In the case President of the Republic of South Africa and Another v Hugo (1997), South Africa’s Constitutional Court decided that releasing mothers, but not fathers, from prison is legal under South Africa’s constitutional commitment to sex equality. The Court showed little concern for the existing, high inequality in the numbers of male and female prisoners. The Court showed great concern about women’s burdens of child-rearing.
In contrast to the Court’s allocation of concern, judicial-system functioning is much more directly related to sex inequality among prisoners than to sex inequality in child-rearing. Judges imprison men and women in highly unequal numbers. While patterns of crime by sex depend on a wide variety of factors, criminal law and judicial-system functioning are far from a natural givens and deterministic social processing. The judicial system, as interpreter and administrator of criminal law, has a large share of responsibility for sex inequality in prisoner numbers. The judicial system does not have a similar scope of responsibility for sex differences in child-rearing.
While the Court focused on women’s burdens of child-rearing, the Court ignored other relevant aspects of child-rearing. The judges did not consider law governing sex and the legal attribution of parenthood in relation to having sex that results in a conception. In the Court’s majority opinion, seven judges indirectly referred to the legal regime of imposing financial orders on persons legally determined to be parents:
One small study in the Cape Peninsula, for example, found a default rat of 85,5% in the payment of child support maintenance.^
The judges did not consider sex inequality in the imposition of such payment orders or the relative legal security and equality with which men and women have rights to custody of their children. The judges did not consider men’s and women’s differing opportunities to choose between spending time directly rearing one’s children and spending time working to raise money to support financially one’s children. Nor did the judges consider the joys of child-rearing. One judge offered a judgment about equality:
There is no doubt that the goal of equality entrenched in our constitution would be better served if the responsibilities for child rearing were more fairly shared between fathers and mothers.^
Different persons have different views about the nature, sources, and laws that create unfairness in child-rearing. In any case, the judges focused on women’s burdens, not the full legal regime and social practice of child-rearing.