South African’s National Liberation Movement

Close this search box.


Violating the rights of women and girls will not stop HIV and AIDS: The folly of forced virginity testing

By Bathabile Dlamini

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, the public debates have centered 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 is therefore situated within a discussion on harmful practices against women and girls that are 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 is a gross violation of a girl’s human rights. Morevoer, 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, girls’ 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 criminalizes 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 criminalizes 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 also provides that no person would be subjected to torture or to cruel, inhuman or degrading treatment or punishment. These measures over-ride 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 in fact 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.

More Articles

 Water Scarcity in SA
17 November 2022
South Africa’s GBV scourge is a tale of two tragedies 6 November 2022
Social compacts integral to SA’s development 09 October 2022
A prosperous SA depends on unified, focused ANC 02 September 2022
Recovery may be slow and imperceptible but it is under way 21 August 2022
Violating the rights of women and girls will not stop HIV and AIDS: The folly of forced virginity testing 
Nkandla needs sober minds
Sterile thinking inflicted Dr. Pityana
Mangaung – Leaders account to members
Lessons for the ANC from Polokwane Conference
Long road from KZN to Mangaung
United Nations and the African National Congress partners in the Struggle against Apartheid
The Women’s Liberation Struggle
Violence – It`s everyone`s issue
Happy Birthday Tata Madiba
Article based on a speech delivered at an informal meeting of the UN General Assembly on Nelson Mandela International Day
The touchy issue of sex work cannot be overlooked
The content of the Constitution must align with its intent
GANDHI and the formation of The African National Congress of South Africa
Why concerted campaign against the ANC in Limpopo and the ANCYL?
Nelson Mandela: The Symbol of Resistance
We will never be diverted
THE NDR, African Leadership and Non-Racialism
Mineral wealth beneath the soil and mines should be transfered to the ownership of the people as a whole
Youth Month and Beyond: The ANCYL remains a home for all young people
Our generation should fulfil its mission in defence of the ANC
The Youth stands to benefit more on the continuation of affirmative action and Black Economic Empowerment
Albert Luthuli and the African National Congress: A Bio-Bibliography Author(s): Dorothy C. Woodson
There are no ANC Camps, article by Jacob Zuma and Thabo Mbeki
The Democratic Alliance is suffering from willful amnesia
People`s Power – the 20th Anniversary of the UDF
The road to chaos can be stopped in Kwazulu Natal
The Defiance Campaign: After 50 years, the spirit of service and sacrifice lives on
Women and the African National Congress: 1912-1943
ANC was his family, the struggle was his life: A tribute to Govan Mbeki
Hambe Kahle, Govan Mbeki
Hamba kahle Oom Gov
Nelson Mandela Foundation responds to report in the Daily Telegraph
Article by Dr Zweli Mkhize on the HIV/AIDS debate
DP Bugging Allegation
Comments by Dr Delport on a speech by President Mbeki at the International Anti-Corruption Conference
A Note to our Revolutionary Comrades in Government
Never mind the elephants – what about farmworkers?
The Moral Renewal of the Nation
The Struggle for Democracy is not over
A two thirds majority: The New Swart Gevaar
Opposition parties must learn to tolerate criticism
Toward Robben Island: The Rivonia Trial
The ANC`s second submission to the TRC: Behind South Africa`s Low-Intensity War
Talking To Vula
Some Personal Recollections of the Free Nelson Mandela Campaign
Introduction to Issue of Forbes Magazine Devoted to the New South Africa
The Future of South Africa by Nelson Mandela
Article by Nelson Mandela in Foreign Affairs, Vol. 72, No.5
Democracy – The only solution
Mahatma Gandhi and John Dube
Rivonia: telling it as it was
Free Nelson Mandela – an account of the Campaign to Free Nelson Mandela and all other Political Prisoners in South Africa
Olof Palme and the liberation of Southern Africa by Oliver Tambo
Oliver Tambo
Where Freedom Is Treason: Article on the Thirtieth Anniversary of the Treason Trial
Campaign of Defiance against Unjust Laws – recalled
Day of solidarity with political prisoners in South Africa
The Wankie Campaign
Article by Oliver Tambo – In the observer
Introduction to Selected Writings on the Freedom Charter – 1955-1985
The Freedom Charter – Equal Rights and Freedoms
Govan Mbeki – Isithwalandwe
The Freedom Charter a beacon to the people of South Africa
Congress of the People – I was there
Article by Oliver Tambo in World Marxist Review
The Great Battle: The Story of African Resistance in 1879
Mandela and our Revolution
The African Miners` Strike Of 1946
Drawing up the Demands of the Freedom Charter
The Defiance Campaign Recalled
Apartheid – A threat to Africa`s survival – Article by Oliver Tambo
Paper prepared at the request of the Special Committee against Apartheid
Article by Timothy Bennett-Smyth on Transcontinental Connections: Alfred B Xuma and the ANC on the World Stage
“Passive resistance in South Africa” by Olive Tambo
This item by Oliver Tambo was published as the introduction to the book “No Easy Walk to Freedom” by Ruth First
“What I would do if I were Prime Minister” by Albert Luthuli
“The Lutuli story” An Autobiographical article
“If I were Prime Minister”: Article by Albert Luthuli
“What I think of Macmillan`s speech”: Article by Albert Luthuli
Article by W.M. Sisulu – “Congress and the Africanists”
Does The Freedom Charter mean Socialism?
Article in Liberation by W.M. Sisulu – “Boycott as a Political Weapon”
South Africa`s struggle for Democracy by W.M. Sisulu
Freedom in our Lifetime
In the Transkei, where famine rules, people fear the future by W.M. Sisulu
Article in Liberation by W.M. Sisulu: The extension of the pass laws
Spectre of Belsen and Buchenwald: Life under apartheid by Nelson Mandela
Article in Fighting Talk by W.M. Sisulu: Forward with the Freedom Charter
Extract from the third report of the United Nations Commission on the Racial Situation in the Union of South Africa
Call to A. N. C. Ranks by Albert Luthuli
Towards Democratic Unity by Nelson Mandela
How Congress began
The Story of Defiance
We defy – 10,000 volunteers protest against unjust laws
`We defy` – 10,000 volunteers protest against `unjust laws`
Pass Law Resisters, Native Case Stated – Report on interview with I Bud Mbelle, JW Dunjwa, and PJ Motsoakae of the ANNC
Native Union
The Regeneration of Africa