South Africa’s Prisoner Release Conditioned for Sex Inequality

face of a prisoner

In 1994, the President of South Africa ordered to be released from prison “all mothers in prison on 10 May 1994, with minor children under the age of twelve (12) years,” who had not been committed to prison for an enumerated list of offenses. Describing the enumerated offenses that conditioned the prisoner release, the order stated:

no special remission of sentence will be granted for any of the following offenses or any attempt, soliciting or conspiracy to commit such an offense: – murder; -culpable homicide; -robbery with aggravating circumstances; -assault with intent to do grievous bodily harm; -child abuse; -rape; -any other crimes of a sexual nature; and –trading in or cultivating dependence producing substances.^

South Africa’s Constitutional Court held that the release of mothers, but not fathers, under the above conditions did not violate South Africa’s constitutional commitment to sex equality. The Court’s reasoning generally did not depend on the conditioning of the release with respect to enumerated offenses. The Court’s reasoning also did not recognize other feasible possibilities for conditioning the release of prisoners so as to make sex discrimination in releasing prisoners unnecessary for any particular, lawful public purpose.

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