Corporal Punishment: A Cultural and Legal Dilemma - Essay Example

? Corporal Punishment: A Cultural and Legal Dilemma Essay Table of Contents SectionTitle Page Number Introduction 3 The Debate 4 Comparison between Western Societies 6 Parental Rights and Corporal Punishment 11 Conclusions 14 Introduction Even though corporal punishment has been prohibited in numerous countries, there are still many where in it is prevalent, in fact approved by the public as a means to discipline children. In some countries it is illegal to exercise corporal punishment at home. In several western countries the use of corporal punishment by parents or teachers is now sternly forbidden. If a teacher physically punishes a child s/he will be put on trial and is likely to be terminated and prohibited from teaching again, regardless how severe the offence may have been. On the contrary, the punishments against a parent physically hurting a child at home are much less harsh. Corporal punishment in the home is currently unlawful in several countries, although this was much more difficult to establish as a law than a prohibition on corporal punishment in schools.1 However, the state will usually not intervene and prosecute unless the physical punishment was of a much more severe nature. Definitely mild spanking would not be considered as reasonable basis for prosecuting the parent.2 Approval of corporal punishment can differ because of cultural values and traditions. Cultural approval of corporal punishment seems to be deeply rooted in some Western countries like United States and the UK that parents who do not exercise it as way of disciplining their children feel compelled to either say they do use it even they do not or justify why they refuse to do so.3 Some researchers discovered that parents who refuse to use corporal punishment “tended to avoid the problem by recasting things in a culturally acceptable way, for example, by saying that they only spank ‘when necessary’ and leaving out the fact that they never found it necessary”.4 This essay analyses and discusses the clashing views amongst society about whether or not corporal punishment against children should be allowed in the modern day and era. The Debate The exercise of corporal punishment is one of the most debated traditions of parenting. Even though the impact of corporal punishment on children remains under extensive empirical investigation, less emphasis has been given on why parents physically punish their children in the first place. Existing studies show that the causes of corporal punishment are diverse, including parental traits and values, child attributes, cultural standards, and so on.5 In Western countries, such as the United States, UK, and Australia, the idea of the ‘bad’ or ‘problem’ child as manifested in the exercise of corporal punishment still persists to bring forth controversy as shown in studies and media accounts. Advocates of the exercise of corporal punishment, like Dobson (1970), have claimed that too much tolerance or lenience, both in school and at home, has worsened social ills like disrespect for authorities, deviant behaviour, and substance abuse.6 The standpoint supported by Dobson is that teachers have the right to uphold order and exercise authority in the classroom “... even if it requires an occasional application of corporal punishment”.7 The proponents of corporal punishment support the following arguments. First, corporal punishment is less harsh or inhumane than other forms of punishment and has less detrimental impacts than other practices. Second, corporal punishment is compatible with the beliefs of numerous parents and strengthens stability between school and home. Third, corporal punishment supports the notion that some misconduct deserves such punishment which society should carry out. It establishes definite rules for appropriate behaviour. And fourth, the use of corporal punishment is a very effective method of discouraging misconduct.8 On the other hand, critics of corporal punishment view it as a determinant of later disruptive behaviour. There are findings that corporal punishment has adverse effects on some children. As reported by Clifton Flynn, “Recent studies have suggested that a host of potentially harmful behavioural and psychological consequences may result from so-called ‘ordinary’ physical punishment. These negative outcomes include alcohol abuse, depression, suicidal thoughts, behavioural problems, low achievement, and future economic insecurity”.9 Murray and colleagues examined the relationship between corporal punishment during the early and teenage years and later psychological disorders.10 They discovered that corporal punishment is related to a considerably enlarged possibility of depression as adults. Those who experienced corporal punishment as adolescents are more vulnerable to suicidal thoughts, and more prone to substance abuse.11 Comparison between Western Societies Cohen (1984) defines corporal punishment as “a painful, intentionally inflicted (typically, by striking a child) physical penalty administered by a person in authority for disciplinary purposes”.12 The 1996 Education Act in the UK forbids the use of corporal punishment against publicly subsidised students and those in maintained schools. In Norway, corporal punishment of children is legally prohibited. In Belgium, no definite policy about corporal punishment in school is established.13 In spite of the attempt of the UN Convention of the Rights of the Child (UNCRC) to totally prohibit the exercise of corporal punishment against children, there are several countries where corporal punishment is legally allowed in the home. UNCRC is exceptionally clear in its denouncement of corporal punishment: Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parents, legal guardians or any other person who has the care of the child.14 Referring to the conflict between the Rights of the Child and the use of corporal punishment the UN “[proposes] the revision of existing legislation, as well as the development of awareness and educational campaigns, to prevent child abuse and the physical punishment of children”15; based on this statement, it can simply be concluded that corporal punishment in the home is inappropriate by international norms, although cultural traditions consider it acceptable. Children are safeguarded by law from corporal punishment in these countries: Romania, Bulgaria, Hungary, Latvia, Norway, Austria, Denmark, Sweden, Finland, and Germany. Portugal has also initiated attempts to totally prohibit corporal punishment.16 It is important to emphasise that in every nation that has amended the law, excluding Finland, the government has influenced cultural outlooks towards, and public judgment of, the issue. The first nation to legally prohibit corporal punishment against children was Sweden, and it was accepted that a cultural change in outlooks would be required.17 The Swedish government developed a programme aimed at enlightening parents about child development and disciplinary methods that may be used without turning to corporal punishment. This was very effective.18 The acceptance of corporal punishment in Sweden dropped from 1965 to 1999. Changes in attitude came about through a variety of means. Boyson (2002) finds out that Scandinavia’s social democratic welfare institutions are rooted in ideologies of equality and universalism.19 Children are viewed as social assets, thus physically harming them would be contradictory. Alongside legislative reform, the challenges of parenting were acknowledged by offering social welfare assistance to families. Durrant (2004) observes that the right of children to protection, as stated in the UNCRC, was the major rule underlying legislative change in Sweden.20 This right to be protected also supported the social policy changes in Sweden, and Durrant emphasises that this affects the amount of time countries spent to fully realise peaceful child-rearing. Outstandingly, practically all Swedish people were informed of the capital punishment by 1981. Although the law of 1979 was intended to be informative rather than castigatory, physically abused children can take legal action, parents’ exercise of corporal punishment may affect custody trials, and the law supports prosecution of abusive parents.21 The effect of the 1979 law in Sweden is the focus of much debate in the literature. Several studies indicate that some Swedes is still exercising corporal punishment because of religious beliefs, their children keeps on misbehaving, and the adults are strained or worn out. Other studies suggest that children do not expect receiving corporal punishment from their parents because ‘verbal control/firm command’ is the usual disciplinary method.22 Interestingly though, a number of children, particularly boys, may continue to expect to receive physical punishment for wrongdoings like engaging in risky activities or getting into trouble. It seems that the motivations of parents for exercising corporal punishment may continue to be intense in spite of the prohibition. Furthermore, continuous education or awareness-raising programs will always be necessary. The narrative of episodes which facilitated the current prohibitions on corporal punishment against children in Norway has pursued a path resembling that of Sweden. The Norwegian Parliament, in an effort to forbid corporal punishment of children, abolished in 1972 the right of parents to claim a criminal law justification that exercise of corporal punishment was acceptable.23 This decision apparently raised confusion over the legal standing of corporal punishment. Nevertheless, with the emergence of a more considerate political environment in 1987, Norway ratified an immediate prohibition on corporal punishment against children, stating that “[t]he child shall not be exposed to physical violence or to treatment which can threaten his physical or mental health.”24 The preliminary attempts regarding the prohibition suggest that, under two conditions, a certain level of intrusion with the physical integrity of a child is still allowed. First, suppressing children could be lawful, particularly as regards younger children, when needed to stop them from damaging property or harming others or themselves. Second, the law allows mild spanking on certain body parts if inflicted as a natural response.25 Even though the preliminary attempts are not ratified omissions to the prohibition of 1987, they are considered or followed as guiding principles for the interpretation of the prohibition and as instructions to prosecutors. The Act on Education legally prohibited corporal punishment against children in Norwegian schools. There are no exceptions to this ban. With regard to other child-oriented organisations, the Act on Child Welfare Services clearly states that “[i]t is not permitted to reprimand a child physically.”26 These child care institutions uphold a total ban on corporal punishment against children, allowing no exceptions to the rule. Parents and teachers who use corporal punishment against children can be put on trial for abuse under relevant stipulations of Norway’s criminal laws. Prosecution of parents for exercising corporal punishment against children is also probable under a constitutional ban against physical or mental abuse or neglect of people living in the parents’ household.27 Norway has not exerted the same effort as that of Sweden in publicising the prohibition on corporal punishment of children. No studies have been publicised on the impacts of the corporal punishment prohibition as of 2002. Nevertheless, the Office of the Ombudsman for Children has declared that both children and adults are highly aware of the existence and implication of the prohibition, and that corporal punishment is no longer socially approved or tolerated in Norway.28 On the other hand, ninety-one nations allow corporal punishment in schools. In 173 nations, including Australia, Canada, the UK, and the United States, corporal punishment is still allowed in the home. In the UK, children can be physically punished without legal repercussions. Parents and other caregivers possess a common law right to exercise ‘reasonable chastisement’.29 Chief Justice Cockburn declared in 1860: “By the law of England, a parent... may for the purpose of correcting what is evil in the child, inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable”.30 Recently, UK courts have absolved parents who confessed hitting their children, causing injuries and contusions, and effectively applied the ‘reasonable chastisement’ argument to defend their actions. The law has acted sluggishly to safeguard children from corporal punishment outside the home.31 Policies endorsed in 1991 ban corporal punishment in foster care supervised by voluntary agencies and local officials and in residential children’s homes.32 Regulations established by the 1989 Children Act prohibits corporal punishment in privately owned day care and foster care. However, a High Court judge in 1994 approved the appeal of a childminder to be permitted to physically punish children in her custody with the consent of their parents, and afterwards the Department of Health released an announcement excusing the use of a ‘mild smack’ by child carers with the permission of parents.33 Parental Rights and Corporal Punishment Parental punishment of children has been largely ignored, both on a national and global levels. Up to now, no international entity has discovered a country in violation of international human rights by declining or failing to prohibit corporal punishment of children by parents.34 Of their own preference, numerous countries, particularly in Europe, have prohibited the practice. This has pushed the UNCRC to encourage countries to evaluate their laws with regard to this issue. UNCRC’s Article 37 does not specifically deal with this issue. However, the Committee’s perspective, in view of the changing rules, standards, and practices of countries, is influencing the law in corporal punishment.35 Thus, one issue where in there are cultural divergence is parental corporal punishment. Norway views parental physical punishment as a violation of children’s rights and physical integrity. A group of parents from Sweden fruitlessly tried to oppose Sweden’s termination of corporal punishment in reference to the European Convention on Human Rights. They claimed that the Swedish Code of Parenthood prohibit them from physically punishing their children and that the exercise of corporal punishment in the home was a special parental right.36 The European Commission had to evaluate the impacts of the Code on the capacity of the petitioners to articulate and enforce their own beliefs and values in the rearing of their children, in view of the objectives and principles of the Swedish Code. The Commission conceded that the rearing of children is a natural facet of family life but noticed that the Code was “intended to protect potentially weak and vulnerable members of society”37 and thus the Commission concluded that Sweden is not in violation of anything. This view is shared by the Norwegian government. The case of Norway and Sweden shows that where a State Party to the European Convention on Human Rights terminates corporal punishment in the home the state is behaving in a way which is in accordance with the European Convention on Human Rights.38 When countries were drawing up the Convention on the Rights of the Child most states were not eager to talk about a ban on parental corporal punishment.39 Current psychological and social studies on the impacts of corporal punishment on children could speed up the tempo at which countries will be equipped to ban it but currently, these States’ practice does not indicate either a locally, nationally, regionally, or globally approved prohibition. Where, in spite of preventive steps, maltreatment or neglect within a household takes place, States Parties to the Convention on the Rights of the Child have an obligation to administer necessary steps to guarantee the social reintegration and psychological and physical rehabilitation of the child.40 Parents who physically punish their children can be prosecuted for abuse under relevant prerequisites of the criminal laws of Norway. The fundamental prerequisite on criminal violation declares that “[a]ny person who commits violence against the person of another or otherwise assails him bodily, or is [an] accessory thereto, is guilty of assault and shall be liable [for] fines or imprisonment for a term not exceeding six months.”41 Trial against corporal punishment as abuse within the aforementioned law does not necessitate, as a provision, any physical evidence, such as contusions, red marks, bruises, and so on, of the chastisement on the body of the child. Prosecution of parents for using corporal punishment against their children is also probable under a legal ban against physical or mental abuse or neglect of individuals living in the parents’ home.42 Norway’s Supreme Court has released a decision demonstrating that it is rigidly committed to the prohibition of the use of corporal punishment by parents against their children.43 However, not all groups in Norway are supportive of the absolute ban on parental corporal punishment. Researchers from Norway evaluating non-Westernized and rustic cultures (e.g. Sami) against those of the dominant population of Norway report that among these rural cultures, corporal punishment is not related to adverse behavioural effects, whilst it is among the children of the dominant Norwegian population.44 The researchers concluded that in more difficult life situations, corporal punishment may be viewed or accepted by the child as caring and signifying parental concern and affection.45 This finding shows that there are still isolated instances in Norway where the use of corporal punishment is deemed beneficial and necessary by both parents and children. Conclusions Corporal punishment of children is an important aspect of the relationship between parents and their children, profoundly entrenched in law and culture, and established by the child’s value. The world is continuously evolving. Yet, the social value and standing of a child and the consequent legal and social rules transform much more gradually than economic and political institutions. It was merely recently when the value of children received attention and the movement for children’s rights started to surface. Nevertheless, not universally have such changes generated moral and legal protections, safeguarding children against maltreatment and neglect by adults. Norway and Sweden are two of the countries that firmly established a legal prohibition against corporal punishment. Norwegian culture, particularly, greatly values children’s rights and physical integrity. Norwegians, especially those belonging to the mainstream society, acknowledge the adverse effects of corporal punishment on children, as established by empirical research. However, in spite of the numerous findings demonstrating the deleterious impact of corporal punishment on children, there are still many countries which adhere to the practice, primarily the UK, the United States, and Australia. Thus, the international community is fervently hoping that a universal effort to prohibit corporal punishment as a form a child abuse will arise in the near future. References Andero, A. & Stewart, A. (2002) “Issue of Corporal Punishment: Re-Examined”, Journal of Instructional Psychology, 29(2), 90+ Bell, T. & Romano, E. (2012) “Opinions about Child Corporal Punishment and Influencing Factors”, Journal of Interpersonal Violence, 27(11), 2208-2229. Bitensky, S. (2006) Corporal Punishment of Children: A Human Rights Violation. UK: Martinus Nijhoff Publishers. Council of Europe (2005) Eliminating Corporal Punishment: A Human Rights Imperative for Europe’s Children. Strasbourg, Cedex: Council of Europe. Council of Europe (2007) Abolishing Corporal Punishment of Children: Questions and Answers. Strasbourg, Cedex: Council of Europe. Durrant, J. & Janson, S. (2005) “Law Reform, Corporal Punishment and Child Abuse: The Case of Sweden”, International Review of Victimology, 12(2), 139-158. Durrant, J. & Smith, A. (2010) Global Pathways to Abolishing Physical Punishment: Realizing Children’s Rights. UK: Taylor & Francis. Freeman, M. (2012) Law and Childhood Studies: Current Legal Issues Volume 14: Current Legal Issues. Oxford: Oxford University Press. Lyon, C. (2000) Loving Smack or Lawful Assault: A Contradiction in Human Rights and Law. London: Institute for Public Policy Research. Maldonado, M., 2013. Cultural Issues in the Corporal Punishment of Children. [online] Available at: [Accessed 25 April 2013]. Marshall, M. (2002) Why Spanking Doesn’t Work: Stopping this Bad Habit and Getting the Upper Hand on Effective Discipline. UK: Cedar Fort. Myers, J. (2006) Child Protection in America: Past, Present, and Future. Oxford: Oxford University Press. Pate, M. & Gould, L. (2012) Corporal Punishment Around the World. New York: ABC-CLIO. Powell, F.M. (2007) The Rights of the Child, the Rights of Parents, and the Role of the State in Relation to Education—Freedom of Education and the Cultural Right to Education. Ann Arbor, MI: ProQuest. Ruth, S. et al. (2007) Views on Positive Parenting and Non-Violent Upbringing: A Report from the Consultation with Children and Parents, Strasbourg, October 2005. Strasbourg, Cedex: Council of Europe. Saunders, B. & Goddard, C. (2009) Physical Punishment in Childhood: The Right of the Child. UK: John Wiley & Sons. Slee, P. (2002) Child Adolescent and Family Development. Cambridge, UK: Cambridge University Press. Van Bueren, G. (1998) The International Law on the Rights of the Child. The Netherlands: Martinus Nijhoff Publishers. Read More