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Article by Dr Bronwyn Naylor and Dr Bernadette Saunders | Published August 2, 2012
By Bronwyn Naylor and Bernadette Saunders. This article is part of our July focus on the rights of children and youth. Read our Editorial for more on this theme.
Corporal punishment involves intentionally applying force to someone else, with the aim of causing pain, to stop particular forms of behaviour or to show anger and disapproval. This would be a criminal assault if the victim was anyone other than the offender’s child – in which case the law recognises a defence of “reasonable chastisement”. This is a widely-accepted defence which justifies smacking, hitting and similarly causing pain to children in the interests of chastising or disciplining them.
Continuing to permit corporal punishment of children clearly breaches Australia’s international human rights commitments…
The defence is available in all Australian jurisdictions, and in many other countries. It has, however, been abolished in 32 countries, in recognition of the rights and dignity of children. The first country to abolish the defence was Sweden, in 1979. Since then 31 countries have followed, most recently New Zealand in 2007 and South Sudan in 2011. Brazil’s Congress will consider a bill to ban corporal punishment by parents, teachers and others in July 2012.
Australia’s international human rights obligations
Continuing to permit corporal punishment of children clearly breaches Australia’s international human rights commitments under all major UN conventions.
It clearly breaches the child’s right to equality of treatment: no other category of people in Australia can lawfully be assaulted in this way.
More specifically, the UN Convention on the Rights of the Child (CRC) (to which all countries other than Somalia and the US are signatories) requires parties to take “all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence” (Article19(1)). The UN Committee on the Rights of the Child has stated in innumerable state reports that this requires the prohibition of corporal punishment of children by their parents. Australia has been criticised in 1997, 2005 and most recently late 2011 for failing to comply with the Convention in this respect.
…there cannot be a distinction between “mere smacks” and abusive violence.
Corporal punishment also arguably falls into the prohibition on “cruel, inhuman or degrading treatment or punishment” under CRC (Article 37), Article 7 of the International Covenant on Civil and Political Rights (ICCPR) and Article 16 of the Convention Against Torture. It may indeed amount to “torture”, also prohibited under these Conventions.
Case law on the meaning of “torture and cruel, inhuman or degrading treatment or punishment” under Article 3, the comparable section of European human rights law has maintained a distinction between severe physical discipline (which is a breach of human rights) and less serious physical discipline, which was permissible. In 1986 the European Commission of Human Rights, Warwick v United Kingdom, considered that a single stroke with a cane on a student’s bare palm amounted to degrading punishment under the Convention. However in Costello-Roberts v The United Kingdom the European Court of Human Rights subsequently held that corporal punishment at a school involving hitting clothed buttocks with a gym shoe was not severe enough to breach the Convention. These cases concerned discipline in schools. When an issue of parental discipline came to the Court in 1998, it did accept that a stepfather’s severe and repeated caning of his stepson was severe enough to constitute inhuman or degrading treatment. All these cases arose as appeals from decisions in the United Kingdom that the discipline was excusable as “reasonable chastisement”.
Arguments for abolishing the defence
There are many pragmatic arguments for the abolition of the defence. Physical punishment:
The evidence is now clear that, in terms of the consequences for the child, there is not an acceptable level of physical discipline – there cannot be a distinction between “mere smacks” and abusive violence. Parents need to learn alternative forms of discipline, of which there are many already in wide use.
What is “reasonable chastisement”?
From a different perspective, the current defence of “reasonable chastisement” risks confusing new migrants to Australia as to the acceptable limits of physical discipline in this country, particularly parents coming from cultures that normalise severe physical punishment, including the use of implements. What is “reasonable chastisement”? Already cases have arisen where physical punishment considered “reasonable” to a newly arrived parent have been held to be unreasonable in an Australian court.
A model for abolishing the “reasonable chastisement” defence
Jurisdictions that have returned the practice of corporal punishment to its rightful place in the criminal law of assault have done so to give a clear message about the importance of children and their rights as human beings. They have at the same time sought to avoid unnecessarily criminalising parents, instead emphasising support for parents to learn more constructive disciplinary methods, such as “positive parenting”.
Jurisdictions where bans on physical punishment are in place have also increased their welfare, parenting education and support responses to reduce parental reliance on corporal punishment.
We can look to a strong model from a very similar jurisdiction to Australia. In 2007, New Zealand legislated to remove the defence. In the same legislation it also explicitly recognised the role of police discretion to decide not to prosecute where the behaviour was “inconsequential”. This approach is consistent with other jurisdictions that have removed the defence, all of which make it clear that corporal punishment is an assault, but retain an implicit or explicit level of discretion so that “good parents” are not wrongly criminalised.
This is the direction that we propose Australian jurisdictions should take, to fulfil our international and local human rights commitments.
Conclusion – and a note of caution
How would the removal of the defence, leaving corporal punishment clearly located as assault, affect people from cultures where severe physical discipline is considered normal and appropriate? Will they fear the imminent arrival of the police to monitor their family practices? Will they know where police and court discretion will draw the line?
The CRC includes a significant but latent requirement that “state parties should take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children” (Article 24(3)). When drafting the provision some countries recommended a specific reference to “female circumcision” to indicate that the provision was aimed at more “extreme” traditional practices. It has however remained undefined, and clearly allows any “traditional” practice which is prejudicial to the health of children to be challenged, including corporal punishment.
Most parents undoubtedly intend the best for their children. It is therefore vital that the abolition of the defence to corporal punishment is accompanied by extensive community education and support for parents to establish constructive parenting practices that do not override the child’s right to dignity and respect.
Dr Bronwyn Naylor is an Associate Professor at Monash University Law School. She researches and teaches criminal law, criminal justice and human rights, and has recently completed Legal Service Board-funded research with Dr Bernadette Saunders and Dr Renata Alexander entitled Lawful Correction or Child Abuse. She is currently carrying out ARC-funded research on Applying Human Rights in Closed Environments, and on criminal records and employment.
Dr Bernadette Saunders is a Senior Lecturer at Monash University, Social Work. Her research focuses on the rights of children and disadvantaged groups, and she teaches “Human Rights, Law and Social Work”, and “The Child in Society: Promoting Children’s Well-Being and Responding to Child Maltreatment”. Her recent publications on the physical punishment of children include her book Physical Punishment in Childhood: The Rights of the Child (with Chris Goddard) and chapters in Global Pathways to Abolishing Physical Punishment (with Judy Cashmore) and Law and Childhood Studies (with Bronwyn Naylor). She is currently conducting Legal Services Board-funded research on the impact of the Victorian Infringements System on Disadvantaged Groups.