Virginity Testing and Its Critics

In the southern African context, virginity testing refers to a process in which unmarried young women are examined by older women in order to ascertain whether they remain virgins. The details of virginity testing vary across the region; in some areas, such as KwaZulu and Swaziland, there are large-scale ritual occasions at which hundreds of young women are examined communally. In much of the rest of the region, including Xhosaland, virginity testing is usually performed in more private contexts, carried out by family members of the young women.

The past decade has seen contentious debates about virginity for two major reasons. First, there has been a revival of virginity testing in response to the linked social crises of HIV/AIDS and sexual violence. Public figures such as the Zulu king have urged families to “test” their daughters regularly, and attendance at public testing festivals has risen dramatically while new rituals such as the Nomkhubulwane Festival have been created. Second, following on that revival came the passage in 2005 of the Children’s Act, which was widely portrayed in Zulu and Xhosa-language media such as radio stations uKhoziFM and Umhlobo Wenene, and the newspapers iLanga and iSolezwe, as an attack on parental authority as well as African custom or tradition. Although the proposed prohibition on virginity testing was not the most controversial part of the bill, it did play an important role in constructing a public debate in which the “rights of the child” stood in opposition to cultural rights (de Robillard Reference de Robillard2009). In the end, the Act as passed permits virginity testing only on girls over the age of sixteen, with a requirement for consent and a number of other restrictions.

As with other issues that set women’s activists against traditionalists in contemporary South Africa, however, even some critics of virginity testing argue for a more nuanced relationship between the concept of custom and concerns over the testing. When Nomboniso Gasa criticized virginity testing during her tenure as chair of the Commission on Gender Equality, she distinguished between past and present practices, arguing that “this practice, important as it may have been in the past, no longer serves our society” (Bruillard Reference Bruillard2008). Suzanne Leclerc-Madlala (Reference Leclerc-Madlala2001, Reference Leclerc-Madlala2003) argues that current virginity testing practices shift blame for the HIV/AIDS epidemic toward young women and away from their male sexual partners, commodifies female sexuality, and shames young women who have been raped. Leclerc-Madlala also draws attention to the circulation of new notions of sexual shame derived from Christianity, and the commodification of virginity testing. One Zulu factory owner interviewed by Leclerc-Madlala personally inspected her female employees, a practice that imbued virginity with significant economic significance in an era of mass unemployment. As with debates over traditional courts and traditional leadership, Leclerc-Madlala’s critique of virginity testing emphasizes precisely the ways in which current practices are not customary, at least in the sense of having deep historical roots.

Proponents of current virginity-testing revivals do, however, consistently appeal to an idea of custom rooted in nostalgia for a precolonial past. In founding the Nomkhubulwane Festival, perhaps the most prominent element of the attempts to promote virginity testing in the current era, Nomagugu Ngobese specifically sought to revive what she described as a precolonial ritual that would harness the purity of young women to promote the health of the Zulu nation as a whole (Kendall Reference Inness1998)^. When a young woman in the Eastern Cape described virginity testing to a researcher, Zolisa Swartbooi-Xabadiya, as “one of the ways in which we can preserve our cultural values and customs,” she situated the practice as part of a cultural heritage with roots into the precolonial period (Swartbooi-Xabadiya Reference Swartbooi-Xabadiya2010). In Louise Vincent’s analysis, the revival of virginity testing represents an effort to “find healing and wholeness in a pristine imagined past” (2005:27). Fiona Scorgie’s ethnographic work in Kwazulu-Natal shows that women and girls who participate in virginity tests tell a “narrative of salvation” in which the revival of a fading cultural practice will help to restore moral order to a social world that is threatened by AIDS and nonmarital pregnancies (2002:62). As Rehebohile Moletsane (Reference Moletsane and Mitchell2011) argues, the contemporary legitimacy of virginity testing depends at least in part on the belief that such practices help to recreate a lost social order, one that predates the corrupting influences of European rule (see also Marcus Reference Marcus, Carton, Laband and Sithole2009).

Such narratives rely on highly questionable claims about the past. Martin Chanock (1985) and others have shown how, elsewhere on the continent, the content of custom changed dramatically under colonial rule, often increasing the power that men exercised over women and children. As will become clear below, precolonial southern Africa was not a utopia of sexual virtue either. The effectiveness of nostalgia does not, however, depend on its factual truth. Svetlana Boym (2002, Reference Boym2007) has argued persuasively that literary nostalgia takes two forms: “restorative” nostalgia and “reflective” nostalgia. The former, restorative nostalgia, which appeals to “universal values, family, nature, homeland, truth” with little concern for factual accuracy, is a prominent feature of narrative defenses of custom in South Africa (2007:16). Moletsane (Reference Moletsane and Mitchell2011) identifies a strong current of such nostalgia in a perceptive analysis of the current revivals, in which, she argues, the actual history of virginity testing has become irrelevant. And it is this form of nostalgia that Desiree Lewis (2003:2), an influential South African feminist theorist, attacks when she writes that “fictions of authenticity, custom, and ‘the past’ bolster patriarchal goals and desires, while perpetuating the servitude of women.” Reflective nostalgia, by contrast, does not seek to recreate a lost past, but rather looks to the past in order to defamiliarize the present, to “open up . . . non-teleological possibilities of human development” (Boym Reference Boym2007:16). This is the nostalgia of Jacob Dlamini’s Native Nostalgia (2010), which engages with black nostalgia for an apartheid-era past as a desire to restore individual experience to a historical narrative dominated by the antiapartheid struggle.

In this article I explore the possibility that contemporary nostalgia for the precolonial past—and for the practice of virginity testing in particular—might indeed constitute a politics of reflection, in which an examination of historical practice helps us understand the failure of the contemporary South African state to deal effectively with sexual violence. This analysis builds on historical research showing that colonial governments did not have the power to, as Terence Ranger once suggested, “invent tradition” out of whole cloth (1983; see also 1993). Custom was contested and changed over time, but it was not simply a blank slate onto which the colonial state could project its fevered imaginations of African patriarchy. As Brett Shadle (Reference Shadle2006) points out, African men were far from a monolithic category, their interests divided by generation and class, while individual men were simultaneously fathers and husbands. Nor were women monolithically oppressed. Lynn Thomas’s research (1996) on the history of female genital cutting in colonial Kenya demonstrates that young women were not unambiguously victims of patriarchal cultural practices, but often played an important role in the perpetuation of those practices. Meanwhile, recent scholarship on customary law has emphasized the limits of colonial abilities to impose “invented traditions” in the form of customary law.^{Footnote 3} Diana Jeater (2007) has argued that in colonial Zimbabwe attempts to achieve legal hegemony were unsuccessful, and that colonial law had little impact on the legal understandings of African communities.

The history of virginity testing in South Africa’s Eastern Cape, however, demonstrates that the colonial state did not need to achieve legal hegemony in order to transform African experiences of custom. The functioning of custom in the precolonial era depended on an interplay between discourse and practice that was interrupted by the creation of colonial courts. Despite its position within a discourse that subordinated female sexual autonomy to the control of male relatives, the historical practice of virginity testing in the precolonial and early colonial periods both protected young women against sexual coercion and affirmed the status of older women as experts on female sexuality. The history of virginity testing in the colonial period, and its replacement with professionalized forms of forensic medicine, demonstrates the degree to which the colonial state’s handling of sexual violence failed to serve the interests of South African women. This story, in turn, illuminates the failures of the contemporary state to reckon fully with the legacies of colonial rule.

Virginity Testing and the Regulation of Female Sexuality in the Nineteenth-Century Eastern Cape

At first blush, evidence on virginity testing from the precolonial and early colonial periods fits into the narrative proposed by its contemporary critics who claimed that such testing served as a tool to enforce patriarchal control. In precolonial and early colonial Xhosaland, a widely accepted set of norms placed women’s sexuality under the control of their families. For women, sex was normatively restricted to marriage, and men could be punished for having sex with an unmarried woman or another man’s wife. These limits were enforced by customary fines for the seduction of unmarried girls and for adultery, which were paid to a woman’s father or husband.

Familial control of female sexuality formed a core part of descriptions of Xhosa “custom” and “tradition” in the late precolonial and early colonial periods. According to John Knox Bokwe (Reference Bokwe1883), “seduction of virgins according to the customs of the Amaxosa ancients, generally got one of the heaviest fines inflicted over all the other crimes.” Numerous Xhosa witnesses to the 1883 Commission on Native Laws and Custom insisted that seduction was a very serious offense. The Ngqika Xhosa headman Toto insisted that “illicit intercourse with a woman before she is married . . . is considered a very great offence indeed, and between tribes it might lead to war. . . . If our girls were seduced we could make the man pay for her seduction according to the old custom” (Cape of Good Hope 1883:118–21). As part of the enforcement of these restrictions, Xhosa families monitored the sexual lives of unmarried daughters through regular physical examinations. Again, these examinations—virginity tests—were explicitly described as “customs.” As Nosayi explained to a colonial court in 1868, “it is customary with us to examine the young girls” (CAD SGG 1/1/42, 1868a).

Virginity examinations were intended to ensure that premarital sexual experimentation stopped short of penetrative intercourse. One of the permissible practices, as one woman explained to the Nqmakwe magistrate’s court, was ukumetsha, which allowed “men and women [to] get together and go through all the performances of married people save and except actual sexual intercourse and copulation” (CAD 1/NKE 2/1/1/9, 1890). According to testimony before the Commission on Native Laws and Customs, European observers were shocked by the practice and considered it an “unnatural connection” that allowed “young men and women to come together in onanistic connection” (Cape of Good Hope 1883:244). But while European commentators considered ukumetsha as an example of Xhosa sexual depravity, Xhosa communities understood it as a limitation on the forms of sexual play that unmarried young women were expected to engage in. In the precolonial and early colonial Eastern Cape, virginity tests were part of the framework of customary sexual regulation that condoned significant sexual play while strictly forbidding intercourse and therefore keeping female reproductive capacities under familial control. Women described the conducting of virginity tests as part of their maternal obligations; in the words of one, “I have frequently examined my daughter before to watch that she is all right, as a mother should” (CAD 1/NKE 2/1/1/9, 1890). At least in some cases this regime was enforced by violence. In 1895, for example, an eight-year old-girl named Pangiwe told the King Williams Town court that “My mother beat me because I would not allow her to examine me” (CAD SGG 1/1/513, 1895). But at least in theory, young women condoned these limitations on their sexuality. As Pombani, a Fingo headman, explained, “In the old time . . . girls were carefully looked after, and were examined frequently by older women, and if anything wrong was observed it was reported to the father, and, in consequence of this supervision, when any attempt was made by a man on a girl she at once reported it” (Cape of Good Hope 1883:303).

Families linked their concern for the virginity of unmarried women to the bridewealth that they received when women were married. As one mother told the Nqamakwe magistrate in a seduction case, “I am anxious for my daughter as she represents cattle” (CAD 1/NKE 2/1/1/11, 1891b). Several witnesses told the 1883 Commission on Native Laws and Customs that the family of a women who had been seduced would receive a smaller bridewealth payment when she married. According to Elijah Makiwane, a Presbyterian minister, “it is considered a disgrace when [a young woman] has illicit intercourse with a young man” because “the same number of cattle is not paid for her as otherwise would have been; and it is considered a disgrace if the lobola [bridewealth] is small” (Cape of Good Hope 1883:303). Fines for seduction were perceived as compensation for this loss, and the link between seduction and bridewealth invested virginity with both economic and social value.

Nevertheless, in many ways familial control of female sexuality in the late precolonial and early colonial periods was more permissive than most descriptions of virginity testing suggest. Evidence shows that many communities actively punished premarital sex only in cases in which pregnancy ensued. In 1891 a Nqamakwe headman defined the word isihuwula to the magistrate as “a new custom which has sprang up amount the Fingoes since the Government took them over and means that if a man has carnal connection with a virgin without pregnancy” (CA 1/NKE 2/1/1/11, 1891a). He insisted that when the Fingo lived among the Xhosa (i.e., from the 1830s through 1865), such cases had not resulted in a fine. At the beginning his testimony he spoke of the right of a woman’s family to sue for damages in any case of seduction, “even where pregnancy does not follow.” But when he resumed his testimony three days later he revised his statement, explaining that “if our girls were seduced we could make the man pay for her seduction according to the old custom,” but that “I mean that where a girl has had a child by a young man” (Cape of Good Hope 1883:118).^{Footnote 4} This ambiguity helps explain the contradictory statements that various European observers made about the customary treatment of seduction in Xhosaland. While most agreed with Henry Elliot, the Chief Magistrate of Tembuland, that seduction was “an offence[,] . . . a serious one, according to [Xhosa] law” (Cape of Good Hope 1883:421), other self-proclaimed experts claimed, for example, that “seduction of virgins, and cohabiting with unmarried women and widows, are not punishable by [Xhosa] law” (Warner Reference Warner and Maclean1866:69)^.

It is difficult to discern the extent to which virginity actually was a consideration in bridewealth negotiations, since no systematic records of bridewealth payments exist and bridewealth varied for other reasons. As one man told the 1883 Commission, his daughters would command significant bridewealth payments because, “Although I am an ugly man my girls are good-looking” (Cape of Good Hope 1883:96). It is clear, however, that seduction could disrupt marriage negotiations, especially when pregnancy ensued. According to one recorded case from 1891, James Lukashi had agreed to marry Annie Mzaki and had paid her family three head of cattle in bridewealth before leaving to work on the diamond fields in Kimberley. On returning, however, Lukashi discovered that his fiancée had given birth to a child by another man and he broke off the engagement, as “I am not willing to marry the girl now, she is disgraced” (CAD 1/TAM 4/20, 1891). It is also clear, however, that virginity was not a prerequisite for marriage. Women who had been “seduced” routinely contracted marriages, either to the man who had seduced them or to other men. In 1882 a man named Inelinganye paid thirteen head of cattle as bridewealth for his wife—a very substantial amount, probably because both husband and wife were from prominent families—although he suspected that she was already pregnant and “felt very sore about the disgrace” (CAD 1/TAM 4/8, 1882). He only sought to divorce his wife after he contracted syphilis, which he blamed on her “misconduct.” In 1890 a woman named Silanda sued a young man named Mtakwana in the Nqamakwe court, alleging that Mtakwana had seduced her daughter, Posiwe, who became pregnant. At the time Posiwe was engaged to another man, whom she married while allegedly pregnant with Mtakwana’s child. Silanda explained that “we allowed the marriage to go on because defendant and . . . his father had admitted the pregnancy” (CAD 1/NKE 2/1/1/11, 1890).

Meanwhile, evidence suggests that the surveillance regime of virginity testing was not nearly as effective as idealized descriptions would suggest. Barring pregnancy, families had little incentive to expose the premarital sexual indiscretions of their daughters, and the process of virginity testing relied on the knowledge and judgment of older female relatives. In colonial-era court cases, these women mentioned finding a girl’s genitalia “wet” (with semen) as reason to believe that intercourse had taken place, but beyond this specific marker the nature of the supposed evidence was vague. According to some women, experience and observation alone allowed them “to decide upon the virgin state” and “tell by observation when any sexual connection has taken place” (CAD SGG 1/1/42, 1868b). As a woman named Matjie told a colonial magistrate, “I am a married woman and have had much practice examining girls” (CAD SGG 1/1/354, 1890). Other women emphasized their familiarity with individual girls. Yet this process gave older women significant discretion in determining the virgin status of their younger relatives. And indeed, the available evidence suggests that virginity testing rarely led to the public pronouncement of a positive finding. Of the sixty-two seduction claims brought before the representative of the British administration in what would become Nqamakawe between 1865 and 1873, more than 60 percent explicitly mentioned a pregnancy. A number of other cases referenced a sexually transmitted disease or the use of force in “seducing” an unmarried woman.^{Footnote 5} By contrast, references to virginity tests in the context of consensual sex were rare.

Yet virginity testing did play an important role in adjudicating cases of nonconsensual sex. In 1873 the mother of a young woman named Minna told the King William’s Town court that she could “plainly see . . . that a man had just had connection with her.” She could recognize the difference in the state of Minna’s genitals because she “always examine[d] my daughters” and therefore knew how Minna ought to look; she also recognized a “bloody discharge” (CAD SGG 1/1/87, 1873). In this case, Minna had been raped, and had told her mother about the assault; only then did her mother examine Minna. Indeed, families regularly used evidence from virginity tests to support rape accusations into the colonial period. In such cases, the process of virginity testing helped to establish shared understandings of the facts of the case. Family members of the man accused of seduction or rape were often invited to participate in the examination, a practice that made it more difficult for him to dispute the facts of the claim at a later date. If consensus could not be achieved, or the case was particularly controversial, other prominent female members of the local community might also be asked to observe.

In general, nonconsensual sex was much easier to prosecute in precolonial Xhosaland than it would later be under colonial rule. Part of the reason was that precolonial Xhosa adjudicators approached charges of rape with the assumption that women were likely to be telling the truth. This assumption was part of a general approach to adjudication in which, as James Warner wrote, “the proof of innocence rests in much greater degree with accused than is the case with us” (Warner Reference Warner and Maclean1866:58). But another reason was that the Xhosa courts did not draw a sharp distinction between seduction and rape. In most—though not all—trials involving accusations of nonconsensual sex, the male defendant could be held liable for seduction or adultery even if he showed persuasively that his partner had consented. A claim of consent would not win him absolution, although the amount of compensation he was required to pay could differ depending on the precise wrongs that he was found to have committed. In precolonial and early colonial Xhosaland, then, virginity tests served less to punish young women for illicit sex than to protect them against rape. Court records abound with examples of young women who had been raped confiding in their mothers, aunts, or grandmothers, who swiftly conducted examinations to confirm their report.

Virginity tests were, of course, limited in their application. For example, they could not confirm the rape accusations of anyone not socially categorized as a virgin. In 1889 a widow named Sarah explained that she was not examined after her rape because “that is only done when girls are raped” (CAD 1/NKE 1/1/1/6, 1889), probably referring to never-married young women (iintombi), who were presumed to be virgins. In a similar fashion, women known in early colonial Xhosaland as amadikazi—a recognized social category comprising mostly wives who had separated from their husbands—had very few options for presenting evidence in cases of nonconsensual sex, other then perhaps a pregnancy. At the same time, married women who were accused of adultery were not physically examined, but rather accused based on other material evidence such as possession of a man’s tobacco pouch or handkerchief that did not belong to her husband.

Yet the regime of virginity testing did offer distinctive advantages to women, including the older women who conducted such examinations, for whom the process provided an affirmation of their authority and expertise. When Nosayi told a court, “it is customary with us to examine the young girls” (CAD SGG 1/1/42, 1868a), she claimed a role for herself and other women within the legitimating framework of custom. When another woman testifying in court asserted the probative value of her testimony based on the claim that “we are in the habit of constantly examining our children,” she also was affirming the legal and communal significance of her personal expertise (CAD SGG 1/1/42, 1868b). These women made claims not merely for their personal authority but for the collective authority of senior women. Nevertheless, as the colonial state expanded, magistrates increasingly turned to new medical experts to provide evidence about women’s claims of rape. The result not only lessened the authority of older women, but also increased obstacles for all women seeking redress in cases of sexual assault.

Physical Evidence in Colonial Courts

Between 1847 and 1894 the Cape Colony carried out an extraordinarily violent conquest of the Eastern Cape and also introduced new discourses and practices related to sexual morality and sexual consent. In the wake of conquest, the colonial administration sought to establish control over the various Xhosa-speaking communities of the region, in large part through the creation of new legal structures. Within these new structures the British also introduced new discourses and practices related to sexual morality and sexual consent in which the scrutiny of young women’s bodies remained central. In cases of accused sexual assault, both older Xhosa women and white doctors were called upon by the newly created courts to present evidence gleaned from their examinations of young women. Yet in contrast to both precolonial practice and to the expectations of most Xhosa families in the early colonial period, the focus on bodily evidence in colonial courts made it more difficult for most women to prosecute cases of sexual assault.

The rhetoric of the criminal law of the Cape privileged female sexual consent. The crime of rape was defined in the Transkeian Territories Penal Code (1885) as “the act of a man having carnal knowledge without the consent of a woman who is not his wife: Provided that nothing shall be deemed to be consent which is either extorted by threats or fear or bodily harm, or obtained by personating the woman’s husband, or by falsely and fraudulently misrepresenting the nature and quality of the act.”^{Footnote 6} However, while the language of the law affirmed the importance of a women’s consent to sex, colonial courts, unlike those of precolonial Xhosaland, were extremely skeptical of women’s claims to have been raped.

Of the criminal cases of sexual assault (rape and attempted rape) prosecuted in the King William’s Town district in which both the defendant and the complainant were African, 59 percent of cases resulted in either dismissal of the charges by the solicitor general or acquittal from an (all-white) jury. Only 25 percent of cases resulted in a guilty verdict on the original charge, while the solicitor general remitted the balance of cases to the resident magistrate for a summary trial on a lesser charge. The low conviction rate had roots in the suspicion that women routinely lied about rape, a suspicion that was present in both Roman–Dutch and British legal traditions (see Edelstein 1898). In the colonial context, this skepticism was compounded by the presumption that African witnesses routinely lied in all forms of court proceedings.

Like their precolonial predecessors, colonial courts in the Eastern Cape relied heavily on physical evidence as proof that women were telling the truth about rape. By 1900 district surgeons managed to examine the vast majority of women who complained of rape in King Williams Town or Nqamakwe; any preliminary hearing that failed to include such information would likely prompt a message from the solicitor general asking “why was there no medical evidence taken” and admonishing the magistrate that “the complainant should have been examined, as soon as possible after the commission of the alleged crime, by the District Surgeon or at any rate by the women of the kraal” (CAD SGG 1/1/368, 1890). As this formulation suggests, the colonial courts gleaned physical evidence from a number of sources, but they gave the greatest credence to evidence provided by the district surgeons, local doctors contracted by the colonial administration to conduct forensic exams as well as provide medical services to colonial employees and prisoners. Their evidence played an increasingly large role over time in the decisions made by magistrates and the solicitor general.

For district surgeons and the colonial magistrates in whose courts they testified, physical proof of rape meant, above all, evidence of violence. The contrast between the approach taken by district surgeons and that of the older Xhosa women who continued to perform virginity examinations is exemplified by the experience of Nozici, a young woman living near King William’s Town. In 1868 Nozici was visiting a neighbor’s homestead when she awoke in the middle of the night to find a man having sex with her. After she called out, the neighbor succeeded in detaining the man and immediately called upon an older woman, who identified herself as Nizici’s sister, to examine Nizici. As this woman, Nosayi, told the court,

This testimony exemplifies the evidence given by older women who appeared in rape cases in King William’s Town district during the first few decades of colonial rule. Nosayi described the physical signs of intercourse and located her examination in an ongoing process of monitoring the virginity of the complainant. She did not tell the court her opinion about whether Nozici’s sexual encounter had been consensual or not. She described “blood and other marks,” but did not say whether they were marks of violence. However, she saw no contradiction in testifying in support of Nozici’s claim of rape.

Nosayi, however, was not the only person to examine Nozici. Dr. Newland, the district surgeon, examined her three days later and gave the following report: “I examined the girl externally and internally as far as possible. The hymen is wanting, and I can not swear that the girl has not been cohabited with, but the lapse of time is such since she was said to have been raped that all trace of any inflammation is gone.” In the certificate that he provided, Newland elaborated that Nozici “states that she was raped by a native boy. . . . Careful examination of the external organs of generation does not show in my opinion that such was the case, as no trace of inflammation or irritation are to be seen about the parts.” Lacking evidence of “inflammation and irritation,” he told the magistrate that “as there was no mark . . . if she had been cohabited with, she must have been a consenting party.” From the surgeon’s point of view, only such marks constituted the proof of rape.

These testimonies reveal the differing perspectives of African women and male European surgeons on the subject of rape and the evidentiary status of women’s bodies. Both conducted physical examinations for evidence of sexual encounters, but they asked different questions. Even in a case concerning a particularly violent encounter and in which the victim, moreover, was a six-year-old girl, the testimonies were markedly different. In this case, also from 1868, the surgeon testified that he “found the hymen ruptured, the vagina lacerated, and marks of violence about the entrance.” An African women, in contrast testified that “it is manifest that she has had sexual connection. . . . She bears the trace of having had something to do with a man” (CA SGG 1/1/42, 1868b). While the surgeon emphasized the violent nature of the encounter—even in the case of a victim who was well below the legal age of consent—the African examiners spoke more generally of the evidence of intercourse.

District surgeons did not ignore virginity entirely. Their reports routinely included an opinion on whether an unmarried victim had been a virgin prior to the alleged rape. However, virginity alone was not enough to support a rape complaint. In the absence of marks of violence, women were assumed to have consented to sex, even if they had been virgins. In a case from 1889 the King William’s Town district surgeon informed the magistrate that while the hymen of eighteen-year-old Nondaba “had recently been ruptured . . . I did not find any other marks of violence on her person. . . . I found the complainant is a strong healthy girl and fully developed.” This statement was taken as evidence that any sex must have been consensual—even though the defendant in the case did not put forward a consent defense, claiming instead “never to have touched the girl” (CA SGG 1/1/353, 1889). As another district surgeon explained thirty years later, “in my experience . . . there is no form of charge about which you have to be more certain of having it proved up to the hilt, than a charge of rape or indecent assault. False charges are very liable to be made, and women perfectly likely to honestly err” ( NA K373, 1912).

Despite their confident assertions of medical expertise, most general surgeons in the nineteenth-century Eastern Cape lacked formal training in either forensic medicine or gynecology. In the British colonial world, the development of forensic techniques such as fingerprinting created the popular impression it was possible to “read someone’s body like a text with the precision of a machine” (Thomas Reference Thomas1999:5; see also Breckenridge Reference Breckenridge2014). Meanwhile, as Ornella Moscucci (1993) has shown, gynecology was increasingly claimed as the professional domain of male doctors.^{Footnote 7} District surgeons benefited from the aura of scientific expertise created by the professionalization of forensic medicine and women’s health, offering confident opinions on whether vaginal bleeding was evidence of violence rather than consensual sex, but few had any specialized knowledge of these subjects. The position of district surgeon was also poorly paid, and particularly in the rural Eastern Cape, the colonial administration could not be too choosy in its appointments. Indeed, for many district surgeons the most relevant experience that they brought to forensic examinations of rape victims came from the routine examination of sex workers mandated by the Contagious Diseases Acts. From 1868 to 1872, and again from 1885 to 1919, working prostitutes in urban areas (including King William’s Town and East London) were mandated to receive a yearly gynecological examination from an appointed medical officer. Although the acts were never thoroughly enforced outside of Cape Town, they did give district surgeons in these districts an opportunity to form opinions about the vaginal appearance of women of loose morals.

Meanwhile, as some medical practitioners realized, physical evidence was fallible. The King William’s Town district surgeon informed the court in one case that he had found no evidence of “injuries on [the victim’s] privates. . . . No evidence of rape can be given, when the woman has previously had connection with men and she is the mother of children, and in such cases medical evidence is of no use” (CAD SGG 1/1/368, 1890). As this doctor suggested, rape does not necessarily result in physical trauma, particularly for women who have given birth; in South Africa today, only about half of adult women who receive medical exams after lodging a rape complaint exhibit genital injuries (although rates of injury are higher for younger complainants) (Vetten et al. Reference Vetten2008). Although the colonial courts heard testimony that evaluated women’s virginity, they privileged physical evidence of violence as the only reliable proof of rape. Rhetorically, colonial law privileged women’s sexual decision-making over virginity. In practice, however, the reliance on forensic medicine in colonial courts undermined women’s sexual autonomy by demanding bodily proof not only of intercourse but also of violence. Meanwhile, the increasing use of district surgeons to provide evidence in rape cases undermined African women’s positions as recognized experts on the subject of the female body. For women in the colonial Eastern Cape, colonialism authorized increased sexual coercion despite a rhetorical commitment to consent.