Violence against women and infant abandonment in South Africa: Connecting the dots

Abstract

This paper explores gender equality as it relates to abandonment, an offence regulated by the Children’s Act. This crime has common law origins and was intended to allow for the prosecution of offenders who abandoned infants. More women as mothers have been legally pursued for this crime than any other category of persons designated in statute, and if the mother cannot be traced, no arrest is made. The effect is the silencing of women on matters related to their maternity, particularly for mothers in relationships shaped by abuse and violence. This analysis interrogates the practice of abandonment as contradictory to the developing jurisprudence of gender equality. It explores the continuum of violence, from apartheid South Africa to the current constitutional dispensation, illuminating the complicity of criminal law in abandonment. The legal pursuit of mothers is constructed around moral blame, illustrating criminal law’s difficulty in conceptualising equality. This paper proposes a complementary legal framework on the existing jurisprudence of equality that specifically recognises maternity. It calls for a Constitution that is responsive to women’s needs, by including constitutional maternal clauses, thereby providing distinct support and protection to women as mothers.