Womens rights were not human rights- reproductive health rights and rape

Human rights is a term understood in light of the Universal Declaration of Human Rights. 1
Feminists argue that even after this birth of human rights, women were not afforded rights in
the area of reproductive health and insufficient protection from the crime of rape. These
rights fall under the scope of womens rights which only received recognition after feminist
movements and legal reform that took place. In this essay I will present on rights that were
excluded, how such rights were finally entrenched in law (with emphasis on abortion) and
how the South African Constitution endorses and protects womens rights.

Eugene Kamenka defines rights as claims which are products of human aspiration based on
historical or social events and therefore cannot be separated from their social contexts.2
Human rights were created in response to the atrocities which took place during World War
II. These atrocities were committed to both men and women alike. However, the rights which
developed as a result of these acts, were predominantly geared towards protecting men rather
than women.3 An example of this is that rape was not considered torture under international
law until recently by virtue of the 1997 judgement of Aydin v Turkey.4 The effect of this was
before 1997, rape did not fall under the banner of jus cogens and was not prosecuted in terms
of customary international law. Therefore, only states party to international instruments that
held that rape was a violation of human rights- would not be exempt from prosecution.5 The
court in Aydin v Turkey6 developed the law on torture by recognising the effects of rape on

1
G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).

2
Eugene Kamenka Human Rights, Peoples Rights in Crawford, James, (ed) The Rights of People
(1988) 127.

3
Catherine MacKinnon Are women human? And Other International Dialogues(ed) 2006 at 180.

4
1997. Application No. 57/1996/676/866.

5
Katherine Fortin Rape as torture an Evolution of the Committee against Tortures attitude to sexual
violence (2008) 4 Utrecht Law Review 147.

6
Supra 4.
the victim.7 It recognised that rape caused psychological damage to the victims as victims not
only suffered physical harm but also experienced emotional trauma as well. Alice Edwards
states that feminists campaigned to have rape recognised at as a form of torture, not just
because of that status of torture in international law but also because such recognition brings
global attention to the seriousness of the crime.8 It is further stated that the recognition of
rape as torture creates argument for rape being seen as gender neutral.9 I would argue that
this is a positive as the physiological harm experienced by a female rape victim may be of the
same severity as that of the harm experienced by a male victim.

The right to have an abortion out of ones free will was also illegal in many countries even
after the war which arguably violated womens freedom and bodily integrity rights. 10
Catherine MacKinnon argues that the reason for this is that history records such atrocities are
atrocities which happened to men.11 She also argues that certain domestic crimes were not
counted as human rights violations. This could clearly be seen as marital rape was not
considered a crime in many countries, including South Africa, until the emergence of the
second wave of feminism. MacKinnon states that women can be violated in a particular way
which differs from the way in which men are violated and such violations are not seen as
human rights violations. Denying women, the right to use contraceptive pills denies them the
right to bodily integrity, and hampers their ability to progress in the working world.12 This
was still the case and point post World War II and women around the world had to fight for
this right from the 1960s onward.13

7
Alice Edwards Everyday rape: international human rights law and violence against women in
peacetime in Clare McGlynn and Vanessa E. Munro (eds) Rethinking Rape Law: International and
Comparative Perspectives (2010) 100.
8
Ibid.
9
Ibid.
10
Christyne L. Neff Woman, Womb, and Bodily Integrity (1991) Yale J.L. & Feminism 327-53.

11
Op cit 3.

12
Sandra Simpson Elusive Quest for Equality :Women, Work and the Next Wave of Humanism
(2012-2013) Gonzanga Law Review 288.
13
Rachel F. Moran How Second-Wave Feminism Forgot the Single Woman (2004-2005) 48:2
HOFSTRA Law Review 261.
The gaps in human rights law, as discussed above, brought forth the need for the second
wave of feminism. This movement began around the 196014 and was said to have been
started by Betty Friedans publication of the Feminine Mystique.15 This period saw the
beginning of the NOW16 organisation in America, which campaigned for womens rights in
particular, for female bodily integrity and the reproductive rights of women as well as
educational and socio-economic rights. On an international plane, this wave saw the birth of
new international instruments such as the International Covenant on Economic, Social and
Cultural Rights17 and the Convention on the Elimination of All Forms of Discrimination
against Women18 . Such instruments looked at the particular issues in relation to womens
rights and sought to remedy the gaps that had been created. However, it was not until the
1990s that rape was recognised as torture by the international community19 and that
termination of pregnancies out of volition, was legalised in South Africa.20

The common law of South Africa and Apartheid legislation, allowed for the termination of
pregnancies in extreme circumstances.21 Both acknowledged that an abortion could be
performed if the mothers life was at risk. The Abortion and Sterilisation Act of 1975 set out
that a woman could legally have an abortion if the pregnancy was a result of rape or incest.
Professor Cathi Albertyn argues that this act placed stringent requirements and thus made the
access to a legal abortion by those who were of the poorer black communities, virtually
impossible.22 The result of this was the increase in backstreet abortions.23 This created the

14
Ibid.

15
Ibid at 262.

16
National Organization for Women.

17
16 December 1966,United Nations, Treaty Series, vol 993 at 3.

18
18 December 1979, United Nations, Treaty Series, vol. 1249 at 13.

19
Supra 4.

20
Cathi Albertyn Claiming and Defending Abortion Rights in South Africa (2015) 11 DIREITO GV
Law 430.

21
Ibid at 431.
22
Ibid 430.
23
Ibid.
need for a legal instrument to govern abortions in order to prevent the detrimental effects of
backstreet abortions and to protect the healthcare of women.24 Womens health care is argued
by Albertyn as being the driving force in the need for womens right to abortion by choice,
however feminist ideologies had a helping hand in reconceptualising the need for such
rights.25Internationally womens rights were being recognised as human rights and thus the
recognition of reproductive rights became more prominent. In 1994, the International
Conference on Population and Development decided that reproductive rights needed to be
reconceptualised as they connected to reproductive health and should be subjected to a
womans autonomy. This way of thinking created the basis for feminists in South Africa
calling for abortion rights in light of the right to equality and freedom. The Reproductive
Rights Alliance was subsequently formed and advised the ANC on the creation and
development of reproductive rights in the Constitution as well as on how the laws around
abortion in South Africa ought to be advanced. As a result, the South African Constitution
contains rights which protect womens reproductive rights and hence laid the foundation for
Choice on Termination of Pregnancy Act.26 The rights in the Constitution27 include, the right
to dignity,28 the right to bodily integrity and to make decisions regarding reproduction,29
equality30 and right to access to health care.31 In the case of Christian Lawyers Association of
SA v Minister of Health and Others,32 the Constitutional court held that a womens right to

24
Ibid at 435.
25
Ibid at 436-437.
26
Choice on Termination of Pregnancy Act 92 of 1995. The act allows for women who are less than
12 weeks pregnant to have abortions out their own volition and sets out requirements for those who
are further along in their pregnancies to have abortions provided that certain requirements are met.

27
Constitution of the Republic of South Africa,1996.

28
Ibid at s 10.

29
Ibid at s 12 (2).

30
Ibid at s 9.

31
Ibid at s 27.

32
1998 (11) BCLR 1434 (T) SA.
have an abortion as per the Act33 was protected by the rights in the Constitution and that the
right to life could not be applied to a foetus.

Early feminism shows that along with universal suffrage, feminists in America had also
campaigned for marital rape to no longer be a defence to defence to the crime of rape.34 The
defence created the presumption that a wife must have consent to the sexual act as she was
married to the perpetrator and that the husband had the marital right to have sexual
intercourse with his wife. Marital rape has also been an issue in South African law as it was
once considered a defence to the charge of rape.35It was only until the Prevention of Family
Violence Act36 that martial rape was considered rape. Women are protected from marital rape
by legislation, the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 37
endorsed by the Constitution38 in line with sections 9, 10 and 12.

Other reproductive rights which have been granted to women as a result of the Constitution39
are that of artificial insemination and sterilisation (which applies to men as well).40
Previously, only married women, with the prior consent of her husband, was legally allowed
to have the artificial insemination procedure performed on her.41 Arguably on the basis of
section 9 (3) of the Constitution,42 in 1997, an unmarried women was no longer discriminated

33
Choice on Termination of Pregnancy Act 92 of 1995.

34
Jill Elaine Hasday Contest and Consent: A Legal History of Marital Rape 2000 Chicago Unbound
1379.

35
Jonathan Burchell South African Criminal Law and Procedure 4th ed (2014) 598.

36
133 of 1993.

37
2007 s 56 (1).

38
Constitution of the Republic of South Africa,1996.

39
Ibid.

40
Waheeda Amien & Mohamed Paleke Womens rights (1997-1998) 8 South African Human Rights
Yearbook 333.

41
Ibid.

42
Supra 39.
against on the basis of her marital status and was able to be artificially inseminated by a
medical practitioner.43 According the common, one could have a sterilisation procedure
performed on them for the purposes of eugenics or for what was considered therapeutic
reasons. As per section 12 (2) of the Constitution,44 legislation in the form of the Sterilisation
Act,45 any consenting majors could request to be sterilised.46

In conclusion, history shows that the fight for reproductive rights and more stringent laws
against rape was largely won by waves of feminist movements. This fight went hand in hand
with the struggle for other rights such as the right to vote and even socio-economic rights.
These rights were even internationally recognised as the discrimination in these areas was
great even after the emergence of the concept of human rights. Although much progress had
been made, particularly as result of South Africas progressive Constitution, the
implementation and realisation of these rights is still debatable. Women now have
international and national rights protection and have a legal basis from which to fight
discrimination and forms of sexual violence.

43
Op cit 41 at 334.

44
Supra 42.
45
44 of 1998.
46
Op cit 43.