights that aim to protect women and girls from
discrimination and violence. The discussion itself provides a lens on
the complexities of South African society. Traversing these complexities
with a view to strengthening the rights of women and girls requires
dialogue and engagement amongst different stakeholders. That being said,
I would like to focus on the implications of the so-called “maidens
bursary” on the broader struggle to improve the lives of women and girls
in South Africa.

As
indicated by those who have generally spoken out in favour of the
“maidens bursary”, the South African Constitution does provide for the
protection of cultural rights. The protection of cultural rights was
included in the constitution, given the systemic attack on indigenous
African ways of living by colonialism and apartheid laws. Constitutional
protection for cultural rights does not, however, provide a license for
the continuation of practices of any kind that may seek to continue
discrimination and violence against women and girls. In fact, the Bill
of Rights was designed to undo a legacy of discriminatory practices
including those bequeathed to us through colonial laws. It is important
to remember that the apartheid era legal attacks on women’s bodies and
the LGBTI communities were not derived from African law or custom, but
came directly from the norms and laws of European countries, whose legal
frameworks we inherited. The constitutional framework we have developed
therefore outlaws all discriminatory practices irrespective of its
origin.

It is
for this reason, therefore, that the South African Constitution, with
respect to cultural rights, includes a qualification that stipulates
that no person or institution exercising cultural rights may do so in a
manner that is inconsistent with any provision in the Bill of Rights. It
is within this context that South African society must engage in a
proper and detailed discussion on how we can ensure that cultural rights
are respected and practiced in ways that are in line with the
constitution and related laws. This will includes looking at all
practices that are harmful to women and girls. This implies looking
comprehensively at issues such as Ukuthwala, virginity testing, widow’s rituals, uk u ngena,
breast sweeping/ironing, and practices such as “cleansing” after male
circumcision, male circumcision itself, witch hunting and other
practices that may be discriminatory and harmful.

My
comments on the so-called “maidens bursary” scheme are, therefore,
situated within a discussion on harmful practices against women and
girls that is not uniquely South African or African, but are features of
patriarchal practices across the globe.

Throughout
the world the practice of virginity testing continues unabated despite
laws and policies that makes the practice illegal. This includes
thousands of girls subjected to enforced virginity testing throughout
southern Africa, including South Africa. The arguments offered by those
who seek to defend the practice of virginity testing is that it is a
strategy to reduce HIV and AIDS and teenage pregnancy. These arguments
are, at best, misguided and inadvertently provide a convenient screen
for a patently harmful practice steeped in patriarchal practices that
serve to oppress women.

Virginity
testing is not an African issue, it is a component of harmful practices
aimed at subjugating the bodily integrity of women. It complements
other harmful practices such as female genital mutilation which is
essentially a practice guided by the ideology that sex for women should
not be about pleasure, but about procreation. In most cases virginity
testing is ineffective, unhygienic, and a gross violation of a girl’s
human rights. Moreover, it is not even a reliable measure of virginity.
Women’s hymens can break due to factors other than sex such as riding a
bicycle or inserting a tampon. In the South African context where many
first sexual encounters are unwanted, hymens are ruptured due to their
being sexually assaulted. Despite this there is a huge stigma attached
to girls who “fail” the virginity testing.

This
results in girls putting their health in danger through engaging in
practices known as “virginity saving”. This includes inserting objects
such as meat and even pieces of nets to try and give the illusion of an
intact hymen where tested. Middle class women and girls in places like
Egypt have the opportunity to go for rather expensive hymen
reconstructive surgery such is the stigma associated with not being a
female virgin in patriarchal countries. The poor in South Africa do not
have this as an option. This, according to doctors, may have given rise
to unprotected anal sex, which in turn increases the risk of contracting
HIV and AIDS.

These
factors contradict the oft-stated intent of many who seek to defend this
harmful practice as part of a means to reduce HIV and AIDS and to
prevent teenage pregnancy. Virginity testing has not been challenged in
places like Swaziland and the HIV and AIDS rates there are amongst the
highest in the world. The prevention of HIV is best done through proven
measures such as comprehensive sexuality education, access to dual
barrier forms of contraception such as the female and male condoms, and
strategies to reduce forced sexual encounters. In sum, the best way to
combat HIV and AIDS is to empower women and girls, and not through
practices that are, in fact, tantamount to being a sexual offense.

The
Sexual Offences Act rightfully criminalises all forms of forced sexual
penetration. This includes digital penetration, such as a finger. The
abusive nature of virginity testing is the reason why the Children’s Act
has made it illegal for Children under the age of 18 to be subjected to
virginity testing and female genital mutilation. Aside from the
Children’s Act and the Sexual Offenses Act that criminalises virginity
tests for children under the age of 18, the South African Constitution
has a few other measures that make the practice illegal. Section (12)
(a) and 12(b) of the South African constitution provides that everyone
has the right to bodily and psychological integrity, which includes the
rights to make decisions concerning reproduction and to security and
control over their body. Furthermore, the Constitution enshrines the
right to dignity, and provides that no person would be subjected to
torture or to cruel, inhuman or degrading treatment or punishment. These
measures override what some people are claiming as a cultural right
under sections 30 and 31 of the Constitution.

In
addition to the South African Constitution and related laws, there are
international instruments that South Africa is party to that also
encourages countries to prohibit harmful practices impacting on lives of
women and girls. This includes the Programme of Action of the
International Conference on Population and Development (ICPD), the
African Charter on Human and Peoples Rights and the Universal
Declaration on Human Rights. South Africa has been a key proponent on
the eradication of all harmful practices to women and girls. This
includes female genital mutilation, early and forced marriage. We cannot
in good conscience now want to provide some space for virginity testing
specifically targeting girls and linked to educational opportunities.

I have
used the term forced virginity testing, as there is provision for women
over the 18 to have the tests done with their consent. This is a grey
area that requires debate and discussion. Is it consent or coercion when
women and girls can only access bursaries based on them doing virginity
tests and passing those tests. It is not inconceivable that a number of
these women and girls may in fact be engaging in the risky “virginity
saving” practices discussed above. I wonder if the practice done in this
regard by the uThukela District Municipality is legal given the legal
provisions cited above. The Equality Act may even be contravened, as it
appears as if the virginity testing is required only of women and girls.
This is not a justified form of discrimination and can be challenged in
court. In a bizarre twist, the “maidens bursary” may, also, distort the
manner in which virginity testing is practiced in other contexts
through providing an incentive for parents and bursary seekers to bribe
those tasked with the act of virginity testing.


Legalities aside, if we are committed to dismantling patriarchy in all
its forms, and the discrimination and violence that accompanies it we
must be committed to stopping all harmful practices against women and
girls. Of course legislation is not enough to do this and we must have
discussions with all the relevant stakeholders concerned to change
society. However, while we are having these discussions, which should
also look at harmful practices aimed at men, such as non-sterile
circumcision ceremonies, we must strive to implement the existing
legislation to the letter. Girls under the age of 18 cannot be subjected
to virginity testing. It is against the law. Girls over the age 18
must, under the current law must give informed consent. This does not
include coercion through making access to resources to study a condition
for that support. That is discrimination and not consent.