Virginity testing caught in the act

HUMAN rights lawyer Richard Spoor brings to the attention of the member (of the Upper Jukskei Flyfishing Collective) an announcement by the Harry Gwala regional African National Congress (ANC) Women’s League that virginity testing should be abolished. The member’s knee-jerk response is that it could not happen soon enough. What manner of profanity is virginity testing? What century is this? What wicked man thing is being perpetrated here?

But there it is, in the Children’s Act, squeezed inbetween the section prohibiting the circumcision of girl children and the conditional provision for circumcision of boy children. The act prohibits virginity testing of girls younger than 16, but permits the practice as prescribed for consenting girls older than 16. The provision is bad law. It favours cultural rights over individuals’ rights to “bodily and psychological integrity” as determined in the Bill of Rights, contradicting the letter and spirit of the constitution. Further, at 16 the age of sexual consent coincides with the age of consent for virginity testing, at which moment the cultural necessity legislators have cast in stone crumbles; its perpetrators are unlikely to defer to the clause unless the victim’s say-so does not quite constitute consent.

It is worrying that the league finds it necessary to pronounce on the matter. It means the practice is still being perpetrated and that it is causing offence, even though we must assume those who suffer it have given their informed consent.

It will not be the first time a cultural practice gives offence in SA, as readers who remember the peculiar existence of “cultural weapons” will attest. The noblest intentions of the constitution’s authors notwithstanding, the member thinks it is past time citizens stopped being so delicate about the unassailability of cultural and group rights.

It was never intended that any group, racial or otherwise, dominated other South Africans. (Never, never and never again, etc, said former president Nelson Mandela.) Yet that is precisely what happens when an offensive practice is tolerated. It is inevitable that the rights as envisaged in the Bill of Rights would often be in conflict and that we are required to deal with it in a reasonable way in the interest of the greater good.

But when our tolerance for cultural practices becomes debilitating it is no longer in the interest of the greater good.

When we tolerate offensive cultural practices the effect is to subordinate individual rights to the rights of one particular group in the name of the greater good. That is confused nonsense. The greater good is expressed by the aggregate of individuals, not by groups. It is offensive to celebrate our diversity by subordinating individuals. Individuals are the supreme sovereignty; it is appropriate to subordinate group rights to the rights of the individual.

The trouble is, even if the league’s heart is in the right place in calling for virginity testing to be abolished, the only way such an action can be taken is by specifically legislating against it, but that would infringe on constitutionally enshrined group rights. The same goes for abolishing the brutality of initiation schools for boys and for any cultural practice that offends people.

The fact is, such legislation would be redundant. Far better would be to amend the Children’s Act to remove any reference to virginity testing. The effect would be to delegitimise any group’s cultural claim to sovereignty over individuals. It would also make it a lot easier to charge any coven of craven crones with common assault and allow our children to drag themselves into modernity.

Blom is a freelance journalist. He likes to flyfish.