Virginity Testing and South Africa's HIV/AIDS Crisis: Beyond Rights Universalism and Cultural Relativism Toward Health Capabilities

71 Pages Posted: 25 Jun 2007 Last revised: 5 Feb 2013

See all articles by Erika R. George

Erika R. George

University of Utah - S.J. Quinney College of Law

Date Written: December 31, 2008

Abstract

I explore the tensions between gender equality, personal autonomy and evolving cultural practices when a traditional practice that arguably violates universal international human rights and domestic constitutional norms also enjoys strong support—as is the case with virginity testing in South Africa. The practice of virginity testing has reemerged, advanced not only as a return to tradition but also as an HIV/AIDS prevention strategy. I examine the debates about virginity testing and its recent prohibition by the government in order to more fully consider the limitations of liberalism as the foundation for human rights when operating within a pluralistic cultural context under pressure from pandemic disease. Observing that neither legal nor biomedical approaches absent an appreciation for culture can in isolation address pandemic disease, I call for a discursive shift from the politics of culture towards a substantive right to health informed by “capabilities theory,” a pragmatic approach to cultural pluralism, and an appreciation of both rights and culture as contextual and adaptable.

Keywords: Gender, Culture, Human Rights, Health, HIV/AIDS, Pandemic Disease, Capabilities, Pluralism, South Africa, Constitutional Law

Suggested Citation

George, Erika R., Virginity Testing and South Africa's HIV/AIDS Crisis: Beyond Rights Universalism and Cultural Relativism Toward Health Capabilities (December 31, 2008). California Law Review, Vol. 96, No. 1447, 2008, Available at SSRN: https://ssrn.com/abstract=995851

Erika R. George (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

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