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Virginity Tests in South Africa and Judicial Bypass in the U.S.: Ritually Scrutinizing the Virtue of Girls


Wednesday, Jan. 11, 2006

The New York Times recently reported that the South African Parliament is poised to pass a law that would ban the Zulu custom of performing virginity tests on girls under the age of 16. Traditionalists, however, have vowed to disregard the law and continue the practice of inspecting girls' genitals for signs of penetration.

The results of such tests are typically announced on the spot, and the virgins subsequently receive documents certifying their status.

The ritual will doubtless strike many readers as offensive and demeaning - something that "could never happen in America." But in this column, I argue that the ritual of virginity testing is, in important ways, similar to the judicial process that many pregnant minors must undergo to obtain an abortion in this country. Both are forms of ritual subordination that threaten the dignity of young women.

What's Wrong with Virginity Tests?

When people react negatively to the Zulu custom of virginity tests, they generally are not doing so out of any belief in free sex for young teenagers. Indeed, most Americans would probably agree with Zulu traditionalists that young girls should not be engaging in sexual intercourse, though they might also include the girls' male counterparts in their aspiration for teenage chastity.

Most adults in this country, I suspect, consider girls and boys under the age of 16 too immature and irresponsible to be sexually active. And most would expect community leaders to take a role in protecting the young from themselves. So why not a virginity test?

Critics of virginity testing have pointed out that it may incorrectly identify a girl as a non-virgin, both because the women who perform the tests are not professionals, and because inspection often does not yield reliable evidence of prior sexual relations.

The false positive (that is, an incorrect assessment that a girl has had sex) is surely a risk of virginity testing. However, it is likely that even if a more accurate sexual screening process were devised, the public declaration that girls A, B, and C had "passed," while girls D and E had "failed," would still offend most critics.

The fact that the "condemned" truly are "guilty" of engaging in sexual intercourse does not, in other words, redeem an otherwise demeaning ritual. The problem is not primarily that the ritual fails to separate the guilty from the innocent. It is, instead, that the proper way to handle a girl's early sexual activity is not to hold her up for ridicule and social condemnation as damaged goods; it is to help her find a healthier and more productive way to live for the future.

To put it more bluntly, it seems cruel and objectifying to compel sexually active teenage girls to appear publicly as "whores" before the community.

Consider the reported words of one virginity inspector in South Africa: "When you buy a new sofa or a cushion that has never been sat on, you can tell the difference between a sofa that had always [sic] carried somebody and the new one. That's how you tell when you test."

The test treats the girl as a piece of property, one that is either valuable because her vagina is "new" or less valuable because it is "used." This seems to capture well the essence of female objectification.

Judicial Bypass: How American Girls Are Humiliated in Court

Many Americans who read about virginity testing in South Africa will feel culturally superior. We, after all, would never subject our girls to such a practice.

Or would we?

In most states in this country, a pregnant minor must involve at least one parent before she may obtain an abortion. Supreme Court precedents require, however, that states provide what is called a "judicial bypass" through which a minor can have an abortion without notifying her parents if she can persuade a judge either that she is mature enough to make this decision on her own, or that obtaining an abortion would be in her best interests.

At first glance, the "judicial bypass" procedure may seem attractive. Both pro-life and pro-choice voters in the U.S. tend to support parental involvement statutes and to find the judicial bypass a fully adequate substitute for those minors whose parents might be violent or otherwise abusive. Planned Parenthood reports that most girls who appear before a judge and seek an abortion do indeed succeed in obtaining judicial permission to terminate their pregnancies. Indeed, as I have described in another column, it is hard to argue that a young and immature girl's best interests lie in carrying an unwanted pregnancy to term.

In theory, the aim of the law is positive. We want to encourage pregnant girls to consult with responsible adults about their situation, just as we would hope to discourage girls under 16 from having intercourse.

The reality, however, does not match the theory. The process can in fact be humiliating and degrading - and typically converts what might have been an early abortion into a later one.

Researchers in the area report that in determining whether a girl is mature enough to make the decision to terminate her pregnancy, judges will sometimes ask her how she came to be pregnant and whether she is sorry for what she did.

Imagine a teenage girl in a courtroom filled with adult strangers, including a judge and a court reporter, compelled to talk about her sexual behavior and demonstrate contrition. She is likely to be intimidated and mortified. And she is forced, in that state, to acknowledge in a formal and public setting that she has had sexual intercourse and that she now wishes to end the pregnancy that resulted from that sexual behavior. (Meanwhile, her male partner may impregnate as many girls as he likes without confronting any such courtroom interrogation.).

Different Procedures with Similar Results

Virginity testing in South Africa and judicial bypass in the United States are not, of course, identical. The non-virgin in South Africa is not seeking an abortion, and the pregnant teenager in the U.S. can avoid the humiliation of a court appearance either by having her baby or by consulting one or both parents regarding her wish to abort.

These distinctions become less significant, however, once we assume -- as the judicial bypass procedure does -- that some parents may become violent if they learn that their underage daughter has had intercourse. The pregnant girl in such a household cannot avoid exposure of her "lost virtue," no matter what she does: continuing her pregnancy will publicize her sexual history -- to her parents and to everyone else who sees her -- and seeking an abortion in court will do so as well.

The community "elders" in the U.S. do not scrutinize the pregnant girl's genitals directly, but they come close by forcing her publicly to recount the details of her sexual life. In fact, one might observe that a girl's having to declare her pregnancy to a judge necessarily exposes the fact of her lost virginity, while the testimonial exchange in court corresponds to the public announcement of that fact to all those present.

The continuing practice of virginity testing in South Africa is surely sobering to those who aspire to a world in which males and females are valued equally from birth. But so is the little-understood ritual of degradation of pregnant girls that happens inside American courtrooms.

Though the American girl seeking an abortion through the courts is likely to receive the permission that she seeks, the cost is the sort of official shaming that we like to think does not happen here. Whether or not one supports the right to terminate an unwanted pregnancy, one should worry about gender-humiliation rituals, no matter where in the world they happen to occur.

Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark.

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