Sentencing Women, Silencing Care: The Best Interests of the Child and the Need for a Feminist Sentencing Framework

Abstract

This article explores the need for a gender-sensitive approach to sentencing women – particularly mothers – who are in conflict with the law. Focusing on the sentencing frameworks of South Africa and Australia, two common law jurisdictions, it examines whether caregiving responsibilities are adequately recognised as a mitigating factor during sentencing. In both jurisdictions, socio-economic conditions and gendered caregiving roles are often overlooked, to the detriment of vulnerable women. The research questions whether existing sentencing principles reflect women’s lived realities or remain shaped by patriarchal norms. Grounded in international and regional standards, this article proposes practical guidelines to ensure that caregiving responsibilities are meaningfully considered in sentencing decisions.