NCJ Number
55469
Date Published
1978
Length
16 pages
Annotation
CHILD ABUSE IS SEEN AS ONE END OF A CONTINUUM STARTING WITH LEGITIMATE EXERCISE OF PARENTAL AUTHORITY. EXTREME PARENTAL AUTHORITY IS EXAMINED IN ROMAN LAW, IN AFRICAN CUSTOMARY LAW, AND IN THE MODERN CODES OF SOUTH AFRICA.
Abstract
THE ROMAN PATRIARCH'S POWER OF LIFE AND DEATH OVER WIFE AND CHILDREN IS TRACED FROM THE DEVELOPMENT OF THE POSITION OF PATERFAMILIAS AROUND 750 B.C. TO THE GRADUAL USURPATION OF THE FAMILY HEAD'S POWER BY THE STATE. BY THE TIME OF CONSTANTINE (330 A.D.) EFFORTS WERE BEING MADE TO KEEP CHILDREN FROM BEING KILLED BY ALLOWING PARENTS TO SELL THEIR CHILDREN. EXPOSURE OF INFANTS WAS PROHIBITED BY VALENTINIAN III (434-450 A.D.), AND JUSTINIAN (560 A.D.) PROVIDED THAT THE PARENTS OF A CHILD WHO HAD BEEN FOUND AND RAISED FORFEITED ANY RIGHT TO THE CHILD'S PROPERTY. IN AFRICAN CUSTOMARY LAW, AS EXEMPLIFIED BY THE ZULU, THE HEAD OF THE FAMILY (THE KRAALHEAD) ALSO HAD THE POWER OF LIFE AND DEATH OVER HIS WIVES AND CHILDREN. LITTLE IS KNOWN ABOUT THE CUSTOMS OF MANY TRIBES BECAUSE THE COLONIAL GOVERNMENTS SUPERCEDED TRIBAL LAWS BEFORE SCHOLARLY OBSERVATIONS COULD BE MADE. HOWEVER, IT IS GENERALLY ACCEPTED THAT THE FATHER ACTED AS JUDGE, THAT HIS POWER WAS LIMITLESS IN THEORY BUT WAS LIMITED IN PRACTICE BY THE PUBLIC LIFESTYLE OF THE AFRICAN FAMILY, AND THAT THE POWER OF DEATH WAS USED INFREQUENTLY AND ONLY AS PUNISHMENT FOR SEVERE OFFENSES. FURTHER, IF ONE OF THE WIVES OR HER CHILDREN WERE ABUSED, SHE COULD RETURN TO HER OWN FAMILY, WHICH WOULD DEMAND RESTITUTION FROM THE HUSBAND. THE REPUBLIC OF SOUTH AFRICA HAS TWO LEGAL SYSTEMS, THE EUROPEAN-BASED SYSTEM AND A SYSTEM BASED ON TRIBAL LAW FOR CIVIL DISPUTES BETWEEN AFRICANS. THE EUROPEAN-BASED SYSTEM OFFERS LITTLE PROTECTION TO THE ABUSED CHILD. IT IS ARGUED THAT A CHILD SHOULD HAVE THE FULL PROTECTION OF THE CRIMINAL LAW. GREATER PROSECUTION OF CHILD ABUSE CASES IN SOUTH AFRICA IS URGED. THERE ARE 123 REFERENCES. (GLR)