Virginity testing and south africa's HIV/AIDS crisis: Beyond rights universalism and cultural relativism toward health capabilities

California Law Review

Volumn 96, Issue 6, 2008, Pages 1447-1518

  George, Erika R ^a  

^a UNIVERSITY OF UTAH   (United States)

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[No Author keywords available]

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EID: 58049159353     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (359)

1. Suzanne Daley, Screening Girls for Abstinence in South Africa, N.Y. Times, Aug. 17, 1999, at A3.
2. Rena Singer, Chastity Tests: Unusual Tool for Public Health, CHRISTIAN SCI. MONITOR, June 2, 2000 (reporting on "transform[ation of] traditional prenuptial exam into a year-round AIDS prevention program" by community leaders); isee also Mariam Isa, Virginity Testing Revival Sweeps S. Africa, REUTERS, Jan. 2, 2001, available at http://www.globalhealth.org/news/printview-news.php3? id=694 (reporting on revival of an African tradition to fight AIDS and teen pregnancy); Dean E. Murphy, A Time of Testing for Virginity, L.A. TIMES, July 15, 1999, at Al, available at http://www.aegis.com/ news/lt/1999/LT990702.html (reporting on estimates that "tens of thousands" participate in virginity testing as a "back-to-basics remedy" for South Africa's AIDS epidemic); Virginity Testing Makes Comeback in South Africa, INT'L PLANNED PARENTHOOD FED'N NEWS, Jan. 8, 2001 (reporting on virginity testing advocates promoting the practice as "the most effective way to stop the spread of teenage pregnancies and the HIV virus"). Acquired Immunodeficiency Syndrome (AIDS) is a disease of the immune system primarily caused by Human Immunodeficiency Virus (HIV). Rubin's Pathology 148 (Emanuel Rubin et al. eds., 4th ed. 2005); ROBBINS & COTRAN, PATHOLOGIC BASIS OF DISEASE 245 (Vinay Kumar et al. eds., 7th ed. 2005). HIV is generally introduced into the body through an exchange of bodily fluids, for example, through "sexual contact, parenteral inoculation, and passage of the virus from infected mothers to their newborns." Id. at 245. HIV primarily affects the immune and central nervous systems. Id. at 248. The virus progresses from an "acute retroviral syndrome stage," to a "middle, chronic phase," and finally to "full-blown AIDS," rendering the untreated infected individual vulnerable to life-threatening illness and death. Id. at 253. AIDS is the final stage of the virus and "is characterized by a breakdown of host defense, a dramatic increase in plasma virus, and clinical disease." Id.
3. See generally Joint U.N. Program on HIV/AIDS, South Africa 2006 Update: Epidemiological Fact Sheets on HIV/AIDS and Sexually Transmitted Infections (Dec. 2006) available at http://www.who.int/GlobalAtlas/ predefinedReports/EFS2006/EFS-PDFs/EFS2006-ZA.pdf [hereinafter UNAIDS, 2006 S. Afr. Epidemiological Fact Sheets]. For a discussion of the limitations of data collection, see Alan Whiteside, AIDS in Africa: Facts. Figures and the Extent of the Problem, in ETHICS & AIDS IN AFRICA I, 1-14 (Anton A. van Niekerk & Loretta M. Kopelman eds., 2005).
4. UNAIDS, 2006 S. Afr. Epidemiological Fact Sheets, supra note 3, at 2; Murphy, supra note 2 (reporting on a virginity testing ceremony where the "youths are feted with traditional Zulu songs and dances and awarded certificates of virginity"); Singer, supra note 2 (describing virgins as victories).
5. Alexandra Suich, Women and AIDS in South Africa: A Conflicted History Leads to a Dispiriting Present, 43 U.N. CHRON. 12, 12 (2006), available at http://www.un.org/Pubs/chronicle/2006/issue2/0206p12.htm. UNAIDS, the Joint United Nations Program on HIV/AIDS, combines the efforts and resources of ten United Nations system organizations in order to develop a global AIDS response. Joint U.N. Programme on Aids [UNAIDS], 2006 UNAIDS Annual Report: Making the Money Work, at 7, UNAIDS/07.19E/JC1306E (June 2007), available at http://data.unaids.org/pub/Report/2007/2006-unaids- annual-report-en.pdf [hereinafter UNAIDS, 2006 Annual Report]. Based in Geneva, the UNAIDS secretariat has staff working in more than eighty countries worldwide. Id.
6. See UNAIDS, 2006 Annual Report, supra note 5, at 11-13.
7. Joint U.N. Programme on HIV/AIDS, AIDS Epidemic Update: December 2006, at 11, UNAIDS/06.29E (Dec. 2006) available at http://www.unaids.org/en/KnowledgeCentre/HIVData/EpiUpdate/EpiUpdArchive/2006/ Default.as p [hereinafter UNAIDS, 2006 Epidemic Update].
8. UNAIDS, 2006 S. Afr. Epidemiological Fact Sheets, supra note 3, at 2. In 2005, among the 5.3 million South African adults infected, 3.1 million were women. Id.
9. UNAIDS, 2006 Epidemic Update, supra note 7, at 11 (reporting that South Africa's most recent "official mortality data show total deaths (from all causes) in South Africa increased by 79% from 1997 to 2004"). Experts believe that "[a] large proportion of the rising trend in death rates is attributable to the AIDS epidemic." Id.; see also TONY Barnett & ALAN WHITESIDE, AIDS IN THE TWENTY-FIRST CENTURY 10 (2002) ("AIDS now kills ten times more people a year than does war" in the whole of Africa.).
10. See UNAIDS, 2006 Epidemic Update, supra note 7, at 11 (reporting that in three regions of South Africa "the increasing death toll has driven average life expectancy below 50 years"). U.N. Children's Fund [UNICEF], South Africa: Statistics, http://www.unicef.org/infobycountry/ southafrica-statistics.html (last visited Feb. 13, 2008) (showing a decline in life expectancy); see also Eric Neumayer, HIV/AIDS and Cross-National Convergence in Life Expectancy, 30 POPULATION & DEV. REV. 727, 737-38 (2004) (demonstrating that reduced life expectancy in countries most severely affected by HIV/AIDS is unmistakably attributable to HIV/AIDS).
11. See U.N. Children's Fund [UNICEF], At a Glance: South Africa: Statistics, http://www.unicef.org/infobycountry/southafrica-statistics.html (last visited Oct. 7, 2007) (showing a decline in life expectancy). "For the first time, deaths among people in their thirties or forties have exceeded those of people in their sixties or seventies." Michael Specter, The Denialists; The Dangerous Attacks on the Consensus about H.I. V. and AIDS, THE NEW YORKER, Mar. 12, 2007, at 38.
12. Singer, supra note 2; Steven Ntuli, Virginity Testing a Celebration for Some, Concern for Others, LOWVELD INFO, Aug. 14, 2002, available at http://www.lowveldinfo.corn/news/showstory. asp?story=2725.
13. Singer, supra note 2 (reporting that "chastity tests were reserved for Zulu brides who had to prove their purity before their parents and future in-laws settled on a dowry").
14. Suzanne LeClerc-Madlala, Virginity Testing: Managing Sexuality in a Maturing HIV/AIDS Epidemic, 15 MED. ANTHROPOLOGY Q. 533, 533-34 (2001) (analyzing the "virginity testing movement" as a community response to the HIV/AIDS epidemic); Murphy, supra note 2 (reporting on the virginity testing revival "being promoted as a back-to-basics remedy for ... the growing AIDS epidemic").
15. Originally conceived as a challenge to classical development economics by Nobel Laureate in Economics Amartya Sen, and expanded by legal philosopher Martha Nussbaum, capabilities theory maintains normatively that economic, political, legal, and other social policies should be evaluated according to how they expand people's capabilities to achieve freedom to function in ways they find valuable. See generally AMARTYA SEN, INEQUALITY REEXAMINED (1992); MARTHA C. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT (2000).
16. See Fiona Scorgie, Virginity Testing and the Politics of Sexual Responsibility: Implications for AIDS Intervention, 61 AFR. STUD. 55, 56 (2002) (examining how communities engaged in virginity testing "frame and understand their activity as a form of AIDS intervention in South Africa").
17. VIRGINIA VAN DER VLIET, THE POLITICS OF AIDS 49-50 (1996) ("[R]ight-wing politicians used the threat of an epidemic in the black community to stir up racial prejudice, win political support and demand renewed segregation, by suggesting that AIDS could be passed on in social or physical contact in desegregated facilities such as schools, hospitals and swimming pools."); see also Drew Forrest & Barry Streek, Mbeki in Bizarre AIDS Outburst, MAIL & GUARDIAN, Oct. 26, 2001, available at http://www.aegis.com/news/ DMG/2001/MG011021.html (reporting on an address by Mbeki at the University of Fort Hare and attributing to him the following comments: "[O]thers who consider themselves to be our leaders take to the streets carrying their placards, to demand that because we are germ carriers, and human beings of a lower order that. . . [cjonvinced that we are but natural-born, promiscuous carriers of germs, unique in the world, they proclaim that our continent is doomed to an inevitable mortal end because of our unconquerable devotion to the sin of lust.").
18. Chasing the Rainbow, ECONOMIST, Apr. 8, 2006, at 5 ("[T]he government eventually caved in to domestic and international pressure and gracelessly introduced a comprehensive management regime involving anti-retroviral drugs to combat HIV/AIDS.").
19. See, e.g., Mbeki Digs In On AIDS, BBC NEWS, Sept. 20, 2000, AVAILABLE AT http://news.bbc.co.Uk/2/hi/africa/934435.stm (reporting "Mbeki has come under fierce international criticism from mainstream scientists and medical experts for his unorthodox views and lack of government action").
20. BARNETT & WHITESIDE, supra note 9, at 298 (arguing President Mbeki's dealings with "AIDS dissidents" to investigate "the cause of the immune deficiency that leads to death from AIDS" proved "confusing and damaging to South Africa's response to AIDS); see also Specter, supra note 11, at 35 (quoting a leading U.S. government AIDS expert, Anthony Fauci, who referred to the promotion of dissident AIDS science as "murder").
21. Hundreds Walk Out on Mbeki at AIDS Conference, CNN.COM, July 10, 2000, http://archives.cnn.com/2000/HEALTH/AIDS/07/10/aids.economics/ index.html (last visited Oct. 2, 2008).
22. The Durban Declaration, NATURE, July 6, 2000, at 15. Mbeki's policies led 5,000 leading international scientists to sign the "Durban Declaration." See Richard Pithouse, Mbeki's AIDS Stance Slammed, GREEN LEFT, July 26, 2000, http://www.greenleft.org.au/2000/413/23244 (last visited Feb. 13,2008).
23. Chris McGreal, Virgin Tests Make a Comeback, DAILY MAIL & GUARDIAN, Sept. 29, 1999.
24. It should be noted that virginity testing is neither a recent phenomenon nor an exclusively African practice. Indeed, the condition of virginity has been contested throughout the ages. See KATHLEEN COYNE KELLY, PERFORMING VIRGINITY AND TESTING CHASTITY IN THE MIDDLE AGES ix (2000) (examining a variety of medieval and modern narratives across a number of genres in which virginity is ostensibly tested). Kelley concludes, "The gendered nature of virginity has been an inescapable feature of Western discourses on the body for more than two thousand years. How one goes about defining and verifying virginity may change over time, but the general belief that the body is readable, and virginity is verifiable, has remained fairly consistent." Id. Moreover, virginity testing exists in countries outside of Africa. See, e.g., HUMAN RIGHTS WATCH, A MATTER OF POWER: STATE CONTROL OF WOMEN'S VIRGINITY IN TURKEY (1994) (discussing the practice of virginity testing in Turkey).
25. LeClerc-Madlala, supra note 14, at 544; see also Eleanor Preston-Whyte, Kinship and Marriage, in THE BANTU- SPEAKING PEOPLES OF SOUTHERN AFRICA 177, 179 (W.D. Hammond- Tooke ed., Routledge & Kegan Paul, 2d ed. 1974) (explaining the significance of cattle "bridewealth" and the rights it transfers in a traditional marriage).
26. McGreal, supra note 23.
27. LeClerc-Madlala, supra note 14, at 543. In traditional cultures, chastity before marriage was socially regulated. See, e.g., Virginia van der Vliet, Growing Up in Traditional Society, in THE BANTU-SPEAKING PEOPLES OF SOUTHERN AFRICA, supra note 25, at 236-37 (discussing a "coming-of-age" ceremony, the omula, restricted to virgins and how "sexual relations are regulated within a strict social framework" and frowned upon prior to marriage). As demonstrated by the variance in ilobolo amounts, the virginity of a potential bride was highly valued. LeClerc- Madlala, supra note 14, at 543. The author explains the meaning of cattle exchange in the ilobolo transactions involving virgin brides as follows: "[t]he standard ten head of cattle could be supplemented by an additional head, the 'eleventh cow,' if the girl was found to be a virgin. This cow was known as inkomo kamama, mother's cow, and was given to the girl's mother as a sign of thanks from the in-laws for providing them with a 'pure' daughter-in-law." Id. at 544. But cf. EILEEN JENSEN KRIGE, THE SOCIAL SYSTEM OF THE ZULUS 131-32 (1936) (agreeing that fewer cattle are exchanged for less desirable partners, such as divorced women or mothers of illegitimate children, but observing that the cattle given to the mother of a virgin for ensuring her daughter's chastity is a separate transaction not related to bride-wealth exchange). Other forms of social control, in addition to virginity testing, helped to promote chastity. Id. at 105-06 (explaining that "after puberty . .. girls are strictly controlled by those older than themselves who will know all of their doings" and describing customs that ensure surveillance). For example, "[t]alking to girls about the importance of maintaining virginity before marriage formed part of the traditional puberty ritual known as umhlonyane." LeClerc-Madlala, supra note 14, at 544.
28. Van der Vliet, supra note 27, at 236-37 (stating that "girls are regularly examined by their mothers or the older women to ensure that they have not been deflowered"); Scorgie, supra note 16, at 61 (citing M. Kohler, Marriage Customs in Southern Natal, 4 ETHNOLOGICAL PUBLICATIONS (1933)) (mentioning that the practice was done privately by mothers and grandmothers).
29. A kraal is a central common space of a residential compound, which often also serves as a corral for livestock. The term kraal also refers to cultural patterns of some African communities. ENCYCLOPEDIA BRITANNICA ONLINE, Kraal, http://www.britannica.com/EBchecked/ topic/323087/kraal (last visited Aug. 14, 2008).
30. See LeClerc-Madlala, supra note 14, at 538. The resurrection of "ukuhlolwa kwezintombi [virginity testing] in KwaZulu-Natal" is thought to have begun around 1994. Scorgie, supra note 16, at 57. Contemporary virginity tests are sometimes conducted in connection with three days of celebration to honor the Zulu goddess Nomkhubulwana, who as the '"source of growth and creation'" is an '"immortal virgin'" deity. Id. "The annual three-day rite culminates in a celebratory sowing of seeds in a garden," the tradition that only virgins may perform this task is offered as a justification for testing. Id. Virginity testing festivals are promoted by individuals who have formed non-governmental organizations aimed at cultural preservation and fostering a return to tradition, such as Isivivane, AmaGugu, aseAfrika, IsiggiseSintu, and the All Africa Cultural Group, among others. LeClerc-Madlala, supra note 14, at 538. Presently, cultural organizations are reportedly conducting virginity testing among Zulu girls throughout the province of KwaZulu- Natal. See, e.g., Landiwe Dlamini, Virginity Testing Reintroduced to Fight AIDS, SUNDAY TIMES, Jan. 17, 1999 (reporting on the Vukuzakhe Youth Club's reintroduction of virginity testing in Mpumalanga Province with the assistance of a renowned tester from KwaZulu-Natal Province).
31. LeClerc-Madlala, supra note 14, at 540 (noting girls who pass virginity tests are marked with a "white dot" on their foreheads used to identify virgins); Singer, supra note 2 (reporting that virgins are awarded certificates).
32. LeClerc-Madlala, supra note 14, at 538-39.
33. Jacob Zuma, South Africa's former Deputy President, has reportedly expressed support for the testing revival and has attended community testing programs. See SA Leader Urges Virginity Tests, BBC NEWS, Sept. 23, 2004, available at http://news.bbc.co.Uk/2/hi/africa/3683210.stm; Luxolo Tyali, Zuma Takes a Stand on Virginity Testing, MAIL & GUARDIAN ONLINE, Sept. 23, 2004, http://www.mg.co.za/ article/2004-09-23- zuma-takes-a-stand-on-virginity-testing (last visited Oct. 1, 2008) (reporting on a speech by former Deputy President Jacob Zuma and head of "the moral regeneration movement" before the AmaMpondomise Heritage Celebrations).
34. LeClerc-Madlala, supra note 14, at 538-39.
35. Id. at 539.
36. Id.
37. Id. at 540.
38. Id. at 539; see also CECIL G. HELMAN, CULTURE, HEALTH AND ILLNESS 12 (4th ed. 2000) ("[T]he human body is more than just a physical organism fluctuating between health and illness. It is also the focus of a set of beliefs about its ... structure and function.").
39. LeClerc-Madlala, supra note 14, at 540.
40. Id. at 540.
41. Id. at 539-40. To receive a "C" grade "is to be marked with shame and disgrace." Id. at 540. But see Scorgie, supra note 16, at 59 ("[V]irginity ... is not regarded as a single moment in a girl's life where she makes an unambiguous shift from virgin to non-virgin. . . . [I]t is not perceived to be a point of no return.").
42. Anton La Guardia, Zulu Maidens Put Safety First, DAILY TELEGRAPH, July 11, 2000, available at http://www.telegraph.co. uk/news/main.jhtml?xml=/news/2000/07/10/waid210.xml (reporting that "[s]ome girls as young as four" involved in virginity testing).
43. LeClerc-Madlala, supra note 14, at 539.
44. Id.
45. Id. at 544.
46. Kathryn Strachan, Going Back to Poisonous Roots, HST UPDATE: YOUTH HEALTH (Health Systems Trust, Durban, S. Aft.), July 1999, at 14, available at http://www.hst.org.za/uploads/ files/upd44.pdf (reporting that there have been unconfirmed reports of testing being carried out in medical clinics).
47. McGreal, supra note 23.
48. To Test or Not to Test-That is the Question, DAILY MAIL & GUARDIAN, Sept. 22, 1998.
49. COMMISSION ON GENDER EQUALITY, CONSULTATIVE CONFERENCE ON VIRGINITY TESTING REPORT 5 (2000) [hereinafter CGE, CONSULTATIVE CONFERENCE] (on file with author).
50. LeClerc-Madlala, supra note 14, at 535 (emphasis in original).
51. See Angela Quintal, Zuma: Virginity Testing Should be Encouraged, THE STAR, NOV. 24, 2004, available at http://www.iol.co.za/general/news/newsprint.php?art-id= vn20041124034745381C946471 (reporting on remarks of former Deputy President Jacob Zuma regarding the need to support the traditional practice of virginity testing in the fight against HIV/AIDS: "As government, we support initiatives that could assist in the prevention of HIV and AIDS as long as they are in line with our national HIV and AIDS strategy"); Zuma Calls for Virginity Tests, S. AFR. PRESS ASS'N, Sept. 23, 2004, available at http://www.news24.com/News24/South-Africa/News/0. 2-7-1442-1593862,00.html (reporting on remarks made by Zuma regarding the role of traditional leadership and practices in HIV/AIDS prevention efforts); see also supra note 33.
52. LeClerc-Madlala, supra note 14, at 535.
53. Id.
54. Id.
55. UNAIDS, 2006 S. Afr. Epidemiological Fact Sheets, supra note 3, at 3.
56. Joint U.N. Programme on HIV/AIDS [UNAIDS], Facing the Future Together: Report of the Secretary General's Task Force on Women, Girls and HIV/AIDS in Southern Africa, at 18, UNAIDS/04.33E (July 2004) ("One recent survey of households in South Africa revealed that two-thirds of caregivers were female, with almost a quarter of them over the age of 60.").
57. LeClerc-Madlala, supra note 14, at 535.
58. Dlamini, supra note 30.
59. Singer, supra note 2.
60. Id.
61. See, e.g., Simpiwe Piliso, Virginity Testing Chic but Condemned, DISPATCH ONLINE, Feb. 12, 2001, http://www.dispatch.co.za/2001/02/12/features/VIRGIN.HTM (last visited June 11, 2008) (reporting on a tester claiming to have examined more than 11,000 girls; and noting that "[e]very month, thousands of teenagers undergo the test"); Murphy, supra note 2 (reporting that one tester operating "under the auspices of the [KwaZulu-Natal] provincial Department of Traditional and Environmental Affairs" claims to have conducted 65,000 tests).
62. Singer, supra note 2.
63. Prega Govender, School Kids in Virginity Test, SUNDAY TIMES, May 17, 1998; see also HUMAN RIGHTS WATCH, SCARED AT SCHOOL: SEXUAL VIOLENCE AGAINST GIRLS IN SOUTH AFRICAN SCHOOLS 26 (2001) [hereinafter HUMAN RIGHTS WATCH, SCARED AT SCHOOL].
64. Govender, supra note 63.
65. Id.
66. Id.
67. McGreal, supra note 23.
68. La Guardia, supra note 42 ("The fashion may be spreading to other groups. Among the teenagers being tested last weekend there was an Indian girl.").
69. Activists Challenge Girls' Virginity Testing, INDEPENDENT, July 17, 2003, available at http://www.int.iol.co.za/general/news/ newsprint.php?art-id=qw1058413321180B216&sf=.
70. Daley, supra note 1.
71. Id.
72. Id.
73. Activists Challenge Girls' Virginity Testing, supra note 69; Piliso, supra note 61.
74. See, e.g., Virginity Testing Under Fire, NEWS 24, July 17, 2003, www.news24.com/News24/South-Africa/News/0.,2-7-1442-1388713,00.html (last visited Aug. 14, 2008).
75. See, e.g., Cleopatra Ndlovu, Virginity Testing Raises Many Questions, 23 NETWORK 12, 12 (2005), available at http://www.fhi.org/en/RH/Pubs/Network/v23-4/index.htm (follow link "Network: Nonconsensual Sex") (raising concerns about the virginity testing revivals in African countries including South Africa).
76. HUMAN RIGHTS WATCH, SCARED AT SCHOOL, supra note 63, at 27; see also LeClerc- Madala, supra note 14, at 547.
77. Murphy, supra note 2; Ajith Bridgraj, Much Ado About Virginity, MAIL & GUARDIAN, Sept. 22, 1998 ("The power with which a boy urinates will indicate whether he is a virgin or not.") (internal quotations omitted).
78. See, e.g., Daley, supra note 1; Murphy, supra note 2; Singer, supra note 2.
79. See, e.g., Emily Wax, Virginity Becomes a Commodity in Uganda's War Against AIDS, WASH. POST, Oct. 7, 2005, at AOL
80. Ansuyah Maharaj, Virginity Testing: A Matter of Abuse or Prevention? 41 AGENDA 96,96(1999).
81. See Daley, supra note 1.
82. Prega Govender, Outcry as Nurses Cash in on Virginity Testing, SUNDAY TIMES, Mar. 28, 1999 ("Nurses carrying out the tests are not doing it out of the goodness of their hearts. They are definitely getting paid by parents.").
83. Amita Parashar, Where Angels Fear to Tread, MAIL & GUARDIAN ONLINE, Aug. 6, 2004, http://www.mg.co.za/article/ 2004-08-06-where-angels-fear-to-tread (last visited Aug. 14, 2008) (discussing commercialization, distortion, and corruption of traditional practices: "[V]irginity testing and virgin girls themselves have become commodities in a modern market economy") (internal quotations omitted).
84. Virginity Testing, PPP NEWS, Aug.-Sept. 1999, at 8 [hereinafter Virginity Testing, PPP NEWS] (on file with author).
85. LeClerc-Madlala, supra note 14, at 539.
86. See, e.g., CGE, CONSULTATIVE CONFERENCE, supra note 49, at 27, 37 (questioning assertions that girls were voluntary participants in testing and asserting that freedom of choice not to participate in testing was reduced by social pressure). But see Parashar, supra note 83 ("[N]o reports ... that girls are coerced into ... tests").
87. See CGE, CONSULTATIVE CONFERENCE, supra note 49, at 37; accord Piliso, supra note 61 (interviewing a virginity tester who explains: "[N]o one is forced to be tested, there are other kinds of pressures. Girls who refuse to be examined may be taunted by others who say the refusal shows they are not virgins.").
88. See, e.g., B.L. Meel, The Myth of Child Rape as a Cure for HIV/AIDS in Transkei: A Case Report, 43 MED. SCI. LAW 85, 85-86 (2003) (discussing anecdotal evidence of belief in the "Virgin Cleansing Myth" contributing to child rape and the case of a nine-year old raped by an HIV-positive man); The Virgin Rape Myth-What Is the Cause?, CITY VISION, Dec. 14, 2001 (reporting on whether increase in rape is attributable to "virgin rape myth") (on file with author).
89. Meel, supra note 88, at 86, 88.
90. Govender, Child Rape: A Taboo Within the Aids Taboo, SUNDAY TIMES, April 4, 1999; see also The Virgin Rape Myth-What is the Cause?, supra note 88. Some scholars suggest that the misconception that sexual intercourse with a virgin can cure disease is a long-standing and cross-cultural myth. Nora Ellen Groce & Reshma Trasi, Rape of Individuals with Disability: AIDS and the Folk Belief of Virgin Cleansing, 363 THE LANCET 1663, 1663-64 (2004) ("[Accounts of the belief are reported from sub-Saharan Africa, Asia, Europe, and the Americas"); see also Roger Davidson, "This Pernicious Delusion": Law, Medicine, and Child Sexual Abuse in Early- Twentieth-Century Scotland, 10 J. HIST. SEXUALITY 62, 75 (2001) (offering a historical analysis of "the discourse surrounding belief in a 'virgin cure'" in Europe). AIDS researchers in Zambia, Zimbabwe, Nigeria, and China have reported the existence of similar misconceptions. Christopher Stones & Mike Earl-Taylor, Letter from Grahamstown: HIV/Aids, the So-Called "Virgin Cure" and Child Rape in South Africa, GLOBAL ISSUES GATEWAY, Dec. 13, 2004 (explaining that the myth of the virgin cure has a "rich and culturally diverse history").
91. Govender, supra note 90; Peter Dickson, Myth of Virgin Cure Linked to Rape, SUNDAY TIMES, Sept. 27, 1998. Conducting field research on sexual violence in South Africa, the author observed a poster in the Eastern Cape office of a specialized sexual crimes prosecutorial unit published by The National Prosecuting Authority debunking the virgin cure myth, which suggests that the government is now acknowledging the problem of the perception that sex with a virgin will cure HIV/AIDS (photo on file with author). Id.
92. ANNE BAKILANA ET AL., ACCELERATING THE EDUCATION SECTOR RESPONSE TO HIV/AIDS IN AFRICA: A REVIEW OF WORLD BANK ASSISTANCE 3 (2005), available at http://siteresources.worldbank.org/rNTHrVAIDS/Resources/ 375798-1103037153392/EducandAI DS.pdf.
93. Govender supra note 90.
94. Maharaj, supra note 80.
95. LeClerc-Madlala, supra note 14, at 540.
96. Id.
97. Id. at 539.
98. Maharaj, supra note 80.
99. Daley, supra note 1.
100. Id.
101. Id.
102. HUMAN RIGHTSc WATCH, SCARED AT SCHOOL, supra note 63, at 27.
103. Bridgraj, supra note 77.
104. Virginity Testing: Increasing Health Risks and Violating Human Rights in the Name of HIV-Prevention, SIECUS POL'Y & ADVOC, Sept. 2004 ("[T]he threat of these tests motivates some young women and girls to participate in 'virginity-saving' sexual practices that put them at risk for sexually transmitted diseases (STD), including HIV. In areas where there is rising social pressure to undergo virginity testing, some doctors report a rise of anal sex among young women, and hypothesize that this is related to the concurrent rise in HlV-infection rates in young women in these same areas.").
105. Id.; Jo Stein, Virginity Tests in AIDS War, NEWS 24, Sept. 2, 2000.
106. Stein, supra note 105 (noting the same gloves are used to test many girls); Strachan, supra note 46.
107. Activists Challenge Girls' Virginity Testing, supra note 69.
108. Murphy, supra note 2.
109. Id.
110. Strachan, supra note 46.
111. Daley, supra note 1.
112. Committee on the Rights of the Child, Concluding Observations of the Committee on the Rights of the Child: South Africa, ¶ 33, U.N. Doc. CRC/C/15/Add.122 (Feb. 22, 2000) [hereinafter CRC]. The Committee also expressed concern about the practice of female circumcision. Id.
113. Id.
114. Id.
115. See, e.g., South African Human Rights Commission, Harmful Social and Cultural Practices - Virginity Testing?, Children's Bill [B70-B2003], Submission to the Select Committee on Social Services (NCOP) (Oct. 2005). For submissions by the South African Human Rights Commission, the National House of Traditional Leaders, the Commission on Gender Equality and other civil society organizations on the issue of virginity testing at Parliamentary hearings on October 11, 2005, see Children's Institute, Site Search, Virginity Testing, http://www.ci.org.za/site/site-search-frarneset.asp? mode=allwords&search=virginity+testing (last visited July 30, 2008).
116. For discussion of the universalism versus relativism debate, see generally Alison DUNDES RENTELN, INTERNATIONAL HUMAN RIGHTS: UNIVERSALISM VERSUS RELATIVISM 12 (1990) (suggesting that failures on the part of the drafters of international human rights instruments "ensured future confrontations" because the significance of cultural diversity was underappreciated and "little effort was made to deal with culture," with the end result that the rights treaties "laid the groundwork for subsequent disputes"); JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE 89 (2d ed. 2003) (explaining and defending human rights as universal and contending that "culture poses only a modest challenge to the contemporary normative universality of human rights"); HUMAN RIGHTS IN CROSS-CULTURAL PERSPECTIVES 2 (Abdullahi An-Na'im ed., 1992) (collecting contributions from non-European and minority cultural perspectives to discuss the universalism versus relativism debate and advancing a "cross-cultural approach to the universal cultural legitimacy of human rights").
117. See, e.g., supra note 116, at 366.
118. Id. at 276, 278.
119. See, e.g., European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222, as amended; African Charter on Human and Peoples Rights, June 27, 1981, 21 I.L.M. 58; American Convention on Human Rights, Nov. 22, 1969, 36 O.A.S. T.S. 1; see also THE AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS (Malcolm D. Evans & Rachel Murray eds., 2002) (offering an overview and analysis of the African Charter's implementation and practice); CLARE OVEY & ROBIN C.A. WHITE, THE EUROPEAN CONVENTION ON HUMAN RIGHTS (4th ed. 2006) (providing an overview of the European Convention system and a survey of European Court of Human Rights case law).
120. Elizabeth M. Zechenter, In the Name of Culture: Cultural Relativism and the Abuse of the Individual, 53 J. ANTHROPOLOGICAL RES. 319, 322 (1997).
121. Id.
122. Celestine I. Nyamu, How Should Rights and Development Respond to Cultural Legitimization of Gender Hierarchy in Developing Countries?, 41 HARV. INT'L L. J. 381, 384 (2000).
123. See, e.g., Susan Moller Okin, Is Multiculturalism Bad for Women?, reprinted in SUSAN MOLLER OKIN, IS MULTICULtURALISM BAD fOR WOMEN? 7, 12-17, 24 (Joshua Cohen et al. eds., 1999) (rejecting group and cultural rights as inconsistent with the basic liberal values of individual freedom and potentially reinforcing gender inequality); Annie Bunting, Theorizing Women's Cultural Diversity in Feminist International Human Rights Strategies, 20 J.L. SOC'Y 6, 10, 18 (1993) (considering how international human rights can better address diverse women); see also Karen Engle, International Human Rights and Feminism: When Discourses Meet, 13 MICH. J. INT'L L. 517, 544-46 (surveying different feminist approaches to the issue of culture).
124. See DONNELLY, supra note 116, at 1 (footnote omitted).
125. Id.
126. Just as there are different variants of liberalism, cultural relativism also takes a number of different forms, and may range from the epistemological position to the normative position to the descriptive empirical observation. The epistemological position states that "humans are shaped exclusively by their culture and therefore there exist no unifying cross-cultural human characteristics." Zechenter, supra note 120, at 323. The normative claim states that because "all standards are culture bound, there can be no trans-cultural moral or ethical standards" discovered or established. Id. The descriptive empirical observation embraces the theory that there are different cultures in the world whose cultural practices vary. Id.; see also Jack Donnelly, Cultural Relativism and Universal Human Rights, 6 HUM. RTS. Q. 400, 401 (1984) (discussing the difference between "strong" and "weak" cultural relativism critiques of universalism).
127. Zechenter, supra note 120, at 323.
128. Id. at 322-23.
129. Id. at 324.
130. Id. at 324 (arguing that some relativists "focused so much on exposing seemingly vast cultural differences, that they tended to disregard data showing a significant degree of patterned similarities among human cultures"); see also Ellen Messer, Pluralist Approaches to Human Rights, 53 J. ANTHROPOLOGICAL RES. 293, 305-07 (1997).
131. Id. at 323 (reviewing the evolution of cultural relativism in social science theory and the challenge posed by different types of relativism).
132. See, e.g., MICHAEL IONATIEFF, HUMAN RIGHTS AS POLITICS AND IDOLATRY 58-63 (2001) (reviewing the cultural challenges to human rights universalism raised by Islamic and Asian governments); Christina M. Cerna, Universality of Human Rights and Cultural Diversity- Implementation of Human Rights in Different Socio-Cultural Contexts, 16 HUM. RTS. Q. 740, 741 (1994) (recounting proposals by non-Western countries challenging human rights as "ideological patrimony" of Western standards to which they should not be held to account).
133. Cf. Makau Mutua, Savages, Victims and Saviors: The Metaphor of Human Rights, 42 HARV. INT'L L.J. 201, 202, 208 (2001) (arguing that the human rights movement's claim of universality is undermined by a history and rhetoric which is "biased and arrogant" and doomed to failure "because it is perceived as an alien ideology in non-Western societies").
134. Tracy E. Higgins, Anti-Essentialism, Relativism, and Human Rights, 19 Harv. WOMEN'S L.J. 89,97(1996).
135. See, e.g., Zechenter, supra note 120, at 323 (describing the relativists' critique of universalism).
136. Id.
137. Fareda Banda, Global Standards: Local Values, 17 INT'L J. L., POL'Y & FAM. 1, 3 (2003).
138. Michael Freeman, The Philosophical Foundations of Human Rights, 16 HUM. RTS. Q. 491, 512 (1994) (citing Joseph Raz who suggests that "in practical terms the specific role of rights is to ground duties in the interests of others. Assertions of rights are typically intermediate conclusions that exist between ultimate values and duties"). Indeed, consensus about interests and duties are forged in particular cultural contexts.
139. International human rights instruments offended include the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), the African Charter on Human and Peoples' Rights, the African Charter on the Rights of the Child and the South African Constitution. South Africa has signed each of these international conventions including the provisions of the conventions that include protecting equality, privacy, and body integrity; it has also ratified all but the International Covenant on Economic, Social and Cultural Rights (ICESCR). For South Africa's ratification of the ICCPR on December 10, 1998, see Multilateral Treaties Deposited with the Secretary General, at 177, U.N. Doc. ST/LEG/SER.E/24 (Dec. 31, 2005). For South Africa's ratification of the CEDAW on December 15, 1995, see id. at 246. For South Africa's
140. Universal Declaration of Human Rights, G.A. Res. 217A, art. 1, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 10, 1948) [hereinafter UDHR] (emphasis added).
141. UDHR, supra note 140, art. 2.
142. International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), pmbl., art. 2-3, 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (Dec. 16, 1966) [hereinafter ICCPR].
143. Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180, art. 1, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/36 (Dec. 18, 1979) [hereinafter CEDAW].
144. See id. art. 2(a)-(f).
145. Id. art. 5.
146. Convention on the Rights of the Child, art. 2, Nov. 20, 1989, 1577 U.N.T.S. 3.
147. S. AFR CONST. 1996. ch. I, § 2; see also G.E. DEVENISH, A COMMENTARY ON THE SOUTH AFRICAN BILL OF RIGHTS 10-11, 19 (1999).
148. S. AFR. CONST. 1996. ch. II, § 8(1).
149. Id. ch. II, § 7(1).
150. Id. ch. 14, § 233.
151. Id. ch. II, § 9(2).
152. Id. ch. II, § 9(3). For a discussion of South Africa's incorporation of gender equality into its Constitution and analysis of the status of women, see generally Penelope E. Andrews, From Gender Apartheid to Non-Sexism: The Pursuit of Women's Rights in South Africa, 26 N.C. J. INT'L L & COM. REG. 693 (2001); Penelope E. Andrews, Striking the Rock: Confronting Gender Equality in South Africa, 3 MICH. J. RACE & L. 307 (1998).
153. S. AFR. CONST. 1996. ch. II, § 9(4).
154. Id. ch. II, § 9(1).
155. Id. ch. II, § 9(4). The Constitutional Court's webpage reaffirms this position by stating "the Bill of Rights doesn't only apply vertically (from the state downwards, to its citizens)-it also applies, where applicable, horizontally (between one citizen or private body and another)." See Constitutional Court of South Africa, Your Rights: The Bill of Rights, http://www.concourt.gov.za/site/yourrights/ thebillofrights.htm#Vertical (last visited Feb. 20, 2008); see DEVENISH, supra note 147, at 24. Devenish asserts that "[t]he pertinent issue is no longer whether the bill of rights operates horizontally ... but what are the exact extent and nature of the horizontal application." Id. at 19. Furthermore, "a provision of the bill of rights may, depending on the circumstances, bind a natural or a juristic person." Id. at 24. See generally Johan van der Walt, Progressive Indirect Horizontal Application of the Bill of Rights: Towards a Cooperative Relation Between Common-Law and Constitutional Jurisprudence, 17 S. AFR. J. on HUM. RTS. 341 (tracing the use of horizontal application of the Bill of Rights from the 1993 Interim Constitution to the 1996 Constitution and its continued development in subsequent cases).
156. See, e.g., Stephen Ellmann, A Constitutional Confluence: American "State Action" Law and the Application of South Africa's Socioeconomic Rights Guarantees to Private Actors, 45 N.Y.L. SCH. L. REV. 21, 35 (2001).
157. The ICCPR states that no one shall be subjected to "cruel, inhumane or degrading treatment or punishment. In particular, no one shall be subjected without his [or her] free consent to medical or scientific experimentation. " ICCPR, supra note 142, art. 7. General Comment 20, which further develops the meaning of ICCPR Article 7, specifically states that the aim of Article 7 "is to protect both the dignity and the physical and mental integrity of the individual." U.N. Human Rights Comm., General Comment No. 20, art. 7, ¶ 2, 44th Sess. (1992), available at http://www.unhchr.ch/tbs/doc.nsf/0/6924291970754969c12563ed004c8ae5? Opendocument.
158. Comm. on the Elimination of Discrimination against Women, General Recommendation No. 19, art. 16 (and article 5), ¶ 22, 11th Sess. (1992), available at http://www.un.Org/womenwatch/daw/cedaw/recommendations/ recomm.htm#recom19; Comm. on the Elimination of Discrimination against Women, General Recommendation No. 24, art. 12, 20th Sess. (1999), available at http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom24.
159. CEDAW, supra note 143, art. 16(e).
160. CRC, supra note 112, art. 19.1, 34.
161. S. AFR. CONST. 1996. ch. II, § 12(2).
162. See, e.g., Christian Lawyers Ass'n of S. Afr. v. Minister of Health 1998 (12) BCLR 1434 (T) (S. Afr.).
163. S. AFR. CONST. 1996. ch. II, § 28 (1)(d).
164. Id. ch. II, § 28 (2). A "child" means a person under the age of eighteen years. See id. ch. II, § 28(3).
165. For a discussion on the use of human rights to promote women's sexual autonomy, see generally Sarah Y. Lai & Regan E. Ralph, Female Sexual Autonomy and Human Rights, 8 HARV. HUM. RTS. J. 201, 205, 218 (1995) (assessing limitations on human rights advocacy for promoting women's rights, examining virginity testing in Turkey, and child marriage in Nigeria as illustrations).
166. See Lesley Wexler, Allowing Girls to Hold Up Half the Sky: Combining Norm Promotion and Economic Incentives to Combat Daughter Discrimination in China, 7 CHI. J. INT'L L. 79, 83-84 (2006) (reviewing roots of daughter discrimination and son preference in China); Ellen Keng, Note, Population Control Through the One-Child Policy in China: Its Effects on Women, 18 WOMEN'S RTS. L. REP. 205,206-07 (1997) (reviewing the motivations and impacts of the Chinese government's family planning policies).
167. See, e.g., Amartya Sen, More Than 100 Million Women Are Missing, N.Y. REV. BOOKS, Dec. 20, 1990, at 61-66, available at http://www.nybooks.com/articles/3408 (estimating the number of women "missing" in parts of Asia attributable to inequality, culture, and gender discrimination); see also Andrea Krugman, Note, Being Female Can be Fatal: An Examination of India's Ban on Pre-Natal Gender Testing, 6 CARDOZO J. INT'L & COMP. L. 215 (1998) (examining India's gender ratio imbalance and the status of women).
168. UDHR, supra note 140, art. 3, 12; ICCPR, supra note 142, art. 17.
169. CRC, supra note 112, art. 16.
170. S. AFR. CONST. 1996. ch. II, § 14 ("Everyone has the right to privacy which includes the right not to have their person searched.").
171. See Kerry Cullinan, Virginity Testers Say They Will Never Quit, HEALTH-E, Dec. 13, 2001, http://www.health-e.org.za/news/ article.php?uid=20010918 (last visited Feb. 16, 2008).
172. UDHR, supra note 140, art. 27.
173. ICCPR, supra note 142, art. 27.
174. International Covenant on Economic, Social and Cultural Rights, pmbl, art. 15, Dec. 16, 1966, 993 U.N.T.S. 3 [hereinafter ICESCR].
175. CRC, supra note 112, art. 30.
176. CRC, supra note 112, art. 30.
177. See generally ERIC J. MITNICK, RIGHTS, GROUPS, AND SELF-INVENTION 19 (2006) (providing an analysis of legal and political debates concerning liberalism and collective group rights).
178. T.W. BENNETT, HUMAN RIGHTS AND AFRICAN CUSTOMARY LAW UNDER THE SOUTH AFRICAN CONSTITUTION 24-25 (1999). The Declaration does not expressly indicate whether the beneficiaries of these rights are groups or individuals.
179. See Chandran Kukathas, Are There Any Cultural Rights?, in THE RIGHTS OF MINORITY CULTURES, at 228 (1995).
180. UDHR, supra note 140, art. 20.
181. ICCPR, supra note 142, art. 21.
182. CRC, supra note 112, art. 15. See GERISON LANSDOWN, UNICEF, INNOCENTI INSIGHT: THE EVOLVING CAPACITIES OF THE CHILD (2005) (observing that childhood is not an undifferentiated period and analyzing how governments might apply universal human rights standards across diverse perceptions of childhood in a principled manner). "A 17-year-old has profoundly different needs and capacities than a 6-month-old baby, while being entitled to the same rights." Id. at vii.
183. S. AFR. CONST. 1996. ch. II, § 30.
184. Id. ch. II, §31(1).
185. Id. ch. II, § 31(2).
186. ICCPR, supra note 142, art. 1.
187. ICESCR, supra note 174, art. 1.
188. See Shashank Bengali, South Africa to Outlaw Virginity Testing for Girls, KNIGHT RIDDER, Nov. 8, 2005 (reporting that "it's the clause on virginity testing [within the children's rights bill] that's stirred the most controversy, pitting rights groups against South Africa's large and politically sensitive Zulu community and its traditional beliefs"); Bongani Mthethwa & Sibongile Khumalo, Uproar as State Moves to Ban Virginity Testing, SUNDAY TIMES, July 11, 2005 (reporting on opposition to ban by traditionalists, and support by constitutionalists and women's rights advocates). The Commission on Gender Equality is an independent statutory body established pursuant to Section 187, Chapter 9 of the South African Constitution and charged with promoting "the protection, development and attainment of gender equality" and empowered "to monitor, investigate, research, educate, lobby, advise and report on issues concerning gender equality." S. AFR. CONST. 1996. ch. IX §§ 187(1), 187(2).
189. Press Release, Comm'n on Gender Equality, Cultural Groups to Protest at Commission on Gender Equality Offices about Children's Bill Outlawing Virginity Testing (Sept. 15, 2005) [hereinafter Comm'n on Gender Equality Sept. 2005 Press Release], available at http://www.info.gov.za/speeches/2005/ 05091610451007.htm (reporting on protests by cultural organizations regarding the failure of lawmakers in the lower house of Parliament to consult them prior to banning virginity testing). The status of traditional leaders, institutions representative of traditional leadership, and customary law are granted recognition pursuant to Section 211, Chapter 12 of the Constitution of South Africa. S. AFR. CONST. 1996. ch. XII, §§ 211(1), 211(2).
190. Comm'n on Gender Equality, Submission to the Select Committee on Social Services (NCOP): Children's Bill [B70B-2003], at 3 (Oct. 1, 2005) available at http://www.ci.org.za/depts/ci/plr/docs/CGE%20Submission%20- %20virginity%20testing.doc.
191. The Human Rights Commission is an independent statutory body established in terms of Section 184, Chapter 9 of the Constitution of South Africa and charged with promoting "the protection, development and attainment of human rights." S. AFR. CONST. 1996. ch. IX § 184. The Commission annually reviews the measures taken by "relevant organs of state . . . towards the realisation of rights in the Bill of Rights concerning housing, health care, food, water, social security education and the environment." Id. at § 184(3).
192. Virginity Testing Debate Planned, DISPATCH ONLINE, June 10, 2000, http://www.dispatch.co.za/2000/06/10/ southafrica/VIRGIN.HTM (last visited July 31, 2003).
193. Virginity Testing, PPP NEWS, supra note 84; see, e.g., CGE, CONSULTATIVE CONFERENCE, supra note 49, at 63-65 (disapproving testing and hoping that further discussions between stakeholders would yield consensus).
194. See Ben Maclennan, Children's Bill Approved by Assembly, MAIL & GUARDIAN, June 23, 2005, available at http://www.mg.co.za/article/2005-06-23-childrens-bill-approved-byassembly (reporting that the Children's Bill "outlaws virginity testing"). The 2005 Children's Rights Act will eventually repeal the 1983 Child Care Act, which was shaped by the Apartheid government before the democratic transition and prior to the enactment of the child protection provisions of the Bill of Rights. LUCY JAMIESON & PAULA PROUDLOCK, CHILDREN'S BILL PROGRESS UPDATE: REPORT ON AMENDMENTS MADE BY THE PORTFOLIO COMMITTEE ON SOCIAL DEVELOPMENT 2 (June 2005) [hereinafter CHILDREN'S BILL PROGRESS UPDATE JUNE 2005], available at http://www.ci.org.za/depts/ci/plr/pdf/ progress/27June2005.pdf. Children's rights groups maintain that the 1983 Act was not crafted with a children's rights perspective in mind and does not start from a premise of equality for all children or promote the best interests of the child principle. Id.
195. CHILDREN'S BILL PROGRESS UPDATE JUNE 2005, supra note 194, at 3, 10-11 (reporting that Section 12 of the draft bill provides that "[e]very child has the right not to be subjected to social, cultural and religious practices which are detrimental to his or her well-being, health or dignity of the child"; virginity testing of children was specifically banned in Section 12(4)) (internal quotations omitted). Female circumcision was also banned. Id. at 3. Male children now have the right to refuse to be circumcised. Id. (citing Section 12(5)). Anyone violating these provisions or who fails to protect the child from such an act is guilty of a criminal offense. Id. (citing Section 12(6)).
196. Id. (citing Section 12(5)).
197. Comm'n on Gender Equality Sept. 2005 Press Release, supra note 190.
198. Mthethwa & Sibongile, supra note 188 (reporting that the Bill would criminalize such conduct, "impos[ing] an outright ban on virginity testing" if approved by the upper house of Parliament); see also CHILDREN'S BILL PROGRESS UPDATE JUNE 2005, supra note 194, at 3, 11.
199. Bengali, supra note 188; Jonathan Clayton, South Africa Ready to Ban 'Degrading' Virginity Tests, THE TIMES (London), Dec. 14, 2005. The Council offered stakeholders who had not yet been heard by the Assembly an opportunity to make submissions. It heard from representatives of the National House of Traditional Leaders, the Commission on Gender Equality, and the general public on the social costs and benefits of virginity testing. Fienie Grobler, Virginity Testing May Soon be Banned Custom, MAIL & GUARDIAN, Dec. 13, 2005.
200. Christina Gallager, Bill Puts Clamp on Virginity Testing, THE STAR, Dec. 24, 2005, at 1, available at http://www.int.iol.co.za/index.php?set-id=1&click-id=13 &art-id= vn20051224091523135C979037 (reporting on the Council's amendments to the Assembly's testing ban to permit testing for those over sixteen).
201. Clayton, supra note 199 (covering Parliament's debate on the proposed Bill to ban testing for children under sixteen).
202. Children's Act 38 of 2005, available at http://www.info.gov.za/ gazette/acts/2005/a38-05.pdf.
203. Id. at § 12(4).
204. Id.
205. Id. at § 12(5).
206. Id. In pertinent part, with respect to virginity testing the legislation now provides: (1) Every child has the right not to be subjected to social, cultural and religious practices which are detrimental to his or her well-being ... (4) Virginity testing of children under the age of 16 is prohibited. (5) Virginity testing of children older than the age of 16 may only be performed (a) if the child has given consent to the testing in the prescribed manner; (b) after proper counseling of the child; and (c) in the manner prescribed. (6) The results of a virginity test may not be disclosed without the consent of the child. (7) The body of a child who has undergone virginity testing may not be marked. Id.
207. See LUCY JAMIESON & PAULA PROUDLOCK, CHILDREN'S BILL PROGRESS UPDATE 1-2 (March 2006) [hereinafter CHILDREN'S BILL PROGRESS UPDATE MARCH 2006]. The Children's Bill containing the testing ban was passed as a Section 75 Bill. Id. at 2. The second Children's Bill, a Section 76 Bill, still must be passed before the ban is enacted. Id. For a detailed explanation of the different procedures the South African Parliament follows for different types of bills, see id. at 2, 6.
208. Id. at 8. The same constituency advocating virginity testing-the representatives of traditional leadership-opposes the proposed contraception access provisions as they currently appear in the companion Children's Bill. Id.
209. See, e.g., PAULA PROUDLOCK, CHILDREN'S BILL PROGRESS UPDATE 1-2 (July 2006) [hereinafter CHILDREN'S BILL PROGRESS UPDATE JULY 2006], available at http://www.ci.org.za/depts/ci/ph-/pdf/ progress/ProgressUpdate3July2006.pdf (reviewing the procedures for the Act to be entered into effect and projecting the year 2008 as the earliest that the Act might come into force); see also Children's Bill: Bills, http://www.ci.org.za/site/includes/content/PolicyLawReform/bills.html (last visited Feb. 14, 2008).
210. Children's BILL PROGRESS UPDATE JULY 2006, supra note 209, at 1.
211. ICESCR, supra note 174, art. 13
212. ICCPR, supra note 142, art. 25.
213. The ICCPR provides that in "times of public emergency" where the existence and security of the nation is compromised, a state may "take measures derogating from their [usual] obligations," provided such measures are "strictly required by the exigencies of the situation" and are not discriminatory. Id. art. 4(1). There can be no derogation with respect to the rights to life and equal protection under law as well as prohibitions against torture, slavery, ex post facto criminal prosecutions, and religious freedom. Id. art. 4(2).
214. S. AFR. CONST. 1996. ch. II, § 36. The limitations clause specifies that the rights contained in the Bill of Rights "may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable . . . taking into account all the relevant factors, including: (a) the nature of the right; (b) the importance ... of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose." See Larbi-Odam v. Member of the Executive Council for Ed. 1998 (1) SA 745 (CC) (S. Afr.) (holding that reasonableness and justification are dependent upon circumstances); State v. Makwanyane 1995 (3) SA 391 (CC) (S. Afr.) (formulating the factors for evaluating a policy limiting certain rights); see generally DEVENISH, supra note 147.
215. See Murphy, supra note 2.
216. See Fikile-Ntsikelelo Moya, The Virginity Tester, MAIL & GUARDIAN, Sept. 23, 2005, available at http://www.mg.co.za/article/2005-09-23-the-virginity-tester.
217. See, e.g., Louise Vincent, Virginity Testing in South Africa: Re-traditioning the Postcolony, 8 CULTURE, HEALTH & SEXUALITY 17, 18 (2006).
218. Cf. Steven Friedman, On HIV/AIDS, Government Still Speaks With a Forked Tongue, BUSINESS DAY (JOHANNESBURG), Feb. 8, 2006 (reporting the harmful effects of the government's "mixed messages" in HIV/AIDS prevention); Tina Rosenberg, For People with AIDS. A Government with Two Faces, N.Y. TIMES, Aug. 30, 2006 (discussing an appeals court contempt order against the government for failing to provide available antiretroviral drugs as ordered); Singer, supra note 2 (citing testers who claim they test "because they have nothing else" available to combat the spread of AIDS).
219. Jeanne M. Woods, Justiciable Social Rights as a Critique of the Liberal Paradigm, 38 TEX. INT'L L.J. 763, 765 (2003) (noting that "[t]he assumed dichotomy between [positive and negative rights] blurs the true dilemma that social rights pose for the liberal paradigm [which is] that rights implicating the redistribution of social resources are collective in charter and rooted in the common needs of human beings in society").
220. Sharon LaFraniere, Women's Rights Laws and African Customs Clash, N.Y. TIMES, Dec. 30, 2005 ('"We will uphold our traditions and customs,' said Patekile Holomisa, president of the Congress of Traditional Leaders, a political party in South Africa, 'There are laws that are passed that do not necessarily have any impact on the lives of people. I imagine this will be one of those.'").
221. Id. (reporting that Jacob Zuma, South Africa's former Deputy President, personally attended a testing ceremony and supports virginity tests "as a way to shield African values against the corrosive effects of Western civilization").
222. Id.; see also Zwelihle Memela, Virginity Testers Fight for their 'Cultural Rights', NATAL WITNESS NEWS, Dec. 6, 2000.
223. See Karen Engle, Female Subjects of Public International Law: Human Rights and the Exotic Other Female, 26 NEW ENG. L. REV. 1509, 1514 (1991).
224. See Higgins, supra note 134, at 91 (posing this question for feminists).
225. Female circumcision is practiced in approximately twenty-five countries in Africa. A form of female circumcision also occurs in Indonesia, Malaysia, and Yemen. Hope Lewis, Between Irua and "Female Genital Mutilation": Feminist Human Rights Discourse and the Cultural Divide, 8 HARV. HUM. RTS. J. 1, 1 n.5 (citing U.N. ESCOR, Comm'n on Hum. Rts., Sub- Comm'n on Prevention of Discrimination and Protection of Minorities, Study on Traditional Practices Affecting the Health of Women and Children, ¶¶ 9-10, 43d Sess., Provisional Agenda Item 4, U.N. Doc. E/CN.4/Sub.2/1991/6 (1991)).
226. See generally ROSEMARIE SKAINE, FEMALE GENITAL MUTILATION (2005); (Catherine Brennan, The Influence of Cultural Relativism on International Human Rights Law: Female Circumcision as a Case Study, 7 L. & INEQUALITY 367 (1989); Isabelle R. Gunning, Arrogant Perception, World Traveling and Multicultural Feminism: The Case of Female Genital Surgeries, 23 COLUM. HUM. RTS. L. REV. 189 (1992); Kay Boulware-Miller, Female Circumcision: Challenges to the Practice as a Human Rights Violation, 8 HARV. WOMEN'S L.J. 155 (1985) (arguing that to challenge female circumcision on grounds of individual rights is to ignore culture and to be perceived by African women as imposing and judgmental, in contrast to the right to health approach, in which people are educated about associated health risks); Alison T. Slack, Female Circumcision: A Critical Appraisal, 10 HUM. RTS. Q. 437 (1988).
227. See, e.g., Lewis, supra note 225, at 13 (analyzing the "ambivalence and tension" in feminist literature on "female genital surgery" abolition efforts); see also Higgins, supra note 134, at 89 (asking "[i]n the face of profound cultural differences among women, how can feminists maintain a global political movement yet avoid charges of cultural imperialism?").
228. See Sally Engle Merry, Global Human Rights and Local Social Movements in a Legally Plural World, 12 CAN. J. L. & Soc. 247, 249-50, 268-69 (1997) (discussing the limitations of a "rights-based" approach to spousal abuse in traditional communities and exploring the significance of culture and need for changing cultural norms).
229. See Sally Falk Moore, Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study, L. & SOC'Y REV. 721, 723 (1973); see also EUGEN EHRLICH, FUNDAMENTAL PRINCIPLES OF THE SOCIOLOGY OF LAW 63-64 (2002) ("[T]he social association ... is the source of the coercive power, the sanction, of all social norms, of law no more than of morality, ethical custom, religion [and] honor. ... The state is not the only association that exercises coercion; there is an untold number of associations in society that exercise [coercion] much more forcibly than the state."); John Griffiths, What is Legal Pluralism? 24 J. LEGAL PLURALISM & UNOFFICIAL L. 1, 1-26 (1986); Merry, supra note 228, at 268-69.
230. Kathryn Bromley Chan, From Legal Universalism to Legal Pluralism: Expanding and Enhancing the Human Rights Approach to HIV/AIDS, 21 S. AFR. J. HUM. RTS. 191,211 (2005).
231. Id.
232. Cass R. Sunstein, Rights and Their Critics, 70 NOTRE DAME L. REV. 727, 730 (1995).
233. Id.
234. Amartya Sen, Gender Inequality and Theories of Justice, in WOMEN, CULTURE, AND DEVELOPMENT 259, 266 (Martha C. Nussbaum & Johnathan Glover eds., 1995).
235. Des Gasper, Sen's Capability Approach and Nussbaum's Capabilities Ethic, 9 J. INT'L DEV. 281, 283 (1997).
236. AMARTYA SEN, RESOURCES, VALUES AND DEVELOPMENT 308 (1997).
237. Id. at 309.
238. Id.
239. Gasper, supra note 235, at 283.
240. SEN, supra note 15, at 39-40.
241. AMARTYA SEN, THE STANDARD OF LIVING 36 (1985).
242. Id.
243. Id. at 37.
244. Ingrid Robeyns, The Capability Approach: A Theoretical Survey, 6 J. HUM. DEV. 93, 95 (2005).
245. SEN, supra note 15, at 125.
246. Ingrid Robeyns, Sen's Capability Approach and Gender Inequality: Selecting Relevant Capabilities, 9 FEMINIST ECON. 61, 62 (2003) (investigating how Sen's capability approach can be applied to assess gender inequality in Western societies).
247. Robeyns, supra note 244, at 95-96 (emphasis added).
248. Robeyns, supra note 246, at 66.
249. Id. at 64 (emphasis in original).
250. See Erika George, Instructions in Inequality: Development, Human Rights, Capabilities and Gender Violence in Schook, 26 MICH. J. INT'L LAW 1139, 1199-1201 (2005) (exploring how capabilities theory enhances understandings of socioeconomic rights, and illustrating a capabilities approach to the right to education); Jennifer Prah Ruger, Health, Capability and Justice: Toward a New Paradigm of Health Ethics, Policy and Law, 15 CORNELL J.L. & PUB. POL'Y 101, 105-06, 136-41 (2006) (advocating a capabilities approach to public health policy).
251. See Louis Menand, An Introduction to Pragmatism, in PRAGMATISM, at xiii (Louis Menand ed., 1997).
252. William James, What Pragmatism Means, reprinted in PRAGMATISM, supra note 251, at 96 ("It is astonishing to see how many philosophical disputes collapse into insignificance the moment you subject them to this simple test of tracing a concrete consequence.").
253. Menand, supra note 251, at xxvi.
254. For William James, "the pragmatic method" attempts to "interpret each notion by tracing its respective practical consequences. What difference would it practically make to anyone if this notion rather than that notion were true?" James, supra note 252, at 94 (explaining the history of the idea of pragmatism).
255. Michel Rosenfeld, Pragmatism, Pluralism and Legal Interpretation: Posner's and Rorty's Justice Without Metaphysics Meets Hate Speech, in THE REVIVAL OF PRAGMATISM 324, 325 (Morris Dickstein ed., 1998).
256. Id. at 324.
257. Id. at 340.
258. HEINZ KLUG, CONSTITUTING DEMOCRACY 164-65 (2000). For discussions of gender equality and cultural autonomy interacting in the spirit of ubuntu and mutual tolerance, see, e.g., Elsje Bonthuys, Accommodating Gender, Race, Culture and Religion: Outside Legal Subjectivity, 18 S. AFR. J. ON HUM. Rts. 41, 58 (2002) ("African women must no longer have to choose between culture and equality, for otherwise both rights will be rendered illusory.") (quoting Wayne Van der Medie, Gender Equality v. Right to Culture: Debunking the Perceived Conflicts Preventing the Reform of the Marital Property Regime of the "Official Version " of Customary Law, 116 S. Afr. L.J. 100, 112 (1999)). Bonthuys advises policymakers to measure the effectiveness of strategies for change against the changes brought about in the experiences of different women due to the different contexts in which women find themselves. Id. She explains that middle class African women may organize many aspects of their life according to Western structures and norms, but retain aspects of traditional identity that are advantageous in other contexts. Id.; see also Victoria Bronstein, Reconceptualizing the Customary Law Debate in South Africa, 14 S. AFR. J. oN HUM. RTS. 388, 389, 393 (1998); Van der Meide, supra, at 112 (1999) (arguing against legal interpretations that would "pit[] the right to equality against the right to participation in one's culture," and advocating that "[r]eform must instead be thought of as the pursuit of a society in which all people, [including women and girls], are able to realize their dignity and self-worth to their fullest potential"). 259. Bonthuys, supra note 258, at 41-42.
259. Heterogeneity is a defining feature of South Africa; there are eleven official languages and several different racial and ethnic groups. S. AFR. CONST. 1996. ch. I, § 6(1). The eleven languages are Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu. Since the first multi-party elections marking the country's transition to an open and democratic society in 1994, South Africans have sought to free themselves from this Apartheid legacy. They have done so by embracing a constitutional legal order that is based on democratic values, social justice, and fundamental rights. See KLUG, supra note 258, at 85-92 (2000) (explaining constitutional efforts to respond to the legacy of apartheid). The Constitution envisions a country where all South Africans are "united in [their] diversity." S. AFR. CONST. 1996. pmbl. Accordingly, the Constitution, while explicitly committed to equality, also protects cultural, linguistic, and religious communities. Id. ch. II, § 31.
260. S. AFR. CONST. 1996. ch. II, § 31(1).
261. Id. §31(2).
262. Cf Makau Wa Mutua, Hope and Despair for a New South Africa: The Limits of Rights Discourse, 10 HARV. HUM. RTS. J. 63, 69 (1997) (offering a critical assessment of the Constitution's gradualist approach to change, Mutua writes, "Except for largely cosmetic effects, there is little possibility that the particular conceptualization of rights in the new South Africa will alter the patterns of power, wealth, and privilege established under apartheid").
263. Because the analysis in both Bhe v. The Magistrate of Khayelitsha 2005 (1) BCLR 1 (CC) (S. Afr.) and Shibi v. Sithole 2005 (1) BCLR 1 (CC) (S. Afr.) were similar, only the Bhe case will be discussed in depth.
264. See Intestate Succession Act 81 of 1987; Black Administration Act 38 of 1927. Section 23 of the Black Administration Act provides in pertinent part: "All moveable property belonging to a Black and allotted by him or accruing under Black law or custom to any woman with whom he lived in a customary union, or to any house, shall upon his death devolve and be administered under Black law and custom." Black Administration Act of 1927 s. 1. For a discussion of the legacy of discrimination against black women in South Africa, see Adrien Katherine Wing & Eunice P. de Carvalho, Black South African Women: Toward Equal Rights, 8 HARV. HUM. RTS. J. 57, 60-65 (1995).
265. Bhe, 2005 (1) BCLR 1¶ 47.
266. Id. ¶¶ 72-73. "[T]he rights to equality and dignity are the most valuable of rights in any open and democratic state. They assume special importance in South Africa because of our past history of inequality and hurtful discrimination." Id. ¶ 71.
267. Id. ¶¶ 68, 73.
268. Id. ¶ 41 (emphasis added).
269. Id. ¶ 45.
270. Id. ¶ 44. In addition to the Constitution's commitment to equality, the Court noted the nation's obligations under international law to protect the rights of women and abolish all laws that discriminate against them pursuant to a number of international instruments to which South Africa is a party. Id. ¶ 51.
271. Id. ¶ 86 (internal citations omitted).
272. Id.¶ 75.
273. Id.
274. Id. ¶¶ 75-76, 80-82.
275. Id. ¶¶ 75-77.
276. Id. ¶ 80 (noting that nuclear families have mostly replaced traditional extended family structures and that the male heir now "often simply acquires the estate without assuming . . . any of the deceased's responsibilities").
277. Id. ¶ 81.
278. Id. ¶¶ 43-46. Justice Langa opined, "Customary law has, in my view, been distorted in a manner that emphasizes its patriarchal features and minimizes its communitarian ones." Id. ¶ 89. Customary law as administered under Apartheid had been denied "of its opportunity to grow in its own right and to adapt itself to changing circumstance[,]" contributing to a situation where '"[c]ustomary law was lamentably marginalised and allowed to degenerate into a vitrified set of norms alienated from its roots in the community.'" Id. ¶ 43 (footnote omitted).
279. See generally id.
280. See RICHARD A. POSNER, LAW, PRAGMATISM AND DEMOCRACY 59-60 (2003).
281. See id.
282. Minister of Home Affairs v. Fourie 2006 (3) BCLR 355 (CC) (S. Afr.).
283. Id. ¶¶ 2-3, 34,44.
284. Id. ¶ 99; see ICCPR supra note 142, art. 23(2).
285. Fourie, 2006 (3) BCLR 355 ¶ 99.
286. Id. ¶ 100. In the Court's opinion, the real purpose of Article 23 "is to forbid child marriages, remove racial, religious or nationality impediments to marriage, ensure that marriage is freely entered into and guarantee equal rights before, during and after marriage." Id.
287. Id. ¶ 114.
288. ICCPR, supra note 142, art. 23; UDHR, supra note 140, art. 16.
289. Fourie, 2006 (3) BCLR 355 ¶¶ 101, 103; The U.N. Office of the High Commissioner for Human Rights notes that "the concept of the family may differ in some respects from State to State, and even from region to region within a State, and that it is therefore not possible to give the concept a standard definition." U.N. Human Rights Comm., General Comment 19, art. 23, ¶ 2, 39th Sess., U.N. Doc. HRI/GEN/1 (1990).
290. Fourie, 2006 (3) BCLR 355 ¶¶ 101-102.
291. UDHR, supra note 140, art. 25.
292. ICESCR, supra note 174, art. 12.
293. Id. art. 12(d).
294. CRC, supra note 112, art. 24. Article 24 provides that governments must "strive to ensure that no child is deprived of his or her right" of access to health care services. Id. Article 24 also outlines measures governments should pursue to attain full implementation of the health right. Id. Among other things, governments are "to ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition." Id. art. 24(2)(e). States are also required "to develop preventive health care, guidance for parents and family planning education and services." Id. art. 24(2)(f). And they must "take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children." Id. art. 24(3).
295. CEDAW, supra note 143, art. 12. The state obligation to eliminate discrimination against women in health care also extends to health care associated with family planning. Id.
296. See Comm. on Economic, Social and Cultural Rights, General Comment No. 14, art. 12,¶¶ 8, 12, 22nd Sess., U.N. Doc. E/C.12/2000/4 (2000). There are four essential elements to the right to health: "availability, " "accessibility," "acceptability," and "quality." States must provide functioning and adequate public health services. Id. ¶ 8. The particular nature of health services to be provided will vary and depend on a State's level of development. However, where a State is able to make public health facilities available the facilities must be "accessible to everyone without discrimination." Id. ¶ 12(b).
297. The Constitution of the WHO conceptualizes health as "a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity." CONST, OF THE WORLD HEALTH ORG. pmbl. (1946).
298. General Comment No. 14, supra note 297, ¶ 4.
299. Id.
300. Id. ¶11.
301. Id. ¶ 9.
302. Id. ¶ 8 (emphasis in original).
303. Id. ¶ 9.
304. General Comment No. 14, supra note 297, ¶ 30.
305. Id. ¶¶ 30, 31.
306. Id. ¶ 33 (emphasis in original). Pursuant to the obligation to "fulfill," States must acknowledge the right to health through enacting appropriate legislation, establishing a public health infrastructure and designing public health polices. Id. ¶ 36. To satisfy obligations to "protect," States must regulate sales and promotion of medications and medical equipment and set and monitor compliance with standards to govern the education and ethics of medical practitioners and others practicing in the health care profession. Id. ¶ 35. The obligation to protect also includes a requirement that States "ensure that harmful social or traditional practices do not interfere with access ... to health-related information and services." Id. ¶ 35. Finally, the obligation to "respect" the right to health imposes the duty upon a State not to deny or impede equal access to health care, and in particular to abstain from discriminatory practices in the delivery of health services "relating to women's health status and needs." Id. ¶ 34. States must not censor, deny, or intentionally misrepresent information related to the public health. Id. ¶ 34. States must not restrict access to contraceptives and reproductive health services or information. Id.
307. General Comment No. 14, supra note 297, ¶ 43 (restating the minimum core concept).
308. Id. at ¶¶ 43-44. For a discussion of the UNCESCR's understanding of the core of the right to health in the South African context, see Christopher Heyns & Gina Bekker, Introduction to the Rights Concerning Health Care in the South African Constitution, in A COMPILATION OF ESSENTIAL DOCUMENTS ON THE RIGHTS TO HEALTH CARE 1,15-16 (Gina Bekker ed., 2000).
309. General Comment No. 14, supra note 297, ¶ 48. Significantly, violations of the health right may also occur when private non-state entities are insufficiently regulated by government and impede realization of the highest attainable standard of health for others. Id. ¶ 51. A State should defend people in its jurisdiction against private third parties that would infringe their heath rights. Id. Accordingly, "failure to regulate the activities of individuals, groups or corporations so as to prevent them from violating the right to health of others" is a violation, as is "failure to discourage the continued observance of harmful traditional medical or cultural practices." Id.
310. Id. ¶ 49.
311. S. AFR. CONST. 1996 ch. II, § 27(1).
312. Id. § 27(2). The Constitution also provides that no one may be refused emergency medical treatment.
313. Soobramoney v. Minister of Health, KwaZulu-Natal 1997 (12) BCLR 1696 (CC) ¶ 7 (S. Afr.).
314. Minister of Health v. Treatment Action Campaign, 2002 (10) BCLR 1023 (CC) ¶¶ 4-5 (S.Afh).
315. See Comm. on Economic, Social, & Cultural Rights., General Comment 3, art. 2, ¶ 1, 10, 5th Sess., U.N. Doc E/1991/23. (1990); see also Limburg Principles on the Implementation of the International Convention on Economic Social and Cultural Rights, ¶¶ 21-28, Annex, U.N. Doc. E/CN.4/1987/17 (June 2-6, 1986), reprinted in 9 HUM. RTS. Q. 122 (1987); Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, ¶ 9, U.N. Doc. E/C. 12/2000/13 (Jan. 22-26, 1997), reprinted in 20 HUM. RTS. Q. 691 (1998). The minimum core approach to socioeconomic rights enforcement envisions the identification of subsistent levels of a given right and attaches an immediate obligation to meet that basic level. The minimum core has been said to represent a "floor" of immediately enforceable entitlements from which progressive realization should proceed. See Audrey R. Chapman, Core Obligations Related to the Right to Health and Their Relevance for South Africa, in EXPLORING THE CORE CONTENT OF SOCIO-ECONOMIC RIGHTS: SOUTH AFRICAN AND INTERNATIONAL PERSPECTIVES 35-37 (Danie Brand & Sage Russell eds., 2002).
316. Marius Pieterse, Resuscitating Socio-Economic Rights: Constitutional Entitlements to Health Care Services, 22 S. Are. J. HUM. RTS. 473, 474 (2006). Broadly, the reasonableness approach is an assessment of the rationality, coherence, flexibility, fairness, and inclusiveness of state policies aimed at the progressive realization of socioeconomic rights. See Gov't of the Republic of S. Afr. v. Grootboom 2000 (11) BCLR 1169 (CC) ¶¶ 39-44 (S. Afr.) (articulating the reasonableness standard and factors to be considered in the context of the right to housing). For a discussion of the Constitutional Court's treatment of socioeconomic rights, see generally Eric C. Christiansen, Adjudicating Non-Justiciable Rights: Socio-Economic Rights and the South African Constitutional Court, 38 COLUM. HUM. RTS. L. REV. 321 (2007).
317. Soobramoney, 1997 (12) BCLR 1696 ¶ 36.
318. Id. ¶¶ 1-3.
319. Id. ¶ 4.
320. Id. ¶¶ 22-36.
321. Id. ¶31.
322. Treatment Action Campaign, 2002 (10) BCLR 1023 ¶ 44. The cost of Nevirapine was not an issue in the proceedings. Id. ¶ 71.
323. Id. ¶ 4. Nevirapine is a potent fast-acting antiretroviral drug used worldwide in the treatment of HIV/AIDS. In 2001, it was approved by the WHO for use by pregnant women to prevent mother-to-child transmission of HIV at birth. See WHO MODEL LIST OF ESSENTIAL MEDICINES 10 (15th ed. 2007), available at http://www.who.int/ medicines/publications/EML15.pdf. The drug had been approved for these uses in South Africa.
324. Treatment Action Campaign, 2002 (10) BCLR 1023 ¶¶ 26-39. Nevirapine appears on the WHO's list of essential drugs that should be provided as part of the minimum core of the right to health according to the UNCESCR. Id. ¶ 2 n.3; see also WHO MODEL LIST OF ESSENTIAL MEDICINES, supra note 324, at 10. It was also made available to the government free of charge. Treatment Action Campaign, 2002 (10) BCLR 1023 ¶ 4 n.5.
325. Treatment Action Campaign, 2002 (10) BCLR 1023 ¶ 35; see also id. ¶ 34 ("[T]he socio-economic rights of the Constitution should not be construed as entitling everyone to demand that the minimum core be provided to them.").
326. Id. ¶¶ 67-73 (presenting considerations relevant to reasonableness inquiry); id. ¶¶ 93-95 (assessing the reasonableness of government actions); id. ¶ 122 ("In the present case we have identified aspects of government policy that are inconsistent with the Constitution. . . . The [government's] policy as reformulated must meet the constitutional requirement of providing reasonable measures within available resources for the progressive realisation of the rights of [such] women and newborn children.").
327. Id. ¶ 125.
328. See, e.g., Jonathan Klaaren, A Remedial Interpretation of the Treatment Action Campaign Decision, 19 S. AFR. J. ON HUM. RTS. 455, 455-56 (2003); see also Christiansen, supra note 317, at 374-76; Mark Kende, The South African Constitutional Court's Construction of Socio-Economic Rights: A Response to Critics, 19 Conn. J. INT'L L. 617, 617-18 (2004); Pieterse, supra note 317, at 498 (arguing that "it is possible to recast... the TAC finding as an entitlement to receive safe and efficacious medical treatment where such treatment has been medically indicated, as long as the treatment is affordable and where capacity to administer it exists").
329. Woods, supra note 219, at 790.
330. Id. Woods reconciles the results in the Soobramoney and TAC cases as follows: Both kidney disease and AIDS are serious, life-threatening harms. However, the AIDS epidemic has all of the characteristics of a classic "public" health crisis: a communicable disease that threatens the entire population. As such, AIDS more readily falls within the traditional scope of liberal state responsibility. In contrast, kidney disease, no matter how widespread, is seen as a "private" misfortune; its victims, while generating sympathy, may even be deemed "undeserving" of an urgent public response because of their having made bad lifestyle choices. Notably, in [TAC], the beneficiaries of constitutional relief were not the infected mothers, but the innocent- and hence, "deserving"-infants to whom the disease was transmitted in utero. Id. (footnotes omitted).
331. Id. at 791.
332. Id. 334. Woods, supra note 219, at 790-91.
333. Treatment Action Campaign, 2002 (10) BCLR 1023 ¶¶ 68-73.
334. CRC, supra note 112, art. 29(d).
335. James, supra note 252, at 97.
336. See, e.g., Govender, supra note 90; Dickson, supra note 91.
337. See, e.g., Daley, supra note 1.
338. See General Comment No. 14, supra note 297, ¶ 34.
339. Daley, supra note 1.
340. See Nyamu, supra note 122, at 393 (discussing the shortcomings of an "abolitionist approach" to discriminatory cultural practices).
341. Id.
342. Id. at 406 (discussing failures by the human rights and development communities to better mediate gender equality and cultural identity and offering alternative ways of addressing cultural justifications for gender inequality.); see also Abdullahi An-Na'im, Promises We Should All Keep in Common Cause, in Is MULTICULTURALISM BAD FOR WOMEN?, supra note 123, at 60-66.
343. Nyamu, supra note 122, at 406.
344. See, e.g., Memela, supra note 222.
345. See, e.g., Lewis, supra note 225, at 28-33 (reviewing the scholarship of Western feminists and discussing the concerns of African feminists with respect to Western "eradication campaigns" against cultural practices).
346. Nyamu, supra note 122, at 393.
347. Id. ("'People are not simply the naïve product of a rigid and static society,' except in the uninformed imagination of some people in Western societies who view Third World societies as 'stable, timeless, ancient, lacking in internal conflict, and premodern."'); see also Katha Pollitt, Whose Culture?, in Is MULTICULTURALISM BAD FOR WOMEN?, supra note 123, at 27-29.
348. See, e.g., Moya, supra note 216.
349. Merry, supra note 228, at 249-50.
350. Id. at 250, 268, 270 (explaining how "rights and legal remedies offer a narrow definition of social problems such as gender inequality and provide a restricted and individualistic set of remedies" rather than addressing "the broader cultural productions that foster violence against women"); see also Ann-Belinda S. Preis, Human Rights as Cultural Practice: An Anthropological Critique, 18 HUM. RTS. Q. 286, 290 (1996) (discussing rights as cultural practice).
351. Nyamu, supra note 122, at 382.
352. Id. at 381.
353. Id. at 416.
354. Id. at 416-18 (arguing that "proponents of gender equality must engage with the specific politics of culture and that assertions of the rigid notions of custom must be met with empirical evidence of the flexibility, variety, and richness of contemporary local practice").
355. See id.; see also Thandabantu Nhlapo, African Family Law Under an Undecided Constitution: The Challenge for Law Reform in South Africa, in THE CHANGING FAMILY INTERNATIONAL PERSPECTIVES ON THE FAMILYAND FAMILY LAW 617, 623-24 (John Eekelaar & Thandabantu Nhlapo eds., 1998) (warning against the estrangement caused by a rights-based strategy that abstracts women from their cultural and religious contexts); Abdullahi An-Na'im, supra note 344, at 62; Martha Nussbaum, A Plea for Difficulty, in Is MULTICULTURALISM BAD FOR WOMEN?, supra note 123, at 105-107; see also Jennifer Nedelsky, Reconceiving Autonomy: Sources, Thoughts and Possibilities, 1 YALE J.L. & FEMINISM 7, 10 (1989) (arguing for a reconceived notion of rights that emphasizes relationships and interdependence rather than estranging individualism).
356. See, e.g., Singer, supra note 2; McGreal, supra note 23.
357. See McGreal, supra note 23.
358. See, e.g., Cullinan, supra note 171; Memela, supra note 222; Moya, supra note 216.
359. Jonathan M. Mann, Medicine and Public Health, Ethics and Human Rights, in HEALTH AND HUMAN RIGHTS 439, 446 (Jonathan Mann et al. eds., 1999).