Corporal Punishment of Children: a Human Rights Violation [1 ed.] 9789047431169, 9781571053657

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Corporal Punishment 01 Children AHuman Rights Violation

Susan H. Bilenskv

7/N

T ran s nat ion a I

Pub lis her s

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Library of Congress Cataloging-in-Publication Data Bitensky, Susan H. (Susan Helen), 1948Corporal punishment of children : a human rights violation / Susan H. Bitensky. p. cm. Includes bibliographical references and index. ISBN 1-57105-365-4 1. Corporal punishment of children-Law and legislation. 2. Children's rights. 1. Title. K639.B58 2006 341.4'8572-dc22 2005046654 Copyright © 2006 by Transnational Publishers, Inc. All rights reserved. This book may not be reproduced, in whole or in part, in any form (beyond that copying permitted by u.S. Copyright Law in Section 107, "fair use" in teaching and research, Section 108, certain library copying, and except in published media by reviewers in limited excerpts), without written permission from the publisher. Manufactured in the United States of America

To my husband, Lee, my son, Will, and my father, Reuben, and to my dear friend Milton V Kline

Each second we live is a new and unique moment of the universe, a moment that will never be again.... And what do we teach our children? We teach them that two and two make four, and that Paris is the capital of France. When will we also teach them what they are? We should say to each of them: Do you know what you are? You are a marvel. You are unique. In all the years that have passed, there has never been another child like you. Your legs, your arms, your clever fingers, the way you move. You may become a Shakespeare, a Michaelangelo, a Beethoven. You have the capacity for anything. Yes, you are a marvel. And when you grow up, can you then harm another who is, like you, a marvel? You must work-we must all work-to make the world worthy of its children. -Pablo Casals

CONTENTS

Acknowledgments Introduction

ix xiii

Chapter I: Corporal Punishment of Children Inherently Has Attributes That Are Morally Objectionable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Corporal Punishment of Children Is, by Definition, the Gratuitous Intentional Infliction of Pain on Children's 2 Bodies for the Purpose of Modifying Behavior B. The Helplessness of Children Who Have Undergone Corporal Punishment Is Unfair as Unequal Treatment in Comparison to the Legal Recourse Available to Adults Who Have Been Hit 5 C. Corporal Punishment of Children May Cause Serious Harm, Beyond the Infliction of Bodily Pain, Both During Childhood and Later in Victims' Lives 8 D. Corporal Punishment of Children May, When Those Children Reach Adulthood, Predispose Them to Commit, Acquiesce in, or Fail to Protest the Victimization of Others ..... 24 Chapter II: Corporal Punishment of Children Violates International Human Rights Laws A. U.N. Convention on the Rights of the Child (i) The Children's Convention as a Whole (ii) Provision Protecting Against Violence (iii) Provisions Regarding School Discipline (iv) Provision Prohibiting Torture or Other Cruel, Inhuman, or Degrading Treatment or Punishment (v) Provisions Protective of Dignity (vi) Provision Regarding Traditional Practices Prejudicial to Health (vii) General Thematic Principles of the Children's Convention v

47

50 53 53 56 59 63 67 69

vi • Corporal Punishment of Children: A Human Rights Violation

(a) General Principle Against Discrimination (b) General Principles Regarding the Best Interests of the Child (c) General Principle Regarding Adult Guidance of Children in the Exercise of Their Rights Under the Convention, and General Principle Regarding Children's Participation in Matters Affecting Their Lives (d) General Principle Protecting Survival and Development Other International Human Rights Instruments (i) Provisions Protective of Dignity (ii) Provisions Against Torture or Cruel, Inhuman, or Degrading Treatment or Punishment (iii) Provisions Protective of Personal Security (iv) Provisions Protective of Privacy (v) Provision on the Right to Social and Economic Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (vi) Provisions Protective of Physical and Mental Health Summation

112 116

Chapter III: Domestic Laws ofCountries Absolutely Prohibiting All Corporal Punishment ofChildren A. Enactments......................................... (i) Sweden (ii) Finland (iii) Norway (iv) Austria (v) Cyprus (vi) Denmark (vii) Croatia (viii) Latvia (ix) Germany (x) Bulgaria (xi) Iceland B. Judicial Decisions: Israel

153 154 154 160 165 171 174 180 184 187 189 197 200 205

B.

C.

69 71

72 74 75 77 79 98 102 110

Contents • vii

Chapter IV: Domestic Laws of Countries Prohibiting All Corporal Punishment of Children: The Peculiar Situations of Italy and Portugal

247

Chapter V: Examples of Domestic Laws of Countries Permitting Some Corporal Punishment of Children A. The United States B. Canada

261 262 291

Chapter VI: The Utility of Law in Ameliorating Adverse Outcomes Associated with Corporal Punishment of Children and in Ultimately Eliminating Such Punishment A. Addressing the Potential Downsides in Using Law to Abolish Corporal Punishment of Children B. A Legal Prohibition on Corporal Punishment of Children Serves as a Societywide "Enlightened Witness" that May Assist Children in Avoiding Repression of Anger C. A Legal Prohibition on Corporal Punishment of Children Preserves Hard Won Lessons About the Value of Humane Treatment of Children Afterword Bibliography Cases Treaties and International Declarations Index

335 336

342

345 355 357 383 389 391

ACKNOWLEDGMENTS

A cast of what seems like thousands assisted me in one way or another to create this book, and they all have my deepest gratitude. Cynthia Price Cohen, Milton V Kline, and Alice Miller are responsible for opening my eyes to what corporal punishment of children really is and for motivating me to consider its ramifications under international human rights law. Their farseeing ideas are the inspiration for this volume. From a practical standpoint, this book would simply not have been feasible without the monetary backing of Michigan State University College of Law. Especially in relation to the third chapter on the domestic antispanking bans of foreign countries, financial arrangements made by Dean Terence Blackburn allowed me to have access to those countries' legal experts. The College additionally saw to it that I was provided with phalanxes of student research assistants over the course of two years. It is an understatement to say that their help was invaluable to me with respect to the other chapters. Enthusiastic kudos to Kathleen Dunn, Danielle Gross, Russell Joseph Harte, Meghan Kennedy, and John Nizol, law students who furnished the lion's share of meticulous research support. Equally hearty kudos to Jane Edwards, the reference librarian at the College for whom no research request of mine was too arcane or gargantuan. Speaking of the third chapter, I cannot thank enough the attorneys and law professors from around the world who educated me about the legal systems of their homelands and walked me through the intricacies of their nations' legal schemes for outlawing all corporal punishment of children. They include Professor Doctor Werner Beulke, Holder of the Chair in Criminal Law, Criminal Procedure, and Criminology, University of Passau, Germany; Finn Erik Engzelius, Partner, law firm ofThommessen Krefting Greve Lund AS, Oslo, Norway; Hrefna Fridriksdottir, Attorney, Governmental Agency for Child Protection, Iceland; Ivaylo Ganchev, Attorney, Chair of the Board of the Bulgarian Association for Civil Society and Legal Initiatives, Bulgaria; Marja-Liisa Jarvinen, Partner, law firm of

ix

x • Corporal Punishment of Children: A Human Rights Violation

Krogerus & Co., Helsinki, Finland; Tamar Morag, Faculty Member, Faculty of Law and School of Social Work, Tel Aviv University, Israel; Anna Panayiotidou, Partner, and Maria Koundourou, Advocate, law firm of Andreas Neocleous & Co., Limassol, Cyprus; Dr. Axel Reidlinger, Attorney, law firm of Freshfields Bruckhaus Deringer, Vienna, Austria; Associate Professor Johanna Schiratzki, Director of the Institute for Social Civil Law, Department of Law, Stockholm University, Sweden; Dr. Rhona Schuz, Senior Lecturer at Sha' arei Mishpat Law School and Visiting Lecturer at Bar llan University, Israel; Associate Professor Jorn Vestergaard, Institute of Legal Science, Faculty of Law, University of Copenhagen, Denmark; Goran Zekovic, Staff Attorney, American Bar Association-Central Europe and Eurasian Law Initiative, Croatia; and the attorneys and government officials at the Secretariat of the Minister for Special Assignments for Children and Family Affairs, Latvia. Likewise, the fourth chapter concerning Italy's laws on the subject was facilitated by Roberta Cecchetti, Expert in Child Protection, and Sara Menichetti, Jurist Specializing in Children's Rights, Rome, Italy. It should be noted that I would not even have been able to identify and make contact with the above-mentioned jurists without the kind intervention of Steven Austermiller, Dean Terence Blackburn, Dilyana Giteva, Dr. Kurt Heller, Peter Newell, Dr. Fabian von Schlabrendorff, Gunnar Sturluson, and Professor Peter Tillers, among others. Because part of the first chapter covers psychological studies on corporal punishment of children and psychology is not my field, I initially felt out of my depth in trying to understand and synthesize those materials. Fortunately, two exceedingly knowledgeable professors of psychology came to my aid by explaining the significance of different types of studies and by critiquing the chapter for me when it was in early draft stages. I am, therefore, very appreciative of the input from Associate Professor Joan Durrant, Head of Family Studies, University of Manitoba, Canada, and from Assistant Professor Elizabeth Gershoff, School of Social Work, University of Michigan. As usual, I am impossibly indebted to Peter Newell, Joint Coordinator of the Global Initiative to End All Corporal Punishment of Children and Coordinator of the "Children Are Unbeatable!" Alliance in England. Peter painstakingly reviewed a draft of the second chapter containing the analysis of corporal punishment under international human rights law. His com-

Acknowledgments • xi

mentary, as it has been on my other writing projects, was extremely detailed, thoughtful, and edifying. Professor Philip Alston of New York University Law School also made insightful suggestions about the second chapter that I eagerly incorporated. Endless praise is due my secretary, Sue Nelson. She is a superb typist and has shown the patience of a saint throughout the process of putting this book together. No missteps in this book should be attributed to any of the foregoing researchers or authorities. Any errors are my responsibility alone. Last but definitely not least, I wish to thank my husband, Lee, and my son, Will. They have been my cheerleaders, my solace, and my mainstay. And, of course, hugs and biscuits to Duke, Tess, and Reddy, the canine companions who made me smile even when I feared that I would never see the light at the end of the tunnel.

INTRODUCTION

Perhaps I am the only one who sees it, but I find that hard to believe. Except for an occasional aberration, the faces of young children around the world are unsurpassingly sweet, aren't they? Why is this? Why should our babies wear the faces of a fresh and seemingly angelic humanity when so many adults do not? What happens in the process of growing up that causes visages of such appealing luminescence to become etched with anger, malice, and cunning or dulled with heavy weariness and resignation? Of course, the days of judging character according to physiognomy are over as a scientific endeavor. We know better than to judge a person's psychology or moral fiber by simply studying his or her external appearance. Yet, there is no getting away from that poignant, almost indefinable winsomeness that so often suffuses children's countenances. Western culture, for one, seems to have picked up upon and even mythicized this aspect of the outward child. There is a distinct theme in literature, art, and music that has given childhood a most romantic billing. The playful melodies of Claude Debussy's Children 's Corner, 1 the dreamy renditions of children in Pierre Auguste Renoir's Child with ToysGabrielle and the Artist s Son, Jean? and Two Young Girls at the Piano' and the yearning for the joy of youth in William Wordsworth's Ode on Intimations of Immortality from Recollections of Early Childhood' but typify the mass of work idealizing our early years. For many people, the mere word "childhood" spontaneously conjures up sunlit pictures of little souls boisterously bounding in play or quietly absorbed in whimsical imaginings. Not only the child qua child, but the environment in which childhood takes place is often conceived in the adult imagination as protected, carefree, and, in the main, blissfully happy. But childhood also moves in dark shadows that loom large with fear and pain. These are the shadows cast by an adult world that wields the power and legal prerogative to subject its young to reasonable corporal punishment in the name of discipline. Blows, no matter what their purpose, bring pain and dread of pain even if they are administered with modxiit

xiv • Corporal Punishment of Children: A Human Rights Violation

eration; and these are blows against which, in most of the world, there is no recourse, regardless of how often they are repeated. This is the somber, fearsome side of childhood, overhanging days of play and whimsy with a helpless distress that operates at the level of normalcy. This too is the life of the child, and it is neither protected, carefree, nor happy. Perhaps it is corporal punishment, as well as other harshness toward children, that contributes to the strange and imperceptible transformation of toddlers' cherub-visages into the less than beatific expressions of their elders. Mankind, it turns out, has been living with an awful secret in relation to raising children, one so deep in our subconscious that, until recently, only a relative few in the general population were aware of its existence. But, the human heart was not made to suppress such truths forever. The mental evolution of our species in terms of growing self-awareness and introspection, as well as the balefulness of the insight itself, assured eventual disclosure. Although it would take thousands of years, this secret would out. As dirty secrets go, this one is fairly complex. It is comprised of two kindred phenomena, one of which is so obvious that it is embarrassing that we did not comprehend it earlier, and the other of which previously has been, in equal measure, virtually inaccessible to the reach of human intelligence. The first part of the secret, the one before our very noses, is that corporal punishment of children is cruelty to children> and completely gratuitous cruelty at that because there are other, nonviolent, more effective ways to guide and control children.v The disciplinary technique of hitting, so frequently a part of adults' child rearing repertoire, is anything but a run-of-the-mill event for many of the children involved. To the contrary, children experience corporal punishment as bodily pain." This experience is rooted in the reality of the situation: stripped to its essence, corporal punishment is an assault and battery the whole point of which is, in fact, infliction of pain in order to modify behavior. 8 For many children, the experience of being spanked includes and also transcends physical sensation, perpetrating a sort of "soul murder."9 This aspect of corporal punishment is an attack on the integrity of heart and mind that may be intolerable without an opportunity to vent the choler engendered by physical chastisement or, in the alternative, without some

Introduction • xv

involuntary reactive psychic numbing and/or increased aggression on the child's part," responses described at length in the first chapter. How is it that for so long we have not figured out the meaning of children writhing and sobbing under the raised hand? How can we have been so blind to ensuing observable psychological reactions in our own children or pupils-youngsters with whom we, as their parents or teachers, are on such familiar terms? "[H]ow many ears must one man have before he can hear people cry?" "How many times can a man turn his head and pretend that he just doesn't see?"!' As Bob Dylan's song bemoans and history shows, this is not the first time that humanity's perception and compassion have been occluded by unbidden cognitive inattention. It has been suggested that a mental bias in favor of corporal punishment may have had its inception in the conditions under which Homo sapiens were presumably first forced to exist. "For thousands of generations, life was characterized by danger-omnipresent threat and pervasive intra- and interspecies violence. Humankind and our current sociocultural practices evolved in, and therefore reflect, a brutal, violent, and unpredictable world."12 Civilizing factors such as societal organization and technological development, including effective hunting weapons, have largely insulated modern human beings from interspecies violence. I 3 Today, the lion may still be "king of the jungle," but his legendary domination generally ends where human habitation begins. The threat to life and limb in our era, aside from that posed by hostile microscopic organisms, mostly emanates from our fellow human beings. Indeed, the twentieth century alone presents a blood-soaked panorama of two world wars, the Holocaust, countless horrific massacres, perpetual internecine strife in the Middle East, and rampant terrorism. In spite of our Einsteins and Ghandis, we humans have shown ourselves, on a fairly regular basis, to be a rather savage lot who have emerged from the primeval cave and not much farther. "Fight or flight" seems to drive us even though the mastodon and saber-toothed tiger are long gone.!" The peculiarity of this is that although a person cannot reason with a mastodon, a person can usually do so with another person. The gray matter is there for man to give a prominent if not exclusive place to diplomacy and peaceful coexistence in the context of conducting people-to-

xvi • Corporal Punishment of Children: A Human Rights Violation

people relations. Evidence of this capacity and its slowly evolving preeminence abounds: the United Nations;'> the development of human rights!" and humanitarian law;'? the World Court," a plethora of treaties on a wide range of issues, 19 and, indeed, the very rule of law itself. But, I have given in to the temptation to digress into the tantalizing and fundamental question of the origins of human intraspecies violence-a subject of frequent controversy and many tomes. The point is this: we think the human species found itself, ab initio, in a world where violence was a vital component of survival. Violence was a predominant way to bend others to one's will and control one's environment. Is it surprising, then, that raw force, i.e., corporal punishment, also became a common way for adults to deal with disobedient or troublesome children? Corporal punishment of children has continued as part of the human condition for so long that the accompanying embedded cultural norms sanctioning such punishment have left previous generations of humanity to assume, in all confidence, that spanking children is a perfectly benign and beneficial practice." Thus, the intrinsic cruelty of corporal punishment has been, for the most part, unseen and unnoted because for most people it simply could not be seen and noted. A second reason why the cruelty of corporal punishment has been shrouded in secrecy may be because it is just too uncomfortable from an emotional standpoint for adults to reconceive spanking in such grim terms. The effort can make unbearable demands on us both as present parents and as former children. If the reader has spanked his or her own child, a candid reappraisal is apt to produce unease or even guilty feelings at having caused pain, fear, sorrow, or vexation in another. And, if the reader was spanked as a child, unpleasant memories of it may entail an acknowledgment that a beloved parent had shortcomings and caused one's own suffering." Under these circumstances, the secret was quite safe. We have developed an unconscious reflexive resistance to recognizing spanking as cruelty-a resistance that may arise from our own individual experiences as well as from the history of our species. The other phenomenon that comprises the secret-for, you will recall, this is a double-headed Hydra-is that the child's defensive psychological reactions to corporal punishment may persist into adulthood. Such reac-

Introduction • xvii

tions may include heightened aggressiveness and a constricted capacity for empathy in the child and later in his or her life.22 The reasons why this is so will be covered in depth in the first chapter. For now, suffice it to say that this manifestation in adolescence and adulthood may help create the psychological conditions predisposing some people to commit brutal acts and many, many others to acquiesce in such barbarism." If you try to divine those character traits that make inhumanity possible, they necessarily must include emotional numbness and a penchant for aggressive behavior. Someone who can empathize will find his or her sensibilities to be a powerful block against engaging in hurtful conduct. Likewise, someone who is not particularly aggressive will be unlikely to aggress. Accustomed, as so many people are, to thinking of corporal punishment of children as an ordinary adult prerogative and one that is even exercised for children's sake, it cannot but seem a far leap to suggest that a smack on a toddler's bottom has any earthshaking significance or requires governmental intervention. The fact is, though, that much recent scientific research and theorizing demonstrates that a diminution of empathy and an increase in aggression may mark the personalties of adults who underwent corporal punishment as children. The conceptual leap I ask you to make, therefore, is not an act of faith, but, rather, an act of enlightenment borne of nascent scientific understanding and social responsibility. There you have it-the whole moldering, miserable secret: corporal punishment is in itself cruelty to children and, at the same time, may help form the seedbed for the next generation's cruelty including violent crime, terrorism, and egregious human rights violations. Recognizing corporal punishment of children for what it is thus implicates not only children's well-being, but also the very nature and future of the human race. So, the secret is out, at least in certain circles. Even among the uninitiated, there seems to be a growing intuition that spanking children is somehow distasteful and unwise.>' And so the question becomes, what next? Or, that is the question if one assumes corporal punishment of children may be so harmful and objectionable that measures must be taken against its continuation and that there are measures that can be effective in dealing with the problem. In light of the dangers physical discipline may create for individuals and society at large, this book proceeds upon the premise that ameliorative steps are appropriate and even urgent. There

xviii • Corporal Punishment of Children: A Human Rights Violation

are any number of approaches that could be adopted, singly or in combination. For many people, education and counseling probably come readily to mind. It seems reasonable to lay the responsibility for exposing our secret at the doorstep of those professionals to whom the populace typically turns for advice about improving child rearing practices-teachers, child psychologists and psychiatrists, pediatricians, social workers, and the like. I would wholeheartedly agree that these experts should have a pivotal role in delegitimating corporal punishment of children and discouraging its use. Indeed, a social change of this nature is unlikely to occur without the contributions of such expertise. In my experience, however, people are much less likely to intuit an equally effective helping hand from the law. Yet, law has played and, by all signs, should continue to playa special role in minimizing the incidents of and ultimately abolishing corporal punishment of children. It may startle some readers to learn in these pages that corporal punishment of children has for years been considered, by those in a position to know, a full-blown human rights violation under international law and that the global community has had sound, if not profound, reasons for reaching this conclusion." Individual nations have increasingly been falling into step with this body of international human rights law by enacting or adjudicating domestic prohibitions on corporal punishment of children." As will be shown, the importance of this developing legal regime cannot be overstated. These international and national laws have a pedagogically effectuated deterrent function that is essential to achieving and preserving the achievement of abolition for posterity." In the interim, before complete abolition or something near it can be accomplished, these prohibitory laws also have a unique therapeutic power to forestall some of the more insidious dynamics that may be triggered by corporal punishment of children." This book's mission, then, is the relatively narrow but critically important one of examining the existence of and rationale for law as an instrument of social reform in uprooting this pernicious and stubborn secret from our daily lives and collective destiny. Reassessment of corporal punishment of children is in many countries politically sensitive and evocative of related controversial issues, circumstances that make it easy to ascribe an unintended breadth to the subject undertaken here. Before proceeding further, therefore, it may be helpful to avoid any misunderstanding by distinguishing what this book does and

Introduction • xix

does not profess to do. First, this work does not presume to attribute all of the ills of childhood or society to corporal punishment of children. The world is obviously too complex to assign anyone cause as the sole source of violence or any other adversity. Instead, the approach adopted here is to treat such punishment as a highly significant and often unacknowledged factor contributing to humanity's more destructive characteristics and tendencies. Second, this is not a diatribe on the virtues of permissiveness in raising or educating children. Like many experts on child psychology, this author accepts the notion that adults must set limits for children and that children should be taught to adhere to those limits." The intent here is to analyze law reform with respect to only one form of discipline-physical chastisement. Third, this book's condemnation of corporal punishment of children is not meant to do double duty by insinuating tacit approval of other harsh or disrespectful disciplinary measures in place of spanking. Yelling at and insulting children, for instance, may also be injurious to their emotional health'? If the author were bent upon sneaking in any implied messages, it would rather be that all injurious discipline should be avoided in raising children. But, that more encompassing theme is not explicitly or implicitly within the scope of this book; only corporal punishment is. Fourth, this is not another monograph about physical child abuse as that phrase has been traditionally conceived. The focus is instead on corporal punishment that may be defined as follows: the use of physical force upon a child's body with the intention of causing the child to experience bodily pain so as to correct or punish the child's behavior." It should be remarked that this definition necessarily encompasses garden-variety reasonable spankings as well as more severe violations of the child's physical integrity constituting classic child abuse. The central concern ofthis book, however, is with legal developments and reform in relation to corporal punishment that defies successful prosecution in most of the world today. For convenience, I will hereafter refer to this category of discipline by the shorthand designations of "corporal punishment," "reasonable corporal punishment," "moderate corporal punishment," and so on, but these abridgements are in no wayan admission that there is anything actually reasonable, moderate, or otherwise acceptable about what is happening to the child.

xx • Corporal Punishment of Children: A Human Rights Violation

The foregoing definition of corporal punishment should be taken to exclude physically restraining children to prevent them from imminently injuring themselves or others. Pulling a toddler out of harm's way as he or she starts to run into traffic would not be punishment. In such a situation, the adult would have no intent to cause the child bodily pain and the adult's primary goal would be to avert a disaster rather than to modify the child's obliviousness to danger. It is essential to clarify, in connection with the fourth point above, that although this book will occasionally refer to experts' observations that children feel pain more acutely than adults dO,32 the international human rights arguments offered here against corporal punishment are not predicated on such findings alone. Rather, the legal arguments are based on the presupposition that even assuming arguendo that children and adults experience pain similarly, the inherent features of ordinary corporal punishment put it beyond the pale. Insofar as children do experience pain more acutely, that fact, of course, works to buttress legal censure of the practice. Fifth, this book is written not only on behalf of children, but also from a perspective empathetic to parents and to families as a whole. Children and their families do not have mutually exclusive interests in relation to corporal punishment. Opposing corporal punishment of children does not mean enabling or encouraging children to rebel against their parents. If anything, the latest scientific evidence is all the other way: stopping physical chastisement of children may actually solidify the parent-child bond and facilitate more harmonious family functioning." Indeed, reflecting the confluence of juvenile and parental interests, international human rights law champions both the rights of the child and the sacrosanct place of the family in children's lives and in society generally>' In shining the light of day upon humankind's cobwebby secret, one that has caused so much pain and mishap, my intent is not to demoralize or fill my fellow human beings with self-loathing. Quite the opposite. The information imparted here highlights that indicia abound, especially in the proliferation of international and domestic human rights laws," showing the human race to be on a naturally occurring trajectory toward more civilized and compassionate value systems even as warfare and terrorism continue to dog our steps forward. Thus, whether or not our species has any inherent tendency toward violence, it must be admitted that we definitely

Introduction • xxi

have an inherent tendency toward nonviolent behavior. Moreover, from the viewpoint of human history over the millennia, the latter inclination is an increasingly manifest phenomenon, presaging that our evolving irenic selves may someday, not impossibly far off, be the norm in interpersonal and state-to-state relations. But, there is even more cause for optimism. We actually have it within our control to hasten and ensure this univeral entente cordiale. Human rights laws do not drop from heaven; they are made by people. People can strengthen the effectiveness of such laws as already exist and adopt additional laws embodying expanded or new rights. More specifically, a legal prohibition on corporal punishment of children has immense potential to contribute toward creating a human psyche that shuns the ruthlessness presently taken for granted as an inevitable part of life. We have it within our reach to zero in on one of our most tragic and parlous flaws-the propensity to commit violent acts. We can deliberately and expeditiously humanize our species' psychological evolution and societal progress by many means, but most especially through laws inculcating us with nonviolent child rearing as a desideratum of our era. This is an empowering and exhilarating thought.

xxii • Corporal Punishment of Children: A Human Rights Violation

ENDNOTES 1

CLAUDE DEBUSSY, Children s Corner, on DEBUSSY FOR CHILDREN (Ottavo Recordings

2001). 2 Pierre Auguste Renoir, Child with Toys-Gabrielle and the Artists Son, Jean (1895-96), at http://www.nga.gov/cgi-bin/pinfo?Object=65257+0+none (last visited Feb. 18, 2002).

3 Pierre Auguste Renoir, Two Young Girls at the Piano (1892), at http://www.ndirect.co.ukl-nas/masters/renoir/renoir.htm (last visited Feb. 18, 2002). 4 William Wordsworth, Ode on Intimations ofImmortality from Recollections of Early Childhood, in MAGIC CASEMENTS 647, 647-54 (George S. Carhart & Paul A. McGhee eds., 1933).

5 See ALICE MILLER, FOR YOUR OWN GOOD: HIDDEN CRUELTY IN CHILD-REARING AND THE ROOTS OF VIOLENCE 196 (Hildegarde Hannum & Hunter Hannum trans., 1990) [hereinafter MILLER, HIDDEN CRUELTY]; MURRAY A. STRAUS WITH DENISE A. DONNELLY ET AL., BEATING THE DEVIL OUT OF THEM: CORPORAL PUNISHMENT IN AMERICAN FAMILIES AND ITS EFFECTS ON CHILDREN 9-10 (2001).

6

See infra Ch. I, Part A.

7 See PHILIP GREVEN, SPARE THE CHILD: THE RELIGIOUS ROOTS OF PUNISHMENT AND THE PSYCHOLOGICAL IMPACT OF PHYSICAL ABUSE 122-23 (1991); PETER NEWELL, CHILDREN ARE PEOPLE Too: THE CASE AGAINST PHYSICAL PUNISHMENT 12 (1989); Susan H. Bitensky, Spare the Rod, Embrace Our Humanity: Toward a New Legal Regime Prohibiting Corporal Punishment of Children, 31 U. MICH. IL. REFORM 353,426 (1998). 8

See STRAUS WITH DONNELLY ET AL., supra note 5, at 4-5.

9 The phrase "soul murder" was coined in this context by Swiss psychologist Alice Miller to describe child rearing that causes children to feel "deep humiliation, intimidation, destruction of dignity, loss or power, and torment." MILLER, HIDDEN CRUELTY, supra note 5, at 223-24. 10 See MILLER, HIDDEN CRUELTY, supra note 5, at 7,61,65-66,115-16,232; cf, GREVEN, supra note 7, at 127-29, 186-98 (describing how corporal punishment of children can lead to increased aggression and decreased empathy in its victims). 11 BOB DYLAN, Blowing in the Wind, on THE FREE WHEELIN' BOB DYLAN (Columbia, 1963), lyrics available at http://www.niehs.nih.gov/kids/lyrics/blowing.htm (last visited Oct. 31, 2001). 12 Bruce D. Perry, Incubated in Terror: Neurodevelopmental Factors in the "Cycle of Violence," in CHILDREN IN AVIOLENT SOCIETY 124, 124 (Joy D. Osofsky ed., 1997) [hereinafter Perry, Incubated in Terror] (referring, for this proposition, to JOHN KEEGAN, A HISTORY OF WARFARE 5,92,84-125 (1993)); see also JONATHAN GLOVER, HUMANITY: A MORAL HISTORY OF THE TWENTIETH CENTURY 41 (1999) (asserting that prehistorical men were likely to survive and gain dominance if they were superior at using their hunting skills not only to kill animals but also to destroy rival human beings).

Introduction • xxiii 13

See Perry, Incubated in Terror, supra note 12, at 125.

14 For references to "fight or flight" as an "originally adaptive internal state" that may persist, see ide at 136; cf., Bruce D. Perry, Anxiety Disorders, in TEXTBOOK OF PEDIATRIC NEUROPSYCHIATRY 579,580 (C. Edward Coffey & Roger A. Brumback eds., 1998) (noting that "fight or flight" "refers to the physiological manifestations of alarm and arousal (e.g., profuse sweating, tachycardia, rapid respiration) that frequently co-occur with the emotion of anxiety" and "manifest[s] the activation of the autonomic nervous system and the hypothalamic-pituitary-adrenal axis") (citations omitted); Eitan D. Schwarz & Bruce D. Perry, The Post-Traumatic Response in Children and Adolescents, 17 PSYCHIATRIC CLINICS OF NORTH AM. 311,312 (1994) (stating that the effects of trauma derive, in part, from a "fight or flight" reaction induced by a lifethreatening situation).

&

15 The United Nations has been in existence since 1945. See GEOFFREY BEST, WAR LAW SINCE 1945, at 67 (1994).

16 See generally PAUL GORDON LAUREN, THE EVOLUTION OF INTERNATIONAL HUMAN RIGHTS: VISIONS SEEN passim (2d ed. 2003) (tracing the development of international human rights).

17 See generally THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS passim (Dieter Fleck et al. eds., 1995) (surveying the evolution and contents of humanitarian law). 18 For a brief description of the World Court, also known as the International Court of Justice, see LOUIS HENKIN ET AL., INTERNATIONAL LAW CASES AND MATERIALS 805-06 (3d ed. 1993). 19 See, e.g., Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51 (1985); Nuclear Nonproliferation Treaty, opened for signature July 1, 1968, T.LA.S. 6839,21 U.S.T. 483; Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, openedfor signature Jan. 27, 1967, 18 U.S.T. 2411, 610 U.N.T.S. 205 Reg. No. 8843; Antarctic Treaty, signed Dec. 1, 1959, 12 U.S.T. 794, T.LA.S. 4780 (protecting Antarctica). 20 STRAUS WITH DONNELLYETAL., supra note 5, at 10-16,20-21; Newell, supra note 7, at 8; Dean M. Herman, A Statutory Proposal to Prohibit the Infliction of Violence upon Children, 19 FAM. L.Q. 1, 18-21 (1985).

21 For sources remarking on the guilt adults may feel due to corporally punishing a child, see NANCY SAMALIN, LOVING YOUR CHILD Is NOT ENOUGH: POSITIVE DISCIPLINE THAT WORKS 73 (1987); WILLIAM SEARS & MARTHA SEARS, THE DISCIPLINE BOOK: EVERYTHING You NEED TO KNOW TO HAVE A BETTER-BEHAVED CHILD-FROM BIRTH TO AGE TEN 148 (1995). For sources describing adults' resistance to recognizing that when they were children their parents were cruel, see STRAUS WITH DONNELLY ET AL., supra note 5, at 163; Herman, supra note 20, at 18-21; see also ALICE MILLER, THOU SHALT NOT BEAWARE: SOCIETY'S BETRAYAL OF THE CHILD 161,209-10,299 (Hildegarde Hannum &

xxiv • Corporal Punishment of Children: A Human Rights Violation Hunter Hannum trans., 1990) (describing generally victims' reactions to trauma caused by parents). 22

See discussion infra Ch. I, Part C.

23

See discussion infra Ch. I, Part D.

24 In spite of the fact that reasonable parental corporal punishment of children is permitted by law in most American jurisdictions, "each year, a larger and larger proportion of the American population opposes corporal punishment. In 1968, ... almost everyone (94 percent) believed that corporal punishment is sometimes necessary. But in the last 30 years public support for corporal punishment has been decreasing. By 1999, almost half of US adults rej ected the idea that spanking is necessary." Murray A. Straus, Social Science and Public Policy: New Evidence for the Benefits ofNever Spanking, SOCIETY 52, 56 (Sept./Oct. 2001). It was even reported a few years ago that among the present generation of educated middle-class American parents, corporal punishment of children is considered "as politically incorrect as smoking" and, further, that only 31 percent of American parents spank their children sometimes or often. Larry Reibstein & Susan Miller, The Debate over Discipline, NEWSWEEK Special Edition 64 (Spring/Summer 1997). There is evidence that parental approval of corporal punishment of children is declining in other countries as well. See, e.g., STRAUS WITH DONNELLY, supra note 5, at 21 (reporting "sharp decreases in approval ratings" in Denmark, Norway and Sweden); Julian V Roberts, Changing Public Attitudes Towards Corporal Punishment: The Effects ofStatutory Reform in Sweden, 24 CHILD ABUSE & NEGLECT 1027, 1033 (2000) (noting that there is "a growing public disenchantment with corporal punishment around the world"). Some countries also have experienced a decreased incidence of parental corporal punishment of children. See,

e.g., Initial Reports of States Parties Due in 1994 to the Committee on the Rights of the Child: Austria, paras. 268,270-271, U.N. Doc. CRC/C/11/Add. 14 (1997) (averring that as of the early 1990s, 67.5 percent of mothers and 68.8 percent of fathers in Austria rejected "serious corporal punishment" as a means of discipline); Joan E. Durrant, Trends in Youth Crime and Well-Being Since the Abolition of Corporal Punishment in Sweden, 31 YOUTH & SOC'Y 437,451-52 (2000) (stating that parents in Sweden are decreasingly using physical coercion as a child rearing method). But see Robert E. Larzelere & Byron Johnson, Evaluations of the Effects of Sweden s Spanking Ban on Physical ChildAbuse Rates: A Literature Review, 85 PSYCHOL. REP. 381,388 (1999) (claiming that Sweden has experienced "little change in the prevalence of physical punishment," in spite of the existence of a Swedish law banning such punishment). 25

See infra Chs. I-II.

26

See infra Ch. III-IV

27

See infra Chs. III, VI.

28

See infra Ch. VI, Part B.

29 See, e.g., PENELOPE LEACH, YOUR GROWING CHILD: FROM BABYHOOD THROUGH ADOLESCENCE 205-08,211-13,217 (1996) (defining the proper nature and role of disci-

Introduction • xxv pline as varying with a child's age); MILLER, HIDDEN CRUELTY, supra note 5, at 177 (repudiating permissiveness in child rearing); SEARS & SEARS, supra note 21, at 158-59; cf. BENJAMIN SPOCK, DR. SPOCKON PARENTING 145-53 (1988) (denying that the absence of corporal punishment is tantamount to permissive parenting). 30 See KATHARINE C. KERSEY, DON'T TAKE IT OUT ON YOUR KIDS! A PARENT'S GUIDE TO POSITIVE DISCIPLINE 41 (1994) (explaining that when adults scream at children, the children are likely to respond in kind); GERALD E. NELSON & RICHARD W LEWAK, WHO'S THE Boss? LOVE, AUTHORITY, AND PARENTING 60-61 (1985) (indicating that ridicule will so erode a child's self-esteem that he or she may start to perform poorly in school and have difficulty maintaining friendships); CAROLYN WEBSTER-STRATTON & MARTIN HERBERT, TROUBLED FAMILIES-PROBLEM CHILDREN: WORKING WITH PARENTS: A COLLABORATIVE PROCESS 274-75 (1994) (counseling that parents should avoid put-downs of their children because such criticism will make the latter feel incompetent, discounted and defensive).

31 This formulation is derived in large measure from Professor Murray A. Straus' definition of "corporal punishment." See STRAUS WITH DONNELLY ET AL., supra note 5, at 4. 32

See infra Ch. II, Parts A(iv), B(ii).

33

See infra Ch. I, Part C.

34 See, e.g., U.N. Convention on the Rights of the Child, Nov. 20, 1989, arts. 3, para. 2; 5; 18; 27, paras. 2-3, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49 (A/44/49), at 166, 167-70, U.N. Doc. A/RES/44/25 (1989) (averring that states parties shall ensure protection and care of the child "taking into account the rights and duties of his or her parents"; that states parties "shall respect the responsibilities, rights and duties of parents ... to provide ... appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention"; that states parties shall ensure recognition that "both parents have common responsibilities for the upbringing and development of the child" and "shall render ... assistance to parents ... in the performance of their child-rearing responsibilities"; and that states parties "shall take ... measures to assist parents" to provide living conditions necessary for the child's development); American Convention on Human Rights, done on Nov. 22, 1969, art. 17, para. 1, OEA/Ser. L.V/II.82, doc.6 rev. 1, at 25,32 (1992) (providing that "[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the state"); International Covenant on Civil and Political Rights, openedfor signature Dec. 19, 1966, art. 23, para. 1, G.A. Res. 2200A (XXI), Annex, U.N. GAOR, 21st Sess., Supp. No. 16, at 49,55, U.N. Doc. A/6316 (1967) (declaring that "[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State"); International Covenant on Economic, Social and Cultural Rights, opened for signature Dec. 16, 1966, art. 10, G.A. Res. 2200A (XXI), Annex, U.N. GAOR, 21st Sess., Supp. No. 16, at 49,50, U.N. Doc.A/6316 (1967) (proclaiming that "[t]he widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care

xxvi • Corporal Punishment of Children: A Human Rights Violation

and education of dependent children" and that "[s]pecial protection should be accorded to mothers during a reasonable period before and after childbirth"); Universal Declaration of Human Rights, art. 16, para. 3, G.A. Res. 217A(III), U.N. GAOR, 3d Sess., pt.l, U.N. Doc. Al810, at 71,74 (1948) (stating that "[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State"). 35

See infra Chs. II, VI, Part C.

CHAPTER I

CORPORAL PUNISHMENT OF CHILDREN INHERENTLY HAS ATTRIBUTES THAT ARE MORALLY OBJECTIONABLE The purpose of this chapter is not to substantiate that corporal punishment of children is, in fact, a violation of international human rights law. That will come later. Just now, the purpose is to examine what inherent characteristics of such punishment are so morally obnoxious as to warrant its classification as a human rights violation by the international community. This undertaking may appear to some as superfluous or even as a case of overkill. Why go there? Corporal punishment of children either is or is not a violation of human rights law. However, corporal punishment is neither the rack nor thumbscrews, mechanisms that have long been excoriated under human rights norms. Corporal punishment of children historically has not borne the same taint. As previously discussed, corporal punishment has been largely spared such ignomy because the punishment's cruelty and ill effects have for so long been secret, blinding us to the reality that this form of punishing children also has characteristics offensive to modern standards of right and decency. There are four attributes of corporal punishment of children that make it an ethical wrong. Since one of the foundations of international human rights law is morality,' a discussion of these attributes should make more transparent and fathomable the reasons why international lawmakers have willingly bowed to the exigency of branding such punishment as illegal. As this foray into contemporary standards of rectitude proceeds, it should be kept in mind that the discussion is not meant to deal with classic prosecutable physical child abuse. Rather, the analysis will be limited solely to the unjust aspects of the so-called reasonable or moderate spankings referred to in the introduction.

2 • Corporal Punishment of Children: A Human Rights Violation

A.

CORPORAL PUNISHMENT OF CHILDREN IS, BY DEFINITION, THE GRATUITOUS INTENTIONAL INFLICTION OF PAIN ON CHILDREN'S BODIES FOR THE PURPOSE OF MODIFYING BEHAVIOR

It is true that spanking is not the rack or thumbscrews. But, pain is pain, no matter what its source. All corporal punishment hurts. By definition, spanking is intended to cause bodily pain as a way of correcting or punishing a child's conduct." Now some pain that adults inflict on children is justifiable as an unavoidable and undesirable consequence of serving children's interests. For example, a physician who gives a child a vaccination causes the child bodily pain, but the pain is justifiable because there is no other way to protect the child from disease. In other words, pain is neither the adult's goal nor the preferred means to a goal. If the doctor could invent a safe vaccination method that would not hurt or be too expensive, that method would surely become standard medical practice. Corporal punishment, however, is intended to cause pain on the premise that the pain itself will induce children to change their behavior. For the corporal punisher, pain is desirable. It is, at least at the time of the spanking, the preferred way of altering children's behavior. Worse still, corporal punishment of children is gratuitous intentional infliction of pain because the punishment serves no lasting good and because there are other, more effective ways of changing children's misbehavior.' Most child care experts agree that spanking does absolutely nothing to further the main disciplinary goals of developing the child's conscience and inclination toward peaceful conflict resolution." It appears that the only conceivable good that can come out of smacking a child is the ephemeral one of stunning the child into a provisional halt of his or her transgression." Even then, the resulting "good" is spurious because the stunned child is probably more focused on the perceived outrageousness of being smacked rather than on the impropriety of his or her transgression" and commonly will repeat the misdeed within days or hours of being smacked." Corporal punishment is, if anything, more a device that serves the short-term needs of care givers, allowing adults to let off steam, to get a moment's respite from a child's trying misconduct, or to savor the egogratifying illusion that they are in control. 8 That corporal punishment of children is gratuitous is underscored by the fact that there are many nonviolent approaches to discipline that are regarded as much more productive than spanking in assisting the child to

Morally Objectionable Attributes of Corporal Punishment • 3

develop inner controls." For example, resort may be had, without discernible risk for the child, to deprivation of privileges;'? reasoning;'! timeout.l? grounding;" negotiation and compromise;" redirecting young children's attention away from their unacceptable conduct;'> asking children to come up with a fitting nonviolent punishment; 16 physical restraint of young children about to engage in rash activity;'? and letting the child suffer the logical consequences, within reason, of his or her naughtiness." Positive reinforcement of good conduct, such as praise, signs of special attention and affection, or rewards, avoids punishment altogether even as it fosters obedience.'? Care givers can also sometimes circumvent the need for punishment by structuring a young child's environment so that the opportunity for mischief does not arise" There are additionally nonviolent disciplinary methods especially suitable to schools and other institutional settings for children. For instance, schools have at their disposal an assortment of traditional noncorporal penalties including in-school suspension and parent pick-ups." Less austere measures consist of providing a character education curriculum, enlisting the assistance of school psychologists and counselors, handing out student recognition awards for exemplary deportment, distributing behavioral report cards, contracting with students for better conduct, and engaging in peer mediation.F Gratuitous intentional infliction of pain, no matter who is the perpetrator and who is the victim, is ethically repugnant. That the perpetrator may be a parent or other care giver and the victim a child does not change the essence of the act or in any rational way excuse it. Once corporal punishment is analytically reduced to its basic elements as gratuitous intentional infliction of pain, we should become receptive to reconsidering things from the child's position and to realizing that such punishment is probably experienced by many children in much the same way that other physical anguish is experienced by adults." Try to put yourself in a child's shoes for a moment. Suppose the child is a little boy whose mother uses spanking to deal with her son's rowdiness. This adult, upon whom the boy is utterly dependent, looms large on the child's horizon, glowering, threatening. The hand is raised with menacing import. Fear and panic grip the child; he cringes. Then comes the blow, hurting the body and mortifying the ego. But, there is nothing the

4 • Corporal Punishment of Children: A Human Rights Violation

boy can do to palliate the pain and indignity. There is no reprieve and nowhere to hide. Diane Rehm, the host of a popular American radio show, has given a particularly poignant description, strongly infused with the child's perspective, of the corporal punishment she underwent as a youngster-a punishment that, ferocious as it was, in many American jurisdictions would not be prosecutable: Both my mother and father believed in, and practiced, punishment, both physical and psychological, a fact that leaves me with many painful memories. It doesn't help to realize that, at least in those days, corporal punishment was a common means of enforcing discipline. What I do know is that when I was slapped in the face or beaten with a belt, a metal pancake turner, a large wooden spoon, or a hard-soled shoe, I couldn't avoid the blows. It's strange that I didn't defend myself, and I wonder about that even now. Why didn't I run? Presumably, I knew that if I did, the punishment would be even worse. One day in particular stands out in my mind, when I was about eight. I was spending the morning with a friend next door, ... who was teaching me to embroider. I was due home at twelve-thirty for lunch, but I'd become so involved with the embroidery lesson that the deadline passed ... As I ran into the house, my mother was waiting, ... a look of fury on her face and a metal pancake turner in her hand. She began beating me, her rage beyond anything I'd ever experienced, so terrifying that I crumpled to the floor, trying to hold on to myself, hoping she'd stop. But the beating intensified as she struck blow after blow to my head, shoulders, and arms, to the point where, out of fear, I lost control of my bladder.... I'll never be convinced that hitting a child is a useful form of discipline. Perhaps it temporarily relieves a parent's tension, but it does nothing to instill respect. Fear, yes; respect, no. Indeed, those beatings instilled in me a sense of shame. It was a secret I kept, somehow believing I deserved to be treated badly because I'd disappointed my parents.... There was no way to separate myself from my feelings of self-hatred for having behaved so badly....

Morally Objectionable Attributes of Corporal Punishment • 5

The beatings also left me uncertain about what to expect from my parents. There were days when the mood seemed pleasant and I felt safe .... But then came the moments when my mother's rage would descend and I didn't know where to turn or how to run."24 A seven-year-old girl, from the contemporaneity of her childhood and without the mediation of maturity, has affirmed Rehm's retrospective reaction. As the child put it with unalloyed conviction, being smacked "just feels horrid, you know, and it really hurts, it stings you and makes you horrible inside."25 It verges on the tautological to state that needless infliction of pain on children is against all conscience. As such, the international community has had ample reason to respond to corporal punishment as the mistreatment of children and a desecration of their value as full members of the human race. B.

THE HELPLESSNESS OF CHILDREN WHO HAVE UNDERGONE CORPORAL PUNISHMENT ISUNFAIR AS UNEQUAL TREATMENT IN COMPARISON TO THE LEGAL RECOURSE AVAILABLE TO ADULTS WHO HAVE BEEN HIT

Corporal punishment further implicates concerns of right and wrong because subjecting children to violence against which adults are protected is unfair as unequal treatment. To illustrate: if your beloved, impaired adult neighbor became obstreperous, there is little chance that you would swat him or her to correct or punish the neighbor's unruliness. This would be the case even if the neighbor were as beloved as your child, of as limited capacities as your child (in comparison to a normal adult), and as incorrigible as your child. Your revulsion at hitting the neighbor has its roots in the very essence of civil society> as reflected in national or subfederal laws. Most countries have laws criminalizing assault and battery.'? reflecting that these societies have repudiated swatting as a behavior modification or dispute resolution technique among adults. Why should the moral judgment undergirding these laws change simply because the person on the receiving end is a child? It seems especially difficult to justify deviation from societies' judgment on this when corporal punishment of children, if it were not denominated as such, would typically meet all the definitional elements of a criminal assault and battery. For example, in the United States an assault

6 • Corporal Punishment of Children: A Human Rights Violation

or battery (different subfederal jurisdictions within the United States use one or the other term to describe the same crime) may be formulated as an "unlawful application of force to the person of another" resulting in "either a bodily injury" or, in some states, a mere offensive touching." Under the modern approach in the United States, exemplified by the Model Penal Code, in order to constitute assault, the attack must cause "bodily injury,"?" defined as, among other things, "physical pain, illness or any impairment of physical condition."30 Even a "temporarily painful blow" to another will constitute a battery "though afterward there is no wound or bruise or even pain to show for it."3! The perpetrator must also have a particular mental state, which includes intent to injure or cause bodily pain.v Other countries, such as South Africa, Uganda, and the United Kingdom, describe the crime along very similar lines." In any event, corporal punishment of children, as defined in this book, is characterized by precisely these elements of assault and battery." to state the obvious, corporal punishment of children is, at least, a temporarily painful blow intended to modify behavior by causing bodily pain. Nor is this assault and battery even a viable way of correcting or punishing children. You will recall, most child care experts agree that spanking does not, over the long haul, civilize children into individuals with dependable moral barometers or into proponents of tact and principled compromise." There are less draconian punishments and strategies that are much more advantageous for these purposes.v Given the inefficacy of corporal punishment as well as children's relative vulnerability and reliance on their parents and other care givers, subjecting one's own children or youthful charges to violence and the dread of violence seems even less defensible than subjecting anyone else to such practices. And, of course, in most societies it is not at all defensible to allow adults to go around clobbering each other with impunity. The blatant unfairness of this disparate treatment is brought out in even bolder relief when viewed in broader historical context. It is telling that the groups of people, besides children, who have endured legalized corporal punishment have been enslaved or in an extremely oppressed status.>? For example, in the United States, antebellum slaveholders were permitted to use force on their African American "property";" the slaveholders' very favorite technique was whipping." During the Reconstruction era that followed the Civil War, vigilante groups like the Ku Klux

Morally Objectionable Attributes of Corporal Punishment • 7

Klan took advantage of the complicity and/or fear of local authorities so as to intimidate freedmen and their families with a reign of terrorr'? again, the preferred means of aggression was whipping.'! The bloodletting and disorder became so rampant that Congress ultimately enacted a series of statutes to protect Blacks from the corporal punishment perpetrated by those Whites loathe to treat former slaves as equals.tLikewise, in England before the twentieth century, wife-battering was a husband's conjugal right arising from the fact that "women became legally dead when they married."43 "By marriage the husband and wife ... [were] one person in law, that is, the very being or legal existence of women . . . [was] suspended during marriage."44 The mindset that endorsed husbands pummeling their wives into "obedience" was consistent with and flowed from English laws' denial to wives of attributes as autonomous, reasoning human beings. With the emancipation of Confederate slaves and enactment of protective Reconstruction legislation, Caucasians lost the legal right to beat African Americans." With the evolution of women's struggle for equality in England, women there achieved law reform that does not tolerate physical chastisement of wives by their husbands." Children have not been so fortunate. In most of the world, they still suffer from corporal punishment administered by the adults who have the legal authority to hit them. This circumstance, considered within the aforementioned historical tableau, raises a disturbing question: has corporal punishment of children been sustained over the centuries by an antecedent and fundamental inequity in the way most societies have viewed children?"? When, for instance, parents spank their children, do they, unwittingly or not, presume that they own the children? It would seem so, for otherwise these parents would assuredly not feel free to do to their children that which cannot be done to people who are not "owned," i.e., physically attack the children. This comparison between present corporal punishment of children and past corporal punishment of slaves and wives unveils an appalling assumption implicit in the continuation of such punishment vis-a-vis children. Either children are subhuman because they do not feel pain and humiliation as adults do, or children do feel these things, but their suffering does not matter as adult suffering does because, again, children partake of the subhuman. Both alternatives are value judgments

8 • Corporal Punishment of Children: A Human Rights Violation

bespeaking a society that has dispossessed children of their full identities as human beings. To be blunt, children in such a legal environment are effectively regarded as the functional equivalent of chattel-just as African Americans and English married women once were. The notion that anyone-child or adult-can be another's property has long been anathema under received moral tenets. Lest I or you lose the thread, I harp on the analogy of corporally punished children to slaves and "legally dead" wives not to claim that in modern society children are juristically tantamount to slaves or "legally dead" wives, but, rather and again, to highlight the gross unfairness of consigning our children to corporal punishment from which there is no refuge while granting adults who are physically attacked the succor of the legal system. C.

CORPORAL PUNISHMENT OF CHILDREN MAY CAUSE SERIOUS HARM, BEYOND THE INFLICTION OF BODILY PAIN, BOTH DURING CHILDHOOD AND LATER IN VICTIMS' LIVES

Corporal punishment of children is also morally execrable because such punishment may cause harm to its victims, even beyond inflicting bodily pain, both during childhood and throughout the victims' lives. The damage done to these individuals represents personal loss and tribulation that may range from living with irksome neuroses to being overtaken by psychological dynamics capable of destroying the quality and productivity of one's life. At the outset of this discussion, however, it should be acknowledged that there is ongoing controversy among child care professionals over whether light or moderate spanking ever does any real harm to speak of. It sometimes seems as if the pro- and anticorporal punishment camps have been engaged in a high stakes, esoteric game of Ping-Pong. No sooner are scientific studies published that convict corporal punishment of potentially doing long lasting harm to children than other scientific studies are published that exonerate the practice, and so on, back and forth and back and forth. At this juncture, the weight of authority is decidedly in the antispanking camp and would seem to presage that things will stay that way." It is also probably correct to say, though, that the issue has not yet been dispositively settled for all time in the scientific community.'?

Morally Objectionable Attributes of Corporal Punishment • 9

It is not my intention to provide a comprehensive survey of the literature for and against spanking children. I merely bring the controversy to your attention for two reasons. First, intellectual honesty demands no less. Second, the very existence of the controversy, ironically, is just as convincing as an ironclad scientific truth that corporal punishment of children is deleterious. Bear with me. This is not as preposterous a proposition as it may initially appear. If there is a reasonable chance that corporal punishment will harm some children, although we cannot forecast which ones, and if there are alternative effective means of educating children, why would we ever want to imperil our progeny by using this form of punishment? The situation is analogous to some of the dilemmas that have faced the u.S. Food and Drug Administration (FDA). The FDA advised against the use of Baycol, an anticholesterol medication, due to strong but inconclusive evidence of noxious side effects. The agency approved of the manufacturer's withdrawal of Baycol from the American market, in spite of the inconclusive evidence, because there were other anticholesterol drugs available that do not have these side effects.>? One would think that the FDA's approach to Baycol should be equally applicable to spanking children-assuming that we have as much regard for children as we do for adults with elevated cholesterol. Another pertinent example is the FDA's response to phenylpropanolamine (PPA), a substance that was present before November 2000 in many over-the-counter cold remedies and diet pills. The FDA banned the sale of PPA in over-the-counter products, requested all pharmaceutical companies to discontinue medications containing PPA, and warned Americans to stop ingesting any concoctions containing PPA because of a study showing that PPA can cause often deadly or disabling hemorrhagic strokes in women. The FDA took this action with respect to all Americans, and manufacturers then promptly ceased selling PPA-Iaden products to everybody, even though the jeopardy was very small as to any individual female user and though the study did not include men.>' Again, if the FDA and the pharmaceutical industry saw fit to respond in such a way as to protect all Americans from PPA, even those for whom there was no evidence of risk, why would we not want to forego spanking with respect to all children even though some of them may not be at risk of any morbid-

10 • Corporal Punishment of Children: A Human Rights Violation

ity from spanking? Why take a chance when it is just children's, instead of grown-up's or everyone's, well-being that is on the line? It is probably realistic to surmise that the great majority of parents and other care givers would not knowingly place children at risk. The survival of the human species would seem to require at least this much concern by older generations for succeeding ones. The insidious thing about corporal punishment is that most adults who use it on children are unknowingly placing the children in danger. Most societies condone its use-? and, in many corners of the globe, there is a truly prodigious ignorance about the fact that the domestic laws of a growing number of countries and international human rights laws roundly condemn it. Such condonation and ignorance make it all the more imperative to understand how spanking may jeopardize children, beyond putting them in pain, such that their welfare is implicated for no morally vindicable reason. It appears that physical chastisement may impoverish and mar the very quality and experience of being a child. I use the word "may" intentionally. Not every child who is spanked will necessarily suffer negative physical or psychological consequences. It is clear that many children will not be impacted in any untoward way; and it is just as certain that some children's health will be compromised, perhaps seriously." That there are children who will emerge unscathed from incidents of corporal punishment does not, however, undercut the concerns raised by this form of discipline. As long as some children will be impaired by corporal punishment and as long as we cannot with accuracy identify who those children will be, every child is potentially at risk. An apt parallel has been drawn to smoking: not everyone who smokes will get cancer, but the fact that some smokers will be stricken is enough to make physicians discourage all of their patients from indulging in the habit.>' In surveying the kinds of distress that may afflict children who have experienced corporal punishment, good science and credible reporting make it prudent to catalogue the various evidentiary sources identifying and publicizing that distress. Most of the sources pertinent here are, by their nature, limited with respect to how much they can prove, and their limitations, in all fairness, should be kept in mind. This chapter discusses information derived primarily from the following sources: correlational studies;" meta-analyses of correlational, longitudinal, and experimental

Morally Objectionable Attributes of Corporal Punishment

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studies;" literature reviews of some such studies.>? theoretical contributions;" two quasi-experimental longitudinal studies bearing on causation.>? and anecdotal evidence in the form of a clinical psychologist's observations of some of his patients who were corporally punished as children.v? With the exception of quasiexperimentallongitudinal studies, none of these sources can prove causation, i.e., that spanking children actually causes their subsequent distress. The correlational studies, which constitute most of the studies available on corporal punishment of children, can only establish an association between the punishment and the different types of distress." The theorizing and clinical observations provide a fund of knowledgeable and therefore influential suppositions about the likely relationship between spanking and adverse child behaviors. These limitations do not mean that any of the evidence can or should be disregarded. To the contrary, at this stage in the evolution of psychology and allied sciences, correlational studies and theoretical work are the main evidence that we have been able to obtain on this subject.v? It bears emphasizing that associations are hard evidence of the possibility of causation that we would be foolhardy to ignore, especially given that it is our children's well-being that is in issue. And, theory and clinical observations may be valuable predictors of how we should be thinking about corporal punishment and the direction in which researchers should concentrate their efforts. With respect to the importance of theory, it is helpful to recall instances of, for its day, some "wild" theorizing that was later proven to have scientific validity.'" Just mentioning the name ofAlbert Einstein, suffices, I believe, to make the point. Just what are the specifics of these adverse outcomes that may besiege children during childhood? To begin with, corporal punishment has been theorized to result in and has been actually correlated with increased aggressiveness.>' possibly resulting from the modeling of aggression when adults hit children/" from the mounting anger children may feel upon being hit,66 and/or from being traumatized by such strong-arm tactics.v? Worse still, some child-victims are thought to have a diminished capacity for empathy." Coupling aggressiveness with lack of empathy creates a propensity to hurt others without compunction. This correlation of corporal punishment with childhood aggression and lack of empathy can have deplorable consequences as child-victims may try to turn the tables and victimize animals, other children, and even adults.

12 • Corporal Punishment of Children: A Human Rights Violation

Experts have raised the possibility that corporal punishment may impede children's intellectual achievements? and interfere with their schoolwork" In this regard, a quasi-experimental longitudinal study by Straus and Paschall now provides evidence that corporal punishment causes restricted cognitive development in young children." The experts have additionally theorized that corporal punishment may spur a range of toxic emotional reactions in children and behaviors based thereon, such as depression.t- withdrawal." anxiety," tension," and, in older children, substance abuse" and precocious sexual behavior,"? Corporal punishment can produce physiological damage as well," including delayed somatic symptoms such as headaches and stomachaches."? Even more hazardous, some studies have found that corporal punishment of children is often the prelude to severe physical child abuse, as more traditionally conceived, with attendant injuries.v' Anecdotal evidence from clinical observations also indicates that corporal punishment of children may generate a variety of other complaints ranging from obsessiveness, disrespect toward authority figures, and preoccupation with suicide, to, more singularly, fear of contact sports.s! The theory and data about corporal punishment's interference with children's learning is consistent with observations of this punishment's effect on the mood of the classroom. School paddling appears to create an anxious, hostile atmosphere and makes open communication between teachers and students difficult. 82 These are not choice conditions for priming receptivity to new information or for stimulating academic prowess. Incidentally, in surveying the infirmities that corporal punishment may inflict during childhood, the author is not unmindful that some researchers and theorists have effectively created an "African American exception," i.e., they have advanced the proposition that spanking does no injury to and, in fact, is beneficial to Black children in the United States.v Advocates of the exception frequently offer as an explanation for it that strong physical discipline is essential to keep Black children out of trouble in high crime neighborhoods. 84 This author purposefully declines to recommend a relativistic approach, depending on skin color, to spanking children. The "African American exception" is hardly irrefutable fact. There are other, equally respected researchers and theorists who have posited that corporal punishment may

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be detrimental to Black children." Indeed, as will be presently seen in these pages, Gershoff's meta-analyses have found an association between corporal punishment of children and ten seriously adverse behavioral outcomes regardless of the race of the children involved, thereby making short work of the exceptionalists.w But, even assuming arguendo that there still is any division of opinion on the subject, I would prefer to err, if error it is, on the side of rejecting a punishment that has clear antecedents in the whipping of American slaves'? and that constitutes further unequal treatment of American Black children, both in comparison to adults and to children of other races. To the extent that corporal punishment has become a part of Black culture in response to the history of slavery and discrimination in the United States, "the continuation of that aspect of black culture interferes with progress toward equality" for these African American children and for the Black community at large." Indeed, Black children in the United States are recipients of a disproportionate amount of school corporal punishment. The figures are staggering. Statistics for the 1999-2000 academic year show that "Black students are hit at a rate that is more than twice their makeup in the population. Blacks comprise 17% of students, but receive 39% of paddlings. Whites make up 62% of all students, but receive 53% of the corporal punishment."89 Most of these contemporary victims of the schoolmaster's "lash" are Black boys."? A study published in 2004 of the situation in Memphis, Tennessee is a case in point, showing that in that school district "Black students and boys were overwhelmingly more likely to get spanked than their white and female counterparts. Rougly 97% of the 27,918 paddlings last year [2003] were given to the district's black children, while only 2 percent were given to white children."91 It is impossible to avoid drawing the inference that this allocation of school corporal punishment is fraught with racism reminiscent of the antebellum South. It seems to me, therefore, that recommending corporal punishment for Black children and discouraging its use on all other children not only perpetuates inequality but is a throwback to American slavery, attributing, unintentionally I trust, a subhuman status solely to Black children.vHuman beings have it in common to flinch from pain. They share psychological reactions to being rendered simultaneously helpless and maddened by the use of force against which there is no redress. There is, in short, a universal human hunger for bodily integrity and right treatment

14 • Corporal Punishment of Children: A Human Rights Violation

as well as for a respect that attests to each person's essential humanity.'" To adopt this form of African American exceptionalism, given American history and current conditions in many American schools, is to deny to Black children fulfillment of this basic aspect of their human nature. There are also researchers who take the position that corporal punishment may be benign and even produce benefits for children regardless of racial identity. For example, a 1997 quasi-experimental longitudinal study by Gunnoe and Mariner purports to discredit "a social learning paradigm in which spanking provides a model for aggression under all or most circumstances for all or most children," with the exception of the subgroup of older White boys in single-mother families. For this subgroup, the authors report that they obtained significant results consistent with" 'modelled aggression,'" i.e., learning aggression from watching others act aggressively. But, when Gunnoe and Mariner used a developmental-contextual model hypothesizing that the effects of spanking are related to the meaning with which children imbue spanking from cultural norms and the family hierarchy, the researchers found no evidence that corporal punishment of any boys younger than six years old or of girls younger than eight years old resulted in aggression. The latter model further yielded the finding that corporal punishment discourages subsequent fighting by children ages four to seven of all races and by all Black children, but has the opposite effect on children of all races in the eight to eleven age group and on all White children.?" In a similar vein, Larzelere published a literature review of prior studies on corporal punishment in which he asserts, among other things, that such punishment has beneficial outcomes for children in the cohort of two- to six-year-olds when it is "nonabusive" (apparently meaning lightly, not too frequently, and flexibly used) and when employed by loving parents to reenforce milder forms of discipline. According to Larzelere, most negative child outcomes result from "overly frequent physical punishment as well as overly severe physical punishment."95 The publication of studies like Gunnoe and Mariner's or Larzelere's, naturally enough, gives one pause about relying too much upon corporal punishment's injurious effects on children. Yet, the pause, in truth, need only be momentary at this juncture in our scientific understanding. First,

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as was pointed out previously, inasmuch as there is a good chance some children will be adversely impacted by spanking, it is unconscionable to put them at risk when effective nonviolent disciplinary tactics exist. Indeed, not only are there many other published studies establishing an association between corporal punishment and adverse outcomes, but even the works of Gunnoe, Mariner, and Larzelere themselves have uncovered this association coexisting with the correlation they found between corporal punishment and beneficial outcomes." Second, meta-analyses published by Gershoff in 2002 have made the weight of authority against physical chastisement of children extremely heavy, if not overwhelming."? A meta-analysis is, briefly, "[a] statistical synthesis of the data from separate but similar, i.e., comparable, studies, leading to a quantitative summary of the pooled results.... The aim is to integrate the findings, pool the data, and identify the overall trend of results."98 Gershoff's meta-analyses cover eighty-eight studies, conducted during the period between 1938 and 2000, concerning possible links between parental corporal punishment and ensuing behaviors and experiences in the persons punished. Her findings are that parental corporal punishment is associated with the following negative behaviors and experiences: decreased moral internalization, increased child aggression, increased child delinquent and antisocial conduct, decreased quality of the parentchild relationship, decreased child mental health, and increased risk of undergoing classic physical child abuse, and upon reaching adulthood, increased adult aggression, increased adult criminal and antisocial behavior, decreased adult mental health, and increased risk of abusing one's own child or spouse. Corporal punishment is associated with only one desirable behavior-increased immediate, temporary child compliance.?? Gershoff summarizes: The primary conclusion from the meta-analyses of these 88 studies conducted over the last 62 years is that parental corporal punishment is associated significantly with a range of child behaviors and experiences, including both short- and long-term, individual- and relationship-level, and direct (physical abuse) and indirect (e.g., delinquency and antisocial behavior) constructs. Although it is related with immediate compliance, corporal punishment is associated with 10 undesirable constructs.F"

16 • Corporal Punishment of Children: A Human Rights Violation

She continues, however, that the results of her meta-analyses must not be taken to prove that parental corporal punishment necessarily causes these behaviors/experiences (except immediate compliance). This limitation is due to the fact that the meta-analyses are based primarily on correlational studies and such studies cannot prove causation.'?' Nevertheless, Gershoff evaluates her findings as also requiring a caution against using corporal punishment. ... The current state of the field ... is that at its worst corporal punishment may have negative effects on children and at its best has no effects, positive or otherwise. . .. For a practice that many have linked to physical abuse ... , the burden of proof should be high: Corporal punishment should have strong and consistently positive effects on children for psychologists to routinely recommend it as a practice given the range of negative effects with which it is associated.l''? Gershoff's meta-analyses concern that corporal punishment of children solely dispensed by parents. The meta-analyses cannot therefore serve as direct authority for making associations between corporal punishment by other care givers and the aforementioned adverse outcomes. Even so, for several reasons, the meta-analyses are a basis for educated conjecture that such associations also exist when the punisher is nonparental. For example, Gershoff observes that "there are strong parallels between the parent-child and teacher-child relationships that suggest that corporal punishment should function in a similar way."103 Like parents, pedagogues are responsible for teaching children discipline. In order to absorb and internalize behavioral lessons from either a parent or a teacher, children must perceive that the disciplining adult is well-disposed toward the children and "has their best interests at heart."104 Gershoff opines that the major difference between the home and school with regard to to corporal punishment is that children do not usually have a history of relationship with a teacher, as they do with a parent, within which to sort out and comprehend the punishment.I'" She speculates that corporal punishment administered outside this historical relational context could weaken children's motivation to perform academically for their teachers. 106 These similarities and differences between home and school, considered in total, lead Gershoff to the supposition that "we should expect corporal punishment to have many of the same negative impacts on children in schools, and some different ones as well."107 Her thesis that the same adverse out-

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comes or some of them may occur when the corporal punisher is not a parent, is confirmed not only by the theories and findings of other child development experts, as described above, but also by a literature review about children corporally punished in day care settings.'!" a cross-sectional study of corporal punishment of children delivered by "any adult,"109 a noncausal study of foster children exposed to "community violence,"110 and a correlational study of children subjected to violence "in the home, neighborhood, and school."lll Now it may have occurred to the attentive reader that I have cited mostly correlational evidence that corporal punishment is connected with detriment to children. I have cited one longitudinal study demonstrating causation between such punishment and an unfavorable outcome for children and one longitudinal study showing causation between such punishment and a favorable outcome for children. The reason that the competing authorities are not in a dead heat and that the weight of authority clearly remains with those scientists opposing corporal punishment of children, is that Gershoff's meta-analyses are considered more reliable than the results of a single or even a few longitudinal studies: Results from a given study need to be evaluated in the context of the existing empirical literature. One of the best tools that researchers have to summarize a body of literature is meta-analysis, .... Clearly, cumulative research knowledge from a set of studies is more reliable than findings from selected studies or a single study.... By offering an average effect size from a set of studies, meta-analysis eliminates the problem of what to do when studies show opposing findings (Hunter & Schmidt, 1996).112 The present state of science, then, should instill in us a concomitant moral obligation to condemn corporal punishment of children unless Gershoff's high burden of proof that the punishment has "strong and consistently positive effects for children," is satisfied by the relevant scientific community-a burden plainly not met by those who approve of such punishment. In sum, spanking may make the experience of childhood a waking nightmare of dysfunction and interior turmoil. Without appropriate help, the corporally punished child may be destined to do lifelong battle with

18 • Corporal Punishment of Children: A Human Rights Violation

the strangling sensation "which way I fly is Hell; myself am Hell."II3 The possible ill effects of corporal punishment on children's lives, even aside from the sheer physical pain brought by the blow, are reason enough to fire our moral indignation and provoke the realization that here we have all the earmarks of a pandemic default in humane child rearing. For, what more decimation can be visited on human beings, besides physical destruction, than to impair their mental health-their very identity and personality? And what more grievous loss can human beings endure than the deprivation of a genuinely secure and robust childhood that enables the gratification of normal development? As pathetic as the child's plight may be, however, some of the most ominous ramifications of corporal punishment of children are those that may be manifested when children who have felt the rod reach adolescence and adulthood. Analysis by respected psychologists and experts in related fields reveals that corporal punishment of a child is all too likely to produce a teenager or adult with lasting psychic distress and maiming. According to one view, the cause of the later disorders is that children are not permitted to vent the rage and humiliation they feel upon being struck.'!" They may not express these emotions for a variety of reasons. Looked at through the child's eyes, it is a formidable gamble to react hostilely toward the very people upon whom one is dependent!'> and with whom one invariably identifiesu--c-especially if an outbreak of hostility is apt to be met with more intimidation and pain.'!? It may also be inconceivable, particularly to smaller children, that parents' or other care givers' punitiveness could be misguided.U" Nor can very young children and babies even accurately conceptualize what is happening to them so as to respond consciously to their predicament.!'? Despite its function as a natural defense mechanism, this quiescence does nothing to assauge the child's hurt and resentment. To the contrary, such feelings must go somewhere and, ultimately, many children may have no alternative but to repress them. The psychologist Alice Miller has explained the dynamic as follows: If there is absolutely no possibility of reacting appropriately to hurt, humiliation, and coercion, then these experiences cannot be integrated into the personality; the feelings they evoke are repressed, and the need to articulate them remains unsatisfied, without any hope ofbeing fulfilled.

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What becomes of this forbidden and therefore unexpressed anger? Unfortunately, it does not disappear, but is transformed with time into a more or less conscious hatred directed against either the self or substitute persons, a hatred that will seek to discharge itself in various ways permissible and suitable for an adult.t-? The repressed childhood fury does, then, "go somewhere"; after years of smoldering intrapsychically, the accumulated ire can emerge in some adolescents and adults in the guise of personality disorders characterized by destructiveness either toward the self or toward others. It has been hypothesized that repressed childhood animosity may lead to such inward-turning adult disorders as depression.!" obsessive-compulsive behavior.I-? dissociation.F" and paranoia.'>' Gershoff's metaanalyses have, in fact, confirmed a nexus between corporal punishment during childhood and decreased mental health upon reaching adulthood.'> Childhood anger of this sort has also been thought to contribute to adult aggressiveness.I-" authoritarianism.I-? and lack of empathy.!" conditions in which the repressed wrath is acted out at the expense of others. Gershoff's meta-analyses again show a basis in reality for postulating these connections. The meta-analyses demonstrate a correspondence between corporal punishment of children and increased aggression when the children grow up. The meta-analyses further establish associations between physical chastisement of children and increased adult criminal and antisocial conduct and increased risk of adults abusing their own children or spouses-conduct that implies a want of empathetic feeling.t-? The theoretical construct explaining an interrelation between childhood corporal punishment, on the one hand, and adult aggression and curtailed empathy, on the other hand, may arguably be supported by recent neurobiological research. Consider, for example, the work of Bruce D. Perry showing that a child's developmental experience is instrumental in determining the organization and functioning of the adult brain.I''' Perry has found that when a child is traumatized, his or her brain adapts with physiological hyperarousal and/or dissociation, traits commonly exhibited by persons diagnosed with posttraumatic stress syndrome (PTSD),131 as well as by others with symptoms that fall shy of full-blown PTSD.132 Hyperarousal consists of the body's preparation to fight against or flee from a potential threat.I" Dissociation includes those mental mechanisms enabling disengagement from the outside world and, in lieu thereof,

20 • Corporal Punishment of Children: A Human Rights Violation

engagement with the stimuli of one's inner life.'>' Dissociation may be expressed in distraction, avoidance, numbing, daydreaming, fugue, fantasy, derealization, depersonalization, and even fainting or catatonia.t" According to Perry, under the right circumstances, these adaptive states can become maladaptive traits that the child will, in the absence of appropriate interventions, be doomed to carry into adolescence and adulthood. 136 The circumstances essential to facilitating this permanent transformation are comprised of the nature of the trauma in complex combination with extraneous variables. Perry states that the trauma must be repeated or be of sufficient duration or intensity to initiate the sequences leading to brain damage':'? and that the variables, which can influence whether the sequence is actually set in motion, include the age when the trauma occurs.!" the unique genetic composition of the traumatized child, 139 and the interference or absence of a protective or supportive care giver.v'? If all of the catalytic elements come together in a child's experience, at the end of the process of brain development, the resulting mature brain will be "stuck," if you will, with maladaptive traits of continuing vigilance and/or dissociative numbness characteristic of PTSD. The" 'sensitized' hyperarousal response" in particular may set the stage for reenactments of early traumas.!"! People victimized by violence during childhood thus may be inclined to respond violently as adults to any perceived or misperceived threats.v'? In this "states-to-traits" neurobiological process, [t]he chronic overactivation of neurochemical responses to threat in the central nervous system, particularly in the earliest years of life, can result in lifelong states of either dissociation or hyperarousal. In the case of hyperarousal, overdevelopment of the stress response systems in the brainstem and mid-brain alters the development of the higher cortical functions, creating a predisposition to behave in aggressive, impulsive, and reactive ways.143 Children may undergo many obvious traumas. Serious car accidents, severe child abuse, or loss of a parent come readily to mind. What Perry has not explored is whether there are more mundane events involving children that are also traumatic (and conducive to hyperarousal/dissociation), but not evaluated as such by adults because the events are everyday occurrences and are not perceived from a child's vantage point of immaturity, vulnerability, and dependency. This omission, of course, in no way dele-

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gitimates Perry's work. There is no fault in confining research to the effects on children's brains of only those incidents that conventional wisdom has customarily understood to be traumatic. But, query: may not children respond to even an ordinary spanking, outside the purview of most prosecutors' offices, as a traumatic event? Recall that corporal punishment necessarily entails infliction of fear and pain, violation of bodily integrity, and degradation, sensations likely to be felt by a child as nihilistic to body and soul in a most primal way. Hence, it may be hypothesized that mild or moderate spanking, just like more obvious traumas, could have the same destructive potential in some children, depending on the existence of the variables identified by Perry, to initiate those states in the child's brain that can lead to irreversible adult traits of hyperarousal, dissociation, or both. One wishes Perry or other neurobiologists would undertake further scientific studies of brain development in children who have been reasonably corporally punished but who have not also undergone sexual abuse or traditional prosecutable physical abuse. Unless or until that happens, his findings may presage that dispositive scientific confirmation could be just around the corner for those theorists who have maintained that corporal punishment of children may be traumatizing and, through the repression of anger, may give rise to heightened aggression and dulled empathy in adolescents and adults who were once punished by these means. Indeed, at least five recent articles on the consequences of trauma in children have suggested that currently accepted definitions of "trauma" may be too narrow when the term is applied in the context of children's lives.':" Davis and Siegel have written that there is "still considerable debate" as to what "characterizes an event as traumatic" such that it may trigger PTSD.145 The authors include within the range of traumatic stressors that can lead to PTSD "interpersonal violence," separate and apart from physical or sexual abuse.!" DeBellis points out that a child's "subjective sense of danger" in relation to a traumatic event may heighten the likelihood that the child will develop PTSD,147 implicitly broadening the concept of a traumatic stressor for children. He does not say so, but it appears possible that a child may easily feel endangered when an angry adult towers over him or her in readiness to strike and then does strike with no evident outside restraints to hold the adult back. Costello et ale go so far as to propose "a new measure for assessing traumatic events . . . in

22 • Corporal Punishment of Children: A Human Rights Violation

children," one that "cast[s] its net fairly widely."148 In their study, Costello and company used the Child and Adolescent Psychiatric Assessment (CAPA), a measure that embraces "low magnitude" events in addition to the extreme traumatic stressors defined by the American Psychiatric Association's Diagnostic and Statistical Manuals (DSM), as the precursors to PTSD.I49 The authors relied upon CAPA rather than the DSM criteria mainly because the latter were created in clinical work done exclusively with adults and, therefore, may not adequately represent what is traumatic for children. 150 Still more pertinent, Haapasalo and Pokela, in a review of studies on the repercussions of child rearing and abuse, reconceive childhood trauma to include exposure "to an intense situation that poses a threat to her/his ... physical integrity and which would cause considerable suffering to anyone."151 They expressly subsume within this definition of "trauma" parents' use of corporal punishment on children.l>? And, because a study by Stein et ale discovered that exposure of foster children to mild violence, including spanking, is strongly associated with the children's development of distress symptoms.l''" these authors too put forward the notion that the categorization of what constitutes a traumatic event in the DSM may not be liberal enough to account for events producing distress in children.l>' Like DeBellis, they advise that future research is needed "to address this issue by incorporating questions that assess the salience of the event to the child."155 Thus, although there is a dearth of literature on the neurobiological effects of reasonable corporal punishment on children, a potential ideational framework for such studies may be surfacing here and there, even if somewhat inadvertently. Besides creating a more aggressive and less empathetic grown-up, corporal punishment of children may hinder adult fulfillment in other significant and very personal ways. Unlikely as it may seem, the privacy of the master bedroom may not be immune to childhood corporal punishment's reach, for it has been suggested that a parent's smacking of children may warp their future sexuality. Because a person whom the child loves is doing the hitting, the child may confuse love with being hurt. It appears that this fusion of love and pain can lead to a predisposition for sadomasochism when the child becomes an adult.l'" This may especially be the case because corporal punishment is often administered upon a child's buttocks, an erogenous zone.'>?

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There is even evidence that corporal punishment during childhood may erode adult capacities for economic achievement and success in a career. 158 The theory is that spanking is liable to engender certain characteristics, such as withdrawal, depression, powerlessness, alienation, and/or decreased initiative and creativity, that may dash the prospect of employment in intellectually satisfying, lucrative jobS.I59 The toll that childhood corporal punishment may exact on adults' lives is, therefore, multifaceted and baneful. The vitality and equilibrium of one's psychic life may be hobbled or undone by childhood corporal punishment in ways that cause lasting unhappiness and varying degrees of persistent abnormality. This internal debilitation may have a ripple effect on interpersonal relations, undermining familial dynamics and individual fulfillment and heaping misery upon misery. That corporal punishment of children is a widespread practice means maladjustment and faded prospects for many of the millions of men and women who have been subjected to such unkindness-regardless of whether they are yet aware of the origin of their afflictions. I suppose all of this heartache could still be justified if the scientific evidence disclosed some extraordinary advantage unique to this form of punishment. Nobody on either side of the spanking debate wants to deprive children of salutary discipline or to turn families, schools, and other environments catering to children into dens of iniquity and chaos. The thing is that scientific research has shown only one advantage to corporal punishment-immediate temporary compliance.l'" Transitory submission is neither unique nor much of an advantage. The nonviolent disciplinary techniques surveyed earlier in this chapter are more effective in educating children to conduct themselves with uprightness and selfcontrol, but do not put children at risk of such unfortunate outcomes.tv' So much avoidable woe! In creating the potential for physical and/or psychological harm twice over-first, during childhood when the rod is applied and then during the teenage years and adulthood when the aftereffects may be felt-the creedal diagnostic for corporal punishment of children must be a damning one. Once it is brought to our attention that a punishment is needlessly and intentionally imposed and can cause enduring grief to our fellow human beings, we must be hard-hearted or mulishly stubborn not to see in corporal punishment of children the very quintessence of a normative wrong.

24 • Corporal Punishment of Children: A Human Rights Violation

D.

CORPORAL PUNISHMENT OF CHILDREN MAY, WHEN THOSE CHILDREN REACH ADULTHOOD, PREDISPOSE THEM TO COMMIT, ACQUIESCE IN, OR FAIL TO PROTEST THE VICTIMIZATION OF OTHERS

The case has been made that corporal punishment of children is unseemly. Moral censure of spanking rests on the latter's inherent characteristics of being a gratuitous intentional imposition of bodily pain upon children that also unpardonably treats children as subhuman in comparison to adults and that may produce physical and psychological damage which pursues children into adulthood. As previously discussed, these inherent characteristics of corporal punishment of children may make a desolation of individual lives or, at least, make it harder for those lives to be lived fully and with self-respect. This, obviously, is bad in itself, but the tragedy does not end there. For, this destructiveness extends also beyond the drama of the self to that larger stage where societal dynamics are acted out. The fact is that corporal punishment of children is now thought by some to have played a material role in promoting man's inhumanity to man in the sociopolitical realm.lw Studies have found that criminals are typically people who underwent corporal punishment in childhood. 163 This is not to suggest that every toddler who is spanked will, ipso facto, grow up into an unrepentant miscreant. Criminality is, rather, the result of a confluence of many factors some of which may have nothing to do with parenting. Such synergism, however, does not cancel out the presence of corporal punishment in most criminals' upbringings-a presence so pervasive in the criminal population as to generate serious concern about the rod's role as a contributing factor toward the propensity for lawless behavior. Regrettably, it is not difficult to think of instances of more massive brutality than that committed by the common criminal. The gory trail of evidence spanning the centuries is uninterrupted. Without even considering the wars and inquisitions of earlier eras, the chronology of the twentieth century provides an unrelenting spectacle of carnage and mayhem: Nazi torture and extermination of Jews, Gypsies, and others.J>' Stalin's persecution of kulaks and other dissidents in the then Soviet Union.ls> American napalming of villages in Vietnam; 166 the Khmer Rouge's butchery of more than one million Cambodians; 167 the bloody strife between Tutsis and Hutus in Rwanda.t'f Pinochet's murderous policies against the left in Chile; 169 the lethal slaughter that has periodically gripped the Balkans; 170 and the interminable and deadly battles between the Israelis

Morally Objectionable Attributes of Corporal Punishment • 25

and Palestinians. 171 Likewise, the twenty-first century got off to a comparably grim start with terrorists' incineration of the World Trade Center in New York City.172 As we all know, the list of atrocities could go on and on. But even these few selected examples raise perplexing issues. How do people come to such a pass that they can commit genocide and other enormities against each other? Where, one wonders, has their empathy and kindness gone? Why is there apparently an impulse to aggress in such monstrous ways and in such monstrous proportions? And, why is this aggression and insensitivity such a predominant feature of the human condition temporally and geographically? It is, of course, one thing to enumerate the cavalcade of history's travesties and quite another to really understand how it is that one man can bring his boot heel down upon another's throat. In his last book, The Drowned and the Saved Jl? Holocaust survivor Primo Levi describes his Nazi persecutors so that we can almost palpably sense the destructive fire that raged in their veins and the utter callousness that deadened any impulse to fellow feeling. According to Levi, so fierce was their temper and so anesthetized their sympathies, that the Nazis seemed compelled to act out this state of mind regardless of whether it served their practical interests to do so: I try once again to follow a logic that isn't mine. For an orthodox Nazi it must have been obvious, definitive, clear that all Jews should be killed: that was a dogma, a postulate. Also the children, of course: also and especially pregnant women, so that no future enemies should be born. But why, during the furious roundups in all the cities and villages of their boundless empire, why violate the houses of the dying? Why go to the trouble of dragging them onto their trains, take them to die far away, after a senseless journey, to die in Poland on the threshold of the gas chambers? In my convoy there were two dying ninety-year-old women, taken out of the Fossoli infirmary: one of them died en route, nursed in vain by her daughters. Would it not have been simpler, more "economical," to let them die, or perhaps kill them in their beds, instead of adding their agony to the collective agony of the transport? One is truly led to think that, in the Third Reich, the best choice, the choice imposed from above, was the one that entailed the greatest affliction, the greatest waste, the greatest physical and moral suffering. The "enemy" must not only die, he must die in torment."?"

26 • Corporal Punishment of Children: A Human Rights Violation

The ultimate sacrifice of death could not satiate the Nazis. Only inflicting "the greatest physical and moral suffering" would suffice. These war criminals and their ilk must, at all costs, carry out the dual dynamics dominating their psyches, aggression and numbness-even at the cost of their political, economic, or military objectives. The "greatest affliction," not victory, was their prize. In light of the intricacies of societal tensions and evolution, it would be simplistic to propose that anyone phenomenon is totally responsible for all events involving mass cruelty. Nonetheless, it is curious that corporal punishment has been part of traditional child rearing in most parts of the globe, a shared experience across time, cultural barriers, and national borders.':" It is even more intriguing that corporal punishment of children may give rise to the very symptomology of accentuated aggressiveness and decreased empathy that characterizes societal acts of inhumanity.l'" In fact, transgressions of this nature are virtually impossible without such personality traits in the perpetrators. The commonality of childhood corporal punishment and its particular adverse risks to adult personality formation closely parallel the ingredients needed for inhumanity on a grand scale. Corporal punishment of children may be a hidden but potent element contributing to man's continuing pitilessness and barbarism. Childhood suffering due to corporal punishment, taken in conjunction with other psychological, political, social, and economic forces, may help to account for what is otherwise inexplicable. It may help to account not only for the Adolph Hitlers and Pol Pots who have occupied the limelight, but also for all those masses of ordinary people who willingly followed such tyrants or who quietly acquiesced in their most awful offenses."? I cannot stress enough that I am not making the ridiculous suggestion that every spanked child will metamorphose into Hilter upon reaching adulthood. Nor am I suggesting that every spanked child will later become complicit in the misdeeds of notorious evildoers. I cannot make these assertions because science, to date, does not support them. As Gershoff has written, "[t]he presence of corporal punishment may make certain [undesirable] behaviors more likely but clearly not inevitable.... The fact that over 90% ofAmericans are spanked as children and most are not violent and criminal adults contradicts an assertion that corporal punishment necessarily has negative effects on children."178

Morally Objectionable Attributes of Corporal Punishment • 27

If the entire population of the world's spanked children is the frame of reference, though, it is possible that corporal punishment results in substantial numbers of adults across the globe who are inclined to violent or criminal acts-enough people to cause real and far-flung wretchedness. Moreover, Gershoff's meta-analyses do not address whether undergoing corporal punishment creates adults inured to and tolerant of other people's aggression. One can still stomach hearing of or watching interpersonal violence without also actually engaging in such behavior oneself. It is the likelihood of this stomaching, raised by the theorists and observed as shrunken capacity for empathy in some of the studies, that might enable us to understand not just why Hitler existed but, even more enigmatic, why so many ordinary Germans found his policies of extermination normatively unremarkable and even appealing. Corporal punishment of children intentionally, gratuitously, and unfairly causes pain and may cause other physical and psychological harms possibly persisting throughout each victim's life. The liability of incurring these consequences, without more, would be reason enough for the international community to recoil on principle from such punishment. But, corporal punishment of children has an attribute that should conduce to even greater alarm among those who are committed to elevating the human spirit and preserving our basic survival. This perhaps gravest of attributes is that in tending to give rise to adult aggression and lack of empathy, corporal punishment of children becomes a wellspring for future violent trespasses that may also constitute human rights violations. Corporal punishment of children is thus an affront both in itself and in the shaping of man's ongoing inhumanity to man. There is no reason to assume that human nature is static and must ever bear the stamp of its antediluvian origins when inter- and intraspecies violence may have ruled the day. Granted, the bellicosity and malevolence that have bedeviled us right into the twenty-first century would seem to indicate otherwise. But, there are signs of a humanitarian psychological shift that has many manifestations, including the evolution of human rights. These manifestations have been subtle in the sense that they are usually not considered newsworthy, develop slowly, and are easily overshadowed by lurid reports of the latest atrocities. We can hurry the sub rosa transformation along and bring it, for a change, into the limelight. A dramatic and regnant turnabout in the primitive aspects of our mentality is more likely if we

28 • Corporal Punishment of Children: A Human Rights Violation

deliberately identify and eradicate those factors that help account for what is cruel and vengeful in the human heart. One such key factor, the evidence indicates, may well be corporal punishment of children. We do not know what life would be like if a generation of the world's children grew up, with the benefit of adult guidance and discipline, but protected from the legalized everyday violence of corporal punishment. Certainly the experience of childhood would be less painful and fearful, no minor achievement after this too long prologue of wincing under the rod. Perhaps a generation raised without corporal punishment would, as adults, have a greater aptitude for compassion and nonviolent problem solving and less nonchalance toward others' sadistic and impulsive acts of anger. Then terrorism, crimes against humanity, and the like just might become a rarity, a true aberration of the human condition. This stealthy begetter of many a human rights violation would be moribund. The outlook for human nature and human rights in general would become immeasurably brighter.

Morally Objectionable Attributes of Corporal Punishment • 29

ENDNOTES 1 International human rights laws are largely derived from people's moral judgments and values, among other sources. See LOUIS HENKIN, THE AGE OF RIGHTS XVIII, 3, 6-10 (1990); PAUL GORDON LAUREN, THE EVOLUTION OF INTERNATIONAL HUMAN RIGHTS: VISIONS SEEN 9-21 (2d ed. 2003).

2

See discussion supra Introduction.

3

See infra Ch. I, Part A, notes 4-22 and accompanying text.

4 See PETER NEWELL, CHILDREN ARE PEOPLE Too: THE CASE AGAINST PHYSICAL PUNISHMENT 19 (1989); NANCY SAMALIN, LOVING YOUR CHILD Is NOT ENOUGH: POSITIVE DISCIPLINE THAT WORKS 74 (1987); MURRAY A. STRAUS WITH DENISE A. DONNELLY ET AL., BEATING THE DEVIL OUT OF THEM: CORPORAL PUNISHMENT IN AMERICAN FAMILIES AND ITS EFFECTS ON CHILDREN 100, 144 (2001); Anthony M. Graziano & Karen A. Namaste, Parental Use ofPhysical Force in Child Discipline: A Survey of 679 College Students, 5 1. INTERPERSONAL VIOLENCE 449,449,458 (1990): Kenelm F. McCormick, Attitudes of Primary Care Physicians Toward Corporal Punishment, 267 JAMA 3161,3161 (1992); cf, JAMES P COMER & ALVIN F. POUSSAINT, RAISING BLACK CHILDREN: Two LEADING PSYCHIATRISTS CONFRONT THE EDUCATIONAL, SOCIAL AND EMOTIONAL PROBLEMS FACING BLACK CHILDREN 50 (1992) (contending that children actually feel less rather than more guilty after a spanking). But see 1. RICHARD FUGATE, WHAT THE BIBLE SAYS ABOUT ... CHILD TRAINING 186 (1980) (asserting that corporal punishment of children lays the foundation for the development of self-control).

5 See GERALD E. NELSON & RICHARD W LEWAK, WHO'S THE Boss? LOVE, AUTHORITY, AND PARENTING 56-57 (1984); SAL SEVERE, HOWTO BEHAVE So YOUR CHILDREN WILL, Too! 139 (2000); CAROLYN WEBSTER-STRATTON & MARTIN HERBERT, TROUBLED FAMILIES-PROBLEM CHILDREN: WORKING WITH PARENTS: A COLLABORATIVE PROCESS 285 (1994).

6 See PENELOPE LEACH, YOUR GROWING CHILD: FROM BABYHOOD THROUGH ADOLESCENCE 224 (1989); WILLIAM SEARS & MARTHA SEARS, THE DISCIPLINE BOOK: EVERYTHING You NEED TO KNOW TO HAVE A BETTER-BEHAVED CHILD-FROM BIRTH TO AGE TEN 150 (1995); SEVERE, supra note 5, at 139. 7 See NELSON & LEWAK, supra note 5, at 56-57; SEARS & SEARS, supra note 6, at 149-50; SEVERE, supra note 5, at 139. 8 See MICHAEL 1. MARSHALL, WHY SPANKING DOESN'T WORK: STOPPING THIS BAD HABIT AND GETTING THE UPPER HAND ON EFFECTIVE DISCIPLINE 107-09 (2002).

9 See KATHARINE C. KERSEY, DON'T TAKE IT OUT ON YOUR KIDS! A PARENT'S GUIDE TO POSITIVE DISCIPLINE 49-72 (1994); SEARS & SEARS, supra note 6, at 161-81; SEVERE, supra note 5, at 131-37, 144-58, 187-88; WEBSTER-STRATTON & HERBERT, supra note 5, at 285. 10 See SEARS & SEARS, supra note 6, at 181; STRATTON-WEBSTER & HERBERT, supra note 5, at 285. 11 See COMER & POUSSAINT, supra note 4, at 50; LEACH, supra note 6, at 212,224, 226; SEARS & SEARS, supra note 6, at 162.

30 • Corporal Punishment of Children: A Human Rights Violation 12 See JANE NELSEN ET AL., POSITIVE DISCIPLINE A-Z: 1001 SOLUTIONS TO EVERYDAY PARENTING PROBLEMS 23-25 (1993); SEARS & SEARS, supra note 6, at 166-70; WEBSTERSTRATTON & HERBERT, supra note 5, at 285.

13 See SEVERE, supra note 5, at 136-37; MELVIN L. SILBERMAN & SUSAN A. WHEELAN, How TO DISCIPLINE WITHOUT FEELING GUILTY: ASSERTIVE RELATIONSHIPS WITH CHILDREN 112 (1980). 14 See SEARS & SEARS, supra note 6, at 178-81; SILBERMAN & WHEELAN, supra note 13, at 106-10. 15

See SILBERMAN & WHEELAN, supra note 13, at 99-10l.

16

See ide at 112.

17

See ide at 113.

18 See KERSEY, supra note 9, at 63-64; NELSEN ET AL., supra note 12, at 189-90; WEBSTER-STRATTON & HERBERT, supra note 5, at 285. 19 See David Orentlicher, Spanking and Other Corporal Punishment of Children by Parents: Overvaluing Pain, Undervaluing Children, 35 Hous. L. REV. 147,161-63 (1998); Deana Pollard, Banning Child Corporal Punishment, 77 TUL. L. REv. 575, 624 (2003). 20

See KERSEY, supra note 9, at 60-61; NELSON ET AL., supra note 12, at 311.

21 See Center for Effective Discipline, Discipline at School (NCACPS): School Corporal Punishment Alternatives, at http://www.stophitting.com/disatschool/alternatives.php (last visited July 15, 2004) [hereinafter Center for Effective Discipline, School Corporal Punishment] (in-school suspension and parent pick-ups); FREDRIC H. JONES, POSITIVE CLASSROOM DISCIPLINE 298-300 (1987) (in-school suspension and delivering student to parent at work); PAULA M. SHORT ET AL., RETHINKING STUDENT DISCIPLINE: ALTERNATIVES THAT WORK 87 (1994) (in-school suspension). 22 See Center for Effective Discipline, School Corporal Punishment, supra note 21 (character education, utilization of school psychologists and counselors, student recognition awards, and peer mediation); IRWIN A. HYMAN ET AL., SCHOOL DISCIPLINE AND SCHOOL VIOLENCE: THE TEACHER VARIANCE ApPROACH 18,47-48 (1997) (moral education, character education, and rewards); JONES, supra note 21, at 145, 147-48, 153-55 (rewards); SHORT ET AL., supra note 21, at 86-87 (rewards and contracting with students for better conduct); CHARLES H. WOLFGANG, SOLVING DISCIPLINE AND CLASSROOM MANAGEMENT PROBLEMS: METHODS AND MODELS FOR TODAY'S TEACHERS 15, 196 (5th ed. 2001) (incentives and contracting with students for improved behavior).

23 Observers have suggested that some children find incidents of being physically hit deeply traumatic. See STRAUS WITH DONNELLYET AL., supra note 4, at 9-10; Dean M. Herman, A Statutory Proposal to Prohibit the Infliction ofViolence upon Children, 19 FAM. L. Q. 1, 21 (1985). Young children, in particular, are thought to experience feelings with a unique intensity. See ALICE MILLER, THE DRAMA OF THE GIFTED CHILD 78-79 (Ruth Ward trans., 1981) [hereinafter MILLER, GIFTED CHILD]; NEWELL, supra note 4, at 16.

Morally Objectionable Attributes of Corporal Punishment • 31 24

DIANE REHM, FINDING My VOICE 28-30 (1999).

25 CAROLYNE WILLOW & TINA HYDER, IT HURTS You INSIDE: CHILDREN TALKING ABOUT SMACKING 49 (1998) (quoting a girl's answer in response to being asked what it feels like to be smacked). 26 Some of the most renowned philosophers have contended that people who lived in a pregovernmental state of nature ultimately formed civil societies to obtain governmental protection from interpersonal violence and destruction of property. See, e.g., THOMAS HOBBES, LEVIATHAN: PARTS I AND II, at 104-09, 115, 120, 139-43 (The Liberal Arts Press, Inc. 1958) (1651); John Locke, Two Treatises of Civil Government-Book IL in THE GREAT LEGAL PHILOSOPHERS: SELECTED READINGS IN JURISPRUDENCE 137-52 (Clarence Morris ed., University of Pennsylvania Press 1959) (1690). 27 See, e.g., Mohieddine Amzazi, Morocco, in 3 INTERNATIONAL ENCYCLOPAEDIA OF LAWS: CRIMINAL LAW, para. 251, at 88 (R. Blanpain general ed., 2001) (Pamela M. Fairbank trans., 1997); Maria Joao Antunes & Pedro Caeiro, Portugal, in 3 INTERNATIONAL ENCYCLOPAEDIA OF LAWS: CRIMINAL LAW, supra, para. 145, at 69 (Cheryl Marie Webster trans., 1995); Geoffrey Feltoe, Zimbabwe, in 5 INTERNATIONAL ENCYCLOPAEDIA OF LAWS: CRIMINAL LAW, supra, paras. 309-12, at 119-20 (2000); K.L. Koh & YL. Tan, Singapore, in 4 INTERNATIONAL ENCYCLOPAEDIA OF LAWS: CRIMINAL LAW, supra, para. 267, at 107 (1995); Lars Bo Langsted et al., Denmark, in 2 INTERNATIONAL ENCYCLOPAEDIA OF LAWS: CRIMINAL LAW, supra, para. 199, at 95 (1997); L.H. Leigh & IE. Williams, United Kingdom (England and Wales), in 5 INTERNATIONAL ENCYCLOPAEDIA OF LAWS: CRIMINAL LAW, supra, para. 129, at 87-88 (1993); IR.L. Milton et al., Republic of South Africa, in 4 INTERNATIONAL ENCYCLOPAEDIA OF LAWS: CRIMINAL LAW, supra, paras. 285-86, at 100 (1993); D.D.N. Nsereko, Uganda, in 4 INTERNATIONAL ENCYCLOPAEDIA OF LAWS: CRIMINAL LAW, supra, paras. 339-45, at 178-80 (1995). 28 WAYNE R. LAFAVE, CRIMINAL LAW § 7.15, at 737-38 (3d ed. 2000); see Miguel Angel Mendez, Essay, A Sisyphean Task: The Common Law Approach to Mens Rea, 28 U.C. DAVIS L. REV. 407,411-12 (1995). 29

MODEL PENAL CODE § 211.1 (1997); LAFAVE, supra note 28, § 7.15, at 737,738

&n.6. 30

MODEL PENAL CODE §§ 210.0, 211.0.

31

LAFAVE, supra note 28, § 7.15, at 737.

32

See ide § 7.15, at 739-40.

33 See Leigh & Williams, supra note 27, para. 129, at 87-88; Milton et al., supra note 27, paras. 285-86, at 100; Nsereko, supra note 27, paras. 339-345, at 178-80. 34 See Herman, supra note 23, at 42-43; Franklin E. Zimring, Legal Perspectives on Family Violence, 75 CAL. L. REV. 521, 526 (1987); cf, IL. Caldwell, Parental Physical Punishment and the Law, 13 N.Z. UNIV. L. REV. 370,387 (1989) (aiming to have parental physical discipline of children governed by statutory assault provisions).

35

See supra Ch. I, Part A, notes 4-8 and accompanying text.

32 • Corporal Punishment of Children: A Human Rights Violation 36

See supra Ch. I, Part A, notes 10-22 and accompanying text.

37 See generally MYRA C. GLENN, CAMPAIGNS AGAINST CORPORAL PUNISHMENT: PRISONERS, SAILORS, WOMEN, AND CHILDREN IN ANTEBELLUM AMERICA passim (1984); Lloyd deMause, The Evolution of Childhood, in THE HISTORY OF CHILDHOOD 1, 17, 41-43 (Lloyd deMause ed., 1974); 4 PAGE SMITH, THE NATION COMES OF AGE: A PEOPLE'S HISTORY OF THE ANTE-BELLUM YEARS 585,615-16 (1981) (concerning corporal punishment of slaves in the southern United States before the Civil War). 38 See Everette Swinney, Suppressing the Ku Klux Klan: The Enforcement of the Reconstruction Amendments 1870-1877, in AMERICAN LEGAL AND CONSTITUTIONAL HISTORY: A GARLAND SERIES OF OUTSTANDING DISSERTATIONS 36-37 (1987); ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877, at 78 (1988) (explaining that many former American slaves defined freedom as "abolition of punishment by the lash"). For further descriptions of the flogging ofAmerican slaves, see JOHN W BLASSINGAME, THE SLAVE COMMUNITY: PLANTATION LIFE IN THE ANTEBELLUM SOUTH 251 (1979); FREDERICK DOUGLASS, THE LIFE AND TIMES OF FREDERICK DOUGLASS 52, 121 (Rayford W Logan ed., Bonanza Books 1962) (1892); SMITH, supra note 37, at 585, 615-16. 39

See FONER, supra note 38, at 78; Swinney, supra note 38, at 36-37.

40 See FONER, supra note 38, at 425-36; DAVID M. OSHINSKY, "WORSE THAN SLAVERY": PARCHMAN FARM AND THE ORDEAL OF JIM CROW JUSTICE 24-28,100 (1996); GEORGE C. RABLE, BUT THERE WAS No PEACE: THE ROLE OF VIOLENCE IN THE POLITICS OF RECONSTRUCTION 28-30, 98 (1984); ALLEN W TRELEASE, WHITE TERROR: THE Ku KLux KLAN CONSPIRACY AND SOUTHERN RECONSTRUCTION 28,95-96, 101-08, 117, 130, 137, 139, 153,167,176-78,192-95,197,202,205,227,229-30,232, 235, 251-52, 257, 262-63,265,271, 276, 278, 287-88, 302-03, 306, 316, 319-24, 329, 331, 341, 357-59,365,367-68,371-72 (1971).

41 "[W]hipping was the most common form of violence" used by the Ku Klux Klan in resisting Reconstruction. ROBERT 1. KACZOROWSKI, THE POLITICS OF JUDICIAL INTERPRETATION: THE FEDERAL COURTS, DEPARTMENT OF JUSTICE AND CIVIL RIGHTS, 1866-1876, at 53-54 (1985). "[O]ver the course of two and one-half centuries corporal punishment became an accepted mode of dealing with incorrigible Negroes. Following the war it would be difficult to forswear the use of such a proven remedy for insolence and insubordination." Swinney, supra note 38, at 37. In the newly defeated South, corporal punishment of Blacks remained "a habit so inveterate with a great many persons as to render, on the least provocation, the impulse to whip a negro almost irresistible." 1 CARL SCHURZ, Report on the Condition of the South, in SPEECHES, CORRESPONDENCE AND POLITICAL PAPERS OF CARL SCHURZ 279, 316 (Frederic Bancroft ed., 1913). "Lynch mobs ordinarily executed their victims, while Ku Kluxers, although capable of murder as a last resort, preferred whipping." Swinney, supra note 38, at 47-48. In Tennessee, "[t]he normal punishment [of Blacks by the Klan] was a whipping or beating administered on the bare back with 'hickories,' sticks or small branches torn off a nearby tree." TRELEASE, supra note 40, at 29.

Morally Objectionable Attributes of Corporal Punishment • 33 42 See, e.g., Civil Rights Act of 1871, ch. 22, 17 Stat. 13; Reconstruction Act of 1867, ch. 153, 14 Stat. 428; Civil Rights Act of 1866, ch. 31, 14 Stat. 27; Freedman's Bureau Act of 1865, ch. 90, 13 Stat. 507.

43

GLENN, supra note 37, at 66.

44

1 WILLIAM BLACKSTONE, COMMENTARIES *442 (1793).

45 See, e.g., Civil Rights Act of 1871, ch. 22, 17 Stat. 13; see also Susan H. Bitensky, Section 1983: Agent ofPeace or Vehicle of Violence Against Children?, 54 OKLA. L. REV. 333,335-36,341-48 (2001). 46 See Evan Stark, Symposium on Reconceptualizing Violence Against Women by Intimate Partners: Critical Issues: Re-Presenting Woman Battering: From Battered Woman Syndrome to Coercive Control, 58 ALB. L. REV. 973, 987-89 (1995).

47 For works propounding the idea that many societies have viewed children as the property of their parents, see, for example, JOHN HOLT, ESCAPE FROM CHILDHOOD 18, 26, 39, 47-48 (1974); EUGEEN VERHELLEN, CONVENTION ON THE RIGHTS OF THE CHILD: BACKGROUND, MOTIVATION, STRATEGIES, MAIN THEMES 19-20 (2000); Mary Martin McLaughlin, Survivors and Surrogates: Children and Parents from the Ninth to the Thirteenth Centuries, in THE HISTORY OF CHILDHOOD, supra note 37, at 101, 140; Barbara B. Woodhouse, Hatching the Egg: A Child-Centered Perspective on Parents' Rights, 14 CARDOZO L. REV. 1747,1810-12 (1993); Barbara B. Woodhouse, "Who Owns the Child?" Meyer and Pierce and the Child as Property, 33 WM. & MARY L. REV. 995,997,1002-03,1036-38,1040-51,1112-14(1992). 48 See Elizabeth Thompson Gershoff, Corporal Punishment, Physical Abuse, and the Burden of Proof: Reply to Baumrind, Larzelere, and Cowan (2002), Holden (2002), and Parke (2002), 128 PSYCHOL. BULL. 602, 609 (2002) (reporting that the "current state of the field" is that at worst corporal punishment may have negative effects on children and at best no effect whatsoever) [hereinafter Gershoff, Reply]; Murray A. Straus, Social Science and Public Policy: New Evidence for the Benefits ofNever Spanking, SOCIETY 52,56 (Sept./Oct. 2001) (stating that in relation to corporal punishment of children, "the cumulative weight of the evidence" favors the opponents of spanking) [hereinafter Straus, New Evidence]. 49 See David Elliman & Margaret A. Lynch, The Physical Punishment ofChildren, 83 ARCHIVES OF DISEASE IN CHILDHOOD 196, 198 (2000) (concluding that while "it has [not] been proven that smacking causes long term adverse effects on children," there are still "good grounds to think it does"); Murray A. Straus, Spanking and the Making ofa Violent Society, 98 PEDIATRICS 837, 840 (1996) (identifying difficulties in designing studies to prove corporal punishment of children leads to societal violence) [hereinafter Straus, Violent Society]. 50 The analogy of corporal punishment of children to Baycol was created by Murray Straus. See E-mail from Dr. Robert Fathman, Psychologist and President of National Coalition to Abolish Corporal Punishment in Schools, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law (Aug. 26, 2001) (copy

34 • Corporal Punishment of Children: A Human Rights Violation on file with author). For general information on the withdrawal of Baycol from the American market, see David Brown, Cholesterol Drug Taken OffMarket; Numerous Deaths Linked to Baycol, WASH. POST, Aug. 9,2001, available at 2001 WL 23185508; FDA Talk Paper, at http://www.fda.gov/bbs/topics/ANSWERS/200 1/ANSO 1095.html (last visited Mar. 27, 2002). 51 See PPA News, at http://www.ppa-news.com/html/pparzcaII.html (last visited Mar. 25,2002); U.S. Food and Drug Administration, Center for Drug Evaluation & Research, Plenylpropanolamine Information Page, at http://www.fda.gov/cder/drug/ infopage/ppa (last visited Mar. 25,2002).

52 As of this writing, corporal punishment of children has been decisively and completely banned in fifteen countries. See infra Ch. III. It is estimated that corporal punishment is actually used in approximately three-quarters of the world's societies. See Straus, Violent Society, supra note 49, at 838.

53 See Gershoff, Reply, supra note 48, at 605; Straus, New Evidence, supra note 48, at 57; Straus, Violent Society, supra note 49, at 841. 54 Murray Straus has drawn the parallel between harmful effects of smoking and harmful effects of spanking children. See Straus, Violent Society, supra note 49, at 841. 55

Correlational studies cited in this book include Julie L. Crouch & Leah E. Behl,

Relationships Among Parental Beliefs in Corporal Punishment, Reported Stress, and Physical Child Abuse Potential, 25 CHILD ABUSE & NEGLECT 413 (2001); Daniel 1. Flannery et al., Violence Exposure, Psychological Trauma, and Suicide Risk in a Community Sample ofDangerously ViolentAdolescents, 40 1.AM.ACAD. CHILD & ADOLESCENT PSYCHIATRY 435 (2001); Kristen M. McCabe et al., Family Protective Factors Among Urban African American Youth, 28 1. CLINICAL CHILD PSYCHOL. 137 (1999); Elizabeth A. Stormshak et al., Parenting Practices and Child Disruptive Behavior Problems in Early Elementary School, 29 1. CLINICAL CHILD PSYCHOL. 17 (2000); Zvi Strassberg et al., Spanking in the Home and Children s Subsequent Aggression Toward Kindergarten Peers, 6 DEVELOPMENT & PSYCHOPATHOLOGY 445 (1994). A correlational study in this context would consist of comparing two or more groups of children who are experiencing their parents' natural parenting styles. For example, we ask parents whether or not they spank. We then divide the families in the sample into spankers and non-spankers and look at their children's aggression levels. If the spankers' children are more aggressive than the non-spankers' children, we conclude that aggression is associated with spanking, but we can't say that spanking causes the aggression because we don't know if the spanked kids were more aggressive to begin with. Maybe aggression elicits more spanking. E-mail from Dr. Joan Durrant, Associate Professor, Head of Family Studies, University of Manitoba, to Susan Bitensky, Professor of Law, Michigan State University College of Law (Oct. 9, 2002) (on file with author) [hereinafter Durrant E-mail]. 56 See Elizabeth Thompson Gershoff, Corporal Punishment by Parents and Associated Child Behaviors and Experiences: A Meta-Analytic and Theoretical

Morally Objectionable Attributes of Corporal Punishment • 35

Review, 128 PSYCHOL. BULL. 539 (2002) [hereinafter Gershoff, Meta-Analytic Review]. 57 See, e.g., Norma D. Feshbach, The Effects ofViolence in Childhood, 2 1. CLINICAL CHILD PSYCHOL. 28 (1973); Jaana Haapasalo & Elina Pokela, Child-Rearing and Child Abuse Antecedents ofCriminality, 4 AGGRESSION & VIOLENT BEHAVIOR 107 (1999); Robert E. Larzelere, Child Outcomes of Nonabusive and Customary Physical Punishment by Parents: An Updated Literature Review, 3 CLINICAL CHILD & FAM. PSYCHOL. REV. 199 (2000); Straus, New Evidence, supra note 48; Arthur L. Whaley, Sociocultural Differences in the Developmental Consequences ofthe Use ofPhysical Discipline During Childhood for African Americans, 6 CULTURAL DIVERSITY & ETHNIC MINORITY PSYCHOL. 5 (2000). 58 See, e.g., PHILIP GREVEN, SPARE THE CHILD: THE RELIGIOUS ROOTS OF PUNISHMENT AND THE PSYCHOLOGICAL IMPACT OF PHYSICAL ABUSE (1991); IRWIN A. HYMAN, READING, WRITING, AND THE HICKORY STICK: THE ApPALLING STORY OF PHYSICAL AND PSYCHOLOGICAL ABUSE IN AMERICAN SCHOOLS (1990); LEACH supra note 6; MILLER, GIFTED CHILD, supra note 23; NELSON & LEWAK, supra note 5; SAMALIN, supra note 4; SEARS & SEARS, supra note 6; STRAUS WITH DONNELLY ET AL., supra note 4 passim (2001) (providing theoretical insights as well as reviewing studies). 59 A longitudinal study may be correlational or quasi-experimental i.e., bearing on causation. The distinction has been described as follows:

A purely correlational longitudinal study would assess spanking and aggression at Time 1, then again at Time 2. If the spanked kids show more aggression over time than the non-spanked kids, we can conclude that there is a relationship between aggression and spanking (correlational). But we can't conclude that spanking caused the aggression because we don't know that the spanked kids wouldn't have been even more aggressive without the spanking. Straus et al. dealt with this by matching the spanked and non-spanked kids at Time 1. They were equal on the measure of anti-social behaviour at Time 1, so we know that the spanked kids weren't more aggressive to begin with. Straus et al. also dealt with the issue of experimental control (ensuring that everything is equivalent between the 2 groups except for the treatment) by controlling statistically for a whole pile of potentially confounding variables. Even when they held things like SES [socioeconomic status], sex of child, and warmth and stimulation provided by the parent, they found that anti-social behaviour increased in the spanked group and decreased in the non-spanked group. This study is as close as we've gotten to an experimental [causative] study of spanking and anti-social behaviour. Durrant E-mail, supra note 55. The longitudinal study discussed in the quote immediately above is of the quasi-experimental variety. Two other quasi-experimental longitudinal studies discussed in the text of this chapter are Marjorie Linder Gunnoe & Carrie Lea Mariner, Toward a Developmental-Contextual Model of the Effects of Parental Spanking on Children s Aggression, 151 ARCHIVES OF PEDIATRICS & ADOLESCENT MED. 768 (1997), and Murray A. Straus & Malbie 1. Paschall, Corporal Punishment and Cognitive Development, in MURRAY A. STRAUS, THE PRIMORDIAL VIOLENCE:

36 • Corporal Punishment of Children: A Human Rights Violation CORPORAL PUNISHMENT BY PARENTS, COGNITIVE DEVELOPMENT, AND CRIME (forthcoming

2005) (manuscript ch. 3-1, at 1-16, appendix 5, at 16-26, on file with Murray A. Straus). 60 See Telephone Interview with Dr. Milton V Kline, Clinical Psychologist (May 25,2002). 61 See Durrant E-mail, supra note 55; E-mail from Dr. Elizabeth Thompson Gershoff, then Associate Research Scientist, National Center for Children in Poverty, Mailman School of Public Health, Columbia University, to Susan Bitensky, Professor of Law, Michigan State University College of Law (Aug. 28, 2002) (on file with author). 62 Indeed, the experts tend to shun experimental studies of spanking children because they would involve the infliction of pain when there is no established benefit justifying the infliction. See Durrant E-mail, supra note 55. The inference, which may be drawn from this fact, is telling: "[t]he very fact that we [researchers] can't do this and that experimental studies of spanking are considered unethical should tell us a lot about the merits of spanking." Id. (parenthesis omitted). 63 See, e.g., Mark Solms, Freud Returns, SCI. AM. 82,84-87 (May, 2004) (reporting that many of Freud's theoretical surmises about the functioning of the human mind are being confirmed by modern neuroscientific studies of the brain). 64 See LEACH, supra note 6, at 224 (stating that smacking children contributes to turning them into bullies); NELSEN ET AL., supra note 12, at 164-65 (pointing out that spanking children encourages them to hit others); SAMALIN, supra note 4, at 73; ROBERT R. SEARS ET AL., PATTERNS OF CHILD REARING 266 (1957); SEARS & SEARS, supra note 6, at 154 (explaining that the more frequently a child is given physical punishment the more likely it is that he or she will behave aggressively toward other family members and peers); FELICITY DE ZULUETA, FROM PAIN TO VIOLENCE: THE TRAUMATIC ROOTS OF DESTRUCTIVENESS 218 (1993); BENJAMIN SPOCK, DR. SPOCK ON PARENTING 152 (1988); STRAUS WITH DONNELLY, supra note 4, at 22, 100; Flannery et al., supra note 55, at 437-38, 440 (chronicling that dangerously violent adolescents reported higher levels of prior exposure to violence, including slapping); Stormshak et al., supra note 55, at 18, 26 (reporting that parental spanking is associated with aggressive child behavior); Strassberg et al., supra note 55, at 456-59 (finding that parental corporal punishment contributes to aggression in children regardless of the frequency of such punishment); Straus, New Evidence, supra note 48, at 54-55 (analyzing that parental corporal punishment is correlated with increased childhood antisocial behavior, increased probability of corporally punished children assaulting parents, and increased likelihood that corporally punished boys will later assault a girlfriend). 65 See NEWELL, supra note 4, at 34; SEARS & SEARS, supra note 6, at 146-47; SEVERE, supra note 5, at 141-43; WEBSTER-STRATTON & HERBERT, supra note 5, at 285; Haapasalo & Pokela, supra note 57, at 118; Straus, Violent Society, supra note 49, at 839. 66 See KERSEY, supra note 9, at 29; LEACH, supra note 6, at 224; SEARS & SEARS, supra note 6, at 152; cf. STRAUS WITH DONNELLY ET AL., supra note 4, at 153-54 (observ-

ing that some children grow to hate parents who hit them).

Morally Objectionable Attributes of Corporal Punishment • 37 67 See Haapasalo & Pokela, supra note 57, at 119-21. For a discussion of how traumatic corporal punishment of children can lead to posttraumatic stress syndrome or some isolated symptoms thereof, see infra Ch. I, Part C.

68 See GREVEN, supra note 58, at 127-29 (remarking that children who are hurt by their parents develop immunities to empathy); Elliman & Lynch, supra note 49, at 196; Feshbach, supra note 57, at 30. 69

See Straus, New Evidence, supra note 48, at 55-56.

70 See HYMAN, supra note 58, at 96-99; Herman, supra note 23, at 39. Moreover, there is evidence that corporal punishment of young children may undermine the foundations for cognitive development so that the children will continue to have difficulties with cognitive skills later in childhood. See Straus, New Evidence, supra note 48, at 55-56. 71 Straus & Paschall, supra note 59, (manuscript ch. 3-1, at 1-16, appendix 5, at 16-26). 72 See HYMAN, supra note 58, at 94,99-100; MILLER, GIFTED CHILD, supra note 23, at 43; NEWELL, supra note 4, at 46; Herman, supra note 23, at 18; McCabe et al., supra note 55, at 139; Lawrence S. Wissow & Debra Roter, Toward Effective Discussion of Discipline and Corporal Punishment During Primary Care Visits: Findings from Studies ofDoctor-Patient Interaction, 94 PEDIATRICS 587,588 (1994). 73 See GREVEN, supra note 58, at 129; HYMAN, supra note 58, at 94, 100; SEARS & SEARS, supra note 6, at 148, 152.

74

See HYMAN, supra note 58, at 94,99-100; GREVEN, supra note 58, at 122-23.

75 See HYMAN, supra note 58, at 95, 100; cf, SEARS & SEARS, supra note 6, at 148 (intimating that children may fear a parent that spanks); Herman, supra note 23, at 39 (declaring that corporal punishment causes children to obey their parents out of fear). 76 See HYMAN, supra note 58, at 96; NEWELL, supra note 4, at 46; McCabe et al., supra note 55, at 139; Wissow & Roter, supra note 72, at 587; cf, MILLER, GIFTED CHILD, supra note 23, at 97 (highlighting that people who "repressed their intense feelings" as children may try to regain those feelings by means of drugs or alcohol) (citation omitted). 77 See HYMAN, supra note 58, at 96; STRAUS WITH DONNELLY ET AL., supra note 4, at 124-25. 78 See HYMAN, supra note 58, at 1; LEACH, supra note 6, at 225; NEWELL, supra note 4, at 31-33; Wissow & Roter, supra note 72, at 587. 79

See HYMAN, supra note 58, at 95, 100.

80 See LEACH, supra note 6, at 225; NEWELL, supra note 4, at 21-31; SEARS & SEARS, supra note 6, at 149; Haapasalo & Pokela, supra note 57, at 115-16; Murray A. Straus, Corporal Punishment and Primary Prevention ofPhysical Abuse, 24 CHILD ABUSE & NEGLECT 1109, 1110 (2000); cf. Crouch & Behl, supra note 55, at 417 (2001)

38 • Corporal Punishment of Children: A Human Rights Violation

(ascertaining that among parents who strongly believed in the worth of using corporal punishment, the degree of parental stress was positively related to physical child abuse potential); Ruth B. Schumacher & Rebecca S. Carlson, Variables and Risk Factors Associated with Child Abuse in Daycare Settings, 23 CHILD ABUSE & NEGLECT 891, 891-92, 896 (1999) (finding that physical abuse of children while in day-care environments may have been unintentionally supported by parental permission to caregivers to use corporal punishment). 81

See Kline, supra note 60.

82 See Kathryn R. Urbonya, Determining Reasonableness Under the Fourth Amendment: Physical Force to Control and Punish Students, 10 CORNELL 1.L. & PUB. POL'Y 397,438 (2001). 83 See, e.g., Gunnoe & Mariner, supra note 59, at 774 (reporting that corporal punishment of African American children deters subsequent fighting by them); Larzelere, supra note 57, at 210,213 (summarizing that studies show spanking to have neutral or beneficial effects on African American children); Whaley, supra note 57, at 7-10 (stating that the results of studies concerning the effects of corporal punishment on African American children are inconsistent, but that none of the studies demonstrate such punishment to cause disruptive disorders in these children); see also Stormshak et al., supra note 55, at 26 (averring that there are stronger associations between punitive discipline and behavior problems for European Americans than for African Americans). But see COMER & POUSSAINT, supra note 4, at 49-51 (opining that spanking is deleterious for African American children); McCabe et al., supra note 55, at 139, 147 (claiming that corporal punishment is connected to poorer adjustment and negative outcomes, including "insecure avoidant attachment" in African American children). 84

See STRAUS WITH DONNELLY ET AL., supra note 4, at 117.

85 See COMER & POUSSAINT, supra note 4, at 49-51; McCabe et al., supra note 55, at 139, 147. 86

See infra Ch. I, Part C, note 99 and accompanying text.

87

See discussion supra Ch. I, Part B.

88

STRAUS WITH DONNELLY ET AL., supra note 4, at 117.

89 Center for Effective Discipline, Discipline at School (NCACPS): US. Statistics on Corporal Punishment by State and Race: States Banning Corporal Punishment, at http://www.stophitting.com/disatschool/states Banning.php (last visited Jan. 26, 2004).

90 See Pamela 1. Smith, Looking Beyond Traditional Educational Paradigms: When Old Victims Become New Victimizers, 23 HAMLINE L. REV. 101,164-66 (1999). 91 Ruma Banerji Kumar, Paddling May Not Really Be Last Resort, Data Show, at http://www.commercialappeaI.com/mca/local_news/article/O.1426,MCA_437_268698 5,00.html (last visited Feb. 27,2004).

92

American slaveholders attributed a subhuman status to their Black "property."

Morally Objectionable Attributes of Corporal Punishment • 39

See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 404, 427, 451 (1856) (ruling that Blacks whose ancestors were slaves are not "people of the United States" and that, under the U.S. Constitution, slaves are property like "an ordinary article of merchandise"); Alex M. Johnson, Jr., Destabilizing Racial Classifications Based on Insights Gleaned/rom Trademark Law, 84 CAL. L. REV. 887,952 n.85 (1996) (stating that the origins of slavery can be traced back to the idea that Blacks are subhuman); D. Marvin Jones, Darkness Made Visible: Law, Metaphor, and the Racial Self, 82 GEO. L.I 437, 462 (1993) (declaring that slavery made Black identity synonymous with subhuman status). The Dred Scott case is, of course, no longer good law in the United States. See U.S. CONST. amend. XIII, § 1 (1865) (providing that "[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction"). 93 See HOBBES, supra note 26, at 106, 149 (describing the respect that people naturally seek from each other); IMMANUEL KANT, THE PHILOSOPHY OF LAW 54, 56 (W Hastie trans., Augustus M. Kelley Publishers 1974) (1796-97) (urging that people should regard themselves as an end rather than a means and that every person ought to be his or her own master by right). 94

Gunnoe & Mariner, supra note 59, at 774.

95

Larzelere, supra note 57, at 209.

96 See Straus, New Evidence, supra note 48, at 54 (regarding only the Gunnoe and Mariner study); Durrant E-mail, supra note 55 (regarding only the Gunnoe and Mariner study). 97

Gershoff, Meta-Analytic Review, supra note 56.

98

A DICTIONARY OF EPIDEMIOLOGY 114 (John M. Last ed., 4th ed. 2001).

99

See Gershoff, Meta-Analytical Review, supra note 56, at 543-44.

100

Id. at 549.

101

See ide at 550.

102

Id. at 609.

103 E-mail from Dr. Elizabeth Gershoff, Assistant Professor, School of Social Work, University of Michigan, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (Sept. 1, 2004) [hereinafter Gershoff Sept. 1st Email] (on file with author).

104Id. 105

Id.

106

Id.

107

Id.

108

See Schumacher & Carlson, supra note 80.

40 • Corporal Punishment of Children: A Human Rights Violation 109 See Harriet L. MacMillan et al., Slapping and Spanking in Childhood and Its Association with Lifetime Prevalence of Psychiatric Disorders in a General Population Sample, 161 CANADIAN MED. ASS'N 1. 805,809 (1999). 110 See Bradley D. Stein et al., Violence Exposure Among School-Age Children in Foster Care: Relationship to Distress Symptoms, 40 1. AM. ACAD. CHILD ADOLESCENT PSYCHIATRY 588,588 (2001). 111

See Flannery et al., supra note 55, at 440.

112 Kathleen McCartney & Robert Rosenthal, Effect Size, Practical Importance, and Social Policy for Children, 71 CHILD DEV. 173, 176 (2000).

113 JOHN MILTON, Paradise Lost, in PARADISE LOST AND PARADISE REGAINED 43, 122 (Christopher Ricks ed., 1968). 114 Children are likely to experience anger and a sense of degradation when they are corporally punished. See GREVEN, supra note 58, at 124-27, 132; LEACH, supra note 6, at 224; ALICE MILLER, BREAKING DOWN THE WALL OF SILENCE 92-94 (Simon Worrall trans., 1991) [hereinafter MILLER, WALL OF SILENCE]; SEARS & SEARS, supra note 6, at 147, 152; STRAUS WITH DONNELLY, supra note 4, at 69.

115 See GREVEN, supra note 58, at 132 (describing how a child cannot afford to react with anger towards a punitive parent "on whom he or she depends for nurturanee and life itself"); MILLER, GIFTED CHILD, supra note 23, at 8; ALICE MILLER, THOU SHALT NOT BE AWARE: SOCIETY'S BETRAYAL OF THE CHILD 6 (Hildegarde Hannum & Hunter Hannum trans., 1990); 1. KONRAD STETTBACHER, MAKING SENSE OF SUFFERING: THE HEALING CONFRONTATION WITH YOUR OWN PAST 27-28 (1991). 116 See GREVEN, supra note 58, at 132 (stating that children suppress anger in response to hurtful discipline administered "by adults whom the child loves"); ALICE MILLER, BANISHED KNOWLEDGE: FACING CHILDHOOD INJURIES 98-105 (Leila Vennewitz trans., 1990) (explaining that the child identifies so thoroughly with the punishing parent that the child is unable to comprehend when an injustice is being done to him or her); ALICE MILLER, PICTURES OF ACHILDHOOD 4-5 (Hildegarde Hannum trans., 1986) [hereinafter MILLER, PICTURES] (suggesting that because children love their parents, the former tend to absolve the latter from responsibility for cruelty to the children); STRAUS WITH DONNELLY ET AL., supra note 4, at 163 (noting that it is difficult to acknowledge that corporal punishment is destructive because it means condemning one's own parents).

117 See GREVEN, supra note 58, at 123; LEACH, supra note 6, at 224; MILLER, WALL OF SILENCE, supra note 114, at 55. 118 See ALICE MILLER, FOR YOUR OWN GOOD: HIDDEN CRUELTY IN CHILD-REARING AND THE ROOTS OF VIOLENCE 59, 61, 74,247-48 (Hildegarde Hannum & Hunter Hannum trans., 1990) [hereinafter MILLER, HIDDEN CRUELTY]; MILLER, WALL OF SILENCE, supra note 114, at 19-20,55.

119 See GREVEN, supra note 58, at 19; STETTBACHER, supra note 115, at 28; Herman, supra note 23, at 21.

Morally Objectionable Attributes of Corporal Punishment • 41 120

MILLER, HIDDEN CRUELTY, supra note 118, at 7,61.

121 See GREVEN, supra note 58, at 130-35; STRAUS WITH DONNELLY ET AL., supra note 4, at 67-79; Herman, supra note 23, at 39; Wissow & Roter, supra note 72, at 588. If a child is unable to retaliate verbally in response to corporal punishment, an urge to punish may, in turn, be directed toward himself or herself upon reaching adulthood. Depression or even suicide are forms of such self-punishment. See GREVEN, supra note 58, at 131-32; STRAUS WITH DONNELLY ET AL., supra note 4, at 77-79.

122 When a child represses the anger he or she feels upon being corporally punished, this dynamic may cause resort to self-imposed rituals, rules, and controls to keep the repressed anger within bounds later in life. These rituals, rules, and controls are symptomatic of obsessive-compulsive behavior. See GREVEN, supra note 58, at 135-41. 123 See GREVEN, supra note 58, at 148-68. Dissociation may be manifested by hysterical trances, multiple personalties, or more benign dissociative states. See ide at 148. The process of dissociation may occur when the anger and/or pain caused by corporal punishment is so unbearable that the victim creates alternative selves to deal with such feelings or, in a more mild reaction, induces himself or herself to render the feelings distant and unconscious. See ide at 148; cf, MILLER, GIFTED CHILD, supra note 23, at 30-38 (elucidating that when a child is forced to adapt to parental dictates that are not geared to the child's needs, the child will split feelings of need from the rest of his or her psyche and submerge such feelings). 124 See GREVEN, supra note 58, at 168-74; cf MILLER, WALL OF SILENCE, supra note 114, at 86-87,108-09,111 (indicating that paranoia, like that exhibited by Adolf Hitler and Nicolae Ceausescu, may result from beatings and harsh discipline during childhood). The etiology of paranoia may be in the child's continuing fear of pain caused by corporal punishment. The child is imbued with a continuing sense of endangerment and need for vigilance. See STETTBACHER, supra note 115, at 16, 18 (pointing out that physical attacks on a child can lead to "a constant state of readiness to ward off perceived dangers"). However, because the child's anger at being so punished is suppressed, the anger persists into adulthood when it is displaced onto others who, as stand-ins for the punishing parents, also become objects of a now grown-up unreasonable fear. See GREVEN, supra note 58, at 168-69, 173. 125

See Gershoff, Meta-Analytical Review, supra note 56, at 544.

126 The anger repressed in childhood is acted out or repeated in adult life as aggression against others who are viewed as surrogates for the once punitive parents. See GREVEN, supra note 58, at 126-27; MILLER, HIDDEN CRUELTY, supra note 118, at 61,65-66,115-17,172; MILLER, WALL OF SILENCE, supra note 114, at 91,108; SEARS & SEARS, supra note 6, at 153-54; Flannery et al., supra note 55, at 440-41; Haapasalo & Pokela, supra note 57, at 110-11; Straus, New Evidence, supra note 48, at 54-55; Herman, supra note 23, at 36. 127 Psychologist Alice Miller has explored the way in which corporal punishment of children can lead to their development into authoritarian adults:

42 • Corporal Punishment of Children: A Human Rights Violation The victims of such an upbringing ache to do to others what was once done to them. If they don't have children, or their children refuse to make themselves available for their revenge, they line up to support new forms of fascism.... They long to at last be on the other side of the fence, to hold power themselves, passing it off, as Stalin, Hitler, or Ceausescu have done, as "redemption" for others. . . . The unconscious compulsion to revenge

repressed injuries is more powerful than all reason. MILLER, WALL OF SILENCE, supra note 114, at 84-85; see also GREVEN, supra note 58, at 198-204; ALICE MILLER, THE UNTOUCHED KEy: TRACING CHILDHOOD TRAUMA IN CREATIVITY AND DESTRUCTIVENESS 50-52, 60, 62, 68, 149 (Hildegarde Hannum & Hunter Hannum trans., 1990) [hereinafter MILLER, UNTOUCHED KEy] (tracing the despotism of Stalin and other authoritatian personalties to beatings received during childhood and the absence of adult sympathy for the child's resulting pain); NEWELL, supra note 4, at 46; Herman, supra note 23, at 38-39 (stating that an "authoritarian personality" can be "correlated with past subjection to corporal punishment"). 128 See GREVEN, supra note 58, at 127-29 (stating that "[t]he parent who hurts a child while imposing discipline is teaching a lesson in indifference to suffering"); MILLER, HIDDEN CRUELTY, supra note 118, at 79-83, 115; Flannery et al., supra note 55, at 440 (reporting that dangerously violent adolescent males who had been recently exposed to violence, including slapping, were apt to demonstrate clinical levels of dissociation); N.L. Lopez et al., Parental Disciplinary History, Current Levels of Empathy, and Moral Reasoning in Young Adults, 3 N. AM. 1. PSYCHOL. 193,200-01 (2001) (concluding that young adults who had been subject to "[m]inor use of corporal punishment" were likely to have "low levels of emotional empathy"); cf. MILLER, GIFTED CHILD, supra note 23, at 34 (theorizing that when a child is compelled to adapt to parental needs, through corporal punishment or otherwise, one consequence may be the impossibility of experiencing "consciously certain feelings of his own ... either in childhood or later in adulthood"). 129

See Gershoff, Meta-Analytical Review, supra note 56, at 544.

130 See, e.g., Bruce D. Perry, Anxiety Disorders, in TEXTBOOK OF PEDIATRIC NEUROPSYCHIATRY 579,588-89 (C. Edward Coffey & Roger A. Brumback eds.,1998) [hereinafter Perry, Anxiety Disorders]; Bruce D. Perry, Incubated in Terror: Neurodevelopmental Factors in the "Cycle ofViolence," in CHILDREN IN AVIOLENT SOCIETY 124, 128-31 (Joy D. Osofsky ed., 1997) [hereinafter Perry, Incubated in Terror]; Bruce D. Perry, Neurobiological Sequelae of Childhood Trauma: PTSD in Children, in CATECHOLAMINE FUNCTION IN PosT-TRAUMATIC STRESS DISORDER: EMERGING CONCEPTS 233,239-40 (M. Michele Murberg ed., 1994) [hereinafter Perry, Sequelae]; Bruce D. Perry & Ishnella Azad, Posttraumatic Stress Disorders in Children and Adolescents, 11:4 PEDIATRICS 310, 310-12 (1999); Bruce D. Perry & Jennifer E. Pate,

Neurodevelopment and the Psychobiological Roots ofPost-Traumatic Stress Disorder, in THE NEUROPSYCHOLOGY OF MENTAL DISORDERS: A PRACTICAL GUIDE 129, 131-35 (Leonard F. Koziol & Chris E. Stout eds., 1994).

Morally Objectionable Attributes of Corporal Punishment • 43 131 See Perry, Incubated in Terror, supra note 130, at 135-39; Bruce D. Perryet al., Childhood Trauma, the Neurobiology of Adaptation, and "Use-Dependent" Development ofthe Brain: How "States" Become "Traits," 16 INFANT MENTAL HEALTH 1. 271,277-85 (1995); Perry & Pate, supra note 130, at 133-34, 136-37; Bruce D. Perry & Ronnie Pollard, Homeostasis, Stress, Trauma, and Adaptation: A Neurodevelopmental View of Childhood Trauma, 7 CHILD & ADOLESCENT PSYCHIATRIC CLINICS OF N. AM. 33,40-46 (1998).

132 See Perry & Azad, supra note 130, at 311,314; Perry et al., supra note 131, at 284-85; Eitan D. Schwarz & Bruce D. Perry, The Post-Traumatic Response in Children and Adolescents, 17 PSYCHIATRIC CLINICS OF N. AM. 311, 311-13, 320 (1994). 133

See Perry & Pollard, supra note 131, at 41.

134

See ide at 43.

135

See ide

136 See Perry, Anxiety Disorders, supra note 130, at 586-89; Perry, Incubated in Terror, supra note 130, at 129-31,136; Perry, Sequelae, supra note 130, at 237-41; Perry & Azad, supra note 130, at 310-11; Perry et al., supra note 131, at 274-85; Perry & Pate, supra note 130, at 132-37; Perry & Pollard, supra note 131, at 35-45. 137

See Perry & Pollard, supra note 131, at 39.

138

See Perry et al., supra note 131, at 283; Perry & Pate, supra note 130, at 136.

139 See Perry, Anxiety Disorders, supra note 130, at 585; Perry, Sequelae, supra note 130, at 249. 140 See Perry & Azad, supra note 130, at 310; Perry & Pate, supra note 130, at 138-39. 141 See Perry, Anxiety Disorders, supra note 130, at 582; cf, Perry, Incubated in Terror, supra note 130, at 135-38 (describing the dynamic that children exposed to chronic violence will subsequently tend to react aggressively because their brains have maladapted into a persistent state of fear).

142 See Perry, Incubated in Terror, supra note 130, at 141-42, 145; Bruce D. Perry, Neurodevelopmental Adaptations to Violence: How Children Survive the Intragenerational Vortex of Violence, in VIOLENCE AND CHILDHOOD TRAUMA: UNDERSTANDING AND RESPONDING TO THE EFFECT OF VIOLENCE ON YOUNG CHILDREN 67, 67-68 (1995); Perry & Azad, supra note 130, at 312. 143 ROBIN KARR-MoRSE & MEREDITH S. WILEY, GHOSTS FROM THE NURSERY: TRACING THE ROOTS OF VIOLENCE 168 (1997) (emphasis added). 144 See E.1. Costello et al., Life Events and Post- Traumatic Stress: The Development of a New Measure for Children and Adolescents, 28 PSYCHOL. MED. 1275 (1998); Lori Davis & Lawrence 1. Siegel, Posttraumatic Stress Disorder in Children and Adolescents: A Review andAnalysis, 3 CLINICAL CHILD AND FAM. PSYCHOL. REV.

44 • Corporal Punishment of Children: A Human Rights Violation 135 (2000); Michael D. DeBellis, Developmental Traumatology: The Psychobiological Development of Maltreated Children and Its Implications for Research, Treatment, and Policy, 13 DEV & PSYCHOPATHOLOGY 539 (2001); Haapasalo & Pokela, supra note 57, at 107-27; Stein et al., supra note 110, at 588. 145

Davis & Siegel, supra note 144, at 136.

146

Id. at 135-36.

147

DeBellis, supra note 144, at 544.

148

Costello et al., supra note 144, at 1275-76.

149

Id. at 1280-81.

150

Id. at 1275.

151

Haapasalo & Pokela, supra note 57, at 120.

152

Id. at 123.

153

Stein et al., supra note 144, at 590,592-93.

154

Id. at 592-93.

155

Id. at 593.

156 See GREVEN, supra note 58, at 174-86; NEWELL, supra note 4, at 48-49; STRAUS WITH DONNELLYETAL., supra note 4, at 121-36; Herman, supra note 23, at 39. 157 See GREVEN, supra note 58, at 184; TOM JOHNSON, THE SEXUAL DANGERS OF SPANKING CHILDREN 1 (1996). 158

See STRAUS WITH DONNELLY ET AL., supra note 4, at 137-46.

159

See ide at 138-39.

160

See supra Ch. I, Part C, note 99 and accompanying text.

161

See discussion supra Ch. I, Part A.

162 See GREVEN, supra note 58, at 199,201-04,206-07; MILLER, HIDDEN CRUELTY, supra note 118, at 62,66-75,79-84,86-91, 115, 139-97,242-43,264-65; MILLER, PICTURES, supra note 116, at 18-19; MILLER, UNTOUCHED KEY, supra note 127, at 50-54,62-68; MILLER, WALL OF SILENCE, supra note 114, at 81-113; SPOCK, supra note 64, at 151-52; Herman, supra note 23, at 36-39; Straus, Violent Society, supra note 49, at 837-38, 840-41. 163 See DE ZULUETA, supra note 64, at 219; GREVEN, supra note 58, at 194-98; MILLER, HIDDEN CRUELTY, supra note 118, at 198-202,231,249; NEWELL, supra note 4, at 43-46; SEARS & SEARS, supra note 6, at 154; STRAUS WITH DONNELLY ET AL., supra note 4, at 99, 108-20; Haapasalo & Pokela, supra note 57, at 123; Straus, Violent Society, supra note 49, at 838. 164 See Leon A. Jick, Holocaust, in 9 THE WORLD BOOK ENCYCLOPEDIA 296,296 (1993) [hereinafter WORLD BOOK]; Mary Nolan, Nazism, in 14 WORLD BOOK, supra, at

Morally Objectionable Attributes of Corporal Punishment • 45

92,92-93; James L. Stokesbury, WorldWarIL in 21 WORLD BOOK, supra, at 470,486. 165 See Albert Marrin, Stalin, Joseph, in 18 WORLD BOOK, supra note 164, at 824, 826-27; James R. Millar, US.S.R., in 20 WORLD BOOK, supra note 164, at 28,37. 166

See JAMES W GIBSON, THE PERFECT WAR: TECHNOWARIN VIETNAM 146,367-75

(1986). 167 See HERBERT HIRSCH, GENOCIDE AND THE POLITICS OF MEMORY: STUDYING DEATH TO PRESERVE LIFE 141 (1995). 168 See Raymond Bonner, Rwanda Facing Difficult Struggle for Rebirth, THE PATRIOT LEDGER, Dec. 30,1994, at 4; Tom Davidson, 1994: Year in Review Throughout the World, SUN-SENTINEL (Ft. Lauderdale, Fla.), Dec. 31, 1994, at 3A; William Johnson, Hope and Despair; From Mandela's Election in South Africa to the Nightmare in Rwanda, 1994 Was a Year in Which Hope Grew a Little Taller than Despair, MONTREAL GAZETTE, Dec. 30, 1994, at B3. 169

See JAVIER MARTINEZ & ALVARO DIAZ, CHILE: THE GREAT TRANSFORMATION 12-16

(1996). 170 See Battles Rake Croatia as Envoys Meet, COURIER-I, (Louisville, Ky.), Dec. 31, 1991, at 4A; Slobodan Lekic, Yugoslav Jets Pound Croatia City; Serbs Flee Mountain Strongholds, BOSTON GLOBE, Dec. 30, 1991, at 2; Steven Erlanger, Monitors' Reports Provide Chronicle ofKosovo Terror, N.Y. TIMES, Dec. 5,1999, § 1, at 1.

171

See Front Lines: Mideast, N.Y. TIMES, Mar. 10,2002, § 4 (Week in Review),

at 2. 172 See Serge Schmemann, US. Attacked; President Vows to Exact Punishment for "Evil," N.Y. TIMES, Sept. 12,2001, at AI.

173

PRIMO LEVI, THE DROWNED AND THE SAVED (Raymond Rosenthal trans., 1988).

174

Id. at 120.

175 See De Zulueta, supra note 64, at 212-18; John E.B. Myers, The Legal Response to Child Abuse: In the Best Interest of Children?, 24 I FAM. L. 149, 157 (1985-1986); Mason ~ Thomas, Jr., Child Abuse and Neglect: Part I: Historical Overvievv, Legal Matrix and Social Perspectives, 50 N.C. L. REV. 293,298 (1972). Corporal punishment of children "is used in about three quarters of the world's societies." Straus, Violent Society, supra note 49, at 838. Corporal punishment of children has also persisted over time. See STRAUS WITH DONNELLY, supra note 4, at 170; Caldwell, supra note 34, at 371; Leonard P Edwards, Corporal Punishment and the Legal System, 36 SANTA CLARA L. REV. 983,984,986-87 (1996); Herman, supra note 23, at 5-7; deMause, supra note 37, at 17,41-43. 176

See discussion supra Ch. I, Part C.

177 See GREVEN, supra note 58, at 199,201-04,206-07; MILLER, HIDDEN CRUELTY, supra note 118, at 62,66-75,79-84,86-91, 115, 139-97,242-43,264-65; MILLER,

46 • CorporalPunishment of Children: A Human Rights Violation WALL OF SILENCE, supra note 114, at 81-113; Susan H. Bitensky, Spare the Rod, Embrace Our Humanity: Toward a New Legal Regime Prohibiting Corporal Punishment ofChildren, 31 U. MICH. IL. REFORM 353, 432-35 (1998); Herman, supra note 23, at 36-39. 178

Gershoff, Meta-Analytic Review, supra note 56, at 551.

CHAPTER II

CORPORAL PUNISHMENT OF CHILDREN VIOLATES INTERNATIONAL HUMAN RIGHTS LAWS There is cumulative and convincing evidence that all corporal punishment of children, no matter by whom inflicted or how mild, violates international human rights laws. This chapter will explore that evidence in detail, including textual interpretations of various treaties and one U.N. declaration, the holdings of regional human rights adjudicatory bodies, the influential statements of treaty monitoring committees, and the published work of legal scholars. The generally accepted rules for interpreting treaties are set forth in the Vienna Convention on the Law of Treaties (Treaty on Treaties).1 The approach of the Treaty on Treaties is that "[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose."2 The Treaty on Treaties defines "context" as a treaty's text, its preamble, and any annexes, as well as certain other agreements, instruments, practices, and rules that relate to the treaty.' The aim here is to hew conscientiously to this interpretive maxim and construe applicable treaties so that their terms are given only ordinary meanings. Where this is not possible because interpretation either leaves the meaning of terms "ambiguous or obscure" or "leads to a result which is manifestly absurd or unreasonable," the Treaty on Treaties permits "recourse ... to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion."4 Accordingly, such recourse will be taken as needed and permitted. As might be expected, there are those who beg to differ with so seemingly heterodox a proposition as that spanking children is a human rights violation. Some naysayers take a strict literalist approach to arrive at this conclusion. Their argument is that none of the relevant treaties use the actual words "corporal punishment," "spanking," or another idiographic 47

48 • Corporal Punishment of Children: A Human Rights Violation

term in prohibiting the offending conduct. Thus, this line of thinking goes, those treaties must not prohibit corporal punishment of children.> It is true that the relevant international human rights instruments do not expressly refer to "corporal punishment," etc. It is just as true, however, that the documents use other words that are broad enough in their ordinary meanings to readily encompass corporal punishment. There is nothing in the Treaty on Treaties that forbids the ordinary meaning of a word from encompassing both its narrower implicit as well as its express significations. The ordinary meaning of language often embraces the implicit. Many words, whether used in common parlance or treaties, might be described as "omnibus terms" that necessarily involve subsets of aliquot but unarticulated meanings. To take a pertinent example, consider the verb "to discipline." Would anyone question that "to discipline" a child implicitly means, among other things, to subject a child to time-out, to deprive a child of privileges, or to scold a child? Could anyone reasonably contend that these three measures are not part of the ordinary meaning of "to discipline"? Let me be clear that I am definitely not proposing a deconstructionist analysis of international instruments such that their meaning would depend solely on interpreters' wishes. The result would be purely subjective and self-defeating for any practical purposes: the documents could mean virtually anything and consequently would mean nothing at all. Rather, I am merely suggesting that when treaty language involves omnibus terms, they should be read for the "silent" meanings that ordinarily flow from them. There is nothing venturesome in this proposal. It is simply the textualism favored by the Treaty on Treaties, devoid of a crabbed and sterile literalism. As will be seen, this approach demonstrates that the treaties and declaration under analysis here contain manifold implied prohibitions on corporal punishment of children. Those who take issue with spanking as a human rights violation have a second arrow in their quiver. They argue that corporal punishment of children carried out by private parties, such as parents, cannot constitute a violation of human rights laws. These critics invoke the traditional view that international human rights instruments should be interpreted according to a public/private distinction. Under this view, such instruments apply to human rights deprivations perpetrated by governments and their agents

Corporal Punishment Violates Human Rights Laws • 49

but not to deprivations at the hands of private individuals.v The traditional view thus would interpret language lending itself to a prohibition on corporal punishment as only reaching governmentally imposed corporal punishment; physical chastisement meted out by parents or other nongovernmental actors would be exempt. While the traditionalists perhaps make a more substantial argument than the literalists, the former have been steadily undercut by the expansion of human rights law in the second half of the twentieth century. The traditional view has lost much of its credibility and leverage by virtue of the inclusive wording of many post-World War II international human rights treaties and declarations." The phenomenon is most strikingly manifested in the U.N. Convention on the Rights of the Child (Children's Convention)" which uses phraseology throughout clearly indicative of an intent to hold both states parties and private actors to standards protective of children. The Children's Convention achieves this by wording embodying horizontal effects. Horizontal effects may be said to occur when provisions of the Children's Convention recognize a right that "corresponds to a positive obligation of States parties to adopt domestic measures concerning the acts (or omissions) of private parties."9 In other words, to achieve full compliance with some of the rights created by the Convention, states parties must place internal domestic duties on private entities, as well as on the government, to adhere to those rights.'? Similarly, the other treaties and the declaration discussed in the second part of this chapter also employ language that, either explicitly or implicitly, requires both the public and private sectors to respect human rights-an interpretation contained in the comments of the respective official bodies monitoring treaty compliance and in the scholarly literature. I I Examples of horizontal effects and other language tasking private actors will be spotlighted as treaty provisions are successively analyzed in depth. In light of the horizontal effects terminology of the provisions that will be under discussion and of the fact that there is authoritative support for repudiating the public/private distinction in this context, this book will proceed upon the assumption that each of the instruments under scrutiny applies to corporal punishment of children by parents and other private actors as well as to state corporal punishment. Indeed, a contrary reading would do violence to the accepted sense of the words and the essential protective purposes of these laws.

50 • Corporal Punishment of Children: A Human Rights Violation

And so, the time has come to delve into the nitty-gritty of treaty interpretation. But first let me do the decent thing and issue a warning and an apology in advance to my lay readers. Legal analysis of this sort is notoriously dry. It is, unhappily, the nature of the beast-a particularly ponderous and painstaking creature. The compensation for your perseverance, however, will be an understanding of the legal basis for classifying corporal punishment of children as a human rights violation. This knowledge is well worth the effort, for the status of such punishment under internationallaw seems to be one of those little-known truths the legal power of which largely lies in its dissemination. But more on the transformative power of antispanking laws later.'? A.

U.N. CONVENTION ON THE RIGHTS OF THE CHILD

Of the numerous international human rights instruments that may be understood to prohibit corporal punishment of children, the Children's Convention presents the most comprehensive and irresistible case for such an interpretation. For that reason, the Children's Convention is treated separately from other treaties bearing on the subject. The Children's Convention was adopted by the General Assembly of the United Nations on November 20, 1989. 13 To date, 192 countries have become parties. The only countries that have resisted are the rather odd twosome of the United States and Somalia. 14 It should be pointed out that the lack of party status with respect to these holdouts is not necessarily dispositive as to whether the Children's Convention governs them. Treaties to which a country is not a party or particular principles set forth in those treaties may, under certain circumstances, constitute evidence of binding customary international law, except as to persistent objector nations.'> Factors serving to signify that the provisions of a multilateral human rights treaty qualify as customary international law are widespread acceptance of the treaty by nation states and a sense of legal obligation motivating the acceptance." (It is, by the way, quite difficult for a country to qualify as a persistent objector; in order to do so, a country must demonstrate express, consistent opposition to a norm from the inception of its evolution into a customary rule. I?) An argument can be made that the Children's Convention, or portions thereof, may have become customary international law,18 applicable even to nonparty nations,'? because the Convention was adopted by consensus

Corporal Punishment Violates Human Rights Laws • 51

of the U.N. General Assembly-? and has been ratified by the vast majority of countries." Moreover, regardless of whether the Children's Convention has risen to the level of customary law, both the United States and Somalia have signed it.22 Although this alone, without the added step of ratification, does not make them parties, under the Treaty on Treaties, signature of a treaty obligates a nation "to refrain from acts which would defeat the object and purpose of the treaty ... until it [the nation] shall have made its intention clear not to become a party to the treaty."23 However, even if the Children's Convention does not bind the United States and Somalia, discussion of corporal punishment of children would still be incomplete for the residents of these countries without an analysis of the Convention. The Children's Convention is regarded as applicable international law in most of the world and is a preponderant expression of international opinion. It is a resource that should serve to enrich and embolden consideration of the corporal punishment issue everywhere, an official and almost unanimously approved template for policy-making on children's needs and concerns that all nation states should want to heed. The Children's Convention established the Committee on the Rights of the Child (Children's Committee) for the purpose of monitoring compliance with the treaty. The Children's Committee is an eighteen-member body of highly regarded experts on children and the law. The members are selected by states parties from among their nationals, but the members serve in their personal capacities. As to which states parties furnish a member to the Committee, consideration is given to geographical distribution as well as to kinds of legal systems that will be represented." The Children's Committee, like monitoring committees for other human rights treaties, makes periodic pronouncements interpreting its constitutive Convention in the course of executing that body's legally mandated functions. Such pronouncements may appear in various documents issued by the Committee, including concluding observations, general comments, reports on discussion or topical days, and guidelines for national reports. A concluding observation is the Committee's response to a particular party's report on its progress in implementing the Convention." (Reports are required to be submitted to the Committee at regular intervals.t'') A concluding observation contains the Committee's evaluation of a party's report and of the human rights conditions in which chil-

52 • Corporal Punishment of Children: A Human Rights Violation

dren exist in the reporting state. A concluding observation also sets forth suggestions and recommendations based upon the evaluation.?? A general comment may contain, among other things, the Committee's interpretation of the Convention's provisions and is addressed to all states parties." Its purpose is "to ensure a better understanding of the provisions and principles of the Convention."29 A discussion or topical day is basically a public hearing, conducted and documented by the Committee, at which specialists and others can submit their views and proposals on the particular theme to which the Committee has dedicated the day. These hearings have become vital to the process by which the Committee has progressively clarified the meaning of the Children's Convention.v' Finally, the Committee has drafted guidelines to aid states parties in fulfilling their reporting responsibilities under the Convention. One purpose of the guidelines is to act as an "important reference" enabling countries to gather relevant information for their reports." Some scholars have characterized concluding observations and general comments as technically not binding on states parties-as "soft law," so to speak-even though the pronouncements may be considered essentially adjudicatory in nature.v It appears to me that such a characterization, taken alone and without also keeping in mind the workings of international human rights law generally, may unnecessarily devalue the legal status of the Committee's work. Those who are unfamiliar with international human rights law will probably tend to think of the adjective "nonbinding" as it is used in relation to domestic law, i.e., meaning that binding laws compel compliance and that a nonbinding law is no law at all. But, the Children's Convention itself, like most other human rights treaties, does not provide any enforcement mechanism to compel compliance beyond a report and review dialogue between states parties and the Committee. This lack of enforcement with teeth does not detract from these treaties' categorization as part of the canon of international law. So, of what significance is it, really, that the Committee's interpretative pronouncements cannot compel compliance either? There is no question that the Committee's concluding observations and general comments are an "authoritative source,"33 "significant interpretations of the conventions ... [that] carry considerable weight" and "great weight"34 with respect to interpretation of the Children's Convention. It is difficult to think of who else conceivably could be as knowledgeable and trustworthy in elucidating the Convention's full purport. After all, if not the members of the Committee, then who?

Corporal Punishment Violates Human Rights Laws • 53

(i)

The Children's Convention as aWhole

The Children's Convention is woven through with certain leitmotifs. One of these is the obligation to protect children from physical insults to their bodies. The Children's Committee has taken the position that the Convention, as a whole, is inconsistent with corporal punishment of children. In its official report of November 1994 the Committee declares: In the framework of its mandate, the Committee has paid particular attention to the child's right to physical integrity. In the same spirit, it has stressed that corporal punishment ofchildren is incompatible with the Convention and has often proposed the revision of existing legislation, as well as the development of awareness and education campaigns, to prevent child abuse and the physical punishment ofchildren. 35 Note that the Committee's report singles out corporal punishment as inconsistent with the Children's Convention and distinguishes such punishment from child abuse. This is not a minor point inasmuch as it makes incontrovertible the Committee's view that both classic prosecutable child abuse and corporal punishment falling short of that degree of abuse, run against the Convention's grain. I emphasize this because some have been wont to claim that the Children's Convention only obligates states parties to protect children from traditionally conceived neglect and physical or sexual abuse. Nor was this portion of the report a slip of the pen-if a pen may ever slip for two well-constructed sentences. The Children's Committee has had occasion to proceed upon this understanding many times: the Committee's concluding observations sometimes rely upon a scattershot invocation of Convention provisions or sometimes on the entire Convention without invoking any particular provision in order to support the proposition that banning corporal punishment of children is a requisite part of treaty compliance." (ii) Provision Protecting Against Violence

With respect to the specific provisions of the Children's Convention, it is probably fair to say that Article 19, paragraph 1 most readily lends itself to interpretation as prohibiting all corporal punishment of children. Article 19, paragraph 1 provides:

54 • Corporal Punishment of Children: A Human Rights Violation

States 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 parent/s), legal guardian(s) or any other person who has the care of the child.'? The portion of this provision that is of special interest is, of course, the requirement that states parties must take measures protecting children "from all forms of physical ... violence." In accordance with the Treaty on Treaties, interpretation of "physical violence" must be directed at revealing the phrase's ordinary meaning. De Zulueta offers the following semantical analysis of "violence," a word that defies close paraphrasing: Violence has in fact no clearly defined meaning. The Oxford English Dictionary interprets the term "violence" in several different ways, one of which is "the treatment or usage tending to cause bodily injury or forcibly interfering with personal freedom."

In defining an act of violence, we are giving a meaning to a form of interpersonal behaviour. Such an appraisal could be seen to be entirely subjective but it is not. ... But what if others cannot perceive your trauma? What if people cannot understand your desperate behaviour as the manifestation of being abused or tormented? What then?" Although, as De Zulueta observes, the meaning of "violence" is not easy to pin down, its very amorphousness and the uncertainty surrounding its exegetic edges make the word more susceptible to broad rather than narrow interpretation. "Violence" is one of those omnibus terms, and De Zulueta breaks down its composite elements in a manner that happens to correspond to the elements of corporal punishment. Recall the definition of such punishment with which this book began: the use of physical force upon a child's body with the intention of causing the child to experience bodily pain so as to correct or punish the child's behavior. Corporal punishment of children necessarily entails the "interpersonal behaviour" identified by DeZulueta since a spanking always takes two to tangle. Corporal punishment of children undoubtedly also is tantamount to "'forcibly interfering with [children's] personal freedom'" and may, in some instances,

Corporal Punishment Violates Human Rights Laws • 55

also constitute a "'usage tending to cause bodily injury,'" the Oxford English Dictionary definition that she highlights. Corporal punishment plainly fits as well under Webster s Dictionary s equation of "violence" with "intense, turbulent, or furious and often destructive action or force."39 But why do I "undoubtedly" and "plainly" call corporal punishment of children "violence"? How can I be so sure? Consider: if one adult were to hit another unconsenting adult-even once and not so as to cause injurythe slap would be considered a form of violence. Who would dispute it? Now, if the slap was administered by a parent to his or her child, simple logic would seem to require that the intrinsic nature of the act would not change from violent to nonviolent just because the victim is smaller, less powerful, and the aggressor's own flesh and blood, or adopted.'? Moreover, a slap or two would not change from violent to nonviolent just because "others could [ ] not perceive ... [the child's] trauma" in reaction to the slaps." Corporal punishment of children does not become nonviolent by virtue of a given era's majoritarian misconceptions. The prevailing ancient Greek belief that the god Zeus threw thunderbolts at earth did not make it any more likely that Zeus was the real cause of thunder and lightning. Or, to take a more relevant example, centuries of legal and social acceptance of a husband's right to beat his wife never deprived the beatings of their violent, Neanderthal essence. But let us close in on it altogether. Samuel Butler captured the idea in relation to corporal punishment of children when he wrote in The Way ofAll Flesh of the thrashings that the "virtuous" Mr. Pontifex was in the habit of giving his sons: Mr. Pontifex may have been a little sterner with his children than some of his neighbors, but not much. He thrashed his boys two or three times a week and some weeks a good deal oftener, but in those days fathers were always thrashing their boys. It is easy to have juster views when everyone else has them, but fortunately or unfortunately results have nothing to do with the moral guilt or blamelessness of him who brings them about; ... 42 In short, corporal punishment of children is a genus or subset of violence as the term is ordinarily understood, even though this punishment's social acceptability, in many places, may obfuscate its necessarily violent nature. That Article 19, paragraph 1 of the Children's Convention prohibits all corporal punishment of children would seem evident as a semantic

56 • Corporal Punishment of Children: A Human Rights Violation

matter from the treaty's unvarnished language inasmuch as the provision requires nations to protect children against "all forms" of violence. Why else would Article 19, paragraph 1 refer to "all forms of physical ... violence," in addition to "injury or abuse," unless the former phraseology was meant to include violent conduct that may not cause injury or rise to the level of conventional conceptions of physical child abuse? Observe too that while Article 19, paragraph 1 places the onus oftaking measures to eradicate corporal punishment of children on governments, there are clear horizontal effects here. Governments must do so in a way that deters both private actors (parents, private school teachers, etc.) and public officials or employees (correctional officers, governmentally employed teachers, etc.). One commentator even opines that the "primary focus" of this provision "is on intra-familial situations."43 While an interpretation of Article 19, paragraph 1 as forbidding the spanking of children seems to be a most ordinary, if not circumspect, implication of the provision's text, it is not necessary to rely upon dictionary definitions and/or logic to reach this conclusion. The periodic reports that states parties are required to submit to the Children's Committee must conform to the Committee's General Guidelines Regarding the Form and Content of Periodic Reports." These guidelines, drawing upon the language of Article 19, state that: Reports should indicate, in particular: whether legislation (criminal and/or family law) includes a prohibition of all forms of physical and mental violence, including corporal punishment, deliberate humiliation, injury, abuse, neglect or exploitation, inter alia within the family, in foster and other forms of care, and in public or private institutions, such as penal institutions and schools." In addition, the Committee's concluding observations have frequently relied upon Article 19 as a basis for admonishing countries to take legislative and other measures against corporal punishment of children," a construction supported by the scholarly literature." (iii) Provisions Regarding School Discipline

It can be predicted with confidence, based on history and intuition, that wherever a body of law bans parental corporal punishment of chil-

Corporal Punishment Violates Human Rights Laws • 57

dren, that ban was preceded and is accompanied by a prohibition on school corporal punishment of children: Historically, the use of corporal punishment in schools was always prohibited long before the question of parental corporal punishment came up. Many more countries have excluded teacher-inflicted corporal punishment than ... parental corporal punishment, and no country that has prohibited parental corporal punishment has not done the same with teacher corporal punishment. The prospect, therefore, of a moral atmosphere or legal culture which allows teachers to hit students but does not allow parents to hit their children is historically anomalous." Article 28, paragraph 2 of the Children's Convention provides that "States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the present Convention."49 Under the ubiquitous temporal sequence described above, it seems almost obligatory to read Article 28 as forbidding school corporal punishment of children because it has been established that Article 19 forbids parental corporal punishment of children (as well as corporal punishment by any other person who has the care of the child). It is absurd to suppose that the Convention's drafters could have intended otherwise. However, the pure logic of the thing need not detain us. The Children's Committee has unequivocally and often declared that Article 28, paragraph 2 mandates that nations must abolish corporal punishment of children in the schools. In its General Comment No.1, "The Aims of Education," the Committee states: Education must also be provided in a way that respects the strict limits on discipline reflected in article 28(2) and promotes non-violence in school. The Committee has repeatedly made clear in its concluding observations that the use of corporal punishment does not respect the inherent dignity ofthe child nor the strict limits on school discipline. 50 General Comment No.1 's reading of Article 28, paragraph 2 as prohibiting school corporal punishment is in agreement with the widely held view of scholars."! Moreover, since the issuance of General Comment No. 1 in April 2001, the Children's Committee has lost no opportunity to

58 • Corporal Punishment of Children: A Human Rights Violation

remind us that physical chastisement of schoolchildren is violative of this Convention provision.v General Comment No.1 actually is primarily oriented toward fleshing out a different education provision, Article 29, paragraph 1, and, in so doing, gives rise to a creditable argument that that article is another independent source of the norm against corporal punishment of children. Article 29, paragraph 1 provides: 1. States Parties agree that the education of the child shall be directed to: (a) The development of the child's personality, talent and mental and physical abilities to their fullest potential; (b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations; (c) The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own; (d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous ongm; (e) The development of respect for the natural environment.53 It will be recalled that parental spanking has been correlated with a variety of adverse behavioral outcomes in the development of the child's personality, including increased aggression, antisocial conduct, and delinquency, and has been theorized to devitalize any later adult proclivities toward understanding, peace, tolerance, and respect for the rights of others. Informed illation and scientific studies consider such traits to be a possible outcome of school corporal punishment tOO. 54 These attributes are contrary to almost every educational goal delineated in Article 29. Experts on the Children's Convention recognized Article 29's role as an independent source of the prohibition on physical chastisement even before the adoption of General Comment No. 1.55 The general comment,

Corporal Punishment Violates Human Rights Laws • 59

with its stress on "the need for educational processes to be based upon the very principles ... [Article 29] enunciates," simply reinforces the validity of this original interpretation since disciplining students is part of the educational process.v' Nor has the Children's Committee been content to let the matter rest with the general comment. During one of its discussion days, on September 28, 2001, devoted to the topic of violence against children within the family and in school, the Committee iterated not only that violence includes corporal punishment, but also that Article 29 is one of a host of Convention provisions requiring protection of children from that violence.>?

(iv) Provision Prohibiting Torture or Other Cruel, Inhuman, or Degrading Treatment or Punishment

Article 37, paragraph (a) of the Children's Convention provides, in pertinent part, that "States Parties shall ensure that no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment."58 This provision codifies a principle of international law that exists beyond any single treaty or declaration. It is thought that the rule against torture is jus cogens, a universally valid legal norm endorsed by the family of nations and from which no derogation is allowed.>? In any event, the Children's Convention does not define "torture" or "other cruel, inhuman or degrading treatment or punishment." The problem thus posed by Article 37, paragraph (a) of the Children's Convention is whether its words, by implication, should be construed to command nations to protect children from all corporal punishment. I anticipate that a number of readers may initially find the conceit laughable that reasonable or minor spankings of children could be classified as torture or cruel, inhuman, or degrading treatment or punishment. I am guessing that they may find this proposition downright silly because the word "torture" tends to conjure up electric shock, maiming, and so forth; and the notion of "cruel, inhuman or degrading treatment" may suggest similarly exotic, malevolent practices. Nigel S. Rodley, a former U.N. Special Rapporteur on Torture, has worried that the concept of torture, as popularly understood, may not truly capture its meaning for children: "children by virtue of their special vulnerability may well be the victims of similar suffering [i.e., extreme] by practices that would not be expected to be as grave if inflicted on adults."60 One reason why torture of children may include acts that would not nee-

60 • Corporal Punishment of Children: A Human Rights Violation

essarily be torture for adults results from developmental differences between children and adults. For example, children's more limited cognition makes it difficult for them to compartmentalize an act and separate it from their personality formation; the same act is consequently more pervasive in and more apt to induce greater suffering in children than in adults.v' There is evidence as well that the less control children think they have over pain to their bodies, the more sensitive they will be to the pain. 62 Since a session of corporal punishment usually leaves the child helpless to alleviate the pain of being hit, he or she is liable to feel that pain more sharply than an adult who can fight back or call for and expect to receive help. It has also been remarked that if a child sees the pain as deliberately inflicted, he or she may find it less bearable; the same is true of pain that the child perceives as unnecessary.v' Interestingly, these findings echo the emerging thesis of those mental health professionals who, as discussed in the first chapter, have begun to question whether their disciplines' various definitions of "trauma" are too adult-centered and therefore too stinting to comprehend all of the acts that may traumatize a child.v' An interpretation including corporal punishment within the prohibition of Article 37, paragraph (a) is compelling, however, even if it is assumed that children's sensibility in relation to pain is identical to that of adults. One need only call to mind the innate features of and the outcomes associated with such "subabuse" punishment. Corporal punishment, by definition, involves the intentional gratuitous infliction of physical pain on children so as to correct or punish children's behavior. This is seemingly endless pain because it cannot be terminated by the children undergoing it and because they have no way of knowing when it will cease. Besides, this form of punishment has been decisively correlated with impairments of emotional and physical health during childhood, with some of the negative psychological outcomes persisting into adolescence and adulthood. It will be recalled that Gershoff's meta-analyses show a nexus between parental corporal punishment of children and decreased moral internalization, increased child aggression, increased child delinquent and antisocial conduct, decreased child mental health, increased adult aggression, increased adult criminal and antisocial behavior, and decreased adult mental health. She and other scholars in the child development field have proposed or shown that such adverse impacts are possible for children subjected to corporal punishment at the hands of nonparental punishers as well.65 And, it is impossible to predict, given the

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current level of scientific knowledge, how many or which children will be deleteriously affected. Intentionally and unjustifiably inflicting what appears to be unstoppable pain on children's bodies, with the added potential for such impairments and suffering, must, it seems to me, constitute torture, or, at the very least, cruel, inhuman, or degrading treatment or punishment, or words have no meaning. The present U.N. Special Rapporteur on Torture, Theo van Boven, reported in 2002 that all corporal punishment of children, regardless of its level of severity, the degree of suffering caused, or any other aspects of it, is inimical to the prohibition on torture and other cruel, inhuman, or degrading treatment or punishment, under the Children's Convention and other international human rights documents: [T]he Special Rapporteur believes that any form ofcorporal punishment ofchildren is contrary to the prohibition of torture and other cruel, inhuman or degrading treatment or punishment. He therefore calls upon States to take adequate measures, in particular legal and educational ones, to ensure that the right to physical and mental integrity of children is well protected in the public and in the private spheres."66 This judgment, it should be underscored, comes from one of the international community's leading experts on the subject of torture and its lesser cognates. Such a reading ofArticle 37, paragraph (a) of the Children's Convention is further buttressed by the interpretive rule of the Treaty on Treaties that treaty terms be given their "ordinary meaning ... in their context and in light of its [the treaty's] object and purpose."67 One of the objects and purposes of the Children's Convention is to protect children from all violence of which corporal punishment is a subspecies. Evidence that such protection is an object and purpose of the Children's Convention stems from the Preamble's pronouncement that children should be brought up in "the spirit of peace";68 from at least seven provisions of the Convention that require states parties to shield children from violence in various circumstances.s? and from the Optional Protocol on the Involvement of Children in Armed Conflict," an agreement designed to strengthen the protections provided by the Children's Convention for children caught up in the violence of war. As Marta Santos Pais, a former rapporteur of the Children's Committee, summed it up, it is a mistake to identify torture

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with "extremely serious and massive cases"; instead, "torture may cover a wide degree of situations," including those that cause "unperceivable mental suffering" or those involving a disciplinary measure used on a child in the family circle or school system." The case for calling corporal punishment of children torture or other cruel, inhuman, or degrading treatment is just as convincing if one takes a less analytic and more impressionistic tack. From contemplating Chaim Soutine's paintings and reading about the frequent beatings he received as a child, psychologist Alice Miller has tried to reconstruct children's vantage point when they are being spanked: I wondered what it must be like for a little child who is being beaten, lying across someone's knee, head down so that the world looks upside down. And this upside-down world is quivering, for his body is shaken with every blow. That is how I experienced Soutine's paintings even before I learned from the catalogue that he was frequently beaten by his parents and brothers and could count on being punished regularly because he liked to draw so much, something that was forbidden by Orthodox Jews." She presents a harrowing verbal portrait of the child-victim as sickened and unhinged by the prone position in which he or she is straining, each whack causing the child-victim's body to shudder in pain from which there is no escape. As Miller has written elsewhere, the experience is also often accompanied by feelings of acute embarrassment or degradation." Lest you think Miller's imagination and sympathy for the child have run away with her, compare the putative plight of Soutine with Eric Lomax's account of undergoing torture as an adult Japanese POW during World War II: I was called forward. I stood to attention. They [the torturers] stood facing me, breathing heavily. There was a pause. It seemed to drag on for minutes. Then I went down with a blow that shook every bone, and which released a sense of scorching liquid pain which seared through my entire body. Sudden blows struck me allover. I felt myself plunging downwards into an abyss with tremendous flashes of solid light. ...

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I have never forgotten, from that moment onwards, crying out "Jesus," crying out for help, the utter despair of helplessness.74 Although Lomax's experience is a more extreme assault, both descriptions accentuate the feeling of temporarily losing oneself, one's identity, as the body reels from blows that make the world go by in a dizzying danse macabre. Of course, these incidents, either expressly or by obvious implication, involve keen physical pain and suffering as well. In light of the reasoning referred to above, it is hardly surprising that during its discussion days on the theme of violence against children, the Children's Committee expressly agreed that corporal punishment falls within Article 37, paragraph (a)'s proscription." In its concluding observations, the Committee has consistently cited this provision as requiring nations that are parties to the Convention to abolish all corporal punishment of children in every venue within their respective borders." This means that Article 37, paragraph (a) is not relegated to covering only those locations where one might expect to find torture, etc., as more accustomedly envisioned, i.e., dank dungeons or concentration camps encircled with concertina wire. Rather, this provision extends its protection expansively to every child regardless of his or her whereabouts or doings within the territory of all state parties." (v) Provisions Protective of Dignity

According to Webster's Dictionary, the word "dignity" means "the quality or state of being worthy, honored, or esteemed."78 This definition strikes me as something of an easy way out. The dictionary leaves unanswered what is actually happening to people when we honor or esteem them or regard them as worthy. Immanuel Kant's thoughts on human dignity offer an analysis that more probingly attempts to get to the bottom of things. First and foremost, Kant conceived that humanity is only humanity and the bearer of dignity if human beings are ends in themselves; existing as a mere means to someone else's ends will not suffice."? In contrast to his ideas about human dignity in general, Kant was very much a man of his time (eighteenth century) when it came to disciplining children, at least in the sense that he assumed physical punishment would be used. This fact alone does not, however, require the modern reader to refrain from applying Kant's conception of dignity to disciplining children in the twenty-first century. Kant himself acknowledged that children too must

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be treated as the bearers of dignity, even though he apparently did not stop to consider whether corporal punishment of children could undermine that dignity.w "The child's duties ... consist in his being conscious that man possesses a certain dignity which ennobles him above all other creatures, and that it is his duty so to act as not to violate in his own person this dignity of mankind."81 Furthermore, Kant said, it is quite against the child's dignity "to be cringing in one's behaviour to others."82 Reverting again to the definition of corporal punishment used here, there can be no question that this form of punishment works against the child's dignity, whether dignity is understood in terms of Kant's itemized analytic elements or in the dictionary's vaguer, more general sense. Either way, in accordance with the rule for interpreting treaties, the ordinary meaning of "dignity" conflicts with the use of corporal punishment on children. For, what is the gratuitous use of physical force upon a child so as to induce bodily pain with the objective of correcting or punishing the child's behavior, if not a discounting of the child to a mere means to the punisher's ends and the cause of many a child's cringing before the punisher? The factual data presented in the earlier chapter confirms that while corporal punishment may allow an adult to vent annoyance with or to get momentary relief from a child's irritating conduct.f the punishment may simultaneously grossly disserve the child's ends. Spanking may cause physical ailments, injury, and feelings of degradation and embarrassment, and is correlated with a host of undesirable psychological dynamics that may last into adulthood. At the same time, the punishment does the child no good except momentarily stopping the misbehavior. Physical chastisement does nothing whatsoever to develop the child's conscience or inner moral monitoring, the primary goals of discipline. If anything, it is a base indignity to subject a child needlessly to the bodily pain appertaining to corporal punishment and to run the concurrent chance of needlessly physically and/or psychologically harming the child. The Children's Convention makes numerous references to the indispensability of preserving the child's dignity. As we have seen, Article 28, paragraph 2 states that school discipline must be "administered in a manner consistent with the child's human dignity"84 and the Children's Committee has affirmed over and over that this provision requires nations to eliminate physical punishment of children in schools.v The inevitable inference is that the Committee regards the maintenance of children's dignity as contingent

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upon their being spared corporal punishment. For the Committee, children's dignity and their corporal punishment cannot coexist. The child's dignity actually is a cornerstone of the Children's Convention. The Preamble to the Convention wastes no time in immediately appealing to "the inherent dignity ... of all members of the human family" and the "dignity ... of the human person," and importuning that children should be brought up "in the spirit of ... dignity."86 Similarly, Article 3 9 directs that states parties must take all appropriate measures to further the physical and psychological recovery of children who have been the victims of any form of cruel or degrading treatment such that "recovery . . . shall take place in an environment which fosters the ... dignity of the child."87 During its discussion days on violence against children, the Children's Committee cited Article 39 as one of several provisions requiring countries to legislate so as to prohibit the use of disciplinary violence on children in the family and in schools." The Committee's concluding observations concerning Article 39 have steadily comported with this position." There is also concern with the child's dignity in Article 37, paragraph (c) of the Children's Convention which provides, in relevant part, that "States Parties shall ensure that ... [e]very child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person."90 This provision applies to children deprived of their liberty through any type of detention, imprisonment, or placement in public or private custody and from which children are not allowed to leave except by order of a judicial or other public authority?' The legislative history of this provision provides a sure tip-off that Article 37, paragraph (c) 's protection of the child's dignity is also a protection against corporal punishment. It will be recalled that under the Treaty on Treaties, resort may be had to treaty drafting materials, the travaux preparatoires, if interpretation of a given treaty provision would "leave[] the meaning ambiguous or obscure; or lead[] to a result which is manifestly absurd or unreasonable."92 The ordinary meaning of "dignity," as it is used in Articles 28 and 39 and the Preamble of the Children's Convention, has, thus far, been explored with the aid of the dictionary and one of Western civilization's great philosophers to demonstrate unambiguously that maintenance of dignity and undergoing corporal punishment are polar opposites. Yet, I

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suppose one could still argue that the word "dignity" in the Children's Convention and particularly in Article 37, paragraph (c) may be somewhat indeterminate insofar as it does not expressly specify what practices are contraindicated. Giving that argument the benefit of a doubt, then, a look at the travaux preparatoires for the Children's Convention may be in order." The travaux preparatoires show that Article 37, paragraph (c) was drafted with reference to the U.N. Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules)?" and to the 1990 U.N. Rules for the Protection of Juveniles Deprived of Their Liberty." Rule 17.3 of the Beijing Rules provides that "[j]uveniles shall not be subject to corporal punishment."96 Rule 67 of Rules for the Protection of Juveniles Deprived of Their Liberty provides that "[a]ll disciplinary measures constituting cruel, inhuman or degrading treatment shall be strictly prohibited, including corporal punishment."97 It follows that children deprived of their liberty must not be subject to such punishment under Article 37, paragraph (c) of the Children's Convention either. In keeping with this interpretation, the Children's Committee has repeatedly warned states parties to avoid using corporal punishment as part of their juvenile justice systems, citing as authority Article 37 of the Children's Convention as well as the Beijing Rules and the Rules for the Protection of Juveniles Deprived of Their Liberty:" The travaux preparatoires of the Children's Convention reveals that Article 37, paragraph (c) is also predicated upon Article 10, paragraph 1 of the International Covenant on Civil and Political Rights (CPR Covenant),"? another major human rights treaty. 100 Indeed, Article 10, paragraph 1 and the pertinent part of Article 37, paragraph (c) are, for all important purposes here, identical.l''! The significance of this relationship derives from the fact that the Human Rights Committee, the body that monitors compliance with the CPR Covenant, has issued a general comment interpreting Article 10, paragraph 1 to mean that states parties to the Covenant must ensure that persons who are deprived of their liberty do not undergo any hardships other than those unavoidably arising from the loss of liberty. 102 Since Article 37, paragraph (c) is based on Article 10, paragraph 1, it is appropriate to apply the Human Rights Committee's reading of the latter provision to the former. All of which leads, again, to the conclusion that Children's Convention Article 37, paragraph (c) oblig-

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ates states parties to ensure that children who are deprived of liberty are not also forced to withstand any hardships other than those that are an inevitable part of the loss of liberty. This obligation presumably includes eliminating the hardship of corporal punishment that is, obviously, not an automatic incident of confinement. 103 As a matter of logic and linguistics, these Children's Convention provisions, particularly when read in view of the received meaning ofArticle 28, paragraph 2, uphold the notion that the letter and spirit of the Children's Convention in protecting the child's dignity is utterly incompatible with allowing parental or any other corporal punishment of the child. As the Children's Committee's General Comment No.1 bluntly states, "the use of corporal punishment does not respect the inherent dignity of the child."104 Two former rapporteurs of the Children's Committee have been especially vocal about the connection between banning spanking and protecting dignity. Judith Karp has stoutly proclaimed that "[p ]hysical punishment is a form of violation of the human dignity of the child."105 And, Marta Santos Pais has promoted it as gospel that "the right not to be subject to any form of physical punishment ... flows as a consequence of the consideration [in the Children's Convention] of the child as a person whose human dignity should be respected."106 (vi) Provision Regarding Traditional Practices Prejudicial to Health

"The cultural norm that says parents are morally obligated to hit children 'when necessary' is probably the most fundamental reason why so many children are hit."107 That spanking children is a traditional practice in most cultures requires no retelling. If the introduction did not already discuss the fact, our own eyes and ears and those of our forebears could just as easily discern its ingrained place in daily life. That spanking children is a traditional deleterious practice also requires no retelling. Gershoff's meta-analyses establish an incontestable association between parental corporal punishment of children and multiple negative impacts on the children. Other scientific and theoretical work indicates that the same is true of corporal punishment outside the home.'!" It so happens that Article 24, paragraph 3 of the Children's Convention mandates that "States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children." 109 The Children's Committee, it is true, has

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rarely looked to this provision as reinforcement for the rule against corporal punishment of children.U? Nevertheless, Article 24, paragraph 3 is worth consulting for this purpose. A colorable argument may be made that the ordinary meaning of the phraseology "traditional practices prejudicial to the health of children" embraces corporal punishment, a practice that is traditional in most societies and that has been shown to have the potential of prejudicing childhood health. What science has thus far shown about corporal punishment's links with children's negative psychological development makes this linguistic argument, indeed, quite conservative. It is interesting, although not probative as an interpretive device under the Treaty of Treaties, to compare this provision of the Children's Convention with the 1993 Declaration on the Elimination of Violence Against Worncn.!!' The latter provides at Article 4 that "[s]tates should condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination."112The Declaration's article 2, paragraph (a) defines "violence against women" as including unenumerated "traditional practices harmful to women."II3 The gist of these provisions is to liberate women from physical attacks even if they are "justified" by tradition or religion. It challenges rationality to read Children's Convention Article 24, paragraph 3 in a more restricted fashion unless small, dependent children are not as deserving of protection as grown women, a ludicrous suggestion. As the above analysis demonstrates, the ordinary meaning of Article 24, paragraph 3 is not impervious to interpretation. But, let us have our cake and eat it too and assume for the sake of argument that the provision is just too ambiguous for meaningful explication. The argument may not even be all that farfetched. What, after all, is a "traditional" practice? How do you differentiate between when a practice is so long-standing as to be traditional and when it is not? What is a practice "prejudicial to the health of children"? There are no inventories of such practices in the treaty itself to provide guidance. The travaux preparatoires, it turns out, does shed some light on these matters. During the drafting process, one of the bones of contention was over how pliable or precise the language of the future Article 24, paragraph 3 should be and whether it should reach only the most flagrant practices. For example, the delegations of the United Kingdom and the United States

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proposed that the provision should mention female circumcision so as to provide "clearer content," i.e., to telegraph that the article should only proscribe more "serious" practices. The observer for the International Movement for Fraternal Union Among Races and Peoples opposed such a reference on a ground especially germane here: there are other traditional practices that are also harmful to children's health.'!" That Article 24, paragraph 3 was adopted without reference to female circumcision or any other particular and extreme practice indicates that the phrase "traditional practices prejudicial to the health of children" should probably be understood more broadly and, therefore, as inclusive of feebler as well as more vigorous doses of corporal punishment. (vii) General Thematic Principles ofthe Children's Convention

The Children's Committee commonly cites, in support of its stance against all corporal punishment of children, Convention provisions that contain substantive general principles setting the thematic ethos within which the Convention should be interpreted.'!' These provisions play a prominent role in construing the Convention's substantive specific provisions such as those that have been discussed above.!" This hermeneutical device as applied to corporal punishment will, I trust, become clearer in the detailed discussions of each of the relevant thematic principles below. (a) General Principle Against Discrimination

Article 2, paragraph 1 lays down the Children's Convention's antidiscrimination principle: States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. I I? The Children's Convention does not define the word "discrimination." Instead, Article 2 lists a range of discrete grounds upon which states parties may not discriminate against children in relation to fulfilling the Convention's other substantive rights. The list is not meant to be exhaustive.'!" Article 2, paragraph 1 indicates as much by obligating states parties to guarantee to each child the rights contained in the Convention

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"without discrimination ofany kind" and irrespective of a child's or his or her parent's "other status"-phraseology connoting that unenumerated prohibited grounds of discrimination exist tOO. 119 The Children's Committee's has expressed concern about violence as a grounds for discrimination against children.t-? This raises the question of whether the nondiscrimination principle applies to corporal punishment. The answer is that when Article 2 enunciates that states parties must "respect and ensure the rights set forth in the present Convention to each child ... without discrimination,"121 what is intended is that the nondiscrimination principle must apply to all of the rights contained in the Children's Convention.P- including the right to be free of corporal punishment. The remarks of former Children's Committee rapporteur Marta Santos Pais convey that these rights must benefit all children. She has stated that the principle of nondiscrimination "means that no child should be ... punished ... on the ground of his or her ... status."123 The idea is that Article 2 forbids nations from excusing corporal punishment of children simply because they are children. If it is wrong to hit adults, then it should be wrong to hit children; ergo, when a nation prohibits the hitting of adults while condoning the hitting of children, that nation is discriminating against all children in comparison to all adults, based on the children's "status" as children. This is the view of Article 2 held by the full Committee'>' and by legal scholars.l-" It is perhaps appropriate also to add a few words about Article 2's prohibition on discrimination among children and that aspect of the article's connection with corporal punishment. For, "[d]iscrimination against children occurs not only when there is discrimination between adults and children but also between different groups of children," and Article 2 proscribes both kinds of discrimination. 126 The first chapter of this book criticizes on both historical and psychological grounds those researchers who would create an "African American exception" to devising governmental policies or expert advice against corporal punishment of children. Article 2, paragraph 1 of the Children's Convention provides a dispositive legal argument against any race-based exceptionalism to the Convention's antispanking provisions inasmuch as Article 2 bars nations from discriminating against any child on the basis of race or color in implementing

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rights under the Convention. Article 2, paragraph 1 signifies that other types of invidious exceptionalism to the Convention's antispanking provisions will not wash either. This means that the religious rationalizations for physical chastisement of children, to which certain of its defenders resort in various parts of the world, are also ultimately bound to fail as a legal matter under article 2. 127 (b) General Principles Regarding the Best Interests of the Child

The "best interests of the child" is a standard familiar to many people as part of the body of federal or subfederal family law under which they live. 128 The standard often comes into play in child custody cases.t-? It has been injected into the Children's Convention as a general principle at Article 3, paragraph 1: "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.T" The question naturally arising from this provision is how to define the best interests of the child. The phrase is vague and, taken by itself, leaves almost untrammeled discretion to those who would attempt to construe it. The travaux preparatoires, moreover, is immaterial to addressing the vagueness problem because the content of the standard was evidently not discussed by the Convention's drafters.!'! The rest of the Children's Convention luckily infuses Article 3, paragraph 1 with a more definite meaning. That is, when Article 3, paragraph 1 is read under guidance of the object and purpose of the Convention, the best interests concept comes more distinctly into focus such that "the Convention as a whole goes at least some of the way towards providing the broad ethical or value framework that is often claimed to be the missing ingredient which would give a greater degree of certainty to the content of the best interests principle."132 Think of it as the Convention as a whole forcing us "to hold the face and needs of the baby like a template" over all interpretation of the treaty.I'" Accordingly, the document in its entirety can be seen as a limit on "the best interests of child" such that the standard cannot be manipulated to defeat the overarching protective purposes of the Children's Convention. It is thus fitting that the Committee's concluding observations sometimes refer to Article 3, paragraph 1, in conjunction with other Convention

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provisions, as necessitating that states parties take measures against corporal punishment of children. 134 This is an approach that coincides with and advances one of the Convention's driving purposes of protecting the child from all violence.I '> (c) General Principle Regarding Adult Guidance of Children in the Exercise of Their Rights Under the Convention, and General Principle Regarding Children's Participation in Matters Affecting Their Lives

The Children's Convention is a family-friendly document, even though it makes children the "active subject of rights,"136 i.e., it invests children with the rights recognized by the Convention in order that children may exercise the rights, sometimes even so as to trump the interests of others. Under the Convention, these two seemingly paradoxical values-family-friendliness and children's rights-actually complement rather than contradict each other. The reconciliation lies in the Convention's avouchment that the upbringing of children in a loving, stable family is an optimal precondition for enabling children to exercise their rights. That proposition appears, among other places, in the Convention at Article 5: States Parties shall respect the responsibilities, rights, and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.t '? The provision is balanced so as to respect parental roles while avoiding any suggestion that parents' power over their offspring is unfettered.t" That is why Article 5 counsels that parental direction and guidance must be "appropriate" and "consistent with the evolving capacities of the child" and with the rest of the Convention.P? The Children's Committee has interpreted Article 5 as placing a duty on states parties to adopt affirmative measures that will assist parents in fulfilling their responsibilities. For example, the Committee's general guidelines for periodic reports request that nations describe any existing family counseling services, parental education programs, or awareness campaigns concerning the rights of the child within the family.v'?

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The Committee has been adamant, however, that Article 5 in no way legitimates corporal punishment of children. In its initial report to the Committee, the United Kingdom proposed that Article 19 of the Convention (which requires states parties to protect children from all forms of violence) should be read as subordinate to Article 5, and that the latter's reference to "appropriate direction and guidance" should be understood to include and approve the parent's use of reasonable corporal punishment on the child.':'! During discussion with U.K. governmental representatives, a Committee member responded: "There was no place for corporal punishment within the margin of discretion accorded in article 5 to parents in the exercise of their responsibilities. Other countries had found it helpful to incorporate a provision to that effect in their civil law."142 A Committee member expressed the same thought during a discussion of Senegal's initial report: The Committee recognized the existence of traditional attitudes and practices, but firmly believed that those that went against the interests of the child should be abolished. The belief that to spare the rod was to spoil the child was one such attitude: it was preferable to provide guidance than to inflict corporal punishment. 143 Indeed, turning the British/Senegalese proposal on its head, the full Committee's concluding observations have mentioned Article 5 as authority, in partnership with other Convention provisions, for demanding that countries deter corporal punishment of children. 144 This reading is further substantiated by the Committee's exposition of the Convention's Article 12, paragraph 1 and of its relationship to Article 5. Article 12, paragraph 1 provides: "States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child."145 The common thread that runs through both this provision and Article 5 is that parenting should take into account the evolving capacities of the child. Article 12's import is that this responsibility includes (but is not limited to) honoring the right of the sufficiently evolved child to express his or her "views freely in all matters affecting the child" and the right of such child to have those views be sincerely considered by his or her parents. 146 Under Article 12, paragraph 1 a sufficiently evolved child is one who is capable of forming his or her own views.!"?

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Children's twin rights to express their own opinions and to have those opinions duly considered have been held by the Committee to control family life and school, among other milieus.!" Against this backdrop, the Committee has on occasion considered that, like Article 5, Article 12, paragraph 1 is in league with other, more specific Convention provisions, against all corporal punishment of children.!"? Former Committee rapporteur Marta Santos Pais has explained the Committee's rationale for this conclusion. "Participation implies dialogue, mutual respect and tolerance. It facilitates the negotiation of solutions and promotes the growing responsibility of children. Similarly, participation in family life is a form of dialogue which leads to the ability for negotiation and peaceful conflict resolution.t't>? She is not alone in seeing this tie. Theo van Boven, U.N. Special Rapporteur on Torture, also puts a premium on verbal exchange and interaction between generations as conducive to nonviolent discipline of children.l>' The inference is that if the child's participation in family decision making leads to peaceful conflict resolution, then the mandated participation should also exclude violent conflict resolution of which corporal punishment is a variant. (d) General Principle Protecting Survival and Development

Article 6, paragraph 2 of the Children's Convention declares that "States Parties shall ensure to the maximum extent possible the survival and development of the child."I52 Because the fine points of "survival" and "development" are elusive, it is appropriate to refer once more to the travaux preparatoires. In urging that these two words, in particular, be retained in Article 6, the representative of Italy noted during the drafting process that they had become terms of art in the jargon of international organizations, defined as "ensuring the child's survival in order to realize the full development of his or her personality, both from the material and spiritual points of view."I53 In its guidelines for periodic reports, the Children's Committee has mirrored and expanded upon the Italian representative's statement with respect to Article 6: Please describe specific measures taken to guarantee the child's right to life and to create an environment conducive to ensuring to the maximum extent possible the survival and development of the child, including physical, mental, spiritual, moral, psychological and social

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development, in a manner compatible with human dignity, and to prepare the child for an individual life in a free society.'>' The Committee has adopted an holistic approach to child development that integrates its multiple facets.I> Of particular interest here is the Committee's identification in its guidelines of the child's "mental, spiritual, moral, psychological and social development, ... compatible with human dignity" as the facets that states parties must protect under Article 6, paragraph 2. As established in the previous chapter, corporal punishment of children carries the potential to impede the mental, spiritual, moral, psychological, and social fulfillment and maturation of children. 156 A child who may be influenced by corporal punishment to become more aggressive and less empathetic, for instance, will also be stunted or otherwise deformed in his or her spiritual, moral, psychological, and social growth. Moreover, as previously analyzed, the word "dignity," in the context of the Convention, denotes the abjuration of physical punishment of children. Thus, the guidelines' concern that the child's environment must be conducive to development with dignity is an additional clue that Article 6 rejects corporal punishment. As one expert recapitulated, "[t]he Convention provisions protecting the child from violence and exploitation (in particular articles 19 and 32-39) are as vital to maximum survival and development as those on the provision of services are. Research now testifies to the potentially serious short- and long-term effects on development of all forms ofviolence."157 The Committee's concluding observations accommodate these research findings by invoking Article 6, paragraph 2, in combination with other Convention provisions, to call upon states parties to take steps disallowing corporal punishment of children. 158 B.

OTHER INTERNATIONAL HUMAN RIGHTS INSTRUMENTS

Marta Santos Pais, in her previous capacity as rapporteur of the Committee on the Rights of the Child, has observed that the Children's Convention brought together different legal principles, some of which had originally been set forth in earlier international instruments, and further strengthened these principles for the specific purpose of ensuring the fundamental rights of the child "including the one not to be subject to any form of violence, treatment or punishment inconsistent with his/her dignity and integrity."159 Even before the Children's Convention, then, the

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prohibition on corporal punishment of children abided in other international instruments, awaiting a fuller consummation. It took the Children's Convention and its monitoring body, the Children's Committee, to give the prohibition more crystalized content and to breathe new life into it. The gathering international consensus against corporal punishment of children continues to find implicit expression in a number of these legal regimes, an expression that has been inspired with unprecedented legal dynamism. In this regard, the Universal Declaration of Human Rights (Universal Declarationj.l'" the International Covenant on Economic, Social and Cultural Rights (ESCR Covenant), 161 the International Covenant on Civil and Political Rights (CPR Covenantj.lw the American Convention on Human Rights (American Conventionl.' while others maintain that, at least, certain of the Declaration's provisions have attained that status.!" The mainstream view appears to be that all of the above-mentioned instruments generally apply to children regardless of whether or not they

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also have provisions specifically addressing children's rights.'?" This conviction is based on the fact that these documents contain language safeguarding rights for all human beings, in addition to isolated provisions that are obviously meant to ensconce only the rights of adults. 178 The Universal Declaration uses inclusive language such as Article 1's statement that "[a]ll human beings are born free and equal in dignity and rights"179 and Article 2's promise that "[e]veryone is entitled to all the rights and freedoms set forth in this Declaration."I8o The Torture Convention announces that it protects "all members of the human family."181 The ESCR Covenant, the CPR Covenant, and the European Convention employ the term "everyone" in describing to whom various rights are guaranteed.I'" The latter two treaties also use the phrase "no one" as a term of general applicability in protecting all persons' or under Article 16, which requires them to prevent cruel, inhuman, or degrading treatment or punishment.226 There are grounds for thinking that if the Committee Against Torture did not substantively close the gap leaving children insufficiently pro-

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tected under Article 1, the Committee's statement was probably more in the nature of a trial balloon than a moment of inadvertent sloppiness. Evidence for this conjecture comes from three sources. First, in the manual for reporting procedures under human rights treaties, parties to the Torture Convention are specifically directed to report on their compliance with Article 2 (the torture prevention provision) by furnishing the Committee with information on whether "corporal punishment is a possible sentence for any crimes in the State concerned."227 Second, 1. Herman Burgers and Hans Danelius, who were principal figures in drafting the Torture Convention.s" have remarked that the "most characteristic and easily distinguishable case [of torture] is that of infliction of physical pain by beating ... or similar acts."229 Third, Bent Sorensen, a former rapporteur of the Committee Against Torture.P? has written that "[t]orture of children has called for increasing attention in its [the Committee Against Torture's] work" and that one of the "main areas" of such work has been corporal punishment under Article 1.231 Regardless of whether the average spanking is severe enough to qualify as "torture" under Article 1, the conclusion is inescapable that spankings of this ilk constitute the "cruel, inhuman or degrading treatment or punishment" outlawed by Article 16. While the Torture Convention does not unpack the latter category with any precision, Article 16 does at least enlighten us that the conduct coming within its ambit does "not amount to torture."232 According to the travaux preparatoires, this language was part of an amendment to Article 16, introduced by the U.S. delegation and supported by several speakers, "to indicate clearly in the Convention that torture was the gravest form of 'cruel, inhuman or degrading treatment or punishment,' and that the whole range of such treatment or punishment should be covered by some articles . . . of the Convention."233 The use of the phrase "whole range" and the absence of any disagreement over this characterization of the u.S. proposed amendment appear to indicate an intent that Article 16's reference to "cruel, inhuman or degrading treatment or punishment" should be generously construed. Further evidence of this intent may be gleaned from the marked absence of any requirement that conduct must be severe in order to violate Article 16.234 Against this background, it is apparent that the Committee on Torture was acting well within the boundaries intended by Article 16's drafters when it held, for example, that corporal punishment of children in Australian schools

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infringed Article 16235 and when it has, on occasion, coupled corporal punishment of children in the home with Article 16.236 Thoroughness and candor do require an acknowledgment, though, of two flies potentially alighting in the ointment. Most legal analysts have been of the opinion that the Torture Convention only reaches the practices of government actors and not those of private perpetrators, because both Articles 1 and 16 postulate that the proscribed conduct must be inflicted "by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."237 Under this approach, the Torture Convention would cover only corporal punishment delivered by or at the behest of governmental authorities-such as public school personnel-but not that administered by parents. The prerequisite of state involvement is further evinced, according to Burgers and Danelius, by Article 1's articulation of the purposes of torture as a component of the definition of "torture." They state that Article 1's list of possible purposes is meant to communicate that for torture to be prohibited by the Torture Convention, the goal of that torture must have a connection "even remote ... with the interests or policies of the State and its organs."238 So, again, under this view, Article 1 of the Torture Convention would, as a rule, not extend to parental corporal punishment of children because the purposes of such punishment would usually be child rearing or an emotional release for the parent and would not touch upon governmental interests. If these analysts are on solid ground, the Torture Convention's usefulness in helping to eradicate corporal punishment of children would be drastically reduced. But, as should be obvious by now, the Torture Convention does not stand alone in this struggle. There are myriad other international human rights instruments analyzed in this book, containing language analogous to Articles 1, 2, and 16, and all of this language restrains both governmental and private actors.P? Lest there be any misgivings that with the advent of the Torture Convention, similar provisions of wider applicability in these other instruments are no longer valid, the Torture Convention itself expressly states that it may not be understood to preempt those instruments that provide more protection from torture or that also prohibit cruel, inhuman, or degrading treatment or punishment.>'? Hence, the Torture Convention's purported limitations only mean that its utility may be restricted to combating corporal punishment of children in institutions run by the government while the various other human rights

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instruments discussed in this chapter still can be and are being deployed against corporal punishment of children dispensed by all punishers. Nevertheless, it may not even be necessary to concede that the Torture Convention only curbs government employees and agents. As time goes on, the Committee Against Torture is increasingly and more incisively taking the position that parental corporal punishment of children is not legal under the Torture Convention.>" As mentioned before, the Committee has, in the past, been known occasionally to link corporal punishment of children in the family home with Article 16.242 More recently, the Committee Against Torture issued a startling concluding observation urging New Zealand to "[i]mplement the recommendations made by the Committee on the Rights of the Child (CRC/C/15/Add. 216, paras. 30 and 50)."243 The cited recommendations made by the Children's Committee are, among other things, that New Zealand should "(a) [a]mend legislation to prohibit corporal punishment in the home" and "(b) [s]trengthen public education campaigns and activities aimed at promoting positive, non-violent forms of discipline and respect for children's right to human dignity and physical integrity, while raising awareness about the negative consequences of corporal punishment."244 If the Committee Against Torture is to be taken at its word, it is evidently in the process of sweeping aside its own and other analysts' previous biases to arrive at the conclusion that when it comes to corporal punishment of children, the Torture Convention proscribes the punishment regardless of the identity of the punisher. A number of scholars have, in the meantime, been offering up arguments consonant with the Committee's concluding observation that the Torture Convention should apply to private actors, especially in the domestic violence contcxt.>" For example, Copelon maintains that the Torture Convention's provisions should apply to family violence against women. She essentially gives two reasons for this rejoinder to the outdated, more tightfisted take on the debate. First, the Torture Convention may be read not only to govern official behavior, but also to "hold states responsible for ... failure to take steps to avert private violence."246 Her contention is that a government effectively acquiesces in conduct and, therefore, flouts the Torture Convention by omitting to rectify privately perpetrated harsh usage that would contravene Articles 2 or 16 if carried out by public actors.>" Extrapolating to corporal punishment of children, my argument would be that when a government omits to enact legislation

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or to take other measures protecting the child against parental corporal punishment, that government is also effectively acquiescing in the punishment in contravention of Articles 2 or 16 of the Torture Convention. The second reason that Copelon gives for her position that the Torture Convention should apply to family violence against women is that this type of violence has many of the same attributes as torture or other cruel, inhuman, or degrading treatment or punishment by the state. Both family violence and governmental violence may produce comparable degrees of physical and/or mental pain or suffering, represent an intentional infliction against the will of the victim, and are legitimated by the victim's status.v" This argument is equally cogent in relation to parental corporal punishment of children: the pain, suffering, and intentionality elements are similar whether a child or a woman is the victim (although the child may suffer even more than a woman due to the nature of child development), and the punishment is always vindicated by the victim's status as a child. The other fly hovering perilously close to the ointment has its abiogenesis in the second sentence ofArticle 1's definition of "torture": "It [torture] does not include pain or suffering arising from, inherent in or incidental to lawful sanctions."249 This is a troubling provision since it appears to give a government the leeway to engage in torturous practices by the simple expedient of adopting those practices as lawful sanctions that are part and parcel of the nation's legal system. The provision resulted from a disagreement among the drafters over whether a purpose of the Torture Convention should be to civilize the more barbaric criminal penalties authorized by some legal systems or whether, instead, the purpose should be limited to preventing the occurrence of torture already outlawed by states parties.>? Burgers and Danelius observe that "[t ]he second sentence of paragraph 1 of article 1 does not resolve this controversy in a [sic] unequivocal manner."251 The continuing ambiguity emanates from the fact that the exception for lawful sanctions does not establish "whether, in order to be lawful, a sanction must also be consistent with international law under which cruel, inhuman or degrading treatment or punishment is prohibited."252 As it turns out, this is an ambiguity that may be pregnant with legal possibility for children. Burgers and Danelius hatch the idea in nascent form: "It may therefore be argued that various forms of corporal punishment, including those involving mutilation, are not covered by the excep-

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tion in the second sentence, but this is undoubtedly a view which is not shared by everyone."253 Given their reference to corporal punishment possibly involving mutilation, I suspect that Burgers and Danelius did not have it in mind to create an argument extracting reasonable corporal punishment of children from the lawful sanctions exception. But, why not? The logic of Burgers' and Danelius' reasoning should work for any sanction, including corporal punishment of children, that violates international law's other proscriptions. In sum, a viable, though not unproblematic, argument can be made that reasonable corporal punishment of children, regardless of the identity of the punisher, is torture violative ofArticle 2 of the Torture Convention. One of the problems with this argument is that legalized corporal punishment of children might well be considered a "lawful sanction" and, therefore, outside the scope of Article 1's definition of "torture." Another obstacle is that reasonable corporal punishment may not qualify as causing the "severe pain or suffering" that Article 1 makes a property of torture. A much stronger argument can be made that such punishment, regardless of the identity of the punisher, is cruel, inhuman, or degrading punishment infringing Article 16 of the Torture Convention. This argument is stronger because there is no "lawful sanction" exemption problem and no severity requirement attached to Article 16. However, the Article 16 argument shares with the Article 2 argument another big difficulty, i.e., that Articles 2 and 16 have traditionally been interpreted to hamper government actors exclusively and not the private sector. None of these hurdles is insurmountable; they may be removed by the counterarguments set forth above. Indeed, the counterargument in favor of the Torture Convention applying to the private sector is becoming accepted doctrine as the Committee Against Torture moves toward bringing private corporal punishers of children to heel under this Convention. Although the European Convention is a regional human rights treaty while the Torture Convention applies to states parties worldwide, the two are conceptually somewhat alike and are treated in immediate succession because the former Convention also employs a type of severity requirement in the interpretation of its Article 3, the provision prohibiting "torture or [] inhuman or degrading treatment or punishment."254 Despite this resemblance, the European Court of Human Rights and the European Commission of Human Rights have developed a distinct body of case law

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unique to the European Convention, indicating that corporal punishment of children falls within the purview ofArticle 3 and may violate that article depending upon the particular circumstances of each case. 255 (The Commission, by the way, is no longer operative.F") The European Court of Human Rights' principle "that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3"257 means that there is a threshold of severity that each perpetrator's conduct must meet before the court will categorize it as torture or even as inhuman or degrading. Notice that although an analogous requirement is imposed for conduct to be torture under the Torture Convention, no such requirement is imposed for conduct to be cruel, inhuman, or degrading treatment or punishment under the latter Convention. The upshot is that when children protest corporal punishment under Article 3 of the European Convention, their burden of establishing that inhuman or degrading punishment (let alone torture) has occurred is, at least on paper, more onerous.s" The European Court of Human Rights has explained that assessing whether the threshold of severity has been fulfilled is relative, depending on the totality of circumstances presented in each case, as follows: [I]t [the assessment] depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim. In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3.259 Observe that three of the factors which the Court said go into the assessment are the physical effects of the perpetrator's conduct, the mental effects of that conduct, and the age of the victim. In light of children's experience of the pain caused by spankings and the numerous undesirable behavioral outcomes in children that Gershoff and other experts have associated with undergoing corporal punishment.o''' it is reasonable to hope that the evolving jurisprudence under Article 3 of the European Convention will eventually reflect a less stringent threshold of severity as

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a prerequisite for finding corporal punishment of children to be inhuman or degrading treatment. The reasonableness of this expectation is substantiated by the fact that the European Court of Human Rights sees the Convention as a "living instrument" that should be interpreted dynamically so as "to maintain its relevance to social and legal standards," an "approach [that] has obvious potential to enhance the protection which the Convention offers children" in particular.v" In bringing the Convention into line with modern social and legal norms, the Court has often looked to other international human rights instruments. As such, the Court has increasingly relied upon the Children's Convention in applying the European Convention to children's cases. Inasmuch as the Children's Convention is understood to contain an absolute prohibition on all corporal punishment of children, this bodes well not only for a more relenting severity requirement when the complainant is a child alleging corporal punishment violative of Article 3 of the European Convention, but perhaps someday even for the abandonment of that requirement altogether in this type of case. 262 It is difficult to tell, from the cases on corporal punishment of children under Article 3, whether the European Commission of Human Rights had and the European Court of Human Rights has, in effect, begun to travel down this road without explicitly saying so. Certainly neither the Commission nor the Court has held that the threshold of severity should be lowered as a matter of law in all cases involving corporal punishment of children under Article 3. But, that does not mean that the advisability of doing so has not crossed the judges' minds. Consider, for example, Costello-Roberts v. United Kingdom, in which seven-year-old Jeremy Costello-Roberts contended that the corporal punishment to which he had been subjected by his private boarding school constituted degrading punishment in violation of Article 3. 263 The facts of the case are that five weeks after commencing his stay at the school, he received his fifth demerit mark for minor misconduct (talking in the corridor and being a little late for bed one evening), which, under the school's system of discipline, meant the automatic imposition of corporal punishment. After making Jeremy wait a few days, the headmaster struck him, in private, three times on his clothed buttocks with a rubber-soled gym shoe. Jeremy's mother tried to involve the police, but they did not want to take any action in the absence of visible bruising.w'

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In deciding the case, the European Court of Human Rights appeared to articulate and be guided by the following rule in applying the severity requirement: if the petitioner is able to adduce "evidence of severe or long-lasting effects as a result of the treatment complained of," then the treatment would meet the severity threshold of Article 3 even if the treatment might, in itself, otherwise seem mild; however, if the petitioner is unable to adduce such evidence, then the treatment complained of would meet the severity threshold of Article 3 only if the treatment, in itself, is severe.v- I say that the Court "appeared" to articulate this rule because its own language is, to say the least, abstruse.i'" Remarking that Jeremy had "adduced no evidence of any severe or long-lasting effects as a result" of the spanking and assuming that under the facts of this case the chastisement was not in itself severe, the Court held that Jeremy had not established degrading punishment in violation of Article 3.267 Yet, it appears that the Court in Costello-Roberts was less than totally at ease with corporal punishment of children as a disciplinary technique. The Court expressed "certain misgivings" that the school's corporal punishment was automatic and that Jeremy was left to stew for three days in dread of the corporal punishment to come. 268 Is the Court's disquiet a tacit acknowledgement that such punishment is an unacceptably menacing experience for children? Indeed, were little Jeremy to bring his case now, his counsel would be in a position to take advantage of recent scientific advances in understanding corporal punishment's potential impacts on its child-victims; counsel for a twenty-first century Jeremy would have a knowledge-base informing his attempt to adduce evidence "of ... severe or long-lasting effects" in the boy as a result of the whacks. Under this factual scenario, Jeremy might well win his Article 3 argument in front of a European Court ready to upgrade its intuitive reactions into overt principle, given the benefit of contemporary scientific findings on corporal punishment of children. While Costello-Roberts is a bundle of mixed messages, Warwick v. United Kingdom is interesting precisely for being less equivocating. In Warwick, sixteen-year-old Karen Warwick, at the end of her course of studies, sat for her certificate of secondary education examinations. Upon finishing the examinations, she left the school's premises, but was seen by the headmaster smoking a cigarette.F" The headmaster had Karen brought to his study where he administered one stroke of a cane on her outstretched palm in the presence of the deputy headmaster who was also

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male and of a second sixteen-year-old female student who was being similarly disciplined for the same offense. According to an examining physician, eight days after the caning Karen still had a bruise across the palm of her hand, approximately one inch long, about one-half inch wide, and with some small bruised areas tracing the stroke of the cane. "'There was no deep injury, no treatment was necessary and ... [the physician] anticipated that she would have a full and uncomplicated recovery from the injury that had been sustained.'" 270 Karen's mother filed a local civil action on behalf of her daughter against the headmaster and others, seeking damages for assault, but the county court dismissed on the basis that the punishment was not" 'improper, inappropriate or disproportionate.'" When Karen was unable to obtain any recourse under English law, she brought an Article 3 claim before the European Commission of Human Rights on the theory that the caning was degrading treatment or punishment."! The Commission recited the usual mantra concerning the severity requirement and its fulfillment being contingent upon the application of certain factors in each case, although the list of factors was more generalized in this opinion. The Commission held that the single cane stroke to Karen's hand resulting in a bruise, but with no serious injury, was degrading punishment in contravention of Article 3. In so holding, one of the factors that swayed the Commission was that "the punishment consisted of a physical injury inflicted by a man, in the presence of another man, on a 16-year-old girl, who under domestic legislation is a woman of marriageable age."272 The Commission's finickiness about Karen's dignity as a grown woman in a situation that may have had sexual overtones is understandable, but the logical inference of this rationale is also somewhat disturbing, i.e., that if Karen had been a younger girl, the Commission might have ruled against her. Fortunately, the Commission did not rely solely on the above rationale, adding as factors underlying the decision that Karen's bruise was not "of a merely trivial nature" and that it could not be "excluded that the punishment also had adverse psychological effects."273 Whether these last two factors would have been enough to cause the caning to violate Article 3, without the "woman of marriageable age" element, we will never know. In spite of that question mark, Warwick may be a harbinger of positive developments for children challenging corporal punishment under Article 3. The case turned on only one cane stroke to the palm of the hand that, as the doctor said, resulted in a superficial injury. And, the

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presence of the male deputy headmaster, while embarrassing to Karen, may also have been the headmaster's awkward attempt to ensure that nothing of a sexual nature could be inferred from his interaction with her. As a matter of fact, Karen's embarrassment could have been somewhat mitigated by the circumstance that her "partner in crime," another sixteen-year-old female caught smoking, was also present during Karen's caning and received a caning herself'?" Oddly, the Commission does not even mention the second girl's presence in its analysis. The reality is that the Commission here found corporal punishment of a child to impinge upon Article 3 based on facts that met a standard of severity in name only. Y v. United Kingdom, arising from another headmaster's caning of a teenage student, shows the Commission substantially duplicating its analysis in Warwick.t" The applicant, a fifteen-year-old male, defaced the cover of a fellow pupil's file in retaliation after the latter had knocked the applicant to the floor. In response, the headmaster, in private, immediately applied the cane four times to the applicant's clothed buttocks so as to leave four wheals, heavy bruising, and swelling on that part of his body. The Commission adjudged the boy's claim that the caning was degrading treatment violative of Article 3 of the European Convention to be admissible as well as valid on the merits-even though the local county court to which Y had first complained had decided that the caning was moderate and reasonable. The Commission reasoned that "the injuries inflicted on the applicant cannot be dismissed as trivial" and that the physical harm and humiliation to the applicant met the severity requirement of Article 3.276 One can even detect a hint of indignation in the Commission's characterization of this corporal punishment:

The Commission considers that such injury to a teenage boy is unacceptable whoever were to inflict the punishment, be it parent or teacher. The Commission sees no justification for treating the applicant in this way. In particular, it can find no pedagogical reason for dealing with the applicants bullying behaviour with a punishment on the same bullying level, i.e., the use ofsuperior strength to hurt and degrade another.Tt Subsequent to the Commission's decision, the applicant and the United Kingdom agreed to a friendly settlement under which the government was

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required to pay the applicant £8,000 in compensation and £9,000 in costs, and the European Court therefore struck the case out of the list. 278 In Y, the Commission found an Article 3 violation and adopted an incensed tone with respect to the caning, in the absence of the "woman of marriageable age" factor that appears so central in Warwick. Maybe this is because the boy in the Y case had received four cane strokes on his buttocks while the girl in Warwick had received one cane stroke to her palm. The Commission's Yopinion does mention, in passing, that the caning of Karen Warwick was "a less severe punishment" than that inflicted upon Y, although the Commission does not dwell on this point."? Nonetheless, there is a factual parity of sorts as between the two cases that makes the finding of an Article 3 violation in both of them consistent and significantly so-intimating that, for the Commission, what was moderate corporal punishment of children under local standards could well be classed as illegally severe for Article 3 purposes. That the Commission may have been in the process of creating such a revised yardstick for corporal punishment of children under Article 3 would seem to be borne out by the legal history of these cases. It will be recalled that in Warwick an English county court had dismissed an action brought on behalf of Karen on the ground that the caning was not" 'improper, inappropriate or disporportionate,' "280 while in Y a county court had rejected Y's claim on the ground that the caning was moderate and reasonable.t'" Yet, the Commission deemed both canings to be severe enough to violate Article 3, regardless of how proper, appropriate, proportionate, moderate, and/or reasonable, domestic judges might have thought them. Or, to put the matter another way, in cases challenging corporal punishment of children under Article 3, the Commission appeared inclined to make the severity requirement more elastic. As one analyst has sized up the precedents, "[g]enerally, the conclusion to be drawn from the jurisprudence of the Court and the Commission is that the imposition of disciplinary corporal punishment in state or private schools is suspect from the standpoint ofArticle 3, particularly where physical harm is inflicted or where the manner of its administration is humiliating."282 Until 1998, the cases concerning corporal punishment of children under Article 3 of the European Convention involved either judicially mandated corporal punishment-v or corporal punishment in the schools.P" Notably, in that year the European Court of Human Rights decided A v.

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United Kingdom, a case of familial corporal punishment.P" The case arose when an adult hit his nine-year-old stepson's legs and buttocks so as to produce numerous bruises and welts. An examining pediatrician concluded that these marks reflected caning with "considerable force on more than one occasion." The stepfather was charged with assault causing actual bodily harm under English law. His defense was that the caning constituted reasonable corporal punishment of a difficult, unyielding boy. After a jury acquitted the stepfather, the boy sought redress from the European Court of Human Rights, alleging, among other things, that the United Kingdom's legitimization of the caning, through the content of the domestic laws producing the acquittal, violated Article 3.286

The Court once again applied the severity requirement and the list of factors for assessing severity on a case-by-case basis. In this context, however, the Court added the following embellishment: "Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity."287 This animadversion on the Court's own past unmindfulness as to the identity of who sought its intervention is intriguing because it bears within it the Court's recognition that children are vulnerable individuals particularly deserving of prevention of as well as recompense for bodily assaults. This recognition, if considered in conjunction with those factors used to assess severity, such as age of the victim and the physical and mental effects of the punishment on the victim, should pave the way for the Court in future cases to protect children against all corporal punishment. As it is, the European Court held that the United Kingdom's dereliction in relation to the stepfather's corporal punishment ofA reached the threshold of severity prohibited by Article 3.288 Because A v. United Kingdom is the first time that the European Court held that parental, in addition to judicially imposed and school, corporal punishment of children comes within Article 3, the case represents progress in bringing the European Convention more into sync with the Children's Convention and with the most recent scientific findings on corporal punishment of children. Also, because the Court ruled that physical punishment, reckoned to be reasonable by a British jury, nevertheless violated Article 3, the inference may follow, as it appears to have followed from the Warwick and Y cases, that the level of severity required by the European Court for corporal punishment of children to run afoul of Article 3 may be diminishing-"?

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The case law under Article 3 of the European Convention therefore embodies considerable normative tension characteristic of a jurisprudence in transition. Up until now, the European Court has been inclined, under its continuing threshold-of-severity test for assessing "degrading treatment," to tolerate some milder corporal punishment of children. Where the Court will draw the line in subsequent cases between corporal punishment which is tolerable under Article 3 and that which is not, is becoming more unpredictable. In my opinion, unpredictability in these circumstances is a good thing-the cost of progress, if you will-provided it ultimately leads to the predictable and absolute intolerance of corporal punishment of children in the application of Article 3. In contrast to the treatment of the subject under the Torture Convention and the European Convention, the prohibition on torture and cruel, inhuman, or degrading punishment in Article 7 of the CPR Covcnant.P? Article 5 of the Universal Declaration.F" and Article 5 of the American Convention-''? has been interpreted as banning all corporal punishment of children regardless of the punishment's severity or the identity of the punisher. The Human Rights Committee, charged with monitoring states parties' compliance with the CPR Covenant.c" has demonstrated an emerging, if sometimes oblique, jurisprudence against corporal punishment of children under Article 7. In the 1980s and 1990s, the Committee's general comments appeared to construe Article 7 as prohibiting only excessive corporal punishment by both public and private actors.t?" In 2000, however, the Committee used the occasion of issuing General Comment No. 28, concerning the equality of rights between men and women, to make a rather elliptical reference to corporal punishment as a forbidden practice under Article 7, while dropping the word "excessive." More specifically, General Comment No. 28 instructs states parties to provide the Committee with information "if corporal punishment is imposed to enforce a regulation [on clothing to be worn by women in public]" as such punishment would violate Article 7 of the CPR Covenant.e'" Parsed, the instruction is enigmatic. Its cryptic language would seem to permit wide latitude in understanding the range of physical assaults constituting the corporal punishment prohibited by Article 7. Yet, the reference to that corporal punishment, only used to enforce clothing regulations for women, would also seem to suggest that the Human Rights Committee was not thinking of childhood spankings. Then again, the latter interpretation leads to a preposterous result-that the omission of the

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term "excessive" means that women alone are protected against all corporal punishment under Article 7. The idea that women exclusively are protected against all corporal punishment is not only illogical, but also internally inconsistent with the nondiscrimination principle of the CPR Covenant-s" and thus cannot be an accurate reading of Article 7. This brings us full circle to the first conclusion that General Comment No. 28 must be construed to permit the widest latitude in understanding the types of physical assaults foreclosed by Article 7, including the spanking of children. A review of the Human Rights Committee's concluding observations confirms this assessment of General Comment No. 28's comprehensive reach. The Committee's concluding observations under Article 7 (sometimes in tandem with Article 24, a provision granting protections to minors based on their status as suchj-?? reveals not only that in each aberration, the adjective "excessive" is glaringly absent, but also that the Committee has irrefutably come to the point where it will brook no corporal punishment at all of anybody, including children, and no matter by whom meted out.298 The Committee's revised outlook on Article 7 of the CPR Covenant is commendable because it is more humanistic and more calibrated to the latest scientific findings on the negative behavioral outcomes associated with corporal punishment of children. From a purely legalistic standpoint, the Committee's revision is, furthermore, sounder treaty interpretation. The ordinary meaning of Article 7's "inhuman or degrading treatment or punishment" should, in keeping with the Treaty on Treaties, be ascertained in context, i.e., in relation to the rest of the CPR Covenant's text. 299 As mentioned above, the CPR Covenant contains a special provision, Article 24, devoted to children's interests and which provides, in pertinent part, that "[e]very child shall have ... the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State."300 To arrive at the ordinary meaning ofArticle 7's terms, a diligent interpreter should read them with an eye to Article 24's solicitude for children's vulnerability. The interpreter should bear in mind that, by definition, even reasonable corporal punishment hurts the body and is correlated with destructive, persisting impacts on children.w! Hence, in our day and age, reading Article 7 with regard to Article 24's attentiveness to children's vulnerability inevitably means reading Article 7 in the same way that the Human Rights Committee does now-in order to prohibit all corporal punishment of children.

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The judiciousness of this application of Article 24, the language of which is admittedly nebulous in its provision of "measures of protection as are required by ... [the child's] status as a minor," is bolstered by the relevant portions of the travaux preparatoires to the CPR Covenant. There it can be seen that delegates expressed their belief that the provision they were drafting was intended to protect children as the "weakest group in society"302 and as vulnerable because of their "physical immaturity."303 The wisdom of reading Article 7 (either in light of Article 24 or by itself) to prohibit all corporal punishment of children, is further supported by those portions of the travaux preparatoires that chronicle some delegates' opinion that in drafting Article 7, they were drafting a proscription on conduct that included corporal punishment.'?" Because the Universal Declaration is not a treaty, there is no court, committee, or other institution that monitors compliance with its terms. This does not mean, though, that the provisions of the Universal Declaration are proof against interpretation. To the contrary, since the Universal Declaration is not an international treaty, it is not subject to the cramped interpretive rules dictated by the Treaty on Treaties unless consulting the latter is deemed desirable. The Universal Declaration is a seminal document in two senses. First, in creating the Universal Declaration, "an international body, representing the community of nations for the first time in all of history agreed on a universal vision of human rights on behalf of all men, women, and children everywhere in the world."305 Second, the Universal Declaration served as the springboard for the creation of the CPR Covenant and of the ESCR Covenant.t'" the three instruments constituting together part of what is known as the International Bill of Rights.w? Given the close interrelationship among these documents, it is entirely appropriate that Article 5 of the Universal Declaration, forbidding torture or cruel, inhuman, or degrading punishment.t'" should be retrospectively informed by the Human Rights Committee's reading of Article 7 of the CPR Covenant as interdicting all corporal punishment, including corporal punishment of children.t''? This interpretation of Article 5 is all the more convincing when it is remembered that the Universal Declaration also has a provision that set the stage for the CPR Covenant's Article 24, i.e., Article 25 of the Universal Declaration recognizes childhood as "entitled to special care and assistance.">! 0

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The American Convention, intended to govern in the Western Hemisphere, derives from, and was inspired by, the International Bill of Rights.s!' As was previously mentioned, the Inter-American Commission on Human Rights, one of the bodies installed to promote compliance with the American Convention"? has urged that in order for states parties to achieve full observance of the rights contained therein, they must ratify the Children's Convention and assure that children "are not the targets of violence."313 .

It is in Article 5 that the American Convention sets forth its provision against torture or cruel, inhuman, or degrading treatment or punishment.t!" Given the absolute prohibition on corporal punishment of children in the Children's Convention, the most sensible-indeed, the only sensible-implication of the Commission's commentary is that Article 5 of the American Convention would best be interpreted as also enjoining all corporal punishment of children.v'> This deduction becomes all the more weighty when Article 19 of the American Convention is added into the mix, guaranteeing that "[e]very minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state."316 (iii) Provisions Protective of Personal Security

The guarantee of "security of person" in Article 9 the CPR Covenant'!" and in Article 3 of the Universal Declaration'!" may also serve as a source of the prohibition on corporal punishment of children under international law. Article 5, paragraph 1 of the American Convention contains a similar pledge, providing that "[e]very person has the right to have his physical, mental, and moral integrity respected."319 It has been suggested by some commentators that the security or integrity of a child's person is necessarily invaded by being subjected to corporal punishment.v? Although only a few have made this argument, I think it has tremendous appeal given the nature of such punishment. Corporal punishment of children, as defined in this book, is the use of physical force upon a childs body with the intention of causing the child to experience bodily pain so as to correct or punish the child's behavior. What else could the American Convention's pledge to stand sentinel over persons' physical integrity protect if not, at the very least, against the unwanted application of physical force to the human body so as to cause somatic pain?

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In fact, the Inter-American Commission on Human Rights has stated that unspecified "acts of violence" against persons violate Article 5, paragraph 1 of the Convention-" and has frequently held the same vis-a-vis beatings.v- The Commission has even observed, in a case involving blindfolding, denial of access to a bathroom, and deprivation of sleep, that "[t]he right to personal integrity protected by the American Convention ... encompasses far more than a ban on beatings, physical torture or other forms of treatment that leave traces or visible marks on the victim."323 Under this standard, spankings of the so-called light variety, which leave no lasting mark on the child's body, would also appear to trench on Article 5's defense of physical integrity. But, is corporal punishment also a breach of "security of person" as used in the CPR Covenant and the Universal Declaration? The dictionary defines "security" as, among other things, "the quality or state of being secure: as a: freedom from danger: SAFETY b: freedom from fear or anxiety."324 It seems, then, that the ordinary meaning of "security of person" in the CPR Covenant and the Universal Declaration should minimally bespeak the child's right to have his or her person protected from danger. Spanking necessarily inflicts pain on the child's body and is a threat to the child's sense of physical comfort and well-being. Gershoff's work and that of other psychologists also establish that corporal punishment of children is related to serious negative behavioral developments in the victim.v> Their analyses demonstrate that corporal punishment poses a hazard to the child's emotional and mental life. It thus requires no subtle linguistic manipulation to conclude that corporal punishment of children violates the ordinary meaning of the "security of person" provisions of the CPR Covenant and the Universal Declaration. Although the Human Rights Committee has not specifically addressed the status of corporal punishment of children under Article 9 of the CPR Covenant, as the Committee has done under Articles 7 and 24 of that treaty, the Committee has issued concluding observations denouncing domestic violence against family members, in general, and against women, in particular, under Article 9.326 Since domestic violence and corporal punishment of children both often involve hitting or beating, it would be a quite rational and welcome development for the Committee to enlarge upon these concluding observations so as to add Article 9 to the host of CPR Covenant provisions already construed to outlaw corporal punishment of children. Moreover, inasmuch as the CPR Covenant is an

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outgrowth of the Universal Declaration and as the latter's interpretation need not be truncated by the Treaty on Treaties, Article 3 's reference to "security of person" in the Declaration may be retrospectively infused by the Human Rights Committee's arguable tilt toward bringing corporal punishment of children within the CPR Covenant's Article 9 prohibition. As it turns out, however, the Universal Declaration can stand on its own, without any assistance from the CPR Covenant, in making corporal punishment of children a violation of "security of person" under Article 3. It is the travaux preparatoires for the Universal Declaration that gives Article 3 its legs in this regard. In the Third Committee of the U.N. General Assembly, a prolonged debate took place, not over whether Article 3 of the draft Declaration should protect people's physical integrity, but, rather, over whether the phrase "security of person" is sufficiently clear and encompassing to imply that protection.v? The Cuban delegate, among others, was vehement that "the idea of physical integrity should be clearly expressed" by tacking on the words "physical integrity" to the article already drafted to contain "security of person."328 The delegate from the Netherlands, influenced by the Chinese delegate, opined "that the individual's right to security means the guarantee of his physical integrity" and indicated that, based on this understanding, he would vote for the "security of person" language without any clarifying amendments.v? The French and Haitian delegates expressed agreement with this position.v? The proposal to amend draft Article 3 so as to add "physical integrity" was defeated.v" but at no time during the extended dialogue on this article did any delegate even hint at the possibility that physical integrity was not protected by "security of person."332 Indeed, despite the reassurances of the Chinese, Dutch, French, and Haitians, many delegates were extremely perturbed about the amendment's defeat. The delegates of Guatemala and the Philippines even implored, after the vote, that the records of the Third Committee should reflect the Committee consensus that "security of person" includes protection of physical integrity. The Chairman ruled that he could not implement such a procedure.v" So, the discussion resumed, seemingly ad infinitum, over delegates' fears that future generations would not realize that "personal security" embraces physical integrity. In an effort to put to rest such qualms, U.S. delegate Eleanor Roosevelt, speaking as Chairperson of the

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Commission on Human Rights, which had drafted the Declaration originally submitted to the Third Committee, stated that "the words 'security of person' had been chosen after lengthy discussion [in the Commission] because they were more comprehensive than any other expression. The French representative had especially noted that they included the idea of physical integrity and that they seemed to cover most comprehensively various views expressed in the Commission."334 The Chinese delegate chimed in that the definition was inclusive of physical integrity, observing that inasmuch as the French and like-minded delegates' interpretations would be part of the record, it was useless to continue debating the issue. Unmoved and still anxious about the perceived ambiguity, delegates from Chile, Guatemala, and the Philippines subsequently scrambled to outdo each other in explaining that they had voted in favor of Article 3, minus "physical integrity" language, only on the understanding that "security of person" includes security of physical integrity.v> The point of this historical jaunt is, of course, that inasmuch as the travaux preparatoires for the Universal Declaration establishes that its guarantee of "security of person" includes protection of physical integrity, and inasmuch as protection of physical integrity implies freedom from corporal punishment, then the Universal Declaration's espousal of such security should reasonably be read to reject corporal punishment of children. In the interest of thoroughness, it should be noted that the European Convention, at Article 5, paragraph 1, also protects "the right to liberty and security of person."336 However, a review of cases before the European Court of Human Rights and the European Commission of Human Rights reveals no judicial interpretations of "security of person" as a legal concept apart from the right to Iiberty.P? That is, Article 5, paragraph 1's interest in security of person has meaning only as a restriction on arbitrary interference with liberty, and "liberty" is abridged to mean only freedom from arrest and detention. I came across no relevant decisions in which corporal punishment of children was deemed an issue under the "security of person" language of that Convention.v" At present, therefore, the proposition cannot be maintained that the article affording "security of person" protects children from corporal punishment under the European Convention.v? even though that article's cousins under the American Convention, the CPR Covenant, and the Universal Declaration each plausibly provides grounds for finding such protection.

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(iv) Provisions Protective of Privacy

The American Convention, the CPR Covenant, the European Convention, and the Universal Declaration all provide protection against undue interference with personal privacy.r'" There is some authority in the scholarly literature for the proposition that "corporal punishment violates a child's right to privacy because the concept of privacy involves the concept of bodily integrity."341 The most extensive development of the principle that a child's right to privacy may be violated by undergoing corporal punishment, has occurred under the European Convention. The origins of this unfolding jurisprudence lie in the European Court of Human Rights' oft-repeated construct that an individual's physical and moral integrity comes within the safe harbor of personal privacy under Article 8 of the European Convention. 342 The assumption is that some uninvited physical contact with another person may, ipso facto, intrude upon the latter's privacy>" The European Court's fullest disquisition on corporal punishment of children under Article 8 is Costello-Roberts v. The United Kingdom.rr a case the reader previously encountered in connection with Article 3 of the European Convention (the provision against torture or inhuman or degrading treatment or punishmentj.>" Reference may be had to that discussion for a detailed account of the facts precipitating the case. For our purposes here, it suffices to state that a minor applicant requested the European Court to rule that a headmaster's hitting of the minor's clothed buttocks three times with a soft-soled gym shoe, in response to the child's petty infractions of school regulations, violated Article 3 as degrading punishment and interfered with the child's physical and moral integrity under Article 8's privacy language. The Court concluded that the corporal punishment inflicted in this instance was neither severe enough to violate Article 3 nor adverse enough, in its effects on the child's physical or moral integrity, to violate the privacy right in Article 8.346 In its opinion, the Court made a stab at trying to avoid the impression that the factual prerequisites for establishing an Article 3 violation are the same as those for establishing an Article 8 privacy violation. The Court offered the dictum that it did "not exclude the possibility that there might be circumstances in which Article 8 could be regarded as affording in relation to disciplinary measures a protection which goes beyond that given

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by Article 3."347 However, the actual rationales relied upon in CostelloRoberts for concluding that the "slippering" of the child did not violate either article are essentially identical, i.e., the rationale is of a lack of sufficient severity or adversity-the two nouns being synonymous in this context. If one focuses, as Kilkelly does, on what the Court did in Costello -Roberts rather than on what it said in dicta, it is arguable that the Court effectively extended the severity requirement to Article 8 so as to place a "limit on the potential of the latter provision in terms of protecting the child from physical punishment."348 It is bothersome that after CostelloRoberts, it may be "difficult to envisage the Court finding a particular type of treatment to be compatible with Article 3, but in breach ofArticle 8"349 and that therein may lie a substantial inhibition on Article 8. As disappointing as the Costello-Roberts holding is in regard to erecting Article 8 as another human rights law barrier to corporal punishment of children, this aspect of the decision is not without redeeming aspects. The European Court, at the close of its Article 8 analysis, added a veritable disclaimer that it did not wish, by the results in Costello-Roberts, to be misunderstood as having in any way approved of corporal punishment as a school disciplinary sanction.v? Attempting to psychologize judges' statements in the judicial opinions they render is obviously not a solid foundation from which to project possible departures in a court's jurisprudential direction. Yet, these judge's "disclaimer," taken together with their concerns expressed in relation to Article 3 about the effects on the applicant of automatically decreed but subsequently delayed corporal punishment.v! does seem to manifest discontent with corporal punishment of children and perhaps even a growing personal repugnance toward it. Why else make the statement? It serves no functional role in clarifying the parameters of the Costello-Roberts decision, which turns only upon whether the facts presented by this particular child applicant constitute violations of Articles 3 and 8 of the European Convention. While judges' sensibilities toward corporal punishment of children have no formal legal significance, they still may be worth attending to as the first stirrings of possible future legal innovations. Wishful thinking aside, the European Commission of Human Rights, which heard the case at what was then the first level of the European Convention's judicial system, had, inversely to its stature, the most to offer in approaching the Costello-Roberts case under Article 8. The Commission's

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opinion is more doctrinally coherent than the Court's while producing results also appropriately sympathetic to protecting the child. In CostelloRoberts, the Commission's opinion, like the Court's, subscribes to the principle that the protection given to a person's physical integrity as a part of Article 8's privacy right may be more far-reaching than the protection granted by Article 3. Also like the Court, the Commission found that the facts of the case failed to meet the severity threshold of an Article 3 violation.v? However, in contrast to the Court, the Commission then proceeded to apply the aforesaid principle so as to descry an Article 8 violation in spite of the absence of an Article 3 violation, thereby demarcating a separate content to Article 8's privacy right independent of other provisions of the European Convention. The Commission worked out this segregation in a series of analytical maneuvers. The Commission opinion begins by stating the obvious, i.e., that corporal punishment of a person is "an obvious interference with the individual's physical integrity and a lack of respect for private life." The opinion concedes that parents' mere sending of a child to school, particularly one employing disciplinary measures "thought to be an integral part of the youngster's education," does not infringe the child's privacy inasmuch as consent to an invasion of one's privacy is a defense under Article 8, and parents may give that consent for their minor children. The opinion cautions, though, that parental consent is not unbounded and that states parties to the European Convention are charged with ensuring that the consent does not result in abuse. The opinion concludes that CostelloRoberts' parents could not be said to have consented to the hitting of their son and hence to an incursion on his privacy rights so as to afford the United Kingdom a consent defense in this case. 353 Nor, ruled the Commission, could the government invoke a defense based on Article 8's other, enumerated exceptions to the right of privacy. Article 8 excuses interference with the right when the interference "is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."354 The Commission's explanation is that the government did not give any social, educational, health, or moral reasons for the punishment of Costello-Roberts as prescribed by the exceptions clause of Article 8. The

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Commission thus held that the corporal punishment of this applicant was an unwarranted interference with his privacy rights under Article 8.355 What is distinctive about the Commission's analysis is twofold. First, it repudiates any severity requirement under Article 8 when the petitioner establishes that he or she was subject to corporal punishment; corporal punishment of a person, without more, is treated as encroaching upon the entitlement to physical integrity subsumed within the privacy right. Second, the only ways a state party can avoid an Article 8 violation, when the state has declined to protect a person against such punishment, is either to assert the consent defense or to offer justifications recognized by the exceptions clause ofArticle 8; and corporal punishment cannot fit the exceptions clause if there is no social, educational, health, or moral reason for the punishment. Not only does the Commission's Article 8 exposition ring with a clarity that makes manageable implementation possible, but it demonstrates a more sophisticated and forward-looking appraisal of the problems posed by corporal punishment of children. Even the most lethargic spanking may be assailable under Article 8 regardless of whether the punishment passes the severity threshold of Article 3. Of course, in the "best of all possible worlds,"356 the Commission should have realized that corporal punishment of children can never be an enumerated Article 8 exception to children's privacy rights because the punishment, by its very nature, has no social, educational, health, or moral value. To the contrary, modern science demonstrates that physical chastisement of children may cause them to become aggressive, antisocial, at risk for poor mental health, and resistant to the formation of conscience.v? among other retrograde developments. Nevertheless, one cannot really be critical of the Commission on this score inasmuch as its Costello-Roberts decision predated publication of Gershoff's meta-analyses and many other recent scientific contributions on the subject. As it is, the Commission's approach in Costello-Roberts far outshines the European Court's handling of the same case and provides rich potential in protecting children from corporal punishment under Article 8 of the European Convention.v" Would that the European Court might see fit to take a second and, this time, favorable look back at the Commission's prescient thoughtfulness. In a throwback to days gone by, the European Commission has had occasion to deal with the obverse claim that a state party may also violate

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Article 8 if it bans all corporal punishment of children. In 7 Individuals v. Sweden, the applicants were members of a Protestant free church congregation in Stockholm whose religion dictated that they use corporal punishment on their children.v? The Commission considered, among other issues, whether the applicants' right to respect for private and family life under Article 8 was encumbered by Sweden's enactment of a civil statute forbidding all corporal punishment of children and by Swedish penal code provisions establishing criminal liability for assaults and molestations. The Commission's opinion underlines, as a preliminary matter, that the right of respect for family life in Article 8 includes giving precedence to parental choices in the rearing and education of children when those choices conflict with state policies. In spite of this paramountcy, the Commission adjudged these applicants' claims vis-a-vis Article 8 to be manifestly ill-founded and inadmissible. The Commission so held in regard to the civil law ban on corporal punishment of children, based on its findings that the ban was not accompanied by any penalty or other legal consequences for offenders and that the ban's purpose was to encourage deliberation over how to punish children. The opinion further reasons that since the criminal laws on assault and molestation would not be activated by light corporal punishment and since these laws merely accord children, society's weaker members, the same protections from violence as adults receive, the criminal laws could not implicate the applicants' privacy rights under Article 8 either.w? Although 7 Children v. Sweden resulted in an inadmissibility ruling, on the surface the case might seem to pose somewhat of a nuisance in relation to bans on corporal punishment that embody, within the same statute, criminalization of corporal punishment of children.v" For, in ruling that Sweden's civil ban did not violate Article 8, the Commission appeared to give substantial deference to the circumstance that the ban was intended as a didactic tool rather than as a means for making corporal punishers criminally liable. As will be shown in the following chapter, there are, as of this writing, fifteen countries that have banned all corporal punishment of children, and at least one of those statutes contains within it provisions for the criminal liability of offenders. But, given the trend in human rights law against corporal punishment of children, the potential of 7 Children to block such bans is not likely to materialize into a real problem. The European Court would be scandously out of step if it

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was to rule against a nation's law because, in addition to a ban, the law contained a reference to criminal penalties. There is also a saving grace in the doctrine of the margin of appreciation that credits national authorities' superior familiarity with their own country's conditions and that, consequently, prefers a certain amount of deference to those authorities' determinations "on whether a measure is necessary in a democratic society and proportionate with the legitimate aim sought to be achieved."362 Kilkelly remarks that the margin of appreciation is applicable to several European Convention rights, including Article 8's right to respect for family life and especially in children's cases brought under that article. It is her verdict that the margin of appreciation under Article 8 for states parties, which still permit corporal punishment of children, is actually contracting due to such facts as the existence of "the complete ban on physical punishment in schools," of the increasing number of states parties that outlaw corporal punishment by those in loco parentis, and of the ratification by European Convention states of the Children's Convention with its multifarious provisions protecting children from every variety of violence.363 In fact, that margin of appreciation for countries permitting corporal punishment of children is becoming even smaller than Kikelly supposes, as there has been a recent exponential proliferation of national bans on all corporal punishment of children, parentally administered or otherwise.v" and the dramatic transformation of the European Social Chartersv- (to which many of these countries are also partiesv") into another human rights bulwark against all such punishment."? This last point segueys conveniently back to the main theme of this section, i.e., whether corporal punishment of children violates the privacy guarantees of the various international human rights instruments under examination. The discussion above leaves no doubt that some corporal punishment of children may implicate juveniles' privacy rights under Article 8 of the European Convention. That is all well and good, but what about the privacy rights set forth in Article 17 of the CPR Covenant, Article 11 of the American Convention, and Article 12 of the Universal Declaration?368 The authority is admittedly sparse under Article 17 of the CPR Covenant for impliedly converting that article into another buffer against corporal punishment of children. Sparse, however, does not mean barren.v? The Human Rights Committee has taken the position that the

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nondiscrimination policy towards children under the CPR Covenant, in Article 24,370 permeates the rest of that Covenant so as to protect children "from being subjected to acts of violence."37! Since Article 17's privacy guarantee is a part of the rest of the Covenant, the inference may be drawn that the ordinary meaning of the CPR Covenant's privacy right includes protecting children from acts of violence, of which corporal punishment is one. 372 Inasmuch as the Universal Declaration, a nontreaty human rights instrument, is the forebear of the CPR Covenant, the latter may be used to fill in cryptic provisions of the former's right to privacy provision in Article 12.373 Insofar as the right to privacy in Article 17 of the CPR Covenant is antagonistic to corporal punishment of children, then, arguably, the same may be said of the privacy right in the Universal Declaration. There is no authority directly on point for an interpretation of the American Convention's privacy right in Article 11 as including a prohibition on corporal punishment of children. That does not, though, preclude making the argument for such a prohibition based on three sources of indirect support. First, there are cases decided by the Inter-American Commission on Human Rights finding that incursions on a person's body are violations of privacy under Article 11.374 For example, in one case, the Commission ruled that Argentinian prison personnel offended the privacy rights of Mrs. X and her thirteen-year-old daughter by forcing them to undergo vaginal examinations each time they visited Mrs. X's husband and the father of the child at the prison where he was incarcerated. Drawing upon the privacy rights jurisprudence of the European Court of Human Rights, the Inter-American Commission said of Article 11, "[t]he right to privacy ... covers, ... the physical and moral integrity of the person" and the right to privacy "protect[s] the sanctity of the person."375 In another case, the Commission held that the rape of Raquel Mejia by a member of Peru's security forces to take revenge against her for being a subversive and to intimidate her, constituted a violation of her Article 11 privacy rights. Again, the Commission relied upon European Convention law that "the concept of private life extends to a person's physical and moral integrity."376 While vaginal examinations without consent and rape are more outrageous, intrusive, and sexual than corporal punishment, the interpretation, upon which the Commission predicated its decisions, was not so

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confined. That interpretation is that physical integrity is subsumed within privacy. Moreover, the Commission borrowed this interpretation from the European Court of Human Rights, which has acknowledged, in principle, that, under certain circumstances, the privacy protected by the European Convention can extend to forbid corporal punishment of children.'?" Thus, these Inter-American Commission decisions, built upon European Convention precedents, may serve as a provenance for the Inter-American Commission to develop case law positing corporal punishment of children as a violation of the Article 11 privacy guarantee under the American Convention. The second source of indirect support for locating a prohibition on corporal punishment of children in Article 11's privacy guarantee is, by now, a familiar one to the reader: the Inter-American Commission has put forward as axiomatic that in order for states parties to comply with the rights set forth in the American Convention, those states must also ratify the Children's Convention and obviate any violence targeting children.!" Since the Children's Convention absolutely prohibits corporal punishment of children, the only consistent outcome with the Commission's integration of the Children's Convention into the American Convention is that the privacy right of the latter should be regarded as spurning all corporal punishment of children. This deduction is all the more convincing when the third source of indirect support is considered, i.e., American Convention Article 19's articulation that "[e]very minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state."379 It should be evident that the right to privacy in the European Convention, the CPR Covenant, the American Convention, and the Universal Declaration does not currently furnish the sturdiest basis for discovering an implied prohibition on all corporal punishment of children under international human rights law. It would be negligent, though, to ignore the right to privacy as containing the potential for recognizing such an absolute prohibition. The analytical rationales for this recognition exist, as propounded above, and need only be developed and promoted by the appropriate courts, commissions, and monitoring committees. Indeed, it seems to me that there is a certain fatuousness in not doing so. What is privacy if not, at its most elemental, the inviolability of the human body from physical assaults, including corporal punishment?

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(v) Provision on the Right to Social and Economic Protection

Maud de Boer-Buquicchio, Deputy Secretary-General of the Council of Europe, issued a bold challenge in 2002 to the member states of the Council to cease legitimizing intentional violence against children as legalized corporal punishment and "to accept that children, like adults, have the fundamental human right not to be assaulted."380 In throwing down this gauntlet, she exhorted governments that all human beings are entitled to respect and that children, as the youngest and least powerful among us, especially deserve to have adults commit to this right. What hangs in the balance, she warned, is not only children's quality of life while they are children, but also preventing the development of a propensity for violence that may accompany them into adultbood."! A number of the member states of the Council of Europe entered into a human rights treaty in 1961 called the European Social Charter.w and some states later entered into an updated version, the European Social Charter (Revisedj''" (collectively, Social Charters). (The European Social Charter (Revised) is intended to be substituted progressively for the European Charter.v") Article 17 of the European Charter states as follows: "With a view to ensuring the effective exercise of the right of mothers and children to social and economic protection, the Contracting Parties will take all appropriate and necessary measures to that end, including the establishment or maintenance of appropriate institutions or services."385 Article 17 of the Revised European Charter augments the particular social and economic protections extended to mothers and children, providing in pertinent part: With a view to ensuring the effective exercise of the right of children and young persons to grow up in an environment which encourages the full development of their personality and of their physical and mental capacities, the Parties undertake, either directly or in co-operation with public and private organizations, to take all appropriate and necessary measures designed:

1b to protect children and young persons against negligence, violence or exploitation; ...386

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The European Committee of Social Rights (European Committee), the body most immediately empowered to monitor compliance with the Social Charters;"? has unreservedly and energetically interpreted Article 17 of both instruments to prohibit all corporal punishment of children, regardless of the punisher's identity, where the punishment occurs, or how tame or severe the punishment is. 388 The European Committee has explained its thinking from a legal standpoint as influenced by the Children's Committee's recognition of an implied absolute prohibition on corporal punishment in Article 19 of the Children's Convention and by the European Court's decision in A v. The United Kingdom, ruling that the beating of a child by his stepfather violated Article 3 of the European Convention.v? The European Committee additionally has been animated by the circumstance that, over the course of recent decades, several states parties have explicitly prohibited by domestic laws all corporal punishment of children.390 In terms of the moral or philosophical concerns inspiring its activism, the European Committee has expressed dismay that any society would give children less protection than adults from physical violence: The Committee does not find it acceptable that a society which prohibits any form of physical violence between adults would accept that adults subject children to physical violence. The Committee does not consider that there can be any educational value in corporal punishment of children that cannot be otherwise achieved.'?' Finally, the Committee has been motivated by a desire to help purge Europe of severe ill-treatment of children. According to the Committee, an unconditional prohibition on corporal punishment of children contributes to that goal by removing adults' misperception that they are only engaging in legal corporal punishment when, in fact, they have crossed the often fuzzy borderline into conventional physical child abuse. A complete bar on corporal punishment of children leaves no room for confusion as to what level of violence toward them is tolerable: none at all. 392 In reviewing the reports of states parties to the Social Charters, the European Committee has often communicated that it "wishes to know whether legislation prohibits all forms of corporal punishment of children, in schools, in institutions, in the home and elsewhere."393 The European

112 • Corporal Punishment of Children: A Human Rights Violation

Committee has not been satisfied with vague statutes against violence generally or against abuse. Rather, the Committee has usually demanded that in order for states parties to fulfill the mandate of Article 17, they must adopt laws expressly and precisely proscribing all corporal punishment of children.'?" The European Committee's conclusions with respect to France's situation is illustrative of how inflexible the Committee has been about this: As regards corporal punishment of children, the Committee notes that according to ... [France's] report corporal punishment of children is not explicitly prohibited in the home, in school or in other institutions. Although the Penal Code prohibits violence against the person and provides for increased penalties where the victim is under 15 years of age or where the perpetrator is related to the child or has authority over the child. The Committee notes that these provisions of the Penal Code do not necessarily cover all forms of corporal punishment and therefore finds that the situation is not in conformity with the Revised Charter. 395 This assiduousness by the European Committee has made Article 17 of the Social Charters a powerful engine for progress in relation to amplifying the legal status of corporal punishment of children. Under the European Committee's leadership, it is now indisputable not only that all corporal punishment of children is a human rights violation of the first order, but also that this violation requires explicit prohibition through domestic law so as to leave no loophole whatsoever. This uncompromising legal position is on a par with that of the Children's Committee under the Children's Convention.r" catapulting Article 17 jurisprudence to the forefront of the movement to disavow corporal punishment of children under international human rights law. (vi) Provisions Protective of Physical and Mental Health

No mention has been made thus far of any provisions of the ESCR Covenant although that treaty was previously named as among the international instruments germane to corporal punishment of children. There are, however, four provisions in this Covenant that give rise to additional implied prohibitions on corporal punishment of children. Article 12, paragraph 1 recognizes the "right of everyone to the enjoyment of the highest attainable standard of physical and mental health."397 Article 12, paragraph

Corporal Punishment Violates Human Rights Laws • 113

2(a) requires that the steps to be taken in fulfillment of the right to health shall include "the provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child."398 Article 13, paragraph 1, concerning education as a catalyst to development of the human personality and dignity, announces: The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development ofthe human personality and the sense ofits dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.'?? And Article 10, paragraph 3 states, in pertinent part, that "[s]pecial measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions."4oo As described in the first chapter, corporal punishment of children can impair either physical or mental health or both. Gershoff's meta-analyses associate parental corporal punishment of children with decreased moral internalization, increased child aggression, increased child delinquent and antisocial conduct, decreased quality of the parent-child relationship, decreased child mental health, increased risk of undergoing physical child abuse, and, when the child grows up, increased adult aggression, increased adult criminal and antisocial behavior, decreased adult mental health, and increased risk of abusing one's own child or spouse. Gershoff and others have hypothesized and/or found evidence of comparable impacts when the corporal punisher is nonparental.''" The risk of these negative outcomes exposes corporally punished children to deprivation rather than "enjoyment of the highest attainable standard of physical and mental health" guaranteed by Article 12, paragraph 1 and to unhealthy rather than the "healthy development of the child" required by Article 12's paragraph 2(a). This much is self-evident. But, there is more. To get at the ordinary meaning of Article 12, paragraph 1, the Treaty on Treaties permits reference to the rest of the ESCR Covenant, which also contains Article 10,

114 • Corporal Punishment of Children: A Human Rights Violation

paragraph 3 affording special protection for children. The result is that Article 12 must be read to require that special care is exercised to assure children s partaking of the highest attainable level of physical and mental health, including healthy development. If the negative outcomes that the child development community has found to be linked with corporal punishment are legally unacceptable under Article 12 by itself, such unacceptability is even more pronounced when Article 12 is read in conjunction with Article 10. I am not the only one who construes the ESCR Covenant in this manner. In its General Comment No. 14, the Committee on Economic, Social and Cultural Rights (ESCR Committee)402 has taken a far-reaching view of the composite elements of the right contained in Article 12, paragraph 1.403 The general comment explicates that Article 12's call for "the highest attainable standard of physical and mental health" is not relegated to guaranteeing mere "health care" and nothing more; rather, "the right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life."404 Most relevant, the general comment proclaims that this "wider definition of health also takes into account such socially-related concerns as violence,"405 of which corporal punishment is a subset. The ESCR Committee has also used General Comment No. 14 to refine Article 12, paragraph 2(a) to mean that satisfying the child's right to healthy development necessitates improving child health, and that in order for this to be accomplished, "[t]here is a need to adopt ... [as dictated by the Children's Convention] measures to abolish harmful traditional practices affecting the health of children."406 This requirement of the general comment borrows from Article 24, paragraph 3 of the Children's Convention, a provision which, it will be recalled, arguably requires the abolition of the traditional harmful practice of corporal punishment of children.w? Introducing such an argument from the Children's Convention is hardly a prerequisite, though, to finding a child's right to be free of corporal punishment under ESCR Covenant Article 12, paragraph 2(a). The ESCR Committee's maxim that the child's entitlement to healthy development includes improving child health should be enough on its face to infer the right, particularly when juxtaposed with ESCR Covenant Article 10, paragraph 3's obligation to give special assistance to children.

Corporal Punishment Violates Human Rights Laws • 115

Nor has the ESCR Committee left the matter solely to inferences from the generalities of General Comment No. 14. The ESCR Committee has repeatedly announced that corporal punishment of children must be eliminated pursuant to the ESCR Covenant.i'" Most stunning is the ESCR Committee's General Comment No. 13 construing Article 13, paragraph 1 of the Covenant to veto all corporal punishment of children in schools: In the Committee's view, corporal punishment is inconsistent with the fundamental guiding principle of international human rights law enshrined in the Preambles to the Universal Declaration of Human Rights and both Covenants: the dignity of the individual. ... A State party is required to take measures to ensure that discipline which is inconsistent with the [ESCR] Covenant does not occur in any public or private educational institution within its jurisdiction. The Committee welcomes initiatives taken by some States parties which actively encourage schools to introduce "positive," non-violent approaches to school discipline.v'? General Comment No. 13 makes eminent good sense. For, not only is corporal punishment of children destructive of their individual dignity;"? but the potential damaging sequelae of such punishment also interfere with the other stated objectives of Article 13, paragraph 1 of the ESCR Covenant. To take just one example, consider that inasmuch as scientific analysis has shown corporal punishment to be paired with the victims' development of aggression, both during childhood and adulthood, that aggressiveness interferes with implementation of Article 13's directives that education must further the full development of an individual's personality and equip him or her with the means for effective participation in a society based on tolerance, friendship, and peace."! Last, but definitely not least, under Article 10 of the ESCR Covenant, and sometimes without citing any specific article, the ESCR Committee has made it a banner precept that corporal punishment of children by parents is also objectionable and impermissible.f'? This use of Article 10, on its own, as a source for an implied prohibition on parental corporal punishment of children is a predictable outgrowth of the philosophy underlying that provision "[t]hat positive measures may (and indeed should) be taken" thereunder on behalf of children.t"

116 • Corporal Punishment of Children: A Human Rights Violation

c.

SUMMATION

The foregoing exercise in treaty analysis shows that many international human rights instruments implicitly touch upon corporal punishment of children. But what, after exhaustive investigation, is the principle that emerges as a matter of international law? A synthesis of the relevant documents, taken together, ultimately yields the definitive international law that all corporal punishment of children is prohibited-even though a few isolated treaty provisions have been interpreted less absolutely. That this law is implicit, rather than express, in these instruments makes it no less valid. Put as succintly as possible, the state of affairs is this. The Children's Convention and the Social Charters unequivocally proscribe all corporal punishment of children; a panoply of provisions in the Universal Declaration, the CPR Covenant, the ESCR Covenant, and the American Convention have been construed to do the same. In contrast, historically the Torture Convention and the European Convention have been interpreted to prohibit some, but not all, corporal punishment of children. The Committee Against Torture has gingerly begun reading an implicit ban on all corporal punishment of children into the Torture Convention, now making that treaty commensurate with the other instruments delegitimating all such punishment. There are also grounds to prophesy that the European Court will eventually see its way to reading a complete ban into the European Convention. The partial protections presently provided under the European Convention do not, though, undercut the rock-solid fact that an absolute bar to all corporal punishment may be found and does exist as part of current international human rights law. Indeed, the fact that all nations, save two, have ratified the Children's Convention makes that bar binding throughout most of the world. A final word of caution is in order, but not the sort of caution that cuts against the child's right to be free of corporal punishment. This caveat works the other way. It would be a distortion of contemporary human rights law to represent that the provisions in the international legal instruments discussed above are the only ones enjoining corporal punishment of children. The candidates for further analysis are legion.'!" The only reason that this book has stayed within the limited course mapped out here, is practicality. A chapter must end somewhere, and there is still much more to come on other important aspects of the legal status of corporal punishment of children.

Corporal Punishment Violates Human Rights Laws • 117

ENDNOTES 1 Vienna Convention on the Law of Treaties, May 23,1969,1155 U.N.T.S. 331 [hereinafter Treaty on Treaties]; see also FRANK NEWMAN & DAVID WEISSBRODT, INTERNATIONAL HUMAN RIGHTS: LAW, POLICY, AND PROCESS 424 (2d ed. 1996) (stating that the Vienna Convention on the Law of Treaties is "the principal aid used for interpreting treaties"). Although the Treaty on Treaties constitutes current international law on treaty interpretation, that does not mean that the subject is free from controversy. To the contrary, there are different schools of thought on how treaties should be read, and some scholars are highly critical of the Treaty on Treaties' emphasis on textualism. See, e.g., MYRES S. McDOUGAL ET AL., THE INTERPRETATION OF AGREEMENTS AND WORLD PUBLIC ORDER: PRINCIPLES OF CONTENT AND PROCEDURE 40-41 (1967) (proposing that treaty interpretation should focus on promoting "a public order of human dignity"); Dharma Pratap, Interpretation ofTreaties, in ESSAYS ON THE LAW OF TREATIES (WITH SPECIAL REFERENCE TO INDIA) 55, 55-57 (1972); Ian Johnstone, Treaty Interpretation: The Authority ofInterpretive Communities, 12 MICH. 1. INT'L L. 371,374-93 (1991).

2

Treaty on Treaties, supra note 1, art. 31, para. 1, at 340.

3

Id. art. 31, para. 2, at 340.

4

Id. art. 32, at 340.

5 See, e.g., Susan Kilbourne, Opposition to US. Ratification ofthe United Nations Convention on the Rights ofthe Child: Responses to Parental Rights Arguments, 4 Loy. POVERTY L.1. 55, 95-96 (1998); Abdullahi-An-Na'im, Cultural Transformation and Normative Consensus on the Best Interests ofthe Child, in THE BEST INTERESTS OF THE CHILD: RECONCILING CULTURE AND HUMAN RIGHTS 62, 78-79 (Philip Alston ed., 1994).

6 PAUL SIEGHART, THE INTERNATIONAL LAW OF HUMAN RIGHTS 17,20 (1983). For works critiquing the public/private distinction, see ANDREW CLAPHAM, HUMAN RIGHTS IN THE PRIVATE SPHERE 90-112, 118-33, 146-47 (1993); Geraldine Van Bueren, Opening Pandora s Box: Protecting Children Against Torture or Cruel, Inhuman and Degrading Treatment or Punishment, 17 LAW & Pouv 377,377-78,382-83 (1995). 7 See CLAPHAM, supra note 6, at 90-112,118-33; MYRES S. McDOUGALETAL., HUMAN RIGHTS AND WORLD PUBLIC ORDER 350-57 (1980) [hereinafter McDOUGALET AL., HUMAN RIGHTS]; Van Bueren, supra note 6, at 383. 8 U.N. Convention on the Rights of the Child, Nov. 20, 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49 (A/44/49), at 166, U.N. Doc. A/RES/44/25 (1989) [hereinafter Children's Convention].

9 SHARON DETRICK, A COMMENTARY ON THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 31 (1999). 10 See, e.g., Children's Convention, supra note 8, art. 3, para. 1, at 167 (requiring that "[i]n all actions concerning children, whether undertaken by public or private social welfare institutions ... the best interests of the child shall be a primary consideration") (emphasis added); ide art. 19, para. 1, at 169 (mandating that states parties must take all appropriate measures "to protect the child from all forms of physical

118 • Corporal Punishment of Children: A Human Rights Violation or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation ... while in the care ofparent(s), legal guardian(s) or any other person who has the care of the child") (emphasis added); ide art. 32, para. 1, at 170 (recognizing "the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development"). See also discussion infra Ch. II, Part A. 11

See discussion infra Ch. II, Part B.

12

See discussion infra Ch. VI.

13

Children's Convention, supra note 8, at 167.

14 See Office of the High Commissioner for Human Rights, Status ofRatification of the Convention on the Rights of the Child, at http://www.unhchr.ch/

html/menu2/6/crc/treaties/status-crc.htm (last visited Feb. 10, 2004) [hereinafter Office of the High Commissioner for Human Rights, Ratification]. 15 See McDOUGAL ET AL., HUMAN RIGHTS, supra note 7, at 266-72; Louis Sohn, "Generally Accepted" International Rules, 61 WASH. L. REV. 1073, 1073-74,

1077-79 (1986); DAVID WEISSBRODT ET AL., INTERNATIONAL HUMAN RIGHTS: LAW, POLICY, AND PROCESS 22,719 (3d ed. 2001); Sarah Ramsey & Daan Braveman, "Let Them Starve": Government's Obligation to Children in Poverty, 68 TEMP. L. REV. 1607, 1639-42 (1995). 16 See IAN BROWNLIE, THE PRINCIPLES OF PUBLIC INTERNATIONAL LAW 4-9 (5th ed. 1998); WEISSBRODT ET AL., supra note 15, at 22; see also HENRY 1. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, AND MORALS 72 (2d ed. 2000) (noting that, under modern international law, "broadly ratified multilateral treaties are . . . likely . . . to generate the argument that treaty rules have become customary law binding non-parties").

17

See, WEISSBRODT ET AL., supra note 15, at 719-22.

18 See Madeleine Grey Bullard, Child Labor Prohibitions Are Universal, Binding, and Obligatory Law: The Evolving State ofCustomary International Law Concerning the Unempowered Child Laborer, 24 Hous. 1. INT'L L. 139, 163 (2001); Gary B. Melton & Brian L. Wilcox, Children's Law: Toward a New Realism, 25 L. & HUM. BEHAV. 3, 11 n.58 (2001); Ramsey & Braveman, supra note 15, at 1641. But see Elizabeth M. Calciano, United Nations Convention on the Rights ofthe Child: Will It Help Children in the United States?, 15 HASTINGS INT'L& COMPo L. REV. 515,531

(1992) (suggesting that while many of the rights set forth in the Children's Convention will not be considered customary international law, some of the rights contained therein could eventually be elevated to that status); Jonathan Todres, Emerging

Limitations on the Rights ofthe Child: The UN Convention on the Rights ofthe Child and Its Early Case Law, 30 COLUM. HUMAN RIGHTS L. REV. 159, 184 (1998) (opining that although "most would agree" that the provisions of the Children's Convention have not yet attained the status of customary law, "principles of customary law could emerge in the future from practice related to the CRC").

Corporal Punishment Violates Human Rights Laws • 119 19 See Melton & Wilcox, supra note 18, at 11 n.58; Ramsey & Braveman, supra note 15, at 1641. 20 See GERALDINE VAN BUEREN, THE INTERNATIONAL LAW ON THE RIGHTS OF THE CHILD 15 (International Studies in Human Rights Vol. 35, 1995). 21 See Office of the High Commissioner for Human Rights, Ratification, supra note 14. 22

See ide

23 Treaty on Treaties, supra note 1, art. 18, para. (a), at 336; see also BROWNLIE, supra note 16, at 611 (referring to the fact that treaty signature "creates an obligation of good faith to refrain from acts calculated to frustrate the objects of the treaty"); cf, Michelle Z. Hall, Convention on the Rights of the Child: Has America Closed Its Eyes?, 17 N.Y.L. SCH. 1. HUM. RTS. 923,924 (2001) (observing that the United States "willingly signed" the Children's Convention and did so "subject to ratification," i.e., signaling that "the United States generally agrees with the treaty's objectives, but must examine all provisions thoroughly before submitting the treaty for ratification."

Such issues as the nature of the obligation imposed upon a nonparty signatory to a treaty and when such a signatory will have sufficiently expressed an intention not to become a party, are complex, controversial, and, in any event, beyond the scope of this book. For sources generally dealing with this topic, see, for example, ANTHONY AUST, MODERN TREATY LAW AND PRACTICE 93-94 (2000), and Joni S. Charme, The Interim Obligation ofArticle 18 of the Vienna Convention on the Law of Treaties: Making Sense of an Enigma, 25 GEO. WASH. 1. INT'L L. & ECON. 71 passim (1991). 24 See Children's Convention, supra note 8, art. 43, paras. 1-3, at 172; see Office of the United Nations High Commissioner for Human Rights, Committee on the Rights of the Child-Members, at http://www.ohchr.org/english/bodies/crc/members.htm (last visited Oct. 7, 2004) (specifying that the U.N. Committee on the Rights of the Child is comprised of eighteen members).

25 See Yuji Iwasawa, The Domestic Impact of International Human Rights Standards: The Japanese Experience, in THE FUTURE OF UN HUMAN RIGHTS TREATY MONITORING 245, 257 (Philip Alston & James Crawford eds., 2000); Gerison Lansdown, The Reporting Process Under the Convention on the Rights of the Child, in THE FUTURE OF UN HUMAN RIGHTS TREATY MONITORING, supra, at 113, 119.

26

Children's Convention, supra note 8, art. 44, paras. 1-2, at 172.

27 See Iwasawa, supra note 25, at 257; Marta Santos Pais, Monitoring Children s Rights: A View from Within, in MONITORING CHILDREN'S RIGHTS 129, 142 (Eugeen Verhellen ed., 1996) [hereinafter Pais, Monitoring].

28

See Iwasawa, supra note 25, at 258.

29

Pais, Monitoring, supra note 27, at 139.

30 See EUGEEN VERHELLEN, CONVENTION ON THE RIGHTS OF THE CHILD: BACKGROUND, MOTIVATION, STRATEGIES, MAIN THEMES 95 (2000).

120 • Corporal Punishment of Children: A Human Rights Violation 31

Pais, Monitoring, supra note 27, at 140.

32

See Iwasawa, supra note 25, at 258.

33 See Cynthia Price Cohen, A Guide to Linguistic Interpretation of the Convention on the Rights of the Child: Articles 1, 41 and 45, in CHILDREN'S RIGHTS IN

AMERICA: U.N. CONVENTION ON THE RIGHTS OF THE CHILD COMPARED WITH UNITED STATES LAW 33,33 (Cynthia Price Cohen & Howard A. Davidson eds., 1990). 34

Iwasawa, supra note 25, at 258-59.

35

Report ofthe UN Committee on the Rights ofthe Child on the Seventh Session,

U.N. Doc. CRC/C/34, Annex IV: at 63 (Nov. 1994) (emphasis added). 36 Examples of concluding observations that each recite clusters of provisions in support of the Children's Convention's intolerance toward corporal punishment of children, include Concluding Observations of the Committee on the Rights of the Child: Ethiopia, 26th Sess., paras. 38-39,47, U.N. Doc. CRC/C/15/Add. 144 (2001) (mentioning Articles 7,8, 13-17, and 28, para. 2); Concluding Observations of the Committee on the Rights of the Child: Lithuania, 26th Sess., paras. 25-26, 32, U.N. Doc. CRC/C/15/Add. 146 (2001) (invoking Articles 19; 28, para. 2; 37; and 39);

Concluding Observations of the Committee on the Rights of the Child: Marshall Islands, 25th Sess., paras. 36-37,43, U.N. Doc. CRC/C/15/Add. 139 (2000) (referring to Articles 19; 28, para. 2; 37; and 39); Concluding Observations of the Committee on the Rights of the Child: Peru, 23d Sess., para. 22, U.N. Doc. CRC/C/15/Add. 120 (2000) (citing Articles 3; 6; 19; 28, para. 2; and 39); and Concluding Observations of the Committee on the Rights of the Child: Yemen, 20th Sess., paras. 21, 34, U.N. Doc. CRC/C/15/Add. 102 (1999) (referring to Articles 3, 12, 19,28,37,40, and 39). Examples of concluding observations that take a position against corporal punishment, but without invoking any specific Convention provisions, include

Concluding Observations ofthe Committee on the Rights ofthe Child: Mozambique, 29th Sess., paras. 38-39, U.N. Doc. CRC/C/Add. 172 (2002); Concluding Observations ofthe Committee on the Rights ofthe Child: Greece, 29th Sess., paras. 42-43, U.N. Doc. CRC/C/15/Add. 170 (2002); Concluding Observations of the Committee on the Rights of the Child: Uzbekistan, 28th Sess., paras. 45-46, U.N. Doc. CRC/C/15/Add. 167 (2001); and Concluding Observations of the Committee on the Rights of the Child: Portugal, 28th Sess., paras. 26-27, U.N. Doc. CRC/C/15/Add. 162 (2001). 37

Children's Convention, supra note 8, art. 19, para. 1, at 169 (emphasis added).

38 FELICITY DE ZULUETA, THE TRAUMATIC ROOTS OF DESTRUCTIVENESS: FROM PAIN TO VIOLENCE viii-x (1993). 39 WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 1316 (9th ed. 1988) [hereinafter WEBSTER'S DICTIONARY]. The concept of violence, as delineated in WEBSTER'S DICTIONARY, also is capable of other connotations. The term may be defined as "exertion of physical force so as to injure or abuse" or "injury by or as if by distortion, infringe-

Corporal Punishment Violates Human Rights Laws • 121

ment, or profanation." Id. As used in Article 19, paragraph 1 of the Convention, however, definitions of violence that require an injury do not appear to be appropriate because they make the article's reference to "forms of ... injury" a redundancy. Children's Convention, supra note 8, art. 19, para. 1, at 169; see also Peter Newell, Respecting Children s Right to Physical Integrity: 'What the World Might Be Like . . . ,'in THE HANDBOOK OF CHILDREN'S RIGHTS: COMPARATIVE POLICY AND PRACTICE 215,222 (Bob Franklin ed., 1995) (stating that Article 19, paragraph 1 protects children from all forms of violence). 40

See Newell, supra note 39, at 222.

41

DE ZULUETA, supra note 38, at x.

42 SAMUEL BUTLER, THE WAY OF ALL FLESH 24 (Michael Mason ed., Oxford University Books 1993) (1903). 43

DETRICK, supra note 9, at 321.

44 General Guidelines ofthe Committee on the Rights ofthe Child Regarding the Form and Contents of Periodic Reports to Be Submitted by States Parties Under Article 44, Paragraph 1 (b), of the Convention, U.N. GAOR, 343d mtg., U.N. Doc. CRC/C/58 (1996) [hereinafter General Guidelines].

45Id. para. 88 (emphasis added). 46 See, e.g., Concluding Observations ofthe Committee on the Rights ofthe Child: Andorra, 29th Sess., paras. 39-40, U.N. Doc. CRC/C/15/Add. 176 (2002); Concluding Observations of the Committee on the Rights of the Child: Paraguay, 28th Sess., paras. 31-32, U.N. Doc. CRC/C/15/Add. 166 (2001); Concluding Observations ofthe Committee on the Rights of the Child: Mauritania, 28th Sess., paras. 29-30, U.N. Doc. CRC/C/15/Add. 159 (2001); Concluding Observations ofthe Committee on the Rights ofthe Child: Democratic Republic ofthe Congo, 27th Sess., paras. 38-39, U.N. Doc. CRC/C/15/Add. 153 (2001); Concluding Observations ofthe Committee on the Rights of the Child: Slovakia, 25th Sess., para. 32, U.N. Doc. CRC/C/15/Add. 140 (2000). 47 See, e.g., RACHEL HODGKIN & PETER NEWELL, IMPLEMENTATION HANDBOOK FOR THE CONVENTION ON THE RIGHTS OF THE CHILD 242-47 (1998); Susan H. Bitensky, Spare the Rod, Embrace Our Humanity: Toward a New Legal Regime Prohibiting Corporal Punishment of Children, 31 U. MICH. IL. REFORM 353,393-95 (1998) [hereinafter Bitensky, Spare the Rod]; Judith Ennew, Shame and Physical Pain: Cultural Relativity, Children, Torture and Punishment, in CHILDHOOD ABUSED: PROTECTING CHILDREN AGAINST TORTURE, CRUEL, INHUMAN AND DEGRADING TREATMENT AND PUNISHMENT 7, 23-24 (Geraldine Van Bueren ed., 1998); Andre R. Imbrogno, Corporal Punishment in America s Public Schools and the UN Convention on the Rights of the Child: A Case for Nonratification, 29 IL. & EDUC. 125, 127 (2000); Newell, supra note 39, at 222; Jerry R. Parkinson, Federal Court Treatment of Corporal Punishment in Public Schools: Jurisprudence That Is Literally Shocking to the Conscience, 39 S.D. L. REV. 276,278-79 (1994). But see Na'im, supra note 5, at 78-79 (implying that Article 19 is ambiguous on corporal punishment of children).

122 • Corporal Punishment of Children: A Human Rights Violation 48 SUSAN M. TURNER, SOMETHING TO CRY ABOUT: ANARGUMENT AGAINST CORPORAL PUNISHMENT OF CHILDREN IN CANADA 213 (2002). 49

Children's Convention, supra note 8, art. 28, para. 2, at 170.

50 General Comment No.1 ofthe Committee on the Rights ofthe Child: TheAims ofEducation, Article 29(1), para. 8, U.N. Doc. CRC/GC/2001/1 (Apr. 17,2001) [hereinafter General Comment No.1]. 51 See, e.g., STEINER & ALSTON, supra note 16, at 529 (stating that article 28, paragraph 2 represents a "general formulation" against corporal punishment of children); VAN BUEREN, supra note 20, at 249; Susan H. Bitensky, Educating the Child for a Productive Life: Articles 28 and 29, in CHILDREN'S RIGHTS IN AMERICA: U.N. CONVENTION ON THE RIGHTS OF THE CHILD COMPARED WITH UNITED STATES LAW 167, 174 (Cynthia Price Cohen & Howard A. Davidson eds., 1990); Telephone Interview with Cynthia Price Cohen, former member of the Ad Hoc Nongovernmental Group on the Drafting of the Convention on the Rights of the Child (Aug. 13, 1996). 52 See, e.g., Concluding Observations ofthe Committee on the Rights ofthe Child: Andorra, 29th Sess., paras. 39-40, U.N. Doc. CRC/C/15/Add. 176 (2002); Concluding Observations of the Committee on the Rights of the Child: Chile, 29th Sess., paras. 31-32, U.N. Doc. CRC/C/15/Add. 173 (2002); Concluding Observations of the Committee on the Rights ofthe Child: Cape Verde, 28th Sess., paras. 35-36, U.N. Doc. CRC/C/15/Add. 168 (2001).

53

Children's Convention, supra note 8, art. 29, para. l(a)-(e), at 170.

54

See discussion supra Ch. I, Part C.

55

See, e.g., HODGKIN & NEWELL, supra note 47, at 398, 40l.

56

General Comment No.1, supra note 50, paras. 2,8 (emphasis added).

57 Report of the Committee on the Rights of the Childs Discussion Day on Violence Against Children, Within the Family and in Schools, 28th Sess., U.N. Doc. CRC/C/111 (Sept. 28, 2001) [hereinafter Family and Schools]. 58

Children's Convention, supra note 8, art. 37, para. (a), at 17l.

59 See 1. HERMAN BURGERS & HANS DANELIUS, THE UNITED NATIONS CONVENTION AGAINST TORTURE: A HANDBOOK ON THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT 12 (1988); Hilary Charlesworth & Christine Chinkin, The Gender ofJus Cogens, in INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, AND MORALS, supra note 16, at 173-74. 60 Nigel S. Rodley, Foreword to CHILDHOOD ABUSED: PROTECTING CHILDREN AGAINST TORTURE, CRUEL, INHUMAN AND DEGRADING TREATMENT AND PUNISHMENT, at xv, xv (Geraldine Van Bueren ed., 1998). 61 See Van Bueren, supra note 6, at 380; see also Eric Sottas, A Non-Governmental Organization Perspective of the United Nations' Approach to Children and Torture, in CHILDHOOD ABUSED: PROTECTING CHILDREN AGAINST TORTURE, CRUEL, INHUMAN AND DEGRADING TREATMENT AND PUNISHMENT, supra note 60, at 139, 144 (noting

Corporal Punishment Violates Human Rights Laws • 123 that "pain or suffering which might be considered as relatively light for an adult, may provoke an extremely disturbing state of anxiety or stress" when the victim is a child). 62 See DOROTHEA M. Ross & SHEILA A. Ross, CHILDHOOD PAIN: CURRENT ISSUES, RESEARCH, AND MANAGEMENT 93 (1988); Patricia A. McGrath, Psychological Aspects of Pain Perception, in PAIN IN INFANTS, CHILDREN, AND ADOLESCENTS 49-50 (Neil L. Schechter et al. eds., 1993). 63

See Ross

64

See discussion supra Ch. I, Part C.

&

Ross, supra note 62, at 92.

65Id. 66 Report of the Special Rapporteur of the Commission on Human Rights on the Question of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, para. 53, U.N. Doc. A/57/173 (2002) [hereinafter Report of Special Rapporteur van Boven]. 67

Treaty on Treaties, supra note 1, art. 31, para. 1, at 340.

68

Children's Convention, supra note 8, pmbl., at 167.

69 See, e.g., Children's Convention, supra note 8, art. 9, para. 1, at 168 (allowing for a state party to separate a child from his or her parents in cases involving abuse or neglect of the child by the parents); ide art. 19, para. 1, at 169 (obligating states parties to take measures to protect the child from "all forms of physical or mental violence"); ide art. 28, para. 2, at 170 (requiring states parties "to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the ... Convention"); ide art. 29, para. l(d), at 170 (mandating states parties to direct the education of the child so that he or she will be able to live in the spirit of peace); ide art. 37, para. (a), at 171 (stating that children must not be subjected to capital punishment); ide art. 38, paras. 1-4, at 171 (protecting children from becoming involved in armed conflict and protecting children who are affected by armed conflict); ide art. 39, at 171 (requiring states parties to take measures promoting the physical and psychological recovery and social reintegration of children who have been the victims of any form of abuse or armed conflict). 70 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, May 25,2000, G.A. Res. 54/263, Annex I, U.N. GAOR, 54th Sess., Supp. No. 49 (A/54/49), at 6, U.N. Doc. A/RES/54/263 (2000). 71 Marta Santos Pais, Address at the International Seminar on Worldwide Strategies and Progress Towards Ending All Physical Punishment of Children (Dublin, Ireland, Aug. 22, 1996) [hereinafter Pais, Address] (transcript on file with University ofMichigan Journal ofLaw Reform). 72 ALICE MILLER, THE UNTOUCHED KEY: TRACING CHILDHOOD TRAUMA IN CREATIVITY AND DESTRUCTIVENESS 48 (Hildegarde Hannum & Hunter Hannum trans., 1990).

73 See ALICE MILLER, FOR YOUR OWN GOOD: HIDDEN CRUELTY IN CHILD-REARING AND THE ROOTS OF VIOLENCE 17 (Hildegarde Hannum & Hunter Hannum trans., 1990); see

124 • Corporal Punishment of Children: A Human Rights Violation

also PETER NEWELL, CHILDREN ARE PEOPLE Too: THE CASE AGAINST PHYSICAL PUNISHMENT 12 (1989); WILLIAM SEARS & MARTHA SEARS, THE DISCIPLINE BOOK: EVERYTHING You NEED TO KNOW TO HAVE ABETTER-BEHAVED CHILD-FROM BIRTH TO AGE TEN 152 (1995). 74 SAMUEL HYNES, THE SOLDIERS' TALE: BEARING WITNESS TO MODERN WAR 251 (1997). 75 See Committee on the Rights ofthe Child s Discussion Day on "State Violence Against Children," 25th Sess., para. 688.8, U.N. Doc. CRC/C/97 (Sept. 22, 2000) (explicitly classifying corporal punishment of children as a form of torture or other cruel, inhuman, or degrading treatment); Committee on the Rights of the Child s Discussion Day on "The Administration ofJuvenile Justice," 10th Sess., para. 221, U.N. Doc. CRC/C/43, Annex VIII (Nov. 13, 1995) (regretting the use of whipping and flogging as educative and punitive measures) [hereinafter Juvenile Justice]. 76 See, e.g., Concluding Observations ofthe Committee on the Rights ofthe Child: Gambia, 28th Sess., paras. 32-33, 67-68, U.N. Doc. CRC/C/15/Add. 165 (2001) (recommending abolition of corporal punishment of children in the juvenile justice system); Concluding Observations of the Committee on the Rights of the Child: Lithuania, 26th Sess., paras. 25-26, U.N. Doc. CRC/C/15/Add. 146 (2001) (recommending measures to ban corporal punishment of children in the family); Concluding Observations ofthe Committee on the Rights ofthe Child: Burundi, 25th Sess., para. 41, U.N. Doc. CRC/C/15/Add. 133 (2000) (directing that corporal punishment of children should be ended within the family, schools, the juvenile justice system, and within alternative care); Concluding Observations of the Committee on the Rights of the Child: Marshall Islands, 25th Sess., paras. 36-37, U.N. Doc. CRC/C/15/Add. 139 (2000) (stating that corporal punishment of children should be barred in families, schools, and unspecified institutions); Concluding Observations ofthe Committee on the Rights ofthe Child: Australia, 16th Sess., para. 15, U.N. Doc. CRC/C/15/Add. 79 (1997) (expressing concern at the continuation of corporal punishment of children in schools, the home, and unspecified institutions).

77 See HODGKIN & NEWELL, supra note 47, at 488,491; UNITED NATIONS STAFF COLLEGE PROJECT AND OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS, MANUAL ON HUMAN RIGHTS REpORTING UNDER SIX MAJOR INTERNATIONAL HUMAN RIGHTS INSTRUMENTS 440 (1997) [hereinafter MANUAL]; see also VAN BUEREN, supra note 20, at 223 (observing that as used in treaties, the "prohibition on torture, cruel, inhuman and degrading treatment and punishment applies to all individuals and to all aspects of life"). 78

WEBSTER'S DICTIONARY, supra note 39, at 354.

79 IMMANUEL KANT, Theory ofEthics, in KANT SELECTIONS 268,309,316 (Theodore Meyer Greene ed., Charles Scribner's Sons 1929).

80 See IMMANUEL KANT, EDUCATION 87-89, 101 (Annette Churton trans., The University of Michigan Press 1960). 81Id. at 101 (emphasis deleted). 82Id.

Corporal Punishment Violates Human Rights Laws • 125 83 See MICHAEL 1. MARSHALL, WHY SPANKING DOESN'T WORK: STOPPING THIS BAD HABIT AND GETTING THE UPPER HAND ON EFFECTIVE DISCIPLINE 107 (2002). 84

Children's Convention, supra note 8, art. 28, para. 2, at 170.

85

See supra Ch. II, Part A(iii).

86

Children's Convention, supra note 8, pmbl., at 167.

87Id. art. 39, at 171. 88 See Family and Schools, supra note 57, para. 715; see also Juvenile Justice, supra note 75, para. 231 (encouraging "healing and reconciliation measures as alter-

natives to custody or corporal punishment"). 89 See, e.g., Concluding Observations ofthe Committee on the Rights ofthe Child: Kenya, 28th Sess., para. 64, U.N. Doc. CRC/C/15/Add. 160 (2001); Concluding Observations of the Committee on the Rights of the Child: United Republic of Tanzania, 27th Sess., para. 67, U.N. Doc. CRC/C/15/Add. 156 (2001); Concluding Observations of the Committee on the Rights of the Child: Armenia, 23d Sess., para. 33, U.N. Doc. CRC/C/15/Add. 119 (2000); Concluding Observations of the Committee on the Rights of the Child: Islamic Republic ofIran, 24th Sess., paras. 39-40, U.N. Doc. CRC/C/15/Add. 123 (2000); Concluding Observations of the Committee on the Rights of the Child: Kyrgyzstan, 24th Sess., para. 40, U.N. Doc. CRC/C/

15/Add. 127 (2000). 90

Children's Convention, supra note 8, art. 37, para. (c), at 171.

91

See General Guidelines, supra note 44, para. 138.

92

Treaty on Treaties, supra note 1, art. 32, at 340.

93 See THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD: A GUIDE TO THE "TRAVAUX PREPARATOIRES" passim (Sharon Detrick ed., 1992) [hereinafter TRAVAUX PREPARATOIRES]; see also DETRICK, supra note 9, passim (providing an exegesis of the Children's Convention that refers throughout to the Convention's

travaux preparatoires). 94 U.N. Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), G.A. Res. 40/33, U.N. GAOR, 40th Sess., Supp. No. 53, at 206, U.N. Doc. A/40/53 (1985) [hereinafter Beijing Rules]. See also DETRICK, supra note 9, at 633 (stating that Article 37, paragraph (c) is "based on ... the 1985 United Nations Standard Minimum Rules for the Administration of Juvenile Justice ... , in particular Rule 13 and Part IV thereof"). 95 U.N. Rules for the Protection of Juveniles Deprived of Their Liberty, G.A. Res. 45/113, U.N. GAOR, 45th Sess., Supp. No. 49A, at 204, U.N. Doc. A/45/49 (1990) [hereinafter Rules for Juveniles]. 96

Beijing Rules, supra note 94, art. 17.3, at 210.

97

Rules for Juveniles, supra note 95, art. 67, at 208.

126 • Corporal Punishment of Children: A Human Rights Violation 98 See, e.g., Concluding Observations ofthe Committee on the Rights ofthe Child: Kenya, 28th Sess., para. 64, U.N. Doc. CRC/C/15/Add. 160 (2001); Concluding Observations of the Committee on the Rights of the Child: United Republic of Tanzania, 27th Sess., para. 67, U.N. Doc. CRC/C/15/Add. 156 (2001); Concluding Observations of the Committee on the Rights of the Child: Yemen, 20th Sess., para. 34, U.N. Doc. CRC/C/15/Add. 102 (1999). 99 International Covenant on Civil and Political Rights, openedfor signature Dec. 19, 1966, art. 10, para. 1, G.A. Res. 2200/21, Annex, U.N. GAOR, 21st Sess., Supp. No. 16 (A/6316), at 49,52,54, U.N. Doc. A/2200/21 [hereinafter CPR Covenant].

100 TRAVAUX PREPARATOIRES, supra note 93, at 473-74; see also DETRICK, supra note 9, at 633-35 (tracing the interrelationship of the Children's Convention's Article 37, paragraph (c) and the CPR Covenant's Article 10, paragraph (1)). 101 Article 10, paragraph 1 of the CPR Covenant provides that "[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person." CPR Covenant, supra note 99, art. 10, para. 1, at 54. The relevant portion ofArticle 37, paragraph (c) of the Children's Convention provides that "[e]very child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of their age." Children's Convention, supra note 8, art. 37, para. (c), at 171. 102 See Human Rights Committee's General Comment 21, Under the CPR Covenant, Concerning Humane Treatment ofPersons Deprived ofLiberty (Art. 10), 44th Sess., para. 3 (1992), at http://193.194.138.190/tbs/doc.nsf/(Symbol)/3327552 b9511fb98c12563 ed004cbe59? Opendo ... (last visited Jan. 14,2003); DETRICK, supra note 9, at 635.

103 Support for this inference may be further derived from the circumstance that in construing Article 10, paragraph (1) of the CPR Covenant, the Human Rights Committee has indicated the applicability of the United Nations Standard Minimum Rules for the Treatment of Prisoners which provides in Article 31 that "[ c]orporal punishment . . . shall be completely prohibited as punishment[] for disciplinary offences." U.N. Standard Minimum Rules for the Treatment of Prisoners and Related Recommendations, art. 31, U.N. ESCOR, 1st Congo on the Prevention of Crime and Treatment of Offenders, CENTRE FOR HUMAN RIGHTS, HUMAN RIGHTS: A COMPILATION OF INTERNATIONAL INSTRUMENTS 190, 196, U.N. Doc. ST/HR/1/Rev. 3, U.N. Sales No. E.88.XIV 1 (1988); E.S.C. Res. 663C, 24 U.N. ESCOR Supp. (No.1) at 11, U.N. Doc. E/3048 (1957), amended E.S.C. Res. 2076, 62 U.N. ESCOR Supp. (No.1) at 35, U.N. Doc. E/5988 (1977); see DETRICK, supra note 9, at 635. 104

General Comment No.1, supra note 50, para. 8.

105 Judith Karp, Address at the International Seminar on Ending All Physical Punishment of Children in Europe 3 (Barcelona, Spain, Oct. 19, 1997) (transcript on file with author). For reference to Judith Karp's position as a rapporteur of the Children's Committee, see United Nations Press Release: Le Comite Des Droits De

Corporal Punishment Violates Human Rights Laws • 127

L'Enfant Examine Le Rapport Initial De L'Estonie, at http://www.unhchr.ch/huricane/huricane.nsf/O/43230B6AFE6E5E9FC1256CAFF00356C73?opendocument (last visited Dec. 24, 2003). Karp has also served as a vice-chair of the Children's Committee. See Judith Karp, The Convention on the Rights ofthe Child-Protecting Children s Human Dignity (paper delivered Mar. 2, 1999, in London, England, at a symposium titled "Children Are Unbeatable!"), at http://www.mhf.org.uk/peer /psn/issue12/psn12ConvOnRights.html (last visited on Dec. 21,2003). 106 Pais, Address, supra note 71. For reference to Marta Santos Pais' position as a rapporteur of the Children's Committee, see Marta Santos Pais, Director, UNICEF; Innocenti Research Centre, at http://www.unicef-icdc.org/aboutIRC/biography/msantospais.html (last visited Dec. 21, 2003). 107 MURRAY A. STRAUS WITH DENISE A. DONNELLY ET AL., BEATING THE DEVIL OUT OF THEM: CORPORAL PUNISHMENT IN AMERICAN FAMILIES AND ITS EFFECTS ON CHILDREN 51 (2001).

108

See discussion supra Ch. I, Part C.

109

Children's Convention, supra note 8, art. 24, para. 3, at 170 (emphasis added).

110

See, e.g., Family and Schools, supra note 57, para. 715.

111 U.N. Declaration on the Elimination of Violence Against Women, G.A. Res. 48/104, U.N. GAOR, 48th Sess., Supp. No. 49, at 217, U.N. Doc. A/48/49 (1993).

112

Id. art. 4, at 218.

113

Id. art. 2, para. (a), at 217.

114

DETRICK, supra note 9, at 416-1 7.

115

See ide at 72.

116 See Philip Alston, The Legal Framework of the Convention on the Rights of the Child, 91/2 BULL. HUM. RTS. 1,2 (1991) [hereinafter Alston, Legal Framework]. 117

Children's Convention, supra note 8, art. 2, para. 1, at 167.

118

See DETRICK, supra note 9, at 75; Alston, Legal Framework, supra note 116,

at 6. 119 Children's Convention, supra note 8, art. 2, para. 1, at 167 (emphasis added); DETRICK, supra note 9, at 74-75; Alston, Legal Framework, supra note 116, at 4,6.

120

See HODGKIN & NEWELL, supra note 47, at 28.

121

Children's Convention, supra note 8, art. 2, para. 1, at 167 (emphasis added).

122

See DETRICK, supra note 9, at 72; Alston, Legal Framework, supra note 116,

at 4. 123

Pais, Address, supra note 71.

124 See, e.g., Concluding Observations of the Committee on the Rights of the Child: Nepal, 12th Sess., para. 10, U.N. Doc. CRC/C/15/Add. 57 (1996); Concluding

128 • Corporal Punishment of Children: A Human Rights Violation

Observations of the Committee on the Rights of the Child: Republic ofKorea, 11th Sess., para. 22, U.N. Doc. CRC/C/15/Add. 51 (1996); Concluding Observations of the Committee on the Rights of the Child: Senegal, 10th Sess., para. 24, U.N. Doc. CRC/C/15/Add. 44 (1995). 125

See, e.g., VAN BUEREN, supra note 20, at 40.

126

Id. at 38, 40.

127 See Newell, supra note 39, at 222 (opining that Article 2's antidiscrimination principle, when read in conjunction with Article 19 of the Children's Convention, precludes use of the Bible and cultural tradition in defense of physical punishment of children). 128

See VAN BUEREN, supra note 20, at 45.

129

See DETRICK, supra note 9, at 86.

130

Children's Convention, supra note 8, art. 3, para. 1, at 167.

131

See TRAVAUX PREPARATOIRES, supra note 93, at 131-40.

132 Philip Alston, The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights, in THE BEST INTERESTS OF THE CHILD: RECONCILING CULTURE AND HUMAN RIGHTS, supra note 5, at 1, 19. 133 ROBIN KARR-MoRSE & MEREDITH S. WILEY, GHOSTS FROM THE NURSERY: TRACING THE ROOTS OF VIOLENCE 294 (1997). 134 See, e.g., Concluding Observations of the Committee on the Rights of the Child: Chile, 29th Sess., paras. 31-32, U.N. Doc. CRC/C/15/Add. 173 (2002); Concluding Observations of the Committee on the Rights of the Child: Mauritania, 28th Sess., paras. 29-30, U.N. Doc. CRC/C/15/Add. 159 (2001); Concluding Observations ofthe Committee on the Rights ofthe Child: Paraguay, 28th Sess., paras. 31-32, U.N. Doc. CRC/C/15/Add. 166 (2001); Concluding Observations ofthe Committee on the Rights of the Child: Turkey, 27th Sess., paras. 47-48, U.N. Doc. CRC/C/15/Add.152 (2001); Concluding Observations ofthe Committee on the Rights ofthe Child: Peru, 23d Sess., para. 22, U.N. Doc. CRC/C/15/Add. 120 (2000).

135

See supra Ch. II, Part A(iv), notes 68-70 and accompanying text.

136

See HODGKIN & NEWELL, supra note 47, at 78-79.

137

Children's Convention, supra note 8, art. 5, at 168.

138

See DETRICK, supra note 9, at 120.

139

See HODGKIN & NEWELL, supra note 47, at 80.

140

General Guidelines, supra note 44, para. 63.

141 See Initial Reports ofStates Parties Due to the Committee on the Rights ofthe Child in 1994: United Kingdom of Great Britain and Northern Ireland, para. 335, U.N. Doc. CRC/C/11/Add. 1 (1994). 142

Summary Record by the Committee on the Rights of the Child of the 205th

Corporal Punishment Violates Human Rights Laws • 129

Meeting: United Kingdom of Great Britain and Northern Ireland, 8th Sess., para. 72, U.N. Doc. CRC/C/SR. 205 (1995). 143 Summary Record by the Committee on the Rights of the Child of the 248th Meeting: Senegal, 10th Sess., para. 73, U.N. Doc. CRC/C/SR. 248 (1995). 144 See, e.g., Concluding Observations of the Committee on the Rights of the Child: Luxembourg, 18th Sess., para. 13, U.N. Doc. CRC/C/15/Add. 92 (1998); Concluding Observations ofthe Committee on the Rights ofthe Child: Australia, 16th Sess., para. 15, U.N. Doc. CRC/C/15/Add. 79 (1997).

145

Children's Convention, supra note 8, art. 12, para. 1, at 168.

146 See DETRICK, supra note 9, at 222; CHILDREN'S RIGHTS OFFICE, BUILDING SMALL DEMOCRACIES: THE IMPLICATIONS OF THE UN CONVENTION ON THE RIGHTS OF THE CHILD FOR RESPECTING CHILDREN'S CIVIL RIGHTS WITHIN THE FAMILY 19 (London Expression Printers Ltd. 1995). 147

See MANUAL, supra note 77, at 426.

148 See General Guidelines, supra note 44, para. 43; see also DETRICK, supra note 9, at 222-23; MANUAL, supra note 77, at 446. 149 See, e.g., Concluding Observations ofthe Committee on the Rights ofthe Child: Yemen, 20th Sess., para. 21, U.N. Doc. CRC/C/15/Add. 102 (1999); Concluding Observations of the Committee on the Rights of the Child: Republic ofKorea, 11th Sess., para. 22, U.N. Doc. CRC/C/15/Add. 51 (1996); Concluding Observations of the Committee on the Rights of the Child: Senegal, 10th Sess., para. 24, U.N. Doc. CRC/C/15/Add. 44 (1995).

150

Pais, Address, supra note 71.

151

Report ofSpecial Rapporteur van Boven, supra note 66, para. 47.

152

Children's Convention, supra note 8, art. 6, para. 2, at 168.

153

TRAVAUX PREPARATOIRES, supra note 93, at 123.

154

General Guidelines, supra note 44, para. 40.

155

See HODGKIN & NEWELL, supra note 47, at 85.

156

See discussion supra Ch. I, Part C.

157

HODGKIN & NEWELL, supra note 47, at 94.

158 See, e.g., Concluding Observations of the Committee on the Rights of the Child: Peru, 23d Sess., para. 22, U.N. Doc. CRC/C/15/Add. 120 (2000); Concluding Observations ofthe Committee on the Rights ofthe Child: Australia, 16th Sess., para. 15, U.N. Doc. CRC/C/15/Add. 79 (1997).

159 Pais, Address, supra note 71; see also BEVERLY C. EDMONDS & WILLIAM R. FERNEKES, CHILDREN'S RIGHTS: A REFERENCE HANDBOOK 2-3,27 n.1 (1996) (observing that the Children's Convention was preceded by various international human rights instruments that provided protections for children); Anders Ronquist, Counselor, Permanent

130 • Corporal Punishment of Children: A Human Rights Violation

Mission of Sweden to the United Nations, Speech at United Nations Convention on the Rights of the Child: Prospects for the Year 2000, Loyola University New Orleans School of Law (Feb. 14, 1997) (making the point that the Children's Convention developed principles that were already applicable to children through earlier international human rights instruments). Indeed, the Preamble to the Children's Convention expressly and repeatedly pays homage to its predecessors: "[r]ecognizing that the United Nations has, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status"; "[r]ecalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance"; "[b ]earing in mind that the need for extending particular care to the child has been ... recognized in the Universal Declaration of Human Rights, in the International Covenant on Civil and Political Rights (in particular in articles 23 and 24), in the International Covenant on Economic, Social and Cultural Rights (in particular in its article 10)." Children's Convention, supra note 8, pmbl., at 167. 160 Universal Declaration of Human Rights, G.A. Res. 217A(III), U.N. GAOR, 3d Sess., pt. 1, U.N. Doc. A/810, at 71 (1948) [hereinafter Universal Declaration]. 161 International Covenant on Economic, Social and Cultural Rights, opened for signature Dec. 16, 1966, G.A. Res. 2200A(XXI), Annex, U.N. GAOR, 21st Sess., Supp. No. 16, at 49, U.N. Doc. A/6316 [hereinafter ESCR Covenant]. 162

CPR Covenant, supra note 99.

163 American Convention on Human Rights, done on Nov. 22, 1969, OEA/ser. L.VIII.82, doc. 6 rev. 1, at 25 [hereinafter American Convention]. 164 European Convention for the Protection of Human Rights and Fundamental Freedoms, done on Nov. 4, 1950,213 U.N.T.S. 221 [hereinafter European Convention]. 165 European Social Charter, Oct. 18, 1961, 519 U.N.T.S. 89 [hereinafter European Social Charter]. 166 European Social Charter (Revised), May 3, 1996, 36 I.L.M. 31 [hereinafter Revised European Social Charter]. 167 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51 [hereinafter Torture Convention]. 168 See Iwasawa, supra note 25, at 245,257,267. See infra Ch. II, Part B, notes 202,205,221,255,293,387,402 and accompanying text. 169 See Iwasawa, supra note 25, at 257-59; see also infra Ch. II, Part B, notes 223-224,235-236,243,294-295,298,326, 371, 388-395,402-406,408-409,412 and accompanying text.

Corporal Punishment Violates Human Rights Laws • 131 170

See Iwasawa, supra note 25, at 258-59.

171 See ide at 267; see also infra Ch. II, Part B, notes 203-205, 263-278, 285-288, 321-323,337,344-350,352-355,359-360,374-376 and accompanying text. 172 The General Assembly of the United Nations adopted the Universal Declaration by an overwhelming majority on December 10,1948. JOHANNES MORSINK, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: ORIGINS, DRAFTING, AND INTENT 12 (1999). 173 See SIEGHART, supra note 6, at 53; Oscar Schachter, International Law in Theory and Practice, in INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, AND MORALS, supra note 16, at 226,229. 174 See PAUL GORDON LAUREN, THE EVOLUTION OF INTERNATIONAL HUMAN RIGHTS: VISIONS SEEN 233 (2d ed. 2003); MORSINK, supra note 172, at xi-xii. 175 See LAUREN, supra note 174, at 232; SIEGHART, supra note 6, at 53; Committee on the Enforcement of Human Rights Law, International Law Association, Final Report on the Status of the Universal Declaration ofHuman Rights in National and International Law, in RICHARD B. LILLICH & HURST HANNUM, INTERNATIONAL HUMAN RIGHTS: PROBLEMS OF LAW, POLICY, AND PRACTICE 166, 166 (3d ed. 1995); M. Glen Johnson, A Magna Carta for Mankind: Writing the Universal Declaration ofHuman Rights, in UNIVERSAL DECLARATION OF HUMAN RIGHTS: A HISTORY OF ITS CREATION AND IMPLEMENTATION 1948-1998, at 19,67 (1998). 176 See Committee on the Enforcement of Human Rights Law, International Law Association, supra note 175, at 166-71; cf, WEISSBRODT ET AL., supra note 15, at 20 (stating that the Universal Declaration "has provisions which have been recognized as reflective of customary international law").

177 See, e.g., VAN BUEREN, supra note 20, at 17, 19-23 (indicating that the Universal Declaration, the ESCR Covenant, the CPR Covenant, the European Convention, and the American Convention apply generally to children); Walter H. Bennett, Jr., A Critique of the Emerging Convention on the Rights of the Child, 20 CORNELL INT'L L.I 1, 25-29 (1987) (noting that the Universal Declaration, the ESCR Covenant, the CPR Covenant, the European Convention, the American Convention, and the Torture Convention apply generally to children); Claire Breen, The Corporal Punishment of Children in New Zealand: The Case for Abolition, 2002 N.Z. L. REV. 359,367-68 (averring that the Universal Declaration, the CPR Covenant, the ESCR Covenant, the European Convention, and the American Convention apply generally to children); Calciano, supra note 18, at 518 & n.25 (arguing that the Universal Declaration, the ESCR Covenant, and the CPR Covenant apply generally to children); Fernando Volio, Legal Personality, Privacy, and the Family, in THE INTERNATIONAL BILL OF RIGHTS: THE COVENANT ON CIVIL AND POLITICAL RIGHTS 185, 186-88, 205-08 (Louis Henkin ed., 1981) (contending that the CPR Covenant applies generally to embrace children). But see Cynthia Price Cohen, The Human Rights ofChildren, 12 CAP. U.L. REV. 369,376 (1983) [hereinafter Cohen, Human Rights] (remarking that, except for certain articles which expressly refer to juveniles, nothing in either the ESCR

132 • Corporal Punishment of Children: A Human Rights Violation

Covenant or in the CPR Covenant clearly states that these treaties apply generally to children). 178 See Bennett, supra note 177, at 27 (explaining that although the rights contained in the Universal Declaration, the ESCR Covenant, and the CPR Covenant apply generally to children, there are some rights "obviously intended exclusively for adults, such as the rights to vote and hold public office"); Cohen, Human Rights, supra note 177, at 378 (asserting that there are provisions of the ESCR Covenant and the CPR Covenant which obviously do not apply to children, such as the right to form trade unions and the right to vote). 179

Universal Declaration, supra note 160, art. 1, at 72.

180

Id. art. 2, at 72.

181

Torture Convention, supra note 167, pmbl., at 197.

182 ESCR Covenant, supra note 161, art. 11, at 50 (asserting rights of "everyone" to an adequate standard of living and to be free from hunger); ide art. 12, para. 1, at 51 (recognizing the right of "everyone" to partake "of the highest attainable standard of physical and mental health"); European Convention, supra note 164, art. 2, para 1, at 224 (guaranteeing "[e]veryone's" right to life); CPR Covenant, supra note 99, art. 9, para. 1, at 54 (providing that "everyone" has the right to "security of person"); ide art. 16, at 55 (stating that "everyone" has the right to "recognition ... as a person before the law"); Bennett, supra note 177, at 27-29 (suggesting that the word "everyone" as used in the ESCR Covenant and in the CPR Covenant should be understood to include children, and concluding that the case law which has developed under the European Convention "shows that all rights phrased [therein] in terms of general application apply" to children); Volio, supra note 177, at 186 (proposing that "everyone" as used in Article 16 of the CPR Covenant encompasses both adults and children). 183 CPR Covenant, supra note 99, art. 7, at 53 (declaring that "[n]o one shall be subj ected to torture or to cruel, inhuman or degrading treatment or punishment"); European Convention, supra note 164, art. 3, at 224 (stating that "[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment"). 184 Cf Bennett, supra note 177, at 27-28 & n.176 (remarking that, in referring to "no one," Article 7 of the CPR Covenant means no children as well as no adults). 185 See, e.g., European Social Charter, supra note 165, art. 6, at 92 (declaring that "[a]ll workers and employers have the right to bargain collectively"); ide art. 7, at 92 (providing that "[c]hildren and young persons have the right to a special protection against the physical and moral hazards to which they are exposed"); Revised European Social Charter, supra note 166, art. 6, at 37 (concerning the right to bargain collectively); ide art. 17, at 41 (regarding the right of children and young persons to social, legal and economic protection). 186 See, e.g., European Social Charter, supra note 165, art. 11, at 92 (announcing that "[e]veryone has the right to benefit from any measures enabling him to enjoy the

Corporal Punishment Violates Human Rights Laws • 133 highest possible standard of health attainable"); id. art. 14, at 92 (stating that "[e]veryone has the right to benefit from social welfare services"); Revised European Social Charter, supra note 166, art. 13, para. 3, at 40 (asserting that, in order to effectuate the right to social and medical assistance, states parties must commit to providing "everyone" with advice and help to prevent or relieve personal want). 187

American Convention, supra note 163, art. 1, para. 2, at 26.

188

See Bennett, supra note 177, at 29.

189 See, e.g., A v. United Kingdom, 90 Eur. Ct. H.R. 2692 (1998) (holding that a private adult's caning of his stepson so as to produce bruises and welts violated Article 3 of the European Convention); Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. GAOR, Human Rights Committee, General Comment No. 20, paras. 2, 5, U.N. Doc. HRIIGEN/l/Rev. 2 (1992) (interpreting Article 7 of the CPR Covenant as protecting individuals' dignity and physical and mental integrity from the transgressions of private or governmental actors); General Observations of the European Committee of Social Rights Regarding Articles 7, Para. 10, and 17, Conclusions XV-2, Vol. 1, at 26-29 (2001) (declaring that privately or governmentally perpetrated corporal punishment of children violates Article 17 of the European Charter); General Comment No. 13 of the Committee on Economic, Social and Cultural Rights, 21st Sess., at para. 41, U.N. Doc. E/C.12/1999/10 (announcing that corporal punishment in public and private schools is inconsistent with Article 13, paragraph 1 of the ESCR Covenant);

Concluding Observations ofthe Committee on Economic, Social and Cultural Rights: United Kingdom of Great Britain and Northern Ireland, 28th Sess., para. 36, U.N. Doc. E/C.12/1/Add. 79 (2002) (urging that under Article 10 of the ESCR Covenant, physical punishment of children in the family context should be forbidden); RApPORTEURSHIP ON THE RIGHTS OF THE CHILD, INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, Report on the Situation ofHuman Rights in Brazil, in THE RIGHTS OF THE CHILD IN THE INTER-AMERICAN SYSTEM OF HUMAN RIGHTS 187, 191, 197 (2003) (stating that under Articles 4 and 5 of the American Convention, Brazil must take measures to ensure that both the police and private actors do not "exterminate" children, and recommending that measures be taken to eradicate slave labor by children in the private sector); see also CLAPHAM, supra note 6, at 89, 93-94, 96-97, 101, 111, 118, 120 (analyzing the European Convention, the CPR Covenant, the Children's Convention, and the American Convention as restraining private actors). 190

See discussion infra Ch. II, Part B(ii).

191

See discussion supra Ch. I, Part C.

192

See id.

193 Universal Declaration, supra note 160, pmbl., at 71; CPR Covenant, supra note 99, pmbl., at 52-53; ESCR Covenant, supra note 161, pmbl., at 49; Torture Convention, supra note 167, pmbl., at 197. 194 See Johannes van Aggelen, The Preamble of the United Nations Declaration ofHuman Rights, 28 DENV. 1. INT'L L. & POL'Y 129, 132-33 (2000).

134 • Corporal Punishment of Children: A Human Rights Violation 195

Universal Declaration, supra note 160, pmbl., at 71.

196

Id. art. 1, at 72.

197

American Convention, supra note 163, art. 11, para.l, at 30.

198 See Bitensky, Spare the Rod, supra note 47, at 404; Breen, supra note 177, at 367-68; Cynthia Price Cohen, Freedom from Corporal Punishment: One of the Human Rights of Children, N.Y.L. SCH. HUM. RTS. ANN. 95,101-11 (1984) [hereinafter Cohen, Corporal Punishment] (discussing the recognition in the Universal Declaration's preamble of "the inherent dignity ... of all members of the human family" and implying that the preservation of dignity is incompatible with corporal punishment of children); Angela Bartman, Note, Spare the Rod and Spoil the Child? Corporal Punishment in Schools Around the World, 13 IND. INT'L & COMPo L. REv. 283, 296 (2002) (tracing the implied prohibition on corporal punishment of children in the Children's Convention and the Torture Convention to the Universal Declaration's recognition of human dignity). But see Tore Lindholm, Article 1: A New Beginning, in THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: A COMMENTARY 31, 52 (Asbjom Eide et al. eds., 1992) (noting that some jurists see Article 1 of the Universal Declaration as setting forth philosophical principles rather than justiciable rights.)

199

Treaty on Treaties, supra note 1, art. 31, paras. 1-2, at 340.

200

Universal Declaration, supra note 160, art. 25, para. 2, at 76.

201

American Convention, supra note 163, art. 19, at 33.

202

Id. ch. VII, at 38-44.

203 See, e.g., Case 11.491, Inter-Am. C.H.R. 573, 590-91, OEA/ser.L/V/II. 102, doc. 6 rev. (1999); Annual Report: Areas in Which Steps Need to Be Taken Towards Full Observance of the Human Rights Set Forth in the American Declaration of the Rights and Duties ofMan and the American Convention on Human Rights (INTER-AM. COMM'NON H.R.), ch. VI, 283,306,318-20, OEA/ser. L/V/II.81, doc. 6 rev. 1 (1992). The American Convention, by its very terms, practically incorporates the Children's Convention if states parties to the American Convention are also parties to the Children's Convention or, even if they are not parties to the latter, incorporation may be inferred with respect to rights innate to the child's human personality which also are protected under the Children's Convention. See American Convention, supra note 163, art. 29(b )-(c), at 37. 204 Third Report on the Human Rights Situation in Columbia: Chapter XIII: The Rights ofthe Child (INTER-AM. COMM'N ON H.R.), paras. B. 6-9, G.5, OEA/ser. L/V/II. 102, doc. 9 rev. 1 (1999); see also Annual Report: Areas in Which Steps Need to Be Taken Towards Full Observance of the Human Rights Set Forth in the American Declaration ofthe Rights and Duties ofMan and the American Convention on Human Rights, 1994 INTER-AM. Y.B. ON H.R. (INTER-AM. COMM'N ON H.R.) 690, 704 [hereinafter Annual Report (1994)] (urging that in order for countries to achieve full observance of the American Convention, they should ratify the Children's Convention and ensure that children "are not the targets of violence").

Corporal Punishment Violates Human Rights Laws • 135 205 Juridical Status and Human Rights of the Child, Advisory Opinion OC-17/02, Aug. 28, 2002, Inter-Am. Ct. H.R. (Ser. A) No. 17, paras. II viii 87,89,91, II x 9, at http://www1.umn.edu/humanrts/iachr/series_A_OC-17.html (last visited July 29, 2004). 206

HYNES, supra note 74, at 25 I.

207 CAROLYNE WILLOW & TINA HYDER, IT HURTS You INSIDE: CHILDREN TALKING ABOUT SMACKING 47 (1998). 208

See Van Bueren, supra note 6, at 380.

209 See PETER NEWELL, CHILDREN ARE PEOPLE Too: THE CASE AGAINST PHYSICAL PUNISHMENT 16 (1989) (noting that "psychoanalysts have suggested that the pain that a very young child feels when being beaten is a good deal more intense than an adult would feel" inasmuch as "the child has not learnt to differentiate time, and so is unable to anticipate that the current sensations will come to an end"). 210

See discussion supra Ch. II, Part A(iv), notes 62-63 and accompanying text.

211 Torture Convention, supra note 167, art. 2, para. 1, at 197; European Convention, supra note 164, art. 3, at 224; Universal Declaration, supra note 160, art. 5, at 73; CPR Covenant, supra note 99, art. 7, at 53; American Convention, supra note 163, art. 5, para. 2, at 27. 212 Torture Convention, supra note 167, art. 16, para. 1, at 198; Universal Declaration, supra note 160, art. 5, at 73; CPR Covenant, supra note 99, art. 7, at 53; American Convention, supra note 163, art. 5, para. 2, at 27. 213 In a slight variation on the theme, the European Convention provides that "[n]o one shall be subjected to ... inhuman or degrading treatment or punishment." European Convention, supra note 164, art. 3, at 224. 214

Torture Convention, supra note 167, art. 2, para. 1, at 197.

215

Id. art. 1, para. 1, at 197 (emphasis added).

216

Id.

217

See discussion supra Introduction.

218

See discussion supra Ch. 1, Part C.

219 Report ofthe Special Rapporteur, Mr. Nigel S. Rodley, Submitted to Commission on Human Rights, Concerning the Question ofthe Human Rights ofAll Persons Subjected to Any Form ofDetention or Imprisonment, in Particular: Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 52d Sess., para. 10, U.N. Doc. E/CN.4/1996/35 (1996) [hereinafter Report ofRodley Concerning Persons Subjected to Detention].

220

Rodley, supra note 60, at xv.

221

Torture Convention, supra note 167, part II, at 199-200.

222

See, e.g., Commission on Human Rights Resolution 2002138, 50th mtg., pmbl.,

136 • Corporal Punishment of Children: A Human Rights Violation

U.N. Doc. E/CN.4/Res./2002/38 (2002); Commission on Human Rights Resolution 2001/62, 77th mtg., pmbl., U.N. Doc. E/CN.4/Res. 2001/62 (2001); Commission on Human Rights Resolution 2000/43, 60th mtg., pmbl., U.N. Doc. E/CN.4/Res./2000/43 (2000); Commission on Human Rights Resolution 1999/32, 55th mtg., pmbl., U.N. Doc. E/CN.4/Res./1999/32 (1999). 223 See, e.g., Commission on Human Rights Resolution 2002/38, supra note 222, para. 5; Commission on Human Rights Resolution 2001/62, supra note 222, para. 5; Commission on Human Rights Resolution 2000/43, supra note 222, para. 3; Commission on Human Rights Resolution 1999/32, supra note 222, para. 3.

It should be observed that the 1999 resolution appears to mark a shift in emphasis by drawing attention to corporal punishment of children. Commission resolutions prior to 1999 reminded governments only that "corporal punishment can amount to cruel, inhuman or degrading punishment or even to torture." See, e.g., Commission on Human Rights Resolution 1998/38, 51st mtg., pmbl., para. 3, U.N. Doc. E/CN. 4/Res./1998/38 (1998); Commission on Human Rights Resolution 1997/38, 57th mtg., pmbl., para. 9, U.N. Doc. E/CN.4/Res./1997/38 (1997). 224 Report ofthe Committee Against Torture, U.N. GAOR, 50th Sess., Supp. No. 44, paras. 169, 177, U.N. Doc. A/50/44 (1995); see also Concluding Observations of the Committee Against Torture: Libyan Arab Jamahiriya, 22d Sess., paras. 180, 189, U.N. Doc. A/54/44 (1999) (noting with satisfaction that, as a practical matter, corporal punishment has not been used in recent years, but urging that it should still be abolished by law).

225

Torture Convention, supra note 167, art. 2, para. 1, at 197.

226

Id. art. 16, para. 1, at 198.

227

MANUAL, supra note 77, at 373.

228

BURGERS & DANELIUS, supra note 59, at vi.

229

I d. at 117.

230 List ofContributors, in CHILDHOOD ABUSED: PROTECTING CHILDREN AGAINST TORTURE, CRUEL, INHUMAN AND DEGRADING TREATMENT AND PUNISHMENT, supra note 60, at vii, x. 231 Bent Sorensen, International Conventions Against Torture and on the Rights of the Child-The Work of Two United Nations Committees, in CHILDHOOD ABUSED: PROTECTING CHILDREN AGAINST TORTURE, CRUEL, INHUMAN AND DEGRADING TREATMENT AND PUNISHMENT, supra note 60, at 75,79. 232

Torture Convention, supra note 167, art. 16, para. 1, at 198.

233 Report of the Open-Ended Working Group on a Draft Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. ESCOR, Comm'n on Hum. Rts. 38th Sess., Agenda Item 10(a), paras. 44-45, at 11, U.N. Doc. E/CN.4/1982/L.40 (1982) (emphasis added). 234

Torture Convention, supra note 167, art. 16, para. 1, at 198.

Corporal Punishment Violates Human Rights Laws • 137 235

See, e.g., Report of the Committee Against Torture, U.N. GAOR, 47th Sess.,

Supp. No. 44, para. 200, U.N. Doc. A/47/44 (1992). 236

See, e.g., Report of the Committee Against Torture, U.N. GAOR, 48th Sess.,

Supp. No. 44, para. 298, U.N. Doc. A/48/44 (1993). 237

Torture Convention, supra note 167, arts. 1, 16, at 197-198.

For analysts claiming that the Torture Convention constrains government actors exclusively, see, for example, THEODOR MERON, HUMAN RIGHTS LAW-MAKING IN THE UNITED NATIONS: A CRITIQUE OF INSTRUMENTS AND PROCESS 114 (1986); STEINER &ALSTON, supra note 16, at 1137 (quoting Yoram Dinstein, International Criminal Law, 5 ISRAEL Y.B. ON HUM. RTS. 55, 73 (1975)); Katherine M. Culliton, Finding a Mechanism to

Enforce Women s Right to State Protection from Domestic Violence in the Americas, 34 HARV. INT'L L.1. 507,554 (1993). 238

BURGERS & DANELIUS, supra note 59, at 118-19.

239

See supra Ch. II, Parts A-B, notes 58, 211-213 and accompanying text.

240

Torture Convention, supra note 167, art. 1, para. 2; art. 16, para. 2, at 197-98.

241 See, e.g., Conclusions and Recommendations of the Committee Against Torture: New Zealand, 32d Sess., para. 6(e), U.N. Doc. CAT/C/CR/32/4 (2004) [hereinafter Committee Against Torture on New Zealand]; Report ofthe Committee Against Torture, U.N. GAOR, 48th Sess., Supp. No. 44, para. 298, U.N. Doc. A/48/44 (1993) [hereinafter Report of the Committee Against Torture]. 242

See Report of the Committee Against Torture, supra note 241, para. 298.

243

Committee Against Torture on New Zealand, supra note 241, para. 6(e).

244 See Concluding Observations of the Committee on the Rights of the Child: New Zealand, 34th Sess., para. 30, U.N. Doc. CRC/C/15/Add. 216 (2003). 245 See e.g., Bitensky, Spare the Rod, supra note 47, at 407-08; Hilary Charlesworth et al., FeministApproaches to International Law, 85 AM. 1. INT'L L. 613,628-29 (1991); Rhonda Copelon, Recognizing the Egregious in the Everyday: Domestic Violence as Torture, 25 COLUM. HUM. RTS. L. REV. 291, 298-99, 308-53, 355-56 (1994); Barbara Cochrane Alexander, Note, Convention Against Torture: A Viable Alternative Legal Remedy for Domestic Violence Victims, 15 AM. U. INT'L L. REV. 895, 907-10 (2000) (urging the U.S. government to interpret "torture," as used in the Torture Convention, to cover egregious domestic violence). 246

Copelon, supra note 245, at 299.

247 See Matthew Lippman, The Development and Drafting ofthe United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 27 B.C. INT'L& COMPo L. REV. 275, 314 (1994) (acknowledging that pri-

vate responsibility may be implicated under the Torture Convention due to an official's toleration of or consent to torture); Jordan 1. Paust, The Other Side ofRight: Private Duties Under Human Rights Law, 5 HARV. HUM. RTS. 1. 51, 60-61 (1992) (noting that private duties may be implicated under the Torture Convention because

138 • Corporal Punishment of Children: A Human Rights Violation

culpability attaches if a private actor commits "torture 'by or at the instigation of or with the consent or acquiescence of' a public official"). 248

Copelon, supra note 245, at 408.

249

Torture Convention, supra note 167, art. 1, para. 1, at 197.

250

See BURGERS & DANELIUS, supra note 59, at 46-47, 12l.

251

Id. at 122.

252

Id.

253

Id.

254

European Convention, supra note 164, art. 3, at 224.

255 See, e.g., Assenov and Others v. Bulgaria, 96 Eur. Ct. H.R. 3264, 3271, 3288 (1998) (finding that beatings to a juvenile, whether caused by his father or the police, were serious enough to constitute ill-treatment within the scope of Article 3 of the European Convention where they resulted in multiple hematomas and grazes); A v. United Kingdom, 90 Eur. Ct. H.R. 2692 (1998) (ruling that an adult's caning of his stepson so as to cause bruises and welts violated Article 3 of the European Convention even though a jury had previously acquitted the stepfather of assault under English law); Y v. United Kingdom, 1992 Y.B. Eur. Conv. on H.R. 196 (Eur. Ct. H.R.) (taking note of a settlement reached after the European Commission of Human Rights found that Article 3 of the European Convention had been violated when school personnel caned a fifteen-year-old pupil four times on his clothed buttocks so as to cause bruises and swelling); Tyrer v. United Kingdom, 26 Eur. Ct. H.R. (ser. A) at 4-17 (1978) (holding that when authorities inflicted a judicially mandated birching on a fifteenyear-old, they violated the prohibition in Article 3 of the European Convention against degrading treatment); App. No. 10592/83 v. U.K., 9 Eur. H.R. Rep. 277,278 (1987) (Eur. Comm'n on H.R.) (holding admissible a complaint that Article 3 of the European Convention was violated when school personnel struck one student's palms and struck another student's buttocks twice with a leather strap). But see CostelloRoberts v. United Kingdom, 247 Eur. Ct. H.R. 47, 58-60 (1993) (5-4 decision) (ruling that a headmaster did not violate article 3 of the European Convention by hitting a seven-year-old student three times on his clothed buttocks with a rubber-soled gym shoe, but observing that a punishment that did not have any severe or long-lasting effects could still fall within the ambit of Article 3).

256 URSULA KILKELLY, THE CHILD AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS xi, xiii (1999). 257

Assenov and Others v. Bulgaria, 96 Eur. Ct. H.R. 3264,3288 (1998).

258

See KILKELLY, supra note 256, at 160-6l.

259

Assenov and Others, 96 Eur. Ct. H.R. at 3288 (1998).

260

See discussion supra Ch. I, Part C.

261

KILKELLY, supra note 256, at 13.

Corporal Punishment Violates Human Rights Laws • 139 262 See id. at 14-15. Kilkelly is in agreement with the desirability of relinquishing the severity requirement in children's Article 3 cases challenging corporal punishment: "A preferable approach to such cases would be to consider that all physical punishment is capable of infringing a child's dignity and physical integrity, which it is the purpose of Article 3 to protect." Id. at 165.

263

Costello-Roberts v. The United Kingdom, 247 Eur. Ct. H.R. 47, 58-59 (1993).

264

Id. at 52-53.

265

Id. at 59-60.

266 The actual language of Costello-Roberts, from which I have distilled the rule referred to in the text above, reads as follows:

Beyond the consequences to be expected from measures taken on a purely disciplinary plane, the applicant has adduced no evidence of any severe or longlasting effects as a result of the treatment complained of. A punishment which does not occasion such effects may fall within the ambit of Article 3 ... , provided that in the particular circumstances of the case it may be said to have reached the minimum threshold of severity required. Id. 267

Id.

268

Id. at 60.

269

Warwick v. United Kingdom, App. No. 9471/81, 60 Eur. Comm'n H.R. Dec.

& Rep. 5, 6, 11 (1986). 270

Id. at 11-12.

271 I d. at 12-17. She also complained under Article 13 of the European Convention but that claim is not pertinent here. Id. at 18-19. 272

Id. at 16-17.

273

Id. at 17.

274

Id. at 11.

275 Y v. United Kingdom, App. No. 14229/88, 17 Eur. H.R. Rep. (ser. A) at 238, 239-43 (1991) (Commission report). Although the case was referred from the Commission to the European Court, the latter struck the case out of the list due to a friendly settlement between the parties. Y v. United Kingdom, App. No. 14229/88, 247 Eur. Ct. H.R. (ser. A) at 1, 8-9 (1992). 276

Id. at 239,241-43.

277

Id. at 242-43 (emphasis added).

278

Id. at 249-50.

279

Id. at 241.

140 • Corporal Punishment of Children: A Human Rights Violation 280

Warwick v. United Kingdom, App. No. 9471/81, 60 Eur. Comm'n H.R. Dec.

& Rep. 5,7 (1986). 281 Y v. United Kingdom, App. No. 14229/88, 17 Eur. H.R. Rep. (ser. A) at 242 (1991) (Commission report). 282

D.I

HARRIS ET AL., LAW OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS

87

(1995). 283

See, e.g., Tyrer v. United Kingdom, 26 Eur. Ct. H.R. (ser. A) at 4-17 (1978).

284 See, e.g., Costello-Roberts v. The United Kingdom, 247 Eur. Ct. H.R. 47 passim (1993); Y v. United Kingdom, 1992 Y.B. Eur. Conv. on H.R. 196 (Eur. Ct. H.R.); Campbell & Cosans v. United Kingdom, 1982 Y.B. Eur. Conv. on H.R. 3 (Eur. Ct. of H.R.); App. No. 10592/83 v. United Kingdom, 9 Eur. H.R. Rep. 277 (1987); Warwick, 60 Eur. Comm'n H.R. Dec. & Rep. passim; Mrs. X & Ms. X v. United Kingdom, App. No. 9471/81,7 Eur. H.R. Rep. 450 (1985).

285

A v. United Kingdom, 90 Eur. Ct. H.R. 2692 (1998).

286

Id. at 2696-97, 2699.

287

Id. at 2699.

288

Id. at 2699-2700.

289 See Susan H. Bitensky, Spare the Rod, Embrace Human Rights: International Law s Mandate Against All Corporal Punishment of Children, 21 WHITTIER L. REV. 147, 157-58 (1999).

290

CPR Covenant, supra note 99, art. 7, at 53.

291

Universal Declaration, supra note 160, art. 5, at 73.

292

American Convention, supra note 163, art. 5, para. 2, at 27.

293

CPR Covenant, supra note 99, Part IV, at 56-58.

294 For example, in a 1996 general comment that substantially embodied the contents of its 1982 general comment, the Human Rights Committee stated with respect to corporal punishment in general:

The aim of the provisions of article 7 of the International Covenant on Civil and Political Rights is to protect both the dignity and the physical and mental integrity of the individual. It is the duty of the state party to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity.

The prohibition in article 7 relates not only to acts that cause physical pain but also to acts that cause mental suffering to the victim. In the Committee's view, moreover, the prohibition must extend to corporal punishment, including excessive chastisement ordered as a punishment for a crime or as an

Corporal Punishment Violates Human Rights Laws • 141

educative or disciplinary measure. It is appropriate to emphasize in this regard that article 7 protects, in particular, children, pupils and patients in teaching and medical institutions. Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. GAOR, Human Rights Committee, General Comment No. 20, paras. 2, 5, U.N. Doc. HRI/GEN/l/Rev. 2 (1992) (emphasis added) (reflecting and further developing General Comment No.7, para. 2, U.N. Doc. HRI/GEN/l/Rev.2 (1982)). 295 General Comment No. 28 Adopted by the Human Rights Committee, U.N. GAOR, Human Rights Committee, General Comment No. 28, para.13, U.N. Doc. CCPRIC/21/Rev. I/Add. 10 (2000). 296

The nondiscrimination principle is articulated as follows:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. CPR Covenant, supra note 99, art. 2, para. 1, at 53. 297 The full provision states: "Every child shall have, without discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State." Id. art. 24, para. 1, at 55.

298 See, e.g., Concluding Observations of the Human Rights Committee: The Kyrgyz Republic, 69th Sess., para. 19, U.N. Doc. CCPRICO/69/KGZ (2000) (requiring Kyrgystan to prohibit corporal punishment of children pursuant to Article 24 of the CPR Covenant and apparently linking the practice to "cruel punishment" under that Covenant); Concluding Observations ofthe Human Rights Committee: Guyana, 68th Sess., para. 12, U.N. Doc. CCPRIC/79/Add. 121 (2000) (urging, under Article 7 of the CPR Covenant, that Guyana "should take legal and other measures to eliminate this practice [corporal punishment]"); Concluding Observations ofthe Human Rights Committee: United Kingdom and Northern Ireland-the Crown Dependencies of Jersey, Guernsey and the Isle of Man, 68th Sess., para. 11, U.N. Doc. CCPRI C/79/Add. 119 (2000) (recommending, under Articles 7 and 10 of the CPR Covenant, "the adoption of legislation to outlaw corporal punishment" on the Isle of Man); Concluding Observations ofthe Human Rights Committee: Poland, 66th Sess., para. 25, U.N. Doc. CCPRIC/79/Add. 110 (1999) (welcoming Poland's "abolition by law of corporal punishment in schools," but expressing concern "that this change in the law is not fully being implemented (Arts. 7 and 24)"); Concluding Observations of the Human Rights Committee: Lesotho, 65th Sess., para. 20, U.N. Doc. CCPR/ C/79/ Add. 106 (1999) (with respect to detainees, urging Lesotho to "abolish totally corporal punishment both in law and practice" as per Articles 7 and 10 of the CPR Covenant); Concluding Observations of the Human Rights Committee: Zimbabwe,

142 • Corporal Punishment of Children: A Human Rights Violation

62nd Sess., para. 21, U.N. Doc. CCPRIC/79/Add. 89 (1998) (reaffirming "its position that corporal punishment is incompatible with article 7 of the Covenant"). 299

Treaty on Treaties, supra note 1, art. 31, paras. 1-2, at 340.

300

CPR Covenant, supra note 99, art. 24, para. 1, at 55.

301

See discussion supra Ch. I, Parts A, C.

302 Proposal to Include an Article on the Rights ofthe Child in the Draft Covenant on Civil and Political Rights, U.N. GAOR 3d Comm., 18th Sess., 1262d mtg., at 261, 263, U.N. Doc. A/C.3/SR. 1262 (1963); see also Report of the Third Committee Regarding Draft International Covenants on Human Rights, U.N. GAOR 3d Comm., 18th Sess., Agenda Item 48, at 14,20, U.N. Doc. A/5655 (1963). The characterization of children as in need of special protection under the CPR Covenant because they are the "weakest group in society" was made by Mrs. Dembinska of Poland; her delegation had very early in the drafting process submitted a draft article on the rights of the child. Proposal to Include an Article on the Rights of the Child in the Draft Covenant on Civil and Political Rights, supra, at 263. 303 Proposal to Include an Article on the Rights ofthe Child in the Draft Covenant on Civil and Political Rights, U.N. GAOR 3d Comm., 18th Sess., 1263d mtg., at 267, 274, U.N. Doc. A/C.3/SR. 1263 (1963); see also Report of the Third Committee Regarding Draft International Covenants on Human Rights, supra note 302, at 14,20. 304 For example, the delegate from Chile stated that "no doubt an article referring to corporal punishment and torture should appear in the Committee's draft." Summary Record ofthe Third Meeting, U.N. ESCOR, Comm'n on Hum. Rts., Drafting Comm., 1st Sess., 3rd mtg., at 11, 13, U.N. Doc. E/CN.4/AC.I/SR.3 (1947). The Australian delegate responded by "agree[][ing] that there should be something in the Committee's draft of the [International] Bill [of Rights] to cover the case of physical torture. He pointed out, however, that if any specific kind of torture were mentioned the Committee might have to include other types." Id. at 13. 305

LAUREN, supra note 174, at 232.

306 See McDOUGAL ET AL., HUMAN RIGHTS, supra note 7, at 321-22,327; Michael Scaperlanda, Polishing the Tarnished Golden Door, 1993 WIS. L. REV. 965, 1012; Louis B. Sohn, The New International Law: Protection of the Rights ofIndividuals Rather than States, 32 AM. U. L. REV. 1, 19 (1982). 307 See LAUREN, supra note 174, at 236; McDOUGAL ET AL., HUMAN RIGHTS, supra note 7, at 321-22; Johnson, supra note 175, at 19,35. 308

Universal Declaration, supra note 160, art. 5, at 73.

309

See supra Ch. II, Part B(ii), notes 295-304 and accompanying text.

310

Universal Declaration, supra note 160, art. 25, para. 2, at 76.

311

See WEISSBRODT ET AL., supra note 15, at 23-25.

Corporal Punishment Violates Human Rights Laws • 143 312

See id. at 24.

313

Annual Report (1994), supra note 204, at 704.

314

American Convention, supra note 163, art. 5, para. 2, at 27.

315

See Bitensky, Spare the Rod, supra note 47, at 409; Breen, supra note 177, at

370. 316

American Convention, supra note 163, art. 19, at 33.

317 The CPR Covenant states, in pertinent part, that "[e]veryone has the right to liberty and security of person." CPR Covenant, supra note 99, art. 9, para. 1, at 54. 318 The Universal Declaration provides that "[e]veryone has the right to life, liberty and the security of person." Universal Declaration, supra note 160, art. 3, at 72. 319

American Convention, supra note 163, art. 5, para. 1, at 27.

320 See Bitensky, Spare the Rod, supra note 47, at 412; Breen, supra note 177, at 368; Newell, supra note 39, at 215; Bartman, supra note 198, at 295 & n.80; cf, Cohen, Corporal Punishment, supra note 198, at 119 (contending that the commitment to "security of [every human being's] person" made in the American Declaration on the Rights and Duties of Man could be read to bar corporal punishment of children if Article I was found applicable to children). 321 Report on the Situation ofHuman Rights in the Dominican Republic, InterAm. C.H.R. 1,65,96, OEA/ser.L./V/II.I04, doc. 49 rev.1 (1999). 322 Case 11.491, Inter-Am. C.H.R. 573,575,606,609, OEA/ser.L/II.I02, doc. 6 rev. (1999); see also Case 9853, Inter-Am. C.H.R. 400,400,407, OEA/ser.L/V/II.98, doc. 7 rev. (1998) (concluding that when the Colombian army tied up two detainees and beat them as well as forced them to accompany the army near combat situations, the army's actions "compromised the physical integrity of the victims" in violation of Article 5 of the American Convention). 323

Case 11. 610, Inter-Am. C.H.R. 724,746, OEA/ser.L/V/II.I02, doc. 6 rev.

(1999). 324

WEBSTER'S DICTIONARY, supra note 39, at 1062.

325

See discussion supra Ch. I, Part C.

326 See, e.g., Concluding Observations ofthe Human Rights Committee: Poland, 66th Sess., para. 14, U.N. Doc. CCPRIC/79/Add. 110 (1999) (expressing concern about domestic violence for all victimized family members under Article 9's "security of person" language); Report of the Human Rights Committee: Azerbaijan, 57th Sess., Supp. No. 40, at 50-51, U.N. Doc. A/57/40 (Vol. I) (2002) (classifying domestic violence against women as a violation of Article 9); cf Concluding Observations ofthe Human Rights Committee: Lithuania, 61st Sess., para. 11, U.N. Doc. CCPRIC/ 79/Add. 87 (1997) (recommending that additional measures should be taken to prevent and prosecute cases of domestic violence against women and abuse of children so as "to promote the right of women and children to personal security").

144 • Corporal Punishment of Children: A Human Rights Violation 327 Summary Records ofMeeting on Draft International Declaration ofHuman Rights, U.N. GAOR 3d Comm., 3d Sess., 102d-104th mtgs., 107th mtg. at 145, 147-49, 152-53, 157-58, 164, 187, U.N. Doc. E/800 (1948). 328 Summary Records ofMeeting on Draft International Declaration ofHuman Rights, U.N. GAOR 3d Comm., 3d Sess., 104th mtg. at 161, 164, U.N. Doc. E/800 (1948). 329 Summary Records ofMeeting on Draft International Declaration ofHuman Rights, U.N. GAOR 3d Comm., 3d Sess., 103rd mtg. at 151, 157, U.N. Doc. E/800 (1948). 330 Summary Records ofMeeting on Draft International Declaration ofHuman Rights, U.N. GAOR 3d Comm., 3d Sess., 107th mtg. at 182, 187-89, U.N. Doc. E/800 (1948). 331

Id.

332 Summary Records ofMeeting on Draft International Declaration ofHuman Rights, U.N. GAOR 3d Comm., 3d Sess., 102d-104th mtgs., 107th mtg. at 145, 147-49, 152-53, 157-58, 164, 187, U.N. Doc. E/800 (1948). 333 Summary Records ofMeeting on Draft International Declaration ofHuman Rights, U.N. GAOR 3d Comm., 3d Sess., 107th mtg. at 182, 189-90 (1948). 334

Id. at 189-94.

335

Id. at 191-94.

336

European Convention, supra note 164, art. 5, para. 1, at 226.

337 See, e.g., Zilli and Bonardo v. Italy, App. No. 40143/98 (European Court of Human Rights 2002), at http://hudoc.echr.coe.int/Hudoc2doc2/HEDEC/200205/ 40143_dap_partial decision18_4_02.doc; Selcuk and Asker v. Turkey, Apps. Nos. 23184/94 and 23185/94, 71 Eur. Ct. H.R. 922, 936 (1996) (Commission report excerpted in Selcuk and Asker v. Turkey, 71 Eur. Ct. H.R. 891 (1998-11); see also HARRIS ET AL., supra note 282, at 103 (averring that Article 5's reference to "security of person" has not been given a meaning separate from Article 5's protection of physicalliberty and that the former phrase does not "impose an obligation upon the state to give someone personal protection from an attack by others"). 338 See Tsavachidis v. Greece, App. No. 28802/95, 23 Eur. H.R. Rep. CD 135, CD 138 (1997) (Commission report) (explaining that "'[l]iberty of person' ... means freedom from arrest and detention and 'security of a person' the protection against arbitrary interference with this liberty," and finding the application, insofar as it bears on Article 5, paragraph 1, inadmissible because state surveillance of the applicant was not a deprivation of his liberty); accord East African Asians v. United Kingdom, Apps. Nos. 4403/70-4419/70, 4422/70, 4434/70, 4443/70, 4476/70-4478/70, 4486/70, 4501/70 and 4526/70-4530/70, 78-A Eur. Comm'n H.R. Dec. & Rep. 5, 64-66 (1973); cf, Ocalan v. Turkey, App. No. 46221/99 (European Court of Human Rights (2003)), at http://hudoc.echr.coe.int/Hudoc 1doc2/HEJUD/200307 localan%20-%

Corporal Punishment Violates Human Rights Laws • 145

2046221jv.chbl %2011032003e.doc (ruling that, under Article 5, paragraph 1, deprivations of liberty must avoid subjecting individuals to arbitrariness). 339 Actually, a legal argument of sorts can be made that the "security of person" phraseology of the European Convention's Article 5 gives rise to an implied prohibition on corporal punishment of children. But, the argument is attenuated and thin enough that it seems fitting to demote it to endnote status.

The argument is this. In the Consultative Assembly that worked on drafting the European Convention, a delegate for the United Kingdom represented that he thought the draft convention's provision for "security of person" was "in accordance with Article [ ] 3 ... of the United Nations Declaration. [i.e., the Universal Declaration]." EUR. CONSULT. Ass. DEB. 1st SESS. 40 (Sept. 8, 1949). If this delegate's view was shared by the other delegations that voted to adopt the "security of person" language of the European Convention, the inference could be drawn that the language should be construed to protect physical integrity in the same manner that the Universal Declaration does. See supra Ch. II, Part B(iii), notes 326-335 and accompanying text. While the travaux preparatories for the European Convention does not reveal whether other delegates also bracketed the two provisions, the Preamble to the European Convention unequivocally demonstrates that a central purpose in agreeing to the Convention was "to take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration." European Convention, supra note 164, pmbl., at 223-24. The existence of this commitment, referred to both in the travaux preparatoires and in the European Convention's Preamble, could serve as guidance that the meaning of "security of person" as used in the Universal Declaration should infuse the same phraseology in the European Convention. As discussed in the text above, a well-founded argument can be made that the Universal Declaration's protection of "security of person" impliedly embraces protection against corporal punishment of children. See supra Ch. II, Part B(iii), notes 326-335 and accompanying text. 340 See American Convention, supra note 163, art. 11, paras. 2-3, at 30 (stating that "[n]o one may be the object of arbitrary or abusive interference with his private life [or] his family" and that "[ e]veryone has the right to the protection of the law against such interference"); CPR Covenant, supra note 99, art. 17, paras. 1-2, at 55 (providing that "[n]o one shall be subjected to arbitrary or unlawful interference with his privacy [or] family" and that "[e]veryone has the right to the protection of the law against such interference"); European Convention, supra note 164, art. 8, para. 1, at 230 (declaring that "[ e]veryone has the right to respect for his private and family life"); Universal Declaration, supra note 160, art. 12, at 73 (asserting that "[n]o one shall be subjected to arbitrary interference with his privacy [or] family").

341 KILKELLY, supra note 256, at 174-78; VAN BUEREN, supra note 20, at 251; Bitensky, Spare the Rod, supra note 47, at 412-14 cf, Breen, supra note 177, at 368 (referring to human rights treaties that contain provisions protecting personal privacy, in the context of discussing treaty provisions implicitly forbidding corporal punishment of children). 342

See, e.g., D.P. & IC. v. United Kingdom, App. No. 38719/97 (Eur. Ct. of

146 • Corporal Punishment of Children: A Human Rights Violation

H.R.), at http://hudoc.echr.coe.int/Hudoc 1doc2/HEJUD/200302/dp%20&%20jc %20v.%20uk%20-%203 8719jv%20chbl%20101 02002e.doc (2003); Y.F. v. Turkey, App. No. 24209/94 (Eur. Ct. ofH.R.), at http://hudoc.echr.coe.int/Hudoc1doc2/HEJUD/ 200307/y.f.%20v.%20turkey%20-%2024209jv.chb4%2022072003e.doc (2003); Pretty v. United Kingdom, App. No. 2346/02 (Eur. Ct. of H.R.), at http://hudoc.echr. coe.int/Hudoc1doc2/HEJUD/20021 0/pretty%20- %202346jnv.chb4%202904 2002e. doc (2002). 343 See HARRIS ET AL., supra note 282, at 307-08 (opining that "in general, compulsory physical treatment of an individual will fall within the sphere of private life [under the European Convention], however slight the intervention" and also that "an unwelcome physical attack by one individual is capable of infringing the private life of another" under that Convention).

344 Costello-Roberts v. The United Kingdom, 247 Eur. Ct. H.R. 47, 60-61 (1993) (5-4 decision). 345

See discussion supra Ch. II, Part B(ii).

346

Costello-Roberts, 247 Eur. Ct. H.R. at 52,59-61.

347

Id. at 61.

348

KILKELLY, supra note 256, at 176.

349

Id.

350

Costello-Roberts v. The United Kingdom, 247 Eur. Ct. H.R. 47, 61 (1993).

351

See discussion supra Ch. II, Part B(ii).

352 Costello-Roberts v. The United Kingdom (Annex), 247 Eur. Ct. H.R. 66, 69-71 (1991) (Opinion of the European Comm'n of Hum. Rts.). Although ruling that the corporal punishment administered to the child in Costello-Roberts was not severe enough to constitute an Article 3 violation, the Commission was moved by sufficient distaste for the punishment to comment that it was "probably pedagogically undesirable given his [the child's] age and sensitivity." Id. at 69. 353

Id. at 71-72.

354

European Convention, supra note 164, art. 8, para. 2, at 230.

355 Costello-Roberts v. The United Kingdom (Annex), 247 Eur. Ct. H.R. 66, 72-73 (1991) (Opinion of the European Comm'n of Hum. Rts.). 356 FRANCOIs-MARIE AROUET DE VOLTAIRE, Candide, or Optimism, in CANDIDE AND OTHER STORIES 115, 116 (Joan Spencer trans., Oxford Univ. Press 1966) (1759). 357

See discussion supra Ch. I, Part C.

358

See KILKELLY, supra note 256, at 176-77.

359

7 Individuals v. Sweden, 29 Eur. Comm'n H.R. Dec. & Rep. 104,105 (1982).

360

Id. at 111-14, 116. The Commission also considered the applicants' legal the-

Corporal Punishment Violates Human Rights Laws • 147

ory that the civil ban on corporal punishment of children and the criminal assault statute violated Article 2 of the First Protocol to the European Convention. Id. at 105-08. Article 2 provides, in pertinent part, that "[i]n the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions." First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Mar. 20, 1952,213 U.N.T.S. 262,265. The Commission ruled that applicants' claim under Article 2 was manifestly ill founded and therefore inadmissible. 7 Individuals, 29 Eur. Comm'n H.R. Dec. & Rep. at 115-16. 361

See KILKELLY, supra note 256, at 177-78.

362 Id. at 6-7 (citing Handyside v. United Kingdom, 1 Eur. H.R. Rep. 737 (ser. A) No. 24 (1976)). 363

See ide at 7-8, 178.

364

See infra Ch. III.

365 European Social Charter, supra note 165; Revised European Social Charter, supra note 166. 366 Compare Convention for the Protection of Human Rights and Fundamental Freedoms: Status as of 31/1 0/03, http://conventions.coe.int/treaty/EN/searchsig. asp?NT=005, with European Social Charter: Status as of 31/10/03, http://conventions.coe.int/Treaty/EN/searchsig.asp?NT= 035&CM=&DF=. 367

See discussion infra Ch. II, Part B(v).

368

See supra Ch. II, Part B(iv), note 340 and accompanying text.

369 Cf, e.g., Lars Adam Rehof, Article 12, in THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: A COMMENTARY 187,189 (Asbjorn Eide et al. eds., 1992) (opining that the Universal Declaration's privacy right covers physical integrity).

370

CPR Covenant, supra note 99, art. 24, at 55.

371 General Comment No. 17 (Art. 24) of the Human Rights Committee, 35th Sess., 891st mtg., paras. 3, 5, U.N. Doc. CCPRIC/21/Add. 7 (1989); cf. Pais, Address, supra note 71(stating that the antidiscrimination principle of the Children's Convention militates against tolerance of corporal punishment of children). 372 See Bitensky, Spare the Rod, supra note 47, at 413-14; cf Views ofthe Human Rights Committee Under the Optional Protocol to the International Covenant on Civil and Political Rights, 52d Sess., appendix, para. 2, U.N. Doc. CCPRIC/52/D/453/1991 (1994) (setting forth the individual dissenting opinion of Committee member Kurt Herndl that Article 17 "is one of the more enigmatic provisions of the Covenant" and that its guarantee of privacy "would seem to be open to interpretation"). 373

See discussion supra Ch. II, Part B(ii), note 306 and accompanying text.

374

See, e.g., Case 10.506, Inter-Am. C.H.R. 50, 69-70, OEA/ser.L/V/II.95, doc.

148 • Corporal Punishment of Children: A Human Rights Violation

7 rev. (1996); Case 10.970, Inter-Am. C.H.R. 157, 182, 187-88, OEA/ser. L/V/II.91, doc. 7 rev. (1996). 375 Case 10.506, Inter-Am. C.H.R. 50, 69 & n.20, 70, OEA/ser.L/V/II.95, doc. 7 rev. (1996). 376 Case 10.970, Inter-Am. C.H.R. 157, 182, 187-88, OEA/ser. L/V/II.91, doc. 7 rev. (1996).

377

See discussion supra Ch. II, Part B(iv), notes 344-347 and accompanying text.

378

See discussion supra Ch. II, Part B(i), notes 203-204 and accompanying text.

379

American Convention, supra note 163, art. 19, at 33.

380 Maud de Boer-Buquicchio, Opening Address at the Council of Europe Seminar on Corporal Punishment of Children Within the Family (Nov. 21,2002).

381

Id.

382

European Social Charter, supra note 165.

383

Revised European Social Charter, supra note 166.

384

Id. pmbl., Part III, art. B, para 2, at 34,45-46.

385

European Social Charter, supra note 165, art. 17, at 108.

386

Revised European Social Charter, supra note 166, art. 17, at 41.

387 European Social Charter, supra note 165, art. 25, at 116 (creating the "Committee of Experts"); Revised European Social Charter, supra note 166, part I~ art. C, at 46 (stating that implementation of the rights contained in the Revised European Social Charter is under the same supervision that operates with respect to implementation of the European Social Charter).

388 See General Observations of the European Committee of Social Rights Regarding Articles 7, Para. 10, and 17, Conclusions XV-2, Vol. 1, at 26-29 (2001); see also, e.g., Conclusions of the European Committee of Social Rights Concerning Articles 2, 3, 4, 7, 8, 9, 10, 11, 14, 15, 17 and 18 ofthe Charter in Respect ofPoland, Conclusions XV-2, Vol. 2, at 407,468 (2001) (requesting whether Poland has legislation banning all corporal punishment of children); Conclusions of the European Committee ofSocial Rights Concerning Articles 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 14, 15, 16, 17 and 18 ofthe Charter andArticles 1,2,3 and 4 ofthe 1988 Additional Protocol in Respect of Slovakia, Addendum to Conclusions XV-2, at 127, 227 (2001); Conclusions of the European Committee of Social Rights Concerning Articles 7, 8, 11, 14, 17 and 18 of the Charter in Respect ofFrance, Conclusions XV-2, Vol. 1, at 187, 222 (2001); Conclusions of the European Committee of Social Rights Concerning Articles 7, 8, 11, 14, 17 and 18 of the Charter in Respect of Greece, Conclusions XV-2, Vol. 1, at 231, 257 (2001). 389 See General Observations of the European Committee of Social Rights Regarding Articles 7, Para. 10, and 17, Conclusions X-V2, Vol. 1, at 27 & nn.3-4;

Corporal Punishment Violates Human Rights Laws • 149

see discussion supra Ch. II, Part A(ii), Part B(ii), notes 37-47, 285-288 and accompanying text. 390 See General Observations of the European Committee of Social Rights Regarding Articles 7, Para. 10, and 17, Conclusions XV-2, Vol. 1, at 28 (2001). 391

Id.

392

See ide

393 Conclusions ofthe European Committee ofSocial Rights Concerning Articles 2, 3, 4, 7, 8, 9, 10, 11, 14, 15, 17 and 18 of the Charter in Respect of Poland, Conclusions XV-2, Vol. 2, at 407,468 (2001); accord Conclusions of the European Committee ofSocial Rights Concerning Articles 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 14, 15, 16, 17 and 18 ofthe Charter and Articles 1, 2, 3 and 4 ofthe 1988 Additional Protocol in Respect of Slovakia, Addendum to Conclusions XV-2, at 127, 227 (2001); Conclusions of the European Committee of Social Rights Concerning Articles 7, 8, 11, 14, 17 and 18 of the Charter in Respect ofFrance, Conclusions XV-2, Vol. 1, at 187, 222 (2001); Conclusions of the European Committee of Social Rights Concerning Articles 7, 8, 11, 14, 17 and 18 of the Charter in Respect of Greece, Conclusions XV-2, Vol. 1, at 231, 257 (2001); Conclusions of the European Committee of Social Rights Concerning Articles 11, 14, 17 and 18 of the Charter in Respect ofIceland, Conclusions XV-2, Vol. 1, at 265,282 (2001). 394 See, e.g., Conclusions ofthe European Committee ofSocial Rights Concerning Articles 1§4, 2, 3, 4, 8, 9, 10, 11, 14, 15, 17, 18,21,22,23,24,25,26,27,28,29,30 and 31 ofthe Revised Charter in Respect ofFrance, Conclusions 2003, Vol. 1 (unpaginated); Conclusions ofthe European Committee ofSocial Rights Concerning Articles 1§4, 2, 3, 4, 8, 9,11,15,17,18,21,24,25, 27, 28 and 29 of the Revised Charter in Respect ofRomania, Conclusions 2003, Vol. 2, at 3,62; Conclusions ofthe European Committee of Social Rights Concerning Articles 7, 11, 14, 17 and 18 of the Charter in Respect of Turkey, Addendum to Conclusions XV-2, at 247, 270 (2001); cf Conclusions ofthe European Committee ofSocial Rights Concerning Articles 11, 14, 17 and 18 ofthe Charter in Respect ofIceland, Conclusions XV-2, Vol. 1, at 265, 282 (observing that although ill treatment and abuse of children is punishable by law and corporal punishment of children is prohibited in homes and institutions for children, the European Committee still wishes to know whether Iceland has passed legislation prohibiting all forms of corporal punishment of children in all venues). 395 Conclusions ofthe European Committee ofSocial Rights Concerning Articles 1§4, 2, 3, 4, 8, 9,10,11,14,15,17,18,21,22,23,24,25,26,27,28,29,30 and 31 ofthe Revised Charter in Respect ofFrance, Conclusions 2003, Vol. 1 (unpaginated). 396

See discussion supra Ch. II, Part A.

397

ESCR Covenant, supra note 161, art. 12, para. 1, at 51.

398

Id. art. 12, para. 2(a), at 51.

399

Id. art. 13, para. 1, at 51 (emphasis added).

400

Id. art. 10, para. 3, at 50.

150 • Corporal Punishment of Children: A Human Rights Violation 401

See discussion supra Ch. I, Part C.

402 See Office of the United Nations High Commissioner for Human Rights, Committee on Economic, Social and Cultural Rights, at http://www.ohchr.org/english/bodies/cescr/index.htm (last visited Oct. 8, 2004) (noting that the Committee on Economic, Social and Cultural Rights monitors states parties' compliance with the ESCR Covenant).

403 General Comment No. 14 ofthe Committee on Economic, Social and Cultural Rights, 22nd Sess., Agenda Item 3, at paras. 4, 9-11, 14, 22-24, U.N. Doc. E/C.12/2000/4 (2000) [hereinafter ESCR Committee General Comment No. 14]. 404

I d. para. 4.

405

Id. para. 10 (emphasis added).

406

Id. paras. 14, 22 (emphasis added).

407 Children's Convention, supra note 8, art. 24, para. 3, at 170; see discussion supra Ch. II, Part A(vi).

408 See, e.g., General Comment No. 13 ofthe Committee on Economic, Social and Cultural Rights, 21st Sess., para. 41, U.N. Doc. E/C.12/1999/10 (1999) [hereinafter ESCR Committee General Comment No. 13]; Concluding Observations ofthe Committee on Economic, Social and Cultural Rights: Ireland, 28th Sess., para. 7, U.N. Doc. E/C.12 /l/Add. 77 (2002); Concluding Observations ofthe Committee on Economic, Social and Cultural Rights: United Kingdom ofGreat Britain and Northern Ireland, 28th Sess., para. 36, U.N. Doc. E/C.12/1/Add.79 (2002); Concluding Observations ofthe Committee on Economic, Social and Cultural Rights: Jamaica, 27th Sess., paras. 14,27, U.N. Doc. E/C.12/1/Add.75 (2001). 409 ESCR Committee General Comment No. 13, supra note 473, para. 41 (endnotes omitted); see, e.g., Concluding Observations ofthe Committee on Economic, Social and Cultural Rights: Ireland, 28th Sess., para. 7, U.N. Doc. E/C.12/1/Add.77 (2002) (commending Ireland for enacting legislation to eradicate corporal punishment in schools); Concluding Observations ofthe Committee on Economic, Social and Cultural Rights: Jamaica, 27th Sess., paras. 14,27, U.N. Doc. E/C.12/1/Add.75 (2001) (expressing concern about continued corporal punishment in Jamaica's schools). 410

See discussion supra Ch. II, Part A(i).

411

See discussion supra Ch. I, Part C.

412 See, e.g., Concluding Observations ofthe Committee on Economic, Social and Cultural Rights: United Kingdom of Great Britain and Northern Ireland, 28th Sess., para. 36, U.N. Doc. E/C.12/1/Add.79 (2002) (recommending that under Article 10, physical punishment of children in families should be prohibited); Concluding Observations ofthe Committee on Economic, Social and Cultural Rights: Jamaica, 27th Sess., paras. 14,27, U.N. Doc. E/C.12/1/Add.75 (2001) (urging that under the ESCR Covenant in general, corporal punishment of children in the home should cease).

413 MATTHEW C.R. CRAVEN, THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL,AND CULTURAL RIGHTS: A PERSPECTIVE ON ITS DEVELOPMENT 158 (1995).

Corporal Punishment Violates Human Rights Laws • 151 414 See, e.g., Inter-American Convention to Prevent and Punish Torture, adopted Dec. 9, 1985, art. 1,25 LL.M. 519,521 (committing states parties to prevent and punish torture); id. art. 6, at 522 (committing states parties to take effective measures to prevent and punish cruel, inhuman, or degrading treatment or punishment); African Charter on Human and Peoples' Rights, June 24-27, 1981, art. 4,21 LL.M. 59, 60 (1982) (asserting that "[h]uman beings are inviolable" and that "[e]very human being shall be entitled to respect for his life and the integrity of his person"); id. art. 5 (enunciating that "[e]very individual shall have the right to the respect of the dignity inherent in a human being" and that "[a]ll forms of exploitation and degradation of man particularly ... torture, cruel, inhuman or degrading punishment and treatment shall be prohibited"); id. art. 6 (protecting every individual's right "to the security of his person"); id. art. 16, para. 1, at 61 (affirming that "[e]very individual shall have the right to enjoy the best attainable state of physical and mental health"); id. art. 18(1) (stating that "[t]he family ... shall be protected by the State which shall take care of its physical and [moral health]"); id. art. 18, para. 3, at 62 (proclaiming that "[t]he State shall ensure the protection of the rights of ... the child as stipulated in international declarations and conventions").

CHAPTER III

DOMESTIC LAWS OF COUNTRIES ABSOLUTELY PROHIBITING ALL CORPORAL PUNISHMENT OF CHILDREN As of this writing, the middle of 2005, at least fifteen countries have instituted obligatory legal measures delegitimating all corporal punishment of children.' I have taken care to specify the count as of that time because the number of countries decreeing bans has lately been growing by leaps and bounds. It was in the six-year period between 1998 and 2005 that nine of these fifteen countries inaugurated such legal prohibitions. Based on this burst of legal innovation, it is probably a safe assumption that by the time this book is in print, more countries will have joined the abolitionist club. Indeed, it was so recently that Ukraine, Romania, and Hungary enacted legislation proscribing all corporal punishment of children that it was too late for me to include them here by more than a passing reference." Of the fifteen nations, fourteen have forbidden corporal punishment by statute and Israel has done so by a judicial decision that is binding precedent across the land.' (Italy's Supreme Court of Cassation and Portugal's high Court also have ruled that parental corporal punishment of children is illegal in their respective countries, but the decisions have no precedential value." They are therefore treated separately.) Five of the abolitionist countries have lived with their statutes for ten years or more (as of 2005).5 Sweden's statute has been on the books for approximately twenty-five years.s The circumstances surrounding this longevity are cause for reassurance that such legislative reform need not be viewed with trepidation. During these years, none of the enacting countries has repealed its statutory prohibition or experienced a backlash even though the prohibition has governed tens of millions of parents and children. Indeed, family life, parental authority, and the rule of law have continued to flourish in these countries much as they do elsewhere in the absence of armed conflict or natural catastrophe.

153

154 • Corporal Punishment of Children: A Human Rights Violation

A. ENACTMENTS (i) Sweden

Sweden became the first country in the world to ban all corporal punishment of children? by enacting a statute to that effect in 1979, which set limits on child rearing methods used by parents, guardians, and others." The statute, as amended in 1983, provides: "Children are entitled to care, security and a good upbringing. They shall be treated with respect for their person and their distinctive character and may not be subject to corporal punishment or any other humiliating treatment."9 The statute, which is part of Sweden's Civil Code, admits no exceptions.'? Although there are no enactments in the Civil Code expressly forbidding corporal punishment of children in schools or other child care institutions.!' it is understood that corporal punishment is taboo in these venues by virtue of the existence of the Penal Code provision criminalizing assaults.P There are no exceptions to the bans thereby created." Sweden also has repudiated judicially imposed corporal punishment of children. 14 Because Sweden led the way in making all corporal punishment of children illegal, the history of how it happened there is intriguing. In terms of its traditions, Sweden was not conspicuous as the first country that one would expect to take steps ameliorating harsh discipline of children since the Swedes had a long tradition of unsparing parental corporal punishment to enforce obedience of children. 15 Nevertheless, some legal reform was initiated even as early as 1928 when Sweden became one of the first countries to bar corporal punishment of children in secondary schools. Sweden's Penal Code, however, continued to make available to parents and other nonschool care givers, who might be charged with assault arising out of corporal punishment of children, the defense that the would-be defendants were, after all, only using the punishment to correct the children. This type of defense was retained, although Sweden otherwise modernized its family laws in 1949. Concerned about the continuing problem of adult violence toward children, in 1957 Swedish legislators took the then revolutionary step of removing from the Penal Code the corporal punishment defense to criminal assault unless the punishment was mild. By this reform, Sweden moved closer to according children the same protection from physical

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assaults as was enjoyed by adults. Sweden inched still closer to this goal in 1966 when the exemption for mild corporal punishment was deleted." In spite of this progress on the legal front, the perception persisted among a substantial number of Swedes that their laws continued to condone such punishment. I? In 1977 the Swedish Parliament established the Commission on Children's Rights, comprised of lawyers, psychologists, psychiatrists, politicians, and others, that undertook to study the feasibility of legislating an express prohibition on all corporal punishment of children so as to conclusively clarify the law." The Commission found corporal punishment to be deleterious to children's well-being and recommended an explicit ban.'? When the bill, which ultimately became the 1979 law, was submitted to the Parliament, it was supported by all political parties and passed by a vote of259 to six. 20 The ban on corporal punishment of children by parents and guardians does not, on its face, provide for any legal sanctions in case of violation. It appears that the Swedish Parliament purposefully enacted the law with this omission because the lawmakers conceived of the prohibition as having its primary effect by influencing societal attitudes over time rather than by the more immediate expedient of criminal liability and penalties." Literature distributed to the public by the Swedish government emphasized that "while the purpose of the new legislation is indeed to make it quite clear that spanking and beating are no longer allowed, it does not aim at having more parents punished than hitherto."22 However, the possibility exists that violators of the Civil Code ban on corporal punishment of children may be prosecuted for their violations under Sweden's Penal Code provision criminalizing physical assaults: A person who inflicts bodily injury, illness or pain upon another or renders him or her powerless or in a similar helpless state, shall be sentenced for assault to imprisonment for at most two years or, if the crime is petty, to a fine or imprisonment for at most six months." An adult who corporally punishes a child may be subject to prosecution for assault under this provision regardless of whether the punisher is a parent, guardian, schoolteacher, or a care giver in other institutions for children.>' He or she may be prosecuted even if the corporal punishment is

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not severe-even if it is a solitary smack-provided that the punishment results in some bodily injury, illness, or pain for the child." Although prosecuting parents or other caretakers under the assault statute for corporal punishment of children is a real option in Sweden and has occurred, prosecutors almost invariably exercise restraint by electing not to prosecute these cases against parents, especially if only light punishment is involved." Rather than diverging from the import of the corporal punishment ban, this low-key strategy is perfectly in keeping with the intent of the Swedish Parliament that the ban should function mainly as a pedagogical tool. If a parent, teacher, or other child care giver is, in fact, prosecuted for corporal punishment of a child as criminal assault, a concomitant claim for damages may be brought under the Penal Code against these defendants when injury accompanies the punishment.?? The applicable Penal Code provision states: "Aside from sanction, and in accordance with appropriate statutory provisions, a crime may incur forfeiture of property, a company fine or some other special consequence defined by law and may also incur liability for the payment of damages."28 There is a separate basis for bringing independent civil suits for damages on behalf of children against violators of the corporal punishment ban, pursuant to the following Civil Code provision: "Anyone who intentionally or through negligence causes physical damages to persons or property shall compensate the damages."29 Nor are the possible legal repercussions for a parent who violates the ban limited to prosecution for assault or the filing of damage actions. An offending parent could further run the risk of losing custody of a child in a divorce case if the punishment is harsh. According to Schiratzki, [A]ny incident of corporal punishment, e.g.[,] regardless of whether it entails a lasting danger to a child's health or development, should be considered when deciding a custody dispute. In practice, however, some sort of evidence proving that the abuse has taken place is generally demanded, this in turns [sic] suggests that only more severe corporal punishment is taken into account. 30 This approach to the intersection of custody decisions and the ban on corporal punishment of children arises from a statutory scheme requiring that

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the best interests of the child must be the chief consideration in making such decisions." The Swedish experience with the legal prohibition on all corporal punishment of children is more interesting and perhaps more significant than that of any other country because the prohibition has been law for a longer time than that of other jurisdictions. Contrary to the fears of some, hordes of chagrined adults have not been hauled into court, under the Civil or Penal Codes, at the behest of children alleging illegal corporal punishment. As mentioned above, and I think it bears repeating, the government has invoked the ban more for its propaganda value than for anything else, and has attempted to enhance the ban's effectiveness as such with massive education campaigns about it32 as well as with extensive support services designed to minimize family stress and conflict. 33 A number of studies have been done to evaluate the successfulness of the Swedish ban, in the process producing some conflicting assessments.>' It is beyond the scope of this book to get into the details of disagreements among the child development experts who conducted these studies; that kind of review is grist for a social scientist's mill. From my vantage point as a lawyer, trained to use logic as one of the mainstays of legal analysis, I cannot help but hold the work of other disciplines at least to the standard of being logically satisfying. Using this minimum standard, then, it is my otherwise inexpert opinion that Durrant's work more than adequately rebuts those studies arguing that the Swedish corporal punishment ban has been ineffective, particularly insofar as Durrant detects serious methodological flaws in the studies." For example, the main reason that Roberts' article concludes that the 1979 ban was unfruitful is because Swedes had already begun to develop attitudes against corporal punishment of children well before 1979, and, therefore, Roberts surmises, Swedes would have kept progressing in that direction even without the intervention of the ban.v' Durrant gives the lie to such summary and facile ruminations by pointing out that "[w]hat is missing from his [Roberts'] analysis is an understanding of the history of legislative reform in Sweden prior to 1979."37 She observes that Roberts did not take into account that Swedes had been partially reforming their laws on corporal punishment in phases, in 1928, 1957, and 1966, so that law and popular sentiment had been reciprocally interacting on the sub-

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ject for five decades before 1979. Durrant provides data revealing a "pattern [which] clearly shows that attitudes shifted following each reform."38 Thus, she establishes, Roberts had no grounds for asserting that legal reform on this topic does not influence attitudes or that the 1979 ban in particular did not influence attitudes. As will be seen, the total ban has served as the impetus for ever-growing disapproval by Swedes of corporal punishment of children.'? Durrant and Janson likewise neatly dispose of the antiban contentions of Larzelere and Johnson. The latter two critics reviewed eight studies founded on data from Sweden relevant to corporal punishment of children. One of the major points articulated by Larzelere and Johnson is based on misinterpretation of statistics and postulation of erroneous hypotheses drawn therefrom. Larzelere and Johnson's study sees the upsurge in reports to the police of physical assaults against children after enactment of the 1979 ban as a telltale sign that the ban may have increased rather than decreased violence against children. The study reasons that this occurred because the corporal punishment prohibition purportedly promoted permissive child rearing. Larzelere and Johnson's theory is that when, as a result, children's behavior has become unendurable, parents have responded with vitriol and violence. Furthermore, Larzelere and Johnson argue, the corporal punishment ban has made adults very reluctant to use the trivial spankings that could defuse parental anger and shortcircuit escalation to more intense violence in the context of any particular disciplinary incident." Durrant and Janson demonstrate that the rise in reports of adult assaults on children has been caused, not by proliferation of violent acts towards children, but, rather, by the twofold phenomenon of" 1) an increase in the public's willingness to report less severe incidents of assault, an indicator of a shift in definitions of violence, and 2) the addition of a category of assault that did not exist previously."41 They also refer to data demonstrating "that permissiveness is not the norm" with respect to Swedish parenting; Swedish parents simply use tactics other than hitting to control their children's behavior.42 Finally, Durrant and Janson elucidate that all of the available empirical evidence shows that weak corporal punishment of children is correlated with those children being at greater, not less, risk for more severe physical child abuse."

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Besides rebutting the opposition, Durrant's articles, as well as those of other experts who have weighed in on the subject, offer affirmative, persuasive evidence that the 1979 ban was highly instrumental in shaping public attitudes against corporal punishment of children and in minimizing the use of such punishment." According to a synthesis of several such studies issued by the Swedish Ministry of Health and Social Affairs, the following conclusions may be drawn." First, corporal punishment as a child rearing technique has declined considerably over the last decades in a manner suggesting that repudiation of the technique has been, at least in part, inspired by the earlier legislative reforms incrementally circumscribing its use as well as by the full ban in 1979.46 The effect of that ban is reflected in statistics compiled by the Swedish Committee on Child Abuse and Related Issues in 2000 showing that there was a drop in use during the 1980s so that about one-third of Swedish children were undergoing corporal punishment at that time and another drop during the 1990s so that only one in five Swedish children were then undergoing such punishment. Parental interviews conducted in 1980 and 2000 manifest a similar pattern: use of corporal punishment on children in the home "decreased substantially, particularly when it comes to the beating of children with fists or some sort of instrument, or spanking them." These researchers, rather than indulging in self-serving speculation, voice wariness about extrapolating from the data. They note that while comparisons with the situations in other countries show that corporal punishment "is less common in Sweden, often substantially less common," that encouraging finding may not be the same for more severe types of physical punishments." The studies also disclose that attitudes, as opposed to practices, among Swedes towards corporal punishment of children have appreciably realigned. The proportion of Swedish adults with a favorable attitude toward corporal punishment of children was 53 percent in 1965, 11 percent in 1994, and 10 percent in 2000. Schoolchildren's favorable views about corporal punishment have tapered off too: "[t]he proportion of pupils who will accept being hit by a parent has decreased from fifty to twenty percent between 1995 and 2000."48 It is uncertain as to why such a prodigious conversion occurred during that particular five-year period. There is conjecture that the decline may be related to the ready access of Swedish schoolchildren to materials about their rights under the U.N. Convention on the Rights of the Child49-a treaty that has been interpreted to prohibit all corporal punishment of children.>?

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Although the emerging picture would seem, at first blush, quite rosy, it is not entirely so. Studies have discovered no concurrent slump in bullying among children at school or during their recreational time. The rate of bullying appears instead to have remained steady. This is not a minor problem since approximately one-fifth of all schoolchildren report that they fear at least one other child in school, and about 2 percent to 3 percent of all schoolchildren are bullied at least once each week.>! These are surprising statistics because, in light of recent scientific strides such as Gershoff's meta-analyses, it would be reasonable to anticipate that as the incidence of corporal punishment in the home wanes, children from those homes would be less inclined to act out aggressive behavior in the schoolhouse or on the playground.v One other problematic estimate is that for each "case of physical punishment known to the [Swedish] health services, at least two more cases remained unknown."53 It is thought that this underreporting may be due to school and health service staffs being stretched too thin to keep up with reporting mandates.>' Despite these concerns I think that, based on all of the facts, it is not an overstatement to assert that the picture still remains a bright one. The foregoing data indicate that the 1979 ban on corporal punishment of children was effective in dramatically reducing approval of the practice by adults and children and in dramatically reducing its use. These are substantial achievements in the process of eliminating such punishment altogether. It is, after all, a process that Swedish legal reforms have initiated. Law is not a magic wand that creates miracles of metamorphosis overnight. When evaluating the effects of the 1979 ban in particular, one should be mindful that even its twenty-five-year tenure is not that long a time for profoundly entrenched, nationwide attitudes and practices to undergo extensive modification. (ii) Finland

Finnish bans on corporal punishment in schools have an antique lineage, dating back as early as the fifteenth century. Parental corporal punishment, in contrast, remained legal until 1969 when the Finnish legislature removed the defense of corporal punishment of children from the Criminal Code. The change effectively turned out to be more technical than substantive because the mere repeal of the defense left both professionals and the public puzzled as to the legal status of corporal punishment. In 1978, 40 percent of parents were under the impression that

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corporal punishment of children was legal. Despite the persistent confusion over the 1969 law, sentiment grew against corporal punishment of children. When asked in 1981 whether Finland should pass a ban on corporal punishment like Sweden's, 60 percent of Finnish respondents (including 72 percent of those between the ages of fifteen and twentyfour) gave an affirmative answer. Thus, when Finland enacted an express ban on all parental corporal punishment of children in 1983, the measure had achieved majority public backing." The 1983 prohibition of corporal punishment in the family was passed as part of a general overhaul of Finnish law governing children.56 The prohibition, set forth in Finland's Civil Code.>? states: "A child shall be brought up with understanding, security and gentleness. He shall not be subdued, corporally punished or otherwise humiliated. The growth of a child towards independence, responsibility and adulthood shall be supported and encouraged."58 The ban was adopted unanimously, almost without debate, and went into effect on January 1, 1984.59 Like Sweden, Finland has no statutes in its Civil Code expressly forbidding corporal punishment of children in schools or other child care institutions, but it is understood that corporal punishment is unacceptable in these milieus by virtue of Penal Code provisions criminalizing physical assaults in general. 60 Moreover, the Child Welfare Act stipulates that Section 1 of the Child Custody and Right of Access Act, i.e., the aforementioned ban on corporal punishment of children, "shall apply to the upbringing of a child ... in a residential home."61 Corporal punishment is also unlawful as a penal measure against children. 62 Matti Savolainen, a member of the Finnish Ministry of Justice, who was responsible for drafting the 1983 ban, has explained that three strategies for stopping corporal punishment of children were contemplated in creating the ban, including criminal penalties: Firstly the Act attempts to establish certain "positive" guidelines for the upbringing of the child. Secondly the Act makes it absolutely clear that all violations against the child's integrity (whether "physical" or "spiritual") which would constitute a criminal offence if committed by a third person (e.g., assault, unlawful imprisonment, libel, slander, etc.) are equally punishable even when committed by a parent with the intent to discipline the child. And under the Criminal Code even

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a petty assault committed against a child under 15 is subject to public prosecution when committed by a parent at home. Thirdly the Act explicitly forbids also any degrading treatment ... even where such an act would not constitute a criminal offence and even if there are no other direct legal remedies available. 63 In accordance with this legislative intent, it is common knowledge that if parents, teachers, or other child care givers violate the corporal punishment ban, they may be prosecuted for assault under Finland's Penal Code.64 For more serious assaults that damage health, or cause pain or unconsciousness, the Penal Code imposes the following liability: A person who employs physical violence on another or, without such violence, damages the health of another, causes pain to another or renders another unconscious or to a comparable condition, shall be sentenced for assault to a fine or to imprisonment for at most two years. An attempt shall be punished.65 For petty assaults, the Penal Code imposes more limited liability: "If the assault, when assessed as a whole and with due consideration to the minor character of the violence, the violation of physical integrity, the damage to health or other relevant circumstances, is of minor character, the offender shall be sentenced for petty assault to a fine."66 It should be noted that there is no defense to assault prosecutions that the adult was merely using corporal punishment on the child as a child rearing or educational method. Other defenses are available that might justify some interference with a child's bodily integrity, but they do not justify physical punishment of a child.v? One such defense is that of self-defense. The Penal Code provides, in part: An act that is necessary to defend against an ongoing or imminent unlawful attack is lawful as self-defence, unless the act manifestly exceeds what in an overall assessment is to be deemed justifiable, taking into account the nature and strength of the attack, the identity of the defender and the attacker and the other circumstances.v'' Another such defense is necessity which the Penal Code describes, in part, as follows:

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An act other than that referred to above in section 4, necessary to ward off an immediate and compelling threat to a legally protected interest, is permissible as an act of necessity if the act when assessed as a whole is justifiable, taking into account the nature and extent of the interest to be rescued and the damage and detriment caused by the act, the origin of the danger and the other circumstances.69 Parents, teachers, or other care givers who violate the prohibition on corporal punishment of children may also be sued for damages in conjunction with an assault prosecution brought for the same incident or incidents of corporal punishment.70 The Criminal Procedure Act states, in part, that "[a] civil claim arising from the offence for which a [criminal] charge has been brought may be heard in connection with the charge,"?' However, even "[i]f the charge is dismissed or withdrawn, or if the injured party is found to have forfeited the right to bring a charge, the court may on the request of a party order that the hearing of the civil claim is to continue in accordance with the provisions on civil procedure."72 Should a prosecutor be unwilling to pursue the civil claim for damages, he or she is required to so notify the complaining party." In that event, such party must be provided with an opportunity to pursue the civil claim independently." This system operates somewhat differently if the victim is at least fifteen years old and does not report a petty assault to authorities. Under these circumstances, the prosecutor is not supposed to bring criminal charges for petty assault or to bring a claim for negligent bodily injury." This rule would appear to considerably enfeeble the protections available to older children who suffer mild corporal punishment at the hands of parents or other adults and who may be intimidated or otherwise daunted about bringing legal actions against persons with power over the children. Finnish law thankfully carves out an exception to this rule in cases in which "the custodian, guardian or other legal representative of a minor . . . has directed a [ ] [petty assault] offence" against a nonreporting child fifteen years of age or 01der. 76 When the defendant falls within this classification, the prosecutor may bring petty assault charges without a request from the child and may simultaneously pursue the child's civil claim if that recourse is sought.77 Incidentally, not all civil claims for damages need to be brought as an adjunct of criminal charges. Conceivably a child subjected to corporal

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punishment by an adult could seek monetary redress alone under a statutory provision that states: "Any person who, either wittingly or through negligence, causes prejudice to any other person shall pay compensation for the prejudice so caused, save as otherwise provided in this Act."78 Finally, under Finnish law, parental use of corporal punishment on children may be a factor influencing judicial awards of child custody. 79 There is no legal provision expressly outlining this approach to custody determinations, but the primary factor in these cases is considered to be the welfare of the child, and parental use of violence on a child will figure into the assessment of that welfare. 80 The Finnish government has complemented these laws with a nationwide campaign to educate adults about better ways to correct children than by using corporal punishment. For example, Finnish authorities have utilized television spots urging parents to substitute reasoned discussion for physical chastisement. Similar messages are widely disseminated in women's and family magazines as well. Because of these and other public relations efforts, "[p ]ublic awareness of the [corporal punishment] law is now at a high level."81 The most recent large-scale study of family violence against children, published in 1992, "showed a fairly high prevalence of mild physical punishment in the six years following the 1983 ban, although only a small percentage of the respondents reported having experienced any violence in the preceding 12 months."82 The study demonstrates that among students fifteen to sixteen years of age, 72 percent of those responding were subjected to some mild violence by a parent during their childhoods. Mild violence was defined to include pushing, shoving, hairpulling, slapping, beating with a switch, or a combination of these practices (selkasauna). The most common form of this violence was hairpulling, experienced by 65 percent of these respondents, while switching, not lagging far behind, was experienced by 35 percent of them. Eight percent of respondents affirmed that they had been exposed to severe violence such as kicking or hitting with fists or implements. 83 These findings are obviously not cause for jubilation. But, before the Finnish corporal punishment ban is dismissed by spanking fans as ineffective, it should be remembered that the persistence of mild corporal punishment was detected only six years after the ban had been put in place.

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This is not to say that the Finnish ban currently is or will be a raging success in the near future. It is to say that evaluations of effectiveness so short a time into the ban's existence may be too premature to tell us anything meaningful yet. The incidence of all reported assaults against children in the family increased from sixty-nine in 1996 to 137 in 2000. However, as in Sweden, this increase is thought to be the result of greater awareness of children's right to be free from violence and, hence, of greater reporting to the authorities rather than the result of any actual spread of violence against children. 84 There are no recent studies of popular attitudes in Finland vis-a-vis corporal punishment of children. The Finnish Central Union for Child Welfare has advised, though, that "professionals are unanimous in their support of the legislation [banning corporal punishment of children] and that parents in general are against physical punishment."85 Moreover, while approximately 45 percent of Finnish teenagers surveyed in 1988 expressed acceptance of corporal punishment of which they had been the object, only 5 percent of these respondents represented that they would use such punishment on their own children someday.v' These last statistics reflect that within only a five-year period from the enactment of the corporal punishment ban, enormous movement has occurred among the next generation of parents towards disapproval of corporal punishment as a child rearing device. If these teenagers remain true to their word, that will indeed be cause for celebration among their babies and other Finns who care about protecting children from violence. (iii) Norway

The saga of events leading to Norway's present bans on corporal punishment of children has followed a trajectory similar to that which evolved in Sweden. At least as early as 1926, Norwegian parents were authorized to assert a criminal law defense that use of physical force against their children was permissible corporal punishment. In 1972, in an attempt to outlaw corporal punishment of children, the Norwegian Parliament removed this defense. The removal evidently gave rise to bewilderment over the legal status of corporal punishment. Therefore, in 1979 the government appointed a committee to study this and related issues. The committee recommended legislation spelling out a ban on corporal punishment

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of children, and the Ministry followed through by proposing an amendment of this nature to the Parent and Child Act. A bill containing the ban failed twice in the Norwegian Parliament, in 1983 and 1984, before the political landscape changed with the return of Social Democrats to power.87 In 1987, with the boost of a more sympathetic political climate, Norway enacted an express ban on corporal punishment of children by parents, providing that "[t]he child shall not be exposed to physical violence or to treatment which can threaten his physical or mental health."88 Norway does not have differentiated criminal and civil codes; rather, all of its laws, including the 1987 ban, are set forth in the Norges Lover, a chronological compilation of all acts in force. The preparatory works relating to the ban indicate that, under two circumstances, some interference with a child's bodily integrity is still permitted. First, holding or blocking children may be legal, especially with respect to younger children, when necessary to prevent them from hurting themselves or others or destroying property. Second, the law tolerates light slaps on children's hands or clothed buttocks if administered as a spontaneous reaction.s? Although the preparatory works are not enacted exceptions to the 1987 ban, they are respected as guidelines for interpretation of the ban and as directives to prosecutors. (Norwegian courts generally attach much importance to preparatory works in construing Iegislation.:") Corporal punishment of children is outlawed in Norwegian schools by the Act on Education, which, without mincing words, states, in relevant part, that "[p ]hysical punishment or other offensive treatment shall not be permitted."91 There are no exceptions to this prohibition.:" As to other child-centered institutions, the Act on Child Welfare Services simply asserts that "[i]t is not permitted to reprimand a child physically."93 There are no exceptions to the ban on corporal punishment of children in these child care establishments.?" The various prohibitions on corporal punishment of children were originally conceptualized primarily as didactic in operation-as attaining their objective by molding Norwegian norms on the subject." However, recent consultations with the Norwegian public prosecutor's office "refute[] that Norwegian prosecutors have been or are following a policy of prosecutorial restraint in relation to prosecuting parents for assault in

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connection with corporal punishment of children. According to the public prosecutor it is important to prosecute assault in general, including assault in connection with corporal punishment of children."96 This is the policy even if the punishment is insubstantial, though there are practical problems associated with prosecution of such cases due to lack of personnel and other resources in the public prosecutors' offices and in the police force."? Parents, teachers, or any other child care givers who corporally punish a child can be prosecuted for assault under appropriate provisions of Norways criminal laws." The basic provision on criminal assault states 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."99 Prosecution of corporal punishment as assault under the foregoing statute does not require, as a prerequisite, any physical manifestations (bruises, welts, red marks, etc.) of the punishment on the child's body. 100 A related provision states: "Any person who injures another in body or health or reduces any person to helplessness, unconsciousness or any similar state, or who is [an] accessory thereto, is guilty of occasioning bodily harm and shall be liable to imprisonment for a term not exceeding three years."lOl Prosecution for corporal punishment as an assault under this provision does normally require some physical manifestations of the punishment on the child's body although the language also authorizes, at least in theory, criminal liability for certain nonphysical assaults.l'" Prosecution of parents for corporally punishing their children is also possible under a statutory prohibition against neglect or maltreatment (mental or physical) of persons belonging to the parents' household. 103 One gets a sense of this Norwegian legal matrix in action by referring to court decisions dealing with corporal punishment of children as criminal assault. The Supreme Court of Norway has issued a judgment showing that it is dead serious about the ban on parental corporal punishment and is as protective on children's behalf under the ban as are the prosecutors and police. The facts giving rise to the case are that B, A's one-andthree-quarters-year-old son, bit A's (his father's) hand. The resulting pain caused A spontaneously to "snap" the child on the mouth so that B's lip

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swelled and the inside of his mouth bled; B began to cry. A was charged under the first assault provision quoted above. 104 The lower Court sided with the father, maintaining that he had a right and a duty "to put the boy in his place after the biting" and that, if the father went too far, it was excusable as an involuntary reaction to pain. lOS The Supreme Court reversed and held that the father's act constituted criminal assault warranting a fine of 1,000 Norwegian kroner or two days imprisonment if the fine was not paid.'?' The Supreme Court's faithfulness to the ban is captured by its curt observation that "[i]t can also not be lawfully acceptable that children are to be put into place in this manner."107 In Norway, courts generally do not have a lawmaking role.l'" Be that as it may, it is revealing to study a decision by the Halogaland Court of Appeal.!?? which, together with the lower court disposition described above, demonstrates that not all of the actors in the Norwegian legal system are yet on the same page in relation to corporal punishment of children. This case again concerned a prosecution under the first assault provision quoted above. The facts are that A, who was employed in a temporary position as an assistant in a day care center, pulled one of his charge's hair and then shoved him so that the child, B, fell and hit his head on the door jamb; B thereupon started bleeding from his lip and nose and developed a bump over his right eye. This altercation had apparently been set off when A asked B to join the other children upstairs and B failed to respond, at which point A pulled B in order to compel him to comply. A's version of the ensuing events were that B resisted as A pulled him towards the door, but that suddenly B yielded and was propelled forward by his own momentum against the door frame. Thus, by A's account, B's lurching into the door jamb and the attendant injuries were an accident.'!" The Court ofAppeal found that A grabbed B and pulled him, and that B then bumped his head against the door frame, without reaching a conclusion on whether B's collision with the door jamb was intentional on A's part or an accident. What mattered, according to the Court ofAppeal, was whether the force used was intense enough to cause B to lose his balance. The Court of Appeal reevaluated the evidence that had been before the lower Court and decided "that the accused's use of force has [not] been as strong as what the District Court found to be the case."lll Given this appraisal of the evidence, the Court ofAppeal ruled that A was not guilty of assault. 112 Not content to leave bad enough alone, the Court also expa-

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tiated that even if A had used more force than was necessary to bring B upstairs, this was "such a slight transgression" as could not constitute a punishable assault.!!' The message of this appellate judgment is that some use of force against a child in an institutional setting is unobjectionable as a matter of law. Lest anyone should have the slightest doubt regarding this point, the Court of Appeal opinion unabashedly announces that "[t]he accused was ... entitled to enforce a limited use of physical force over the children in the day-care centre."II4 Never mind that such a principle is in direct conflict with Norwegian statutory law prohibiting any corporal punishment whatsoever of children in schools and in other child care institutions! This flouting by the Halogaland Court of the statutory prohibition should not, however, be take as symptomatic of any nationwide judicial bafflement about, or rebellion against, the prohibition. The decision is an isolated instance, with no precedential value, demonstrating that the prohibition's effectiveness is not perfect and that work remains to be done to bring the occasional errant judge up to speed. Besides prosecution for assault, a basis exists in Norwegian law for a tort action to be brought on behalf of a child against his or her parent, teacher, or other care giver for a serious bodily injury or for serious pain and suffering caused by defendant's corporal punishment of the child. II5 A statute allowing such suits provides: Whoever, acting willfully or by gross negligence has (a) caused injury to a person ... may be sentenced to pay the offended party such a lump sum that the court will hold to represent a just compensation ... for the pain and suffering and other aggrievances or harm ofnon-economic nature that was inflicted upon him.!" A case illustrating the application of this provision in connection with corporal punishment of children was rendered not long ago by the Gulating Court ofAppeal. II? The children, A and B, were placed in foster care with C and D. The evidence showed that, over the course of six years, the foster parents regularly beat and subjected the children to spanking and hair pulling. The children brought an action under the above-quoted tort statute seeking compensation for the pain and suffering this discipline had caused them.

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The Gulating Court of Appeal went out of its way to include the dictum that the spankings and hair pullings, by themselves and without more, could make C and D criminally liable for assault. Addressing the tort claim before it, the Court opined that due to the random use of physical force against A and B, as well as of punishments confining the children to their rooms, "[t]here is ... little reason to doubt that they have psychological problems."118 The Court of Appeal consequently awarded A and B compensation for pain and suffering in the sum of 75,000 Norwegian kroner.!'? The import of the decision is that it "may indicate a standard for the use of the tort act in relation to corporal punishment of children.t'l-" Corporal punishment of children has other possible legal repercussions in Norway. Parental use of corporal punishment, even if it is subdued, may influence the outcomes of child custody disputes.'>' Section 34 of the Parent and Child Act provides, in pertinent part, that when custody fights are brought before a court, "[t]he decision shall first and foremost have regard to what is in the best interests of the child."122 All circumstances concerning a child's well-being and development, including corporal punishment, are required to be taken into account by the court under the best interests standard.l'" Norway has not gone to the same lengths as Sweden in trying to publicize the ban on corporal punishment of children. A leaflet about the law was circulated by a nongovernmental group, and advertisements on the subject have been featured in national newspapers. Norway has implemented a Parental Guidance Programme to provide opportunities for parents to discuss with professionals various aspects of child rearing, presumably including corporal punishment. Also, the Norwegian Ombudsman for Children has appeared on a weekly television program to answer children's inquiries, again, presumably including those about corporal punishment. As of 2002, no research had been published on the effects of the corporal punishment ban. The Office of the Ombudsman for Children has reported, however, that both adults and children are very familiar with the ban's existence and meaning, and that physical chastisement is no longer socially acceptable in Norway.'>'

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(iv) Austria

The sequence ofAustria's progress toward enacting a total prohibition on corporal punishment of children generally parallels that of the Scandinavian countries. As of 1975, the Austrian legislature had forbidden physical punishment in the schools, but had enacted only the vaguest language to govern the parent-child relationship, i.e., that children were required to be obedient toward parents and that parents should hold children to such standards of behavior as took into account the age, development, and personality of the children. This amorphous directive hinted at limiting parental discretion in choosing how to discipline children, but without laying down any clear-cut prohibitions. In 1977 the legislature took a real stand against corporal punishment of children by removing such punishment as a defense to assault charges. As seems to be the typical response in countries where the defense is removed and no specific bans are adopted, after the 1977 reform, the public appeared to be mystified about the legality of corporal punishment of children. Perceiving the need for greater intelligibility, in the early 1980s the Ministry of Justice and the Ministry of the Environment, Youth and the Family began preparatory work to reform the law, a process that took almost a decade.'> In 1989 the Austrian Parliament, by unanimous vote.l-" enacted an explicit ban on parental corporal punishment of children. It states that "[t]he minor child must follow the parents' orders. In their orders and in the implementation thereof, parents must consider the age, development and personality of the child; the use of force and infliction of physical or psychological harm are not permitted."127The ban, part of Austria's Civil Code, tolerates no exceptions.I" Austrian law declares that "[c]orporal punishment ... [is] forbidden" in the schools. 129 There are no exceptions to this ban either. 130 While there is no statute patently prohibiting corporal punishment in child care institutions other than schools, this absence "represents an unintended legal gap" rather than tacit authorization of corporal punishment in such settings.!'! The consensus is that the express bans applicable to parents and schools extend, by analogy, to interdict corporal punishment in these other institutional settings as well.P? Were parents and a child care institution to attempt to swim against the current by entering into a contract permitting the latter to corporally punish a child, under Austrian law, that con-

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tract would be contrary to good morals and, therefore, null and void.I" It is agreed that there are no exceptions to this implied ban.I>' Austria also does not allow corporal punishment of children as a criminal penalty. 135 As in many of the Scandinavian countries, Austria enacted the 1989 ban mainly for its informative effect on the populace. 136 The hope was that Austrians would gradually desist from corporal punishment of children inasmuch as a ban of such distinctness had been made law. Nonetheless, there is still the possibility that a parent, teacher, or other care giver who uses corporal punishment on a child, may be exposed to prosecution under a number of provisions of the Austrian Penal Code for assault and battery and related crirnes.l-? For example, an adult violating one of the bans on corporal punishment could be prosecuted under a criminal code statute which states: 1. Any person who physically injures another or harms his health shall be sentenced to a prison term of up to one year or a fine of up to 360 days pay. 2. Any person who physically abuses another and negligently injures him as a result or harms his health shall also be sentenced.l'" In order for the prosecution to succeed under the above provisions, the corporal punishment must cause bodily injury. However, a criminal prosecution for corporal punishment may prevail even where there is no bodily injury under another section: 139 1. Any person who inflicts physical or psychological suffering on another, who is under his care or custody and who has not yet completed his 18th year or who is defenseless because of infirmity, illness or mental deficiency, shall be sentenced to a prison term of up to three years. 2. Any person who grossly neglects his duty of custody or care for such a person and as a result, even when also only negligent, considerably harms his health or his physical or mental development shall also be sentenced.v'? This enactment signifies that corporal punishment producing "physical or psychic torments," without bodily injury, is enough to impose criminal liability. 141

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There is also a statutory basis for bringing a civil suit against parents or nonparental care givers (other than teachers) who use corporal punishment on cbildren.v'? That statute declares: "Anyone injured is entitled to demand reparations from the injuring party for damage that the latter is guilty of having inflicted." The word "injured," as used in the statute, means physical injury and/or mental anguish.!" Because the student-teacher relationship is governed by public law, teachers in Austria cannot be defendants in civil suits brought by students. Students are not without access to recompense in court ordered damages, though. If a teacher corporally punishes a student, the student may file a civil suit for damages against the political subdivision that employs the teacher. The political subdivision may afterwards seek indemnification by suing the offending teacher for the harm he or she caused the student.!" The Supreme Court ofAustria has spoken on the issue of how parental corporal punishment of children may affect custody decisions. In a seminal case, the Court interpreted the 1989 ban on parental corporal punishment to deny continuation of custody to a divorced father who had been using corporal punishment that caused no bodily injury as a child rearing technique. The Court found that the father "believes in strict discipline, expects respect and absolute obedience from his sons and demands that they not engage in self-pity, but bear pain like men. He ... struck them on several occasions when they 'made trouble.' "145 Although this was a father who was involved in his children's lives, and otherwise attended to their needs, the Court held that his repeated striking of the children, combined with an authoritarian disposition toward them, violated the Austrian ban and, as such, warranted awarding custody to the mother.!" Austrian policy against corporal punishment of children relies heavily upon social services and education as well as upon the law. In order to assist families in which corporal punishment is a problem, the government has established, among other aids, counseling through Youth Welfare Departments, child protection centers, a child "helpline," and nine regional and one federal children's ombudsmen.!"? Schools teach children about their rights, including the right to be free of corporal punishment, and the Ministry ofYouth and Families has produced a leaflet for children's consumption on the same topic.':"

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There have been no recent studies regarding the effects of Austria's bans on corporal punishment of children. However, a survey commissioned by the Austrian Federal Ministry of the Environment, Youth and Family indicates that as of the early 1990s, "67.5% of mothers and 68.8% of fathers categorically reject serious corporal punishment (beatings) as a means of education."I49 The same survey reveals that during that period, about a quarter of parents "occasionally resorted to violence in bringing up their children" and approximately 5 percent "frequently used 'stronger' forms of violent discipline.t'>? That this survey was done only three years after the enactment of the 1989 ban goes some way toward dispelling disappointment with the results. Three years is a brief time for a law to cast its pedagogical charm. Ten years is more time, though still not enough to create expectations of across-the-board societal changes. It was thus not unforeseeable that at the beginning of the twenty-first century, corporal punishment would sojourn on in Austria and that vestiges of sympathy would remain for parents who use such punishment when under pressure or in response to particularly provoking children. At the same time, there is evidence that a contrary trend is evolving. It is reported that corporal punishment of children is increasingly frowned upon, particularly in cities and among young adults.'>' (v) Cyprus

In June 1994 the Republic of Cyprus passed the Prevention ofViolence in the Family and Protection of Victims Law, its first enactment enjoining corporal punishment of children by family ruembers.'>? This law not only prohibited parental use of any force against children, but even made it an offense for violent family behavior to take place in the presence of minor offspring.l>' In a departure from most other countries' bans on such punishment, the 1994 statute also forthrightly provided that parents or other family members who engaged in the proscribed conduct could be prosecuted and, if convicted, could be sentenced to enhanced fines and/or incarcerarion.l>' The 1994 statute was supplanted by Law 119(1) of 2000, the Law Which Provides for the Prevention of Violence in the Family and Protection ofVictims.t-- The new law, which is a part of Cyprus' Criminal Code, reiterates the 1994 statute's substantive protections against family violence and adds several innovations to facilitate eliciting testimony from victims and witnesses of family violence.t " The continued ban on vio-

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lence within the family, including on violence against children, reads as follows: 3-(1) For purposes of this Law, violence means any unlawful act, omission or behaviour which results in the direct infliction of physical, sexual or mental injury to any member of the family by another member of the family and includes violence used for purpose of sexual intercourse without the consent of the victim as well as for the purpose of restricting its liberty.

(3) Any act or behaviour constituting violence within the meaning of subsections (1) and (2) of this section or constituting an offence under sections 174, 175 and 177 of the Criminal Code, where committed in the presence of minor members of the family shall be considered as violence used against the said minor members of the family likely to cause to them mental injury. The said act or behaviour constitutes an offence punishable under subsection[ ](4) of this section.'>? This language is intended to "prohibit[] every form ofviolence against children" by their parents or others in the family.!" Like its predecessor, Law 119(1) of 2000 treats violent criminal offenses by one family member against another as crimes of aggravated seriousness and empowers courts to impose more stringent sanctions for them than if they had occurred outside of the family.t-? For example, Section 242 of the law subjects a person convicted of common assault against a family member to a two-year prison term and/or a fine instead of the one-year prison term and/or fine assigned to those convicted of common assault on other people.I'" There are no exceptions to the prohibitions of Law 119(1) of 2000. 161 In spite of the inclusion in the Criminal Code of the ban on parental corporal punishment of children and the enhanced penalties for domestic violence, Law 119(1) of 2000 also offers sundry arrangements for addressing domestic violence through social services intervention. 162 The law provides for family counselors who, among many other functions, may mediate among and advise family members for the resolution of problems that are apt to lead or have led to the use of force. 163 The law creates an Advisory Committee that is supposed to operate on a societywide basis to prevent domestic violence'v' and a multidisciplinary group "for the pur-

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pose of giving advise [sic], views, opinions and any kind of assistance with regard to the better treatment of victims of violence, either minors or any other class of victims."165 Although recent Supreme Court cases applying Law 119(1) of 2000 to child victims have involved the perpetration of violence much fiercer than the average spanking.l'" one of those decisions is of particular interest here. In that opinion, the Court enunciates as a fundamental premise that violence against a child necessarily destroys his or her dignity, and that family violence is most iniquitous inasmuch as the home should be the child's sanctuary and source of affection. 167 On the institutional front, the Cypriot criminal justice system is forbidden from sentencing juveniles to corporal punishment.l'" Cyprus has further banned corporal punishment of children in the schools and other public child care institutions by virtue of its ratification, through Law 243 of 1990,169 of the U.N. Convention on the Rights of the Child (Children's Conventionj.!" Under Cypriot law, ratification of a multilateral human rights treaty, like the Children's Convention, elevates the treaty to a position of supremacy such that the treaty takes precedence over any contrary federal or subfederal laws. What is more, with ratification, the Children's Convention became enforceable in Cypriot courts and has affected the disposition ofjudicial proceedings relating to that Convention's protections. 171 Panayiotidou has advised that the Cypriot government understands Articles 19 and 28 of the Children's Convention to prohibit corporal punishment in schools and other child care facilities.!" a stance that is fully consistent with the interpretations of the Committee on the Rights of the Child (the treaty's monitoring body) and commentators' analyses, as detailed in the second chapter of this book. 173 She has further advised that this prohibition coincidentally emanates from Article 7.1 of the Cypriot Constitution granting every person the right to life and corporal integrity.174 There are no exceptions to the foregoing ban on corporal punishment of schoolchildren or children in other care giving institutions although Section 17 of the Criminal Code might initially appear to indicate otherwise. Section 17 furnishes a defense to criminal liability for conduct, including use of force, engaged in to avert otherwise inevitable consequences that would cause the accused or people under his or her protec-

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tion "irreparable evil."175 Such conduct will qualify as a defense under Section 17 only if the conduct does not exceed what is reasonably necessary to achieve prevention, and if the harm caused by the conduct is not disproportionate to the evil avoided.'?" However, Section 17 is solely preventive and not meant to legitimate physical punishment of children after they have misbehaved.!"? Cyprus additionally banishes corporal punishment from private shelters for children. 178 Regulation 23(1) of the Regulations Regarding Private Children Shelters of 1982 states that "no disciplinary measure may be disproportionate to the committed crime or limit the opportunities of the natural development of children or violate the human rights of children as such are embedded in [the] Constitution, international treaties which bind the Republic and other valid legislation."179 Even more to the point, Regulation 24 provides with respect to these shelters that "the imposition of any bodily sanction on children is prohibited" and that, "for the purposes of the present Regulations, 'bodily sanction' includes the intentional imposition on a child of any form of physical pain as a means of sanetion."I80 Like Section 17 of the Criminal Code, Regulation 24(2) exempts from its prohibition temporary resort to force for the restraint of a child who, if given physical freedom, could cause harm or pain to himself or herself or to another pcrson.l'" Panayiotidou has explained that this proviso permits only "the exercise of a small degree of violence" when that is "absolutely necessary" for prophylactic purposes.P? If teachers or other institutional care givers violate the prohibition on corporal punishment of children, they may be prosecuted under a range of Criminal Code provisions concerning commission of grievous bodily harm.l'" unlawful injuries.l>' attacks causing bodily harm."> and other assaults not causing bodily harm.l'" The last referenced section, Section 242, appears to have the most potential to enable prosecution of normal corporal punishment of children, averring that "whosoever unlawfully assaults another person, he may be guilty of the offence of common assault and, provided that the assault does not fall under any other section of the Criminal Code which carries heavier punishment, shall be liable to imprisonment not exceeding one year or to a fine not exceeding one thousand pounds or to both such imprisonment and fine."187 Violators of the corporal punishment prohibition may also be brought to justice under Section 54(1) of the Children's Law, which declares:

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[1]f any person who has attained the age of sixteen years and has the custody, charge or care of any child under that age, wilfully assaults, ill-treats, neglects, abandons or exposes him or causes or procures him to be assaulted, ill-treated, neglected, abandoned or exposed in a manner likely to cause him unnecessary suffering or injury to health (including injury to or loss of sight, or hearing, or limb or organ of the body and any mental derangement) that person shall be guilty of an offence and shall be liable to imprisonment not exceeding one year or to a fine not exceeding one hundred pounds or to both such imprisonment and fine.l'" Panayiotidou has instructed that even if the punishment causes nothing more egregious by way of bodily injury than bruises, welts, or red marks, the nonparental assailant could be prosecuted under the Criminal Code section against inflicting bodily harm; and, if the punishment causes no bodily manifestations at all, the assailant could still face liability under Criminal Code Section 242 for common assault or under Children's Law Section 54(1). The reality on the ground, though, is that it is quite rare for criminal trials to arise out of reasonable or light violence against children.l'" Besides the possibility of using the criminal law for redress or of turning to social services intervention, a civil suit for damages may be brought against a parent, teacher, or other care giver who uses physical force on a child. 190 This procedure is made available to the child under sections of the Cypriot Civil Wrongs Act. 191 Bruises, welts, or temporary red marks suffice as the sort of harm that may sustain a damage action under the Act, but causing temporary physical pain, by itself, is not a viable factual underpinning for such a Suit.192 Use of violence by a parent toward his or her child may alter parental custody of the child. According to Section 21 of the Relations of Parents and Children Law of 1990, when one parent employs force on the child that leads to conviction for a crime concerning the life, health, or morals of the child, a court may, upon request by the other parent, deprive the offending parent of the right to exercise parental care. 193 Section 21 may be invoked regardless of the marital status of the parcnts.l?" Because, as discussed above, parents are not generally convicted for using moderate or slight corporal punishment on their children,

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Section 21 is effectively inapplicable as a custodial contrivance to rescue the child from this type of chastisement and is servicable only for graver physical abuse of children. 195 In contrast, Section 6(2) of the Relations of Parents and Children Law of 1990 may give courts more latitude for factoring spankings into custody decisions. Section 6(2) mandates that, in determining the exercise or manner of exercise of parental care over a child, judges are to consider the interest of the child.l'" In making this calculation, judges are to include evidence of parental use of moderate corporal punishment on the child. 197 Moreover, if a child is mature enough and is at least twelve years old, the court must also make allowance for the child's opinion and wishes on parental care.!" It seems probable that most children would prefer the custody of a parent who eschews corporal punishment. There are further provisions under Law 119(1) of 2000 for removal from the family home of a child who has been the victim of domestic violence or for removal of the perpetrator.I''? For example, under Section 22 of that Law, a court may, upon application by a member of the family or by certain other persons acting on the child's behalf, issue an interim order restraining the suspect from having access to the juvenile or removing the juvenile from the family unit until the filing and disposition of criminal charges against the suspect.P'' After conviction, the court may issue an order prohibiting the perpetrator from entering the marital home, if certain requirements are fulfilled.i''! Cypriots have supplemented the legal structure described above with efforts to educate the public about the legal status of corporal punishment of children. The Advisory Committee for the Prevention and Handling of Violence Within the Family has publicized the Prevention of Violence in the Family and Protection of Victims Law through leaflets, posters, and stickers. Nongovernmental organizations and Social Welfare Services have been waging a continuous campaign against family violence as well. A survey carried out in October 2000 by the Advisory Committee on Cypriots' Attitudes to Domestic Violence and Child Abuse reveals that only 15 percent of 1,000 interviewees thought that spanking children was a socially acceptable child rearing practice. Matching this finding, the Director of Cypriot Social Welfare Services is under the impression that

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the new law "'has sensitised [sic] parents [to] the use of more constructive and effective methods of discipline.' "202 There has been a surge in the number of referrals for all types of family violence from twenty-six in 1990 to 284 in 2000. In the view of the Department of Social Services, this increase has resulted from less public and professional sufferance toward family violence than from any actual increase in incidents of such violence.s'" (vi) Denmark

In 1985, Denmark became the third Scandinavian country to enact a law directed against corporal punishment of children in the family context. 204 The law, which became effective on January 1, 1986,205 provided that "[p ]arental custody implies the obligation to protect the child against physical and psychological violence and against other harmful treatment."206 This provision diluted but did not destroy the then persisting "traditional right" of parents to corporally punish their children, and was mainly of symbolic value.P? Although the statute was certainly intended to discourage parents from resorting to such punishment, mild physical chastisement was still considered legal even if it would constitute illegal conduct when carried out against someone other than one's own child. That is, in spite of the 1985 law, the defense of "legally inflicted chastisement (lovlig revselse)" continued to be available to parents brought to court for physically assaulting their children.s'" Over time, however, judges gradually interpreted the defense more and more frugally so that it immunized parents only with respect to slaps with a flat hand that were not too frequent or too hard.P? On May 28, 1997, Denmark decided to go the rest of the way and amended the law to repeal the above-quoted language and substitute the following: "The child has the right to care and security. It shall be treated with respect for its personality and may not be subjected to corporal punishment or any other offensive treatment."210 This, of course, is a much more pointed prohibition and bans all corporal punishment of children in the family. There are no exceptions to it.211 Denmark has further ordered the abolition of corporal punishment of children in schools: "Corporal punishment may not be used [in the schools]," but "[t]o avoid that students lay violent hands on others or

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destroy [] or damage goods, it is permitted to use force to such an extent as the circumstances may require."212 This permission to use force on students is solely for the purpose of preventing or stopping violent student behavior; it does not permit punishment.-!' Indeed, the law contains remedies for the student who, after being counseled and warned, continues to disobey a school's regimen for maintaining order, and corporal punishment or use of force is not included amongst them.'!" There are no exceptions to the school ban-"> Denmark likewise outlaws corporal punishment in residential institutions for children.?!" The Danish Secretary of Social Welfare has issued an order Sections 1 and 2 of which expressly forbid corporal punishment of children in such places."? This order does not mean, though, that force may never be used on children in residential institutions. Under the 1997 Act on Social Welfare, force is authorized when a child behaves so that it would be unjustifiable to allow him or her to continue interacting with other children in the institution or when a child must be prevented from injuring himself or herself. "Such use of force ... [must] be adapted to the specific situation ... and must not exceed what is necessary."218 The Act also authorizes use of force on a child as is "necessary to prevent or resist an attack," provided the level of force does not exceed what is reasonable."? As with the law governing schools, force in residential institutions may only be brought to bear on children for urgent preventive or defensive purposes, not punitive ones. There are no exceptions to the ban on punitive use of force against children in these institutions.F'' There is no explicit prohibition on corporal punishment of children in day care centers, but adults who use corporal punishment on children in these facilities can expect to be prosecuted for criminal assault."! Such a prohibition is inferred from the Penal Code and there are no exceptions to it, but use of force is permitted, as in other child care institutions, for nonpunitive reasons such as self-defense or protection of children from imminent attacks.vThese bans on corporal punishment cover any place a child conceivably could be. In keeping with this comprehensive approach, Denmark also demurs to such punishment as a sentence when a child has the misfortune to find himself or herself in violation of the criminal laws.F?

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Parents, teachers, and other care givers who violate the bans described above, by corporally punishing a child, may be prosecuted for assault or related crimes under a range of Penal Code provisions, as follows.P" Sec. 213. Any person who, by neglect or degrading treatment, insults his spouse, his child or any of his dependents under the age of 18 or any person to whom he is related by blood or marriage in lineal descent, or who by deliberately evading his duties to maintain or contribute to the maintenance of any such persons, exposes them to distress shall be liable to imprisonment for any term not exceeding 2 years or, in mitigating circumstances, to simple detention.v>

Sec. 244. Any person who commits violence against, or otherwise attack[s] the person of others shall be liable to a fine or imprisonment not exceeding 3 years.F" Sec. 245. Subsec. 1. Any person who commits assault or battery which is particularly cruel, brutal or dangerous or is found guilty of mistreatment is liable to imprisonment not exceeding 6 years. Subsec. 2. A person who otherwise injures another person physically or psychologically is liable to imprisonment not exceeding 6 years.v?

Sec. 246. When an act of violence covered by Section 245 ... has been of such serious character or has entailed such serious damage or death that particularly aggravating circumstances are established, the punishment may be increased to imprisonment not exceeding 10 years.i" Which provision the prosecutor invokes is naturally dictated by the particular circumstances of each incident of corporal punishment. The most strenuous objection to the 1997 ban on corporal punishment of children, prior to its enactment, was that there would be increased state interference in family life and "unreasonable sentencing of parents" under the criminal assault statutes.v? However, explanatory remarks appended to the ban demonstrate that the legislators' intent was "that there should

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be 'no intensified or excessive action taken by law enforcement or social welfare authorities to monitor ordinary families' private lives.' "230 Pursuant to this intent, Denmark has followed a policy of prosecutorial restraint in relation to corporal punishment of children in the family.P! It appears that there have been no prosecutions of parents for smacking children since adoption of the 1997 ban. 232 Danish authorities have instead looked to the pedagogical or expressive function of the ban for a prohibitory effect. 233 It is theoretically possible that if a parent violates the 1997 ban, a claim for damages could be brought on behalf of the child against the parent. Procedurally, a claim of this sort may arise in a number of ways. Danish criminal courts have the discretion to consider a damages claim conjointly with a criminal case against the parent for corporally punishing his or her child; the criminal courts additionally have the option, in such a corporal punishment case, of referring the damages claim to be litigated in a separate civil suit. 234 The disposition of either damages claim would be substantively governed by the general Act on Torts.v" That statute, among other things, makes damage awards available for physical injury, suffering, and/or humiliation.Pv The fact is, though, that judicial damage awards for harms of this ilk are very unusual-only when an assault has been "extraordinarily insulting and demeaning."237 Denmark has created a special board on compensation to victims of violent crimes (Offererstatningsnoevnet) , but, again, it appears that the harms caused must be extremely degrading for reparations to be granted.v" And, while tort suits against parents for corporally punishing their children are possible but unlikely, the same body of law can much more productively be invoked on behalf of children seeking damages against teachers or other nonparental care givers who violate the applicable bans on such punishment.P? Corporal punishment of a child may also affect custody decisions as between divorced or divorcing parents. There is no law so stating. Rather, custody awards are contingent upon an overall ascertainment of a child's best interests, and parental use of violence against a child is a factor given "considerable weight" in the assessment.240 The prohibition on corporal punishment of children in the family appears to be associated with a significant decrease in parental approval

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and use of such punishment. The Danish National Institute of Social Research is engaged in a longitudinal study of 5,300 children born in 1995. A survey conducted in 2000, which is part of this study, found that 12 percent ofthree-year-olds were spanked at home sometimes or seldom. Perfunctory physical chastisement, such as slaps on the fingers or gripping of the arms, turned out to be more frequent. But, this finding is more auspicious than it sounds since an earlier 1968 Institute survey had shown that 40.2 percent of children between the ages of nine and twelve were then being struck sometimes. An upturn in parental attitudes against corporal punishment of children has accompanied the rising overthrow of its use. In 1980, 26 percent of the adult population regarded corporal punishment as reprehensible. By 1997, that figure more than doubled, climbing to 57 percent.s" (vii) Croatia

It is evident from the spate of legislation passed in recent years by the Republic of Croatia that this country is fully committed in principle to abolishing corporal punishment of children. The statutory scheme now in place for this purpose attacks the problem from many different and sometimes novel angles. In 1998 Croatia enacted a ban on corporal punishment of children in the family, effective as of 1999, which provides as follows: "Parents and other family members must not subject the child to degrading treatment, mental or physical punishment and abuse."242 The law, currently designated as Family Act Article 88, is part of Croatia's civil law system.ef Article 88 is complemented by Family Act Article 92, which provides that "[p] arent[ s] must protect the child from degrading treatment and physical abuse performed by others."244 Article 92, which is also part of the civil laws, obligates parents to shield their children from corporal punishment dispensed by nonparental actors. The result is that the Croatian laws against corporal punishment of children impose a double duty on parents, and there is no bypassing either duty because they are both absolute. Exceptions do not exist.245 If parents corporally punish a child in contravention of Article 88, they can be prosecuted for assault or assault-related crimes under Article 213 of the Croatian Criminal Code. 246 Article 213 states:

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(1) A parent, adopter, guardian or another person who severely neglects his/her duties in maintaining or educating a child or a juvenile shall be punished by imprisonment from three months to three years. (2) The same punishment as referred to in Paragraph 1 of this Article shall be imposed on a parent, adopter, guardian or another person who maltreats a child or a juvenile or forces him/her to work in a way that is unsuitable for his/her age or to work excessively or to beg or who induces him/her for personal gain to behave in a manner which is harmful to his/her development. (3) If, by the criminal offense referred to in paragraphs 1 and 2 of this Article, serious bodily injury is caused to a child or a juvenile, or his/her health is severely impaired, or a child or juvenile engages in begging, prostitution, or other forms of asocial behavior or delinquency, the perpetrator shall be punished by imprisonment from three months to five years.>'? The most relevant provision, for purposes of prosecuting corporal punishment having serious consequences for the child, is probably Article 213's subsection (2) pursuant to which such punishment would fall under the rubric of maltreatment of a child.>" Prosecutors cannot, however, use Article 213 to move against parents for violating Article 92's obligation to prevent other people from corporally punishing the parents' children.>'? Article 213 is a companion piece to the Act on Protection from Family Violence legislated in 2003. 250 Article 4 of the Act defines family violence as including the following sorts of interactions: every use of physical force or psychological coercion against the person's integrity; every other behavior of one family member which can cause or bring about danger of causing physical and psychological pain; causing the feeling of fear or personal endangerment or violation of dignity; or physical attack regardless if there was any physical injury or not. 25 I

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Corporal punishment, even if its consequences are not burdensome, is subsumed under anyone of these definitions, thereby triggering application of the Act. 252 An offense under the Act is considered a misdemeanor that may be punished by a fine, imprisonment, and "protection measures."253 The available protective measures are delineated in Article 7. The ones pertinent to corporal punishment of children consist of compulsory psychosocial treatment of the perpetrator, prohibiting the perpetrator from approaching or harassing the victim, removing the perpetrator from the victim's home, securing the victim from further violence, and depriving the perpetrator of objects used in committing the offense.v>' The purposes of this series of protective measures are "to prevent violence in the family, ensure necessary protection of health and safety of the person exposed to violence, and remove the circumstances which stimulate or entice committing a new offence."255 Parents who infringe either Articles 88 or 92 can also be sued on behalf of the child-victim in a civil action for damages. The legal foundation for this type of suit is Article 200 of the Croatian Act on Obligations, which authorizes procuring compensation for physical or mental pain suffered by a victim and other "non-material damages,"256 as follows: (1) For endured physical pain, for endured emotional pain due to decreased life activities, decreased or violated honor, freedom or personal rights, death of a close one, and for fear, the Court, if it finds that the circumstances of the case are such, and especially that the extent of the pain and fear and their duration justify this, will rule just financial compensation, regardless from [sic] the compensation of material damages, and when there is none. (2) While deciding on the request for compensation of nonmaterial damage and on the amount of compensation for this damage, the Court will take into account the significance of violated goods and the purpose this compensation serves, as well as that it does not favor tendencies which are not agreeable with compensation's nature and social purpose."? A parent can expect that use of corporal punishment on his or her children may cause a court to withdraw custody from that parent regardless of marital status.s" Article 114 of the Family Act provides that courts

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will deprive a parent of custody if the parent "abuse[d] or severely violate[ d] parental obligations and rights," which include inflicting physical or mental violence on children.F'? Ifparents are divorced or divorcing, the Centre for Social Care is entrusted with allocating custody-s? and the citizenry, in general, has a legal responsibility to inform the Centre about all forms of physical or mental abuse, maltreatment, or other violations of children's rights.>! Not only will parental application of corporal punishment to his or her child militate against a divorced or divorcing parent's retention of custody, but such a parent's failure to protect the child from spankings by outsiders may have the same effect. 262 Other persons engaged in educative, care giving, and various custodial roles with respect to children are prohibited by Croatian law from physically chastising their charges. Statutes regulating preschools.s-' elementary education.v" and secondary schools-v- bar the employment of personnel who have been convicted of criminal offences arising out of corporal punishment of students. The latter two laws additionally saddle employees working in elementary and secondary schools with the job of notifying the appropriate authorities about any physical or mental violence or other maltreatment toward children of which the employees become aware. 266 As might be expected, corporal punishment of children also is not permitted as a sentence under Croatian criminal law.267 If educators or other nonparental care givers ignore this legislation and corporally punish a child, they may be criminally prosecuted and/or civilly sued for damages in the same way as offending parents.Ff Moreover, such personnel may face disciplinary proceedings brought by the management of the institution where they are employed.v" The mass media has industriously publicized the familial bans on corporal punishment of children to both adults and youngsters. It appears that ascendant public support for these enactments has materialized in what is, relatively speaking, a rapid span of time. 270 (viii) Latvia

In 1998, Latvia enacted a statute intended to preclude all corporal punishment of children: "A child shall not be treated cruelly, tortured or physically punished, and his or her dignity or honour shall not be vio-

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lated."271 This ban applies to children in every site where they may bethe family, schools, other child care institutions, etc. There are no exceptions to the ban."? If an adult violates this prohibition, he or she may be subject to criminal prosecution.s" The offender could be prosecuted under Section 174 of the Criminal Code: For a person who commits cruel or violent treatment of a minor, if physical or mental suffering has been inflicted upon the minor and if such has been inflicted by persons upon whom the victim is financially or otherwise dependent, the applicable sentence is deprivation of liberty for a term not exceeding three years, or custodial arrest, or community service.??" This is in accordance with Section 51 of the Protection of the Rights of the Child Law, which ordains that "[flor violence against a child ... the persons at fault shall be held liable as prescribed by law."275 In 2000 the Latvian Parliament passed an amendment annotating "violence" as meaning, among other things, the knowing use of such physical force "as threatens the health or life of a child."276 The Latvian Secretariat of the Minister for Special Assignments for Children and Family Affairs has advised that this phraseology is intended to encompass corporal punishrnent.??? If an adult who corporally punishes a child is prosecuted under Section 174, the court is directed by Section 48 of the Criminal Law to consider, as an aggravating circumstance, that "the criminal offence was committed against a person who has not attained fifteen years of age or against a person[,] taking advantage of his or her helpless condition."278 If the defendant's conduct falls within this description, the likelihood of his or her conviction is heightened regardless of how anemic the corporal punishment may have been.?"? To give these provisions added backbone, Latvian law requires every person to inform the appropriate authorities "regarding violence or any other criminal offence directed against a child."280 Persons failing to fulfill this requirement are themselves liable for their nonfeasance."! It is also conceivable that a civil suit for damages could be brought against one who corporally punishes a child; it appears, however, that under the relevant civil law, compensation will only be awarded if the victim suffers bodily injuries.P?

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The Secretariat, my source of information, did not respond to inquiries regarding whether corporal punishment may affect parental custody of a child. In perusing the Latvian Protection of the Rights of the Child Law, which the Secretariat provided to me in its entirety, I noticed that Section 52 mandates that "extra-familial care" must be provided "for a child who has suffered from violence ... in his or her family or for whom a real threat of violence exists, if it is not possible to isolate the persons at fault from the child."283 A tenable implication of this provision is that parental use of corporal punishment should undercut that parent's petition to keep custody of the punished child, but this is a conclusion based only on my own guesswork and not on a knowledge of Latvian law. The Latvian reform effort in connection with corporal punishment of children has been criticized for the lack of an adequate education campaign about the new laws. Apparently most of the meager publicity that exists has been undertaken by the media. The results of this lapse are predictable. Anecdotal evidence indicates that many parents still corporally punish their children.w' It only stands to reason that people need to be aware of a law before they can obey and/or internalize it. (ix) Germany

Germany's endeavors at curtailing parental use of corporal punishment had their genesis in 1980 when a proposal to forbid degrading physical punishments was debated-" and subsequently promulgated as part of the civil Iaw.P" In 1993 and 1994, the German government considered whether to adopt a prohibition on all corporal punishment of children, but the deliberations came to naught."? Then, in 1998, legislators amended the civil law to ban "degrading methods of discipline including physical and psychological abuse."288 The prevailing interpretation of the 1998 amendment was that corporal punishment was still permissible if the punishment was tailored so as not to exceed educational objectives.P'? Needless to say, the amendment was hardly a model of drafting precision and did not give the average person notice of what degree of corporal punishment was estopped by its terms. Clarity finally was achieved in 2000 with the enactment of a new civil law provision declaring that "[c]hildren have a right to be brought up without the use of force. Physical punishment, the causing of psychological

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harm and other degrading measures are forbidden."29o There is no question but that this statute bans all corporal punishment of children by parents and other legal guardians.?"! There are no exceptions to it, although nonpunitive physical touching, such as restraining a child from running into traffic or taking matches from a child, is still considered legal. 292 The 2000 ban is bolstered by an amendment to the Youth Welfare Act, as follows: Mothers, fathers and other legal guardians and young people shall be offered services of general promotion of education in the family. These are supposed to contribute to a better performance of the educational responsibility of mothers, fathers and other legal guardians. They are also meant to indicate methods to solve conflict situations in the family without the use offorce.o» This provision encourages compliance with the corporal punishment ban by placing an affirmative obligation on governmental authorities to supply educational services that will help families avoid force in dealing with interpersonal conflicts. The government can comply by providing services itself or through private institutions. This legal duty, however, does not give rise to a correlative individual right to enforce receipt of services.P' Because regulation of the schools (except for professional education) is within the competence of Germany's sixteen federal states, rather than of the national government.s" the prohibition on school corporal punishment is explicitly set forth in statutes passed by thirteen of those states. 296 With respect to the other three federal states, it is the rule that corporal punishment of schoolchildren is not allowed due to the fact that such punishment is not included within the descriptions of teachers' educational tasks. None of the federal states recognizes any exceptions to these prohibitions.?" Corporal punishment has also been jettisoned from child care institutions other than schools. The way this legal principle has come about is somewhat circuitous. There are no statutes literally embodying the bar; rather, it originates in two other legal sources. First, the inference is drawn by German legal experts that, inasmuch as parents and teachers are proscribed by law from punishing children corporally, then other child care givers must be so proscribed as well. 298 This inference is predicated on the logic that there is no reason to exempt other child caretakers when parents

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and teachers are under the ban. Second, the principle is said to flow from the German Constitution's provision that "[e]very person shall have the right to life and physical integrity."299 Beulke has advised that, regardless of the lack of statutes or regulations directly addressing corporal punishment in child care institutions other than schools, it is absolutely incontestable that the practice is not allowed in these establishments. The inferred bar has no exceptions.t''? Nor is corporal punishment as a criminal sanction for delinquent children permitted.'?' If parents, teachers, or other child care givers corporally punish a child, the possibility exists that they may be prosecuted for the criminal offense of bodily injury under Section 223, a statute that provides: "Whoever physically maltreats or harms the health of another person, shall be punished with imprisonment for not more than five years or a fine."302 There is some controversy over whether all corporal punishment of children can be prosecuted under this section. The minority view, as articulated by Beulke, contemplates that "the physical impact has to reach a certain degree of intensity to constitute physical maltreatment [with]in [ ] [its] meaning."303 "Physical maltreatment," according to this school of thought, is "'bad and inappropriate treatment by which the corporal wellbeing or the corporal integrity is damaged more than only insignificantly.' "304 But, this view, Beulke has emphasized, is not generally accepted in the legal profession.'?" Another area of lingering academic dispute concerns whether the legal defense of "the parental right of punishment" somehow continues after passage of the 2000 ban. Before the ban, the defense could be exploited by parents when the corporal punishment was considered necessary and adequate to achieve the punishment's educational purpose and when the punishment was used with an educational intention. The defense was unavailable if the punishment was tormenting, dangerous, adverse to health, infringing decency or morality, or was harmful to education.'?' A handful of jurists argue that this defense continues to coexist with the 2000 ban."? The dominant opinion, though, is that with the advent of the ban, the parental defense lost any validity.v" In addition to Section 223, parents, teachers, or other child care givers who use physical chastisement on a child may, according to the circumstances, be prosecuted under provisions imposing criminal liability for

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dangerous bodily injury.t''? maltreatment of wards.t'? serious bodily injury>!' or for coercion.v'? These various avenues of prosecution do not mean that assessing criminal penalties is the government's preferred means for dealing with corporal punishment of children. The government's policy is one of" 'Help instead of Punishment.' "313 Germany's criminal statutory scheme is concordant with this policy since the possibility of liability materializes and increases in accordance with the gravity of the physical force used. If corporal punishment cases reach the courts and entail only an insignificant amount of physical force, a mechanism for terminating the criminal proceeding becomes operational unless there is a public interest in pursuing the prosecution.'!" The statute setting forth the mechanism states: If a less serious criminal offence is the subject of the proceedings, the public prosecution office may dispense with prosecution with the approval of the court competent for the opening of the main proceedings if the perpetrator's culpability is considered to be of a minor nature and there is no public interest in the prosecution."> In cases involving allegations of more serious use of force, i.e., maltreatment of a child under Section 223 allowing for prosecution of acts causing bodily injury, another statutory component of this mechanism orders that an "intentional bodily injury" shall be prosecuted only upon the bringing of a complaint, "unless the authority considers ex officio that it is required to enter the case because of the special public interest therein."316 "Intentional bodily injury" may be manifested by the appearance of a bruise or welt on a child's body'!? A third statutory component of this mechanism deals with still more severe use of force by providing that, "[i]n the case of a child abuse the special public interest in criminal prosecution ... shall be affirmed as a rule."318 Were this the complete statutory scheme, it would appear that child abuse (more severe use of force) would always have a special public interest justifying prosecution and that prosecutions under Section 223 for "intentional bodily harm" (less serious use of force) could have such a special public interest within the prosecutor's discretion.v'? However, in the latter kind of case, even when a prosecutor leans toward finding a special public interest in prosecution, he or she may be persuaded to drop the criminal charges "[i]f social-educational, family-

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therapeutical or other supporting measures were initiated and if these appear to be promising."32o A related statute describing such support measures states that "[t]he education-supervisor and the support assistant shall support the child or the young person in mastering problems of development preferably by including the social environment and in furthering the gaining of independence while maintaining the relationship to the family."321 Another statute reiterates this intercessional role of social services: Child guidance clinics and other counselling services and offices shall support children, young people, parents and other legal guardians in the settlement and mastering of individual and family-related problems and the underlying factors, in the solution of problems concerning the upbringing as well as in cases of separation and divorce. Thereat, several experts of different fields using diverse methodical approaches shall cooperate.vBeulke has observed that these alternatives for termination of proceedings allow criminal law provisions, such as Section 223, to be used as a form of pressure on the accused to cease the offending violence rather than as a surefire penalization by incarceration or fine. The value of termination under these conditions is that it preserves the family intact and acquaints adults with proper, nonviolent child rearing-something incarceration or a fine is not likely to do. Whether either of the courses of prosecution or conditional termination will actually be utilized by prosecutors in cases of parental corporal punishment of children remains to be seen. Beulke has reported that as of the fall 2003 no cases had been published in which a criminal complaint had been brought against parents due to less serious or "medium serious" corporal punishment of their children. 323 There are also possible civil law ramifications if parents, teachers, or other child care givers corporally punish children. For example, a child may sue any of these defendants for damages caused by violation of the bans on corporal punishment. Either of the following statutes enable such a damages action: "A person who, wilfully or negligently, unlawfully injures the life, body, health, freedom, property or other right of another is obligated to compensate him for any damage arising therefrom'Y'>' or, "[t]he same obligation attaches to a person who infringes a statutory provision intended for the protection of others."325 A teacher who corporally punishes a student may further face civil service or labor law penalties. If

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the teacher is classified as a civil servant, he or she may be subject to a civil service disciplinary proceeding that could result in a fine in cases of less intemperate use of force or dismissal from civil service status in more heinous cases. If a teacher is classified instead as a public employee, he or she may be dismissed with notice or, in minor cases, the teacher may first officially be warned. The warning will be entered in his or her personnel file, and if the teacher applies corporal punishment again to a student, he or she will be summarily dismissed. If the teacher's use of corporal punishment constitutes gross official misconduct, a summary dismissal without prior official warning may be imposed.I" Civil law consequences of parental corporal punishment of children may affect the family configuration as well. If parents corporally punish their children or are unable to stop others from doing so, the Family Court has authority to intervene for the child's protection: If the corporal, intellectual or mental welfare of the child or its property is endangered because of abusive exercise of the parental care, neglect of the child, guiltless failure of the parents or the comportment of a third person, the Family Court has to take the necessary measures to avoid danger if the parents are not willing or not able to prevent the child from the danger. 327 German law expresses a predilection for keeping the victimized child within the parental family unless the Family Court cannot avoid the danger by some other strategy.-" However, if necessary for the welfare of the child, the Family Court may condition or deny a parent's access to the child: The Family Court may restrict or exclude the right to access or the execution of earlier judgments regarding the right to access as far as this is necessary for the welfare of the child. A decision which restricts for some time or the long term or even excludes the right to access or its execution can only be made if otherwise the welfare of the child would be endangered. The Family Court may order especially that there shall only be contact if a cooperative third person will be present. 329 Beulke has noted that parental "corporal attacks" on children have, in the past, generally resulted in the exclusion of parental visitation with the children, particularly if traces of the use of force are still clearly noticeable

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on the child's body and if the child is afraid of the parent. With respect to separated, divorced, or divorcing parents, the "danger of corporal punishment is an essential factor in the future arrangement of access to the children."33o If a corporally punished child does not want to choose from this remedial smorgasboard, the child still has the prospect of seeking assistance from the Youth Welfare Departrnent.v! The Department is empowered to aid the child by virtue of a statute which declares: (1) Every young person has got the right of advancement of his development and of upbringing to an autonomous and sociable personality. (2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty. (3) Youth Welfare shall contribute to the realization of the rights of I [sic], especially 1. promote young people in their individual and social development and contribute to reduce or avoid disadvantaging, 2. advise and support parents and other legal guardians in questions of upbringing, 3. protect children and young people from dangers to their welfare, 4. contribute to create positive life conditions for young people and their families as well as to maintain or create a children- and family-friendly environment.P? The German government, to the tune of 2.5 million euros, has joined forces with an assortment of private organizations to produce mass media and educational materials alerting the public to the bans on all corporal punishment of children. The campaign has included eye-catching posters as well as leaflets that are available in health clinics and other public areas. Social workers distribute folders on child development to new parents, and newsletters are sent to the latter every month from the birth of the child to age five, describing children's development and how to bypass corporal punishment when conflicts arise. Teachers are also an integral part of the government's campaign, informing students at all grade levels about the bans on corporal punishment of children.v" Nevertheless, the public-

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ity efforts may have fallen short in the sense that as of 2002 only 25 percent to 30 percent of parents and children had become familiar with the prohibition on parental corporal punishment.t>' Bussman recently completed the first evaluation of the effects of the German ban on parental corporal punishment of children, and his findings are more positive.'> He reports that although the ban was only legislated in 2000, some attitudinal transitions among German parents have already begun to surface. For example, between 1996 and 2001, German parents' awareness that slapping, spanking, beating with a stick, or otherwise beating up a child is illegal, increased from 20 percent to 30 percent.336 Those parents who knew about the ban were more apt to consider such punishments as violence and to have family discussions about the inadvisability of corporal punishment of children. Bussman's research discloses that already there has been a significant abatement in the incidence of parental corporal punishment of children. "[A] remarkable change is observable within the time period of 6 years (parents) or 10 years (young people). According to the statements of parents and young people a smack has lost its dominant position among the various forms of familial sanetions."33? There has also been a meaningful reduction in parental reliance on more exacerbated forms of violent discipline. In 2002, 14 percent of children admitted to a parent slapping them hard across the face whereas ten years earlier approximately 44 percent had reported such slaps. Similarly, by 2002, 4 percent of children told of having undergone beatings causing bruises; but in 1992, that rate had been eight to ten times higher.r" Bussman and Durrant theorize that these changes in the social acceptability and use of parental corporal punishment of children emanate not only from the 2000 ban but began with the preceding legislative halfmeasure against and the accompanying public discourse about corporal punishment of children during the 1990s.339 In its 2004 review of Germany's progress in abolishing corporal punishment under the directives of the U.N. Convention on the Rights of the Child.>'? the treaty-monitoring Committee welcomed the 2000 enactment banning corporal punishment of children in the family and other recent laws against domestic violence. However, the Committee, in the next breath, expressed reservations about the "lack of comprehensive data as well as information on the impact of the new legislation" and about the continuation of violence against children in practice.r" (I do not know if

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the Committee had Bussman's study at the time the Committee's comments were made.) To meet these concerns, the Committee called upon Germany to take further palliative steps such as doing a full-scale study on violence against children, cultivating consciousness-raising campaigns, and providing training to relevant professionals.v'? (x) Bulgaria

In 2000, the Bulgarian legislature enacted a ban, in Article 11, paragraph (2) of the Child Protection Act, on all corporal punishment of children regardless of the identity of the punisher.>" "Every child has a right to protection against all methods of upbringing, that undermine his or her dignity; against physical, psychical or other types of violence; against all forms of influence, which go against his or her interests."344 The ban allows no exceptions.r" A related provision, set forth in article 4 of the Family Code, states: The basic functions of the family are: bearing, rearing and upbringing of children; providing possibilities for the development of the abilities of all members of the family and conditions for the fulfillment of their professional and social obligations; establishing within the family relations based on respect, attachment, friendship, common efforts and reciprocal responsibility for its development; caring for and morally and materially helping the elderly, the sick and disabled members of the family.346 In particular, Article 4 's counsel that family relations should be based on mutual respect and attachment dovetails nicely, as a conceptual matter, with the ban on corporal punishment of children. 347 One expert has identified that the uppermost function of Article 4 is to foster "humanism in family relationships."348 In light of Gershoff's meta-analyses, finding that there is a correlation between parental corporal punishment and such outcomes as deterioration of the parent-child relationship and increased juvenile aggression and antisocial conduct, the goals of these two statutes are obviously mutually supportive.v'? Corporal punishment of children is also barred from Bulgarian schools, other child care institutions, and the penal system.v" The prohibition on such punishment in the schools is considered to stem from both

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Article 11, paragraph (2) of the Child Protection Act and from certain Penal Code provisions discussed below'>! Another law that indirectly confronts the issue in the educational milieu is an administrative regulation stating, in pertinent part: "A student shall have the right to . . . [b]e protected by the school, regional Inspector of Education, the Ministry of Education or any other body of educational authority in case of harming its [the student's] personal dignity and human rights."352 There is a prohibition on corporal punishment of children consigned to residential settings for the rearing and educating of minors deprived of parental care. 353 The rule is that an "educator shall not ... [h]arm the personal and civil rights of the child, humiliate its dignity, and exercise any form of physical, psychological or religious violence on its personality."354 Similarly, there is a proscription on corporal punishment ofjuveniles who temporarily are lodged in hostels.v" None of the above bans grant any exceptions.v" What redress or correctives are available under Bulgarian law if a child is corporally punished? Under Bulgaria's Penal Code provisions on assault, the stiffness of the penalties intensifies with the harmfulness of the bodily injury perpetrated, and an adult who violates the bans on such punishment could, generally speaking, be prosecuted, convicted, and suffer the prescribed graduated penalties accordingly.>? Under Article 128, "[a] person who inflicts on another severe bodily injury shall be punished by deprivation of liberty for three to ten years."358 The types of bodily injuries listed as severe under Article 128 are what might be expected from classic physical child abuse, i.e., injuries causing prolonged unconsciousness, permanent blindness or deafness, loss of a kidney, etc. 359 Article 129 of the Penal Code asserts that "[a] person who inflicts on another medium bodily injury shall be punished by deprivation of liberty for up to five years."360 Medium injuries are defined in the article as permanent weakening of eyesight or hearing, breaking of a jaw, disfigurement of the face, etc. 361 Again, the phrase "medium bodily injuries" appears to refer to a class of traumas that would result from instances of conventionally conceived, prosecutable child abuse rather than from lesser corporal assaults. Article 130 of the Penal Code seems to be most appropriate for prosecuting offenders of the corporal punishment bans. It states that "[a] person who inflicts on another impairment of health apart from the cases under articles 129 and 130, shall be punished for trivial bodily

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injury by deprivation of liberty for up to two years or by corrective labour."362 Article 130 further provides that "[ fJor trivial bodily injury, manifested as causing of pain or suffering without impairment of health, the punishment shall be deprivation of liberty for up to six months or corrective labour or a fine of up to three thousand Bulgarian Leva."363 Sentences are enhanced if the victim is a juvenile.w' It should be noted that "causing bodily injuries" is not the only category of crimes recognized by the Bulgarian Penal Code for doing physical damage to a person. Chapter II of the Code contains penal constraints against interfering with bodily intactness, personal dignity, and honor, to name a few pertinent provisions.v< Even though Article 130 is the most likely candidate for prosecuting the ordinary corporal punisher, the opportunity for children to recur to this means for holding offending parents accountable is actually quite slim. The reason for this anomaly is that Article 161 of the Penal Code enumerates those crimes that can only be prosecuted at the instigation of the victim's complaint rather than on the prosecutor's own initiative.w' Included in this enumeration are assaults producing medium bodily injuries on one's child and assaults causing trivial bodily injuries.v'? Children, because of their dependency and immaturity, are not typically able to file the required complaint.368 Article 46 of Bulgaria's Penal Procedural Code is an attempt, albeit an unsuccessful one, to alleviate the child's predicament in this regard. Article 46 enables the public prosecutor to bring criminal cases under state charge if the victim "cannot defend his or her rights and lawful interests due to state of helplessness or dependency upon the perpetrator."369 The reason for pessimism that Article 46 will make any difference in facilitating prosecution of parents for reasonable corporal punishment of their children is that most of such punishment goes undetected by the outside world and is not brought to prosecutors' attention.F? It is possible for a civil suit seeking damages to be brought on behalf of the child against any persons who have corporally punished him or her. Under the Obligations and Contracts Act, claims could be made for the child against these defendants, in quest of damages for "material and nonpecuniary damages."37! Article 45 of the Act specifies that "[ e]very person must redress the damage he has guiltily caused to another person."372

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"Damage," under Article 45, may be a bruise, welt, a temporary red mark, or even the experience of pain by itself, generated by corporal punishment.v" However, at present, the child's right to litigate a tort action against parents for damages resulting from corporal punishment is more of a paper right than a real one. A complaint for damages under Bulgaria's Civil Procedures Code does not authorize anyone except a child's representative, usually a parent, to file such a case.'?" Although a prosecutor also has the right to pursue a civil claim in conjunction with a criminal proceeding brought on behalf of a minor, this process for obtaining damages is not commonly employed. 375 Theoretically, parental use of corporal punishment on a child may affect the assignment of custody. Article 74 of the Family Code sets forth a provision on restriction of parental rights that, on the face of it, appears to support making corporal punishment a factor in relation to child custody decisions: Where the behaviour of the parent jeopardizes the personality, upbringing, health or property of the child, the regional court ex officio or at the request of the other parent, or by the public prosecutor, decrees appropriate measures in the interest of the child, and where necessary settles the latter in a suitable place.?" I would suggest that corporal punishment comes within this language because Gershoff's meta-analyses have disclosed that so many adverse results for children's personality development and health are correlated with undergoing this form of punishment.?? Ganchev confirms this reading ofArticle 74,378 but I have no information that this approach has been implemented yet. (xi) Iceland

In November 2003, Article 28 of the Icelandic Children's Act became effective, providing that "[t]he custody of a child entails the custodians' duty to protect their child against mental and physical violence and other degrading behaviour."379 The notes attached to the bill that was legislated into Article 28 state: "It hardly needs mentioning that the paragraph [Article 28] entails a ban on parental corporal punishment of children."38o In addition to Article 28's explicit ban on physical chastisement of children, a ban of the same purport is considered to derive implicitly from the Icelandic Penal Code

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and from penalty provisions of the Child Protection Act,381 which will be discussed later.Article 1 of the Child Protection Act, by the way,provides a generalized expression of parents' duties of care and protection to their children, the tenor of which harmonizes with the prohibition on corporal punishment of children in the family. Article 1 proclaims: Parents are under an obligation to treat their children with care and consideration, and to fulfill their duties of guardianship and upbringing of their children in the best manner for their circumstances and needs. They are under an obligation to provide their children with acceptable conditions during their upbringing, and to safeguard their welfare at all times.v? There are no exceptions to the ban on parental corporal punishment of children. Predictably, Iceland has expelled corporal punishment from schools as well. The educational system is organized so that there is compulsory schooling for children six to sixteen years of age; at the end of that stage, an upper, secondary level of schooling commences for children sixteen to twenty years of age. 383 The Ministry for Education has issued a regulation on school governance which states that "[c]orporal punishment is prohibited."384 The regulation applies to compulsory schools, which are thereby each required to adopt its own conforming rules. Thus, every compulsory school must have a proscription against corporal punishment of its students. The bar against school corporal punishment is consonant with other Icelandic laws obligating school personnel to act respectfully towards children.v" For example, Article 2 of the Compulsory School Act coaches compulsory school teachers to "make an effort to carry out their activities to correspond as fully as possible with the nature and needs of their pupils and encourage the overall development, well-being and education of each individual."386 Article 29 of that Act seconds this policy: "[ s]chool activities shall emphasize: ... promoting physical and mental well-being, healthy lifestyles and responsible behavior toward living beings."387 There are no exceptions to the compulsory school ban. 388 It is true that a regulation on school rules permits the use of force when necessary "to stop violence or to prevent a pupil from causing bodily harm to himself/herself or others or to prevent damage to property."389 But, the

202 • Corporal Punishment of Children: A Human Rights Violation

purpose of this regulation is not to create an exception to the ban, and the regulation does not actually approve the use of physical force to punish students.t"? A prohibition on corporal punishment in preschools and nursery schools is considered by legal experts in the Icelandic Ministry of Education to exist between the lines of the Preschools (Nursery Schools) Act tcxt.t'" That Act asserts, among other things, that "the main aims of the nurturing work of the pre schools [sic] shall be: to provide the children with care, [and] provide a good environment for their development" as well as "to stimulate the children's all-round development in accordance with the nature and needs of each, and to give them mental and physical attention so that they can enjoy their childhood."392 Sundry specific bans may be encountered in almost any location in which one could imagine finding children. There is an explicit suppression of corporal punishment in day care conducted out of private homes.v" The applicable regulation announces that in such settings "[t]he psychological or physical punishment of children is forbidden."394 Corporal punishment is specifically invalidated by a regulation governing services to handicapped children.r" A bar to corporal punishment of children is likewise clearly articulated in Article 82 of the Child Protection Act, which extends to foster care and all other child care institutions not mentioned above.r" And corporal punishment is excluded as a criminal law sentence for juvenile delinquents. 397 If parents, teachers, or other caretakers corporally punish a child, they may confront anyone or more of a constellation of legal consequences. Even though the Child Protection Act is part of Iceland's Civil Code, the Act incorporates special penalty provisions applicable to those who would infringe the Act's protections, including the protection against corporal punishment of children.r" One of those penalty provisions is Article 98, which provides: If those who have a child in their care mistreat the child mentally or physically, abuse him/her sexually or otherwise, or neglect the child mentally or physically, so that the child's life or health is at risk, this entails imprisonment of up to five years, unless more severe penalties are provided in other Iegislation.>??

Domestic Laws of Countries Prohibiting Corporal Punishment • 203

Along closely similar lines, Article 99 of the Child Protection Act admonishes that "[a]ny person who inflicts punishments, treats or menaces upon a child, that may be expected to harm the child physically or mentally, is subject to fines or imprisonment for up to three years,"400 and that "[a]ny person who subjects a child to aggressive, abusive or indecent behaviour or hurts or insults him/her is liable to fines or imprisonment for up to two years."401 Corporal punishers may also be prosecuted for minor physical assaults under Article 217 of the Icelandic General Penal Code: (1) Any person who is guilty of committing a physical attack which is not of the proportions covered by Article 218, shall be punished by a fine or by up to 6 months' imprisonment, and up to 1 year's imprisonment if his conduct is particularly reprehensible. (2) Offences under paragraph 1 shall be handled as criminal cases, but proceedings shall not be instituted unless this is demanded by the public interest. 402 Major physical attacks are prosecutable under Article 218 of the General Penal Code, which declares, in pertinent part: If, by means of an intentionally committed physical attack, a person causes another person bodily injury or damage to his health, and he can be regarded as being responsible for these consequences of the attack through intent or negligence, he shall be imprisoned for up to 3 years, or fined if there are particular mitigating circumstances.t'" Prosecution can be had under Article 217 for corporal punishment of children causing less inordinate injuries such as bruises, welts, temporary red marks, or even the transitory experiencing of pain by itself. Article 218 covers criminal liability for more extreme injuries such as broken bones. The government, besides, may pay damages for the physical and/or emotional harm suffered by victims of physical attacks that violate the General Penal Code. 404 A civil suit for damages may technically be brought against parents, teachers, and other child care workers for corporally punishing a child.f" The legal basis for such a suit is Article 1 of the Tort Act, which provides

204 • Corporal Punishment of Children: A Human Rights Violation

that "[a]nyone responsible for bodily harm skall [sic] pay damages."406 Icelandic courts are not empowered in tort cases to award punitive damages, and compensatory damages for suffering are usually quite low in the absence of a claim for lost income. Although "bodily harm" under Article 1 could be a bruise, welt, or temporary red mark on the child's body, the actuality is that it is difficult to succeed in a suit for compensatory damages to make whole injuries of that sort.407 Beyond the possibility of incurring liability as described above, teachers and other nonparental child caretakers can also be dismissed from employment for corporally punishing children. An employee's corporal punishment of a child may even result in revocation of licenses to operate a child care facility or to offer other child care services.r" Use of corporal punishment of children is disadvantageous to a claim for retention of child custody by a divorcing or divorced parent. The relevant statutes do not break down which criteria will influence resolution of a custody dispute, but Fridriksdottir has advised that the Law in Respect of Children has been interpreted by the legal profession to make the corporally punishing parent's pursuit of custody to be less charitably received.t'" For instance, this inference is drawn from Article 34 of that Law, which maintains that a "court shall, in its resolution determine, in accordance with the best interests of the child, to which parent custody shall be committed."410 Where one parent has been awarded custody of a child, Icelandic law provides the child with a right to associate regularly with the noncustodial parent.t!' If, however, a magistrate deems such association to be against the child's best interest, the magistrate may suspend the noncustodial parent's access to the child.t'? Significantly, the notes appended to the bill that became the Law in Respect of Children, select, as an example of conduct detrimental to this interest, parental violence against the child.f" This view is echoed by Article 37 of the Child Protection Act, which provides, in part: If a child protection committee believes that a child is a [sic] risk due to the behaviour or conduct of a person, such as violence, threats or menaces, ... the committee may take court action for the person in question to be prohibited from being in a certain place or area, and from following, visiting or otherwise making contact with a child."414

Domestic Laws of Countries Prohibiting Corporal Punishment • 205

Article 37 further states that if a parent puts a child at risk through violence, a child protection committee may request that that parent be excluded from the home, if necessary, to preserve the child's interests.t'> (Child protection committees are municipal entities operating pursuant to the Child Protection ACt.416) Other provisions of the Act authorize child protection committees alternatively to petition the judiciary to remove an endangered child from the horne."!" Denial of access or custody or removal of the child from the parental home are, however, considered remedies of last resort. Governmental policy espouses a bias in favor of protecting the child while keeping the family intact, if that is possible.'!" To accomplish this, child protection committees offer various types of assistance to troubled families. Article 24 of the Child Protection Act is representative, obligating the committees, with parental consent and, if appropriate, in consultation with the child, to give guidance to parents on raising the child, to arrange any needed support or treatment for the child and/or the parents, and to provide the child or family with a contact person, counselor, or "support family."419 In the event that a committee concludes that these curative steps are not adequate, the committee, against the parents' will ifneed be, may order monitoring of the family and direct supplementary care of the child such as through day care or medical treatment or therapy.v? B.

JUDICIAL DECISIONS: ISRAEL

Israel outlawed all corporal punishment of children in State ofIsrael v. Plonit, a decision rendered in January 2000 by the Israeli Supreme Court.t-! Although the facts of the case only involve parental corporal punishment of children, Israeli jurists consider the prohibition on such punishment to restrain all adults who take care of or otherwise deal with children.vThe case arose out of the interactions between a single mother and her two children, ages five and seven. She was very strict with them and relied upon corporal punishment as a routine way of commanding their obedience. She hit the children daily, sometimes with a slipper or a household implement, but they did not suffer any noteworthy injuries. There was testimony, however, from kindergarten teachers that the children had come to school bearing marks on their bodies. One teacher recounted that when she tried to have any physical contact with the children, they blenched in

206 • Corporal Punishment of Children: A Human Rights Violation

evident alarm. The mother was convicted of both criminal assault and child abuse.v" In Plonit, the Supreme Court issued two rulings that effectively criminalized all corporal punishment of children in Israel. First, the Court held that such punishment is no longer a defense to criminal assault charges.v" Second, the Court held that regular use of corporal punishment on children comes within the crime of child abuse even if the punishment causes no serious injury.425 Since Israel is a common law jurisdiction, the decisions of the Israeli Supreme Court are regarded as the law of the land and as binding precedent from which lower courts may not deviate.f> (Nevertheless, since Plonit, regional prosecuting attorneys report that they have continued their previously formulated policy of regarding all physical punishment of children as illegal, but of only prosecuting parents in suitable cases based on factors such as the severity of the punishment, its frequency, the probability that it will continue, the potential impact of criminal proceedings on the welfare of the child, and the likelihood that treatment of the parent or guidance on proper child rearing will succeed.F") Justice Beinish's opinion on behalf of the Supreme Court in Plonit recognized the existence of three defenses to criminal assault or child abuse charges arising out of corporal punishment of children.f" Two of the defenses already were contained in Israeli Penal Law. One provides that "[a] person will not be criminally liable for an action if in the light of the nature of the action, the circumstances thereof, the consequences thereof and the public interest, the action is of minor importance."429 The other provides that it is a defense to criminal assault charges when a person uses reasonable force to protect the child or others from harm.f''' The third defense was created by Plonit from whole cloth, i.e., there will be no parental criminal liability "in respect of light physical contact for the purpose of keeping order."431 The Court apparently considered the three defenses as filters for excluding criminal liability in petty cases.f'? While the wording of Justice Beinish's opinion leaves no doubt that each of these defenses are available to a parent who hits his or her child, their applicability in the criminal law context to teachers and other child care givers who corporally punish a child is still up in the air. In State of Israel v. Sede-Orr, an earlier Israeli Supreme Court case banning corporal punishment of children in the schools, the Court was silent with respect

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to the existence of any defenses.f" It is arguable that the defense created ab initio by the Justices in Plonit should not govern teachers or other nonparental child care givers because Justice Beinish's opinion discusses this particular defense as only being bestowed upon parents and because teachers and others like them are professionals who should have received training on how to handle children without physical force. 434 Some jurists opine that the above-mentioned criminal code defenses should probably be available to teachers and other nonparental child caretakers precisely because these defenses are available to everyone as a matter of statutory criminal law. Other jurists oppose this view, contending that the criminal code defenses should be of little value when raised by these types of defendants inasmuch as use of corporal punishment on a child in an institutional setting can never be de minimis.v? Building upon Sede-Orr, the Israeli legislature (Knesset) enacted postPlonit the Pupils' Rights Law 2000, which is designed to discourage corporal punishment of children in the schools.t" The Knesset has also stolen another march against corporal punishment of children by legislatively removing reasonable corporal punishment of children as a defense to tort suits against parents, guardians, and teachers who cause harm to a child.s'? Thus, children may now sue in tort those adults who corporally punish them, with more hope of winning. Nonetheless, such suits against parents are infrequent, since children are poorly positioned to sue their main, if not sole, source of material and emotional support.f" It is also the case that Israel does not countenance judicially imposed corporal punishment of children.r'? Corporal punishment of convicted criminals had been permissible under the British Mandate, but was eliminated through the Abolition of Corporal Punishment Law of 1950.440 The noncorporal punishments, which courts currently may impose on convicted juveniles, are set forth in the Youth (Trial, Punishment and Modes of Treatment) Law of 1971.44 1 The Knesset has not yet passed any legislation explicitly giving parental corporal punishment of children a role in custody disputes between divorced or divorcing parents. The only statute on child custody awards states that courts should decide these issues in accordance with the best interests of the child.v'? At least one lower court decision foreshadows that Plonit's ban on all corporal punishment of children may become

208 • Corporal Punishment of Children: A Human Rights Violation

instrumental in influencing judgments on child custody or parental access to children.r" In Plonim v. Ploni, a Family Court relied on Plonit in denying a father's appeal of an injunction restraining him from entering his home because of the corporal punishment he had used on his daughters. One of the daughters alleged that her father had hit her backside and head with his hands and had ordered her to lie that it was her mother who was doing the smacking; the child averred that her father's punitive behavior made her scared of him, and that she became hysterical and vomited whenever he engaged in physical chastisement.v'" Indeed, Israeli courts have handed down a number of decisions exploring the parameters of Plonit. For example, in State ofIsrael v. Nagar, the broad definition given "child abuse" by Plonit was invoked by lower court Judge Caspi evidently to make it easier to convict corporally punishing parents of that crime. Judge Caspi also wrestled in Nagar with the parents' asserted defense of prevention of harm. He interpreted the defense to apply only where physical force is used on a child prior to the child's commission of potential harm and to be inapplicable if such force is used after the child's misconduct.r" Another decision of the Israeli Supreme Court takes sides in the clash between cultural relativism and the child's national right to be free of corporal punishment. Two cases, Vhab v. State ofIsrael and State ofIsrael v. Salam Abu Asbah, came before that Court concerning teachers from the Arab sector who had been condemned by the Teachers' Disciplinary Tribunal for assaulting their students.r" The facts precipitating the action of the Tribunal in Vhab are that the teacher struck a pupil on the face with a plastic cone so as to cause bruises and other marks.r" In Abu Asbah, the teacher banged a student's head on a desk causing his lips to bleed so as to require medical attention; the teacher also hit two other children on the head.r" The Tribunal showed no patience with the violence of the teacher in Vhab, ruling that the offender should be severely reprimanded and dismissed immediately."? Throwing consistency to the winds, the Tribunal held in Abu Asbah that the teacher should merely be severely reprimanded and undergo financial penalties in the form of a freeze on his position in the promotion scale and of a forfeiture of part of his salary.r" The teacher in Vhab appealed the Tribunal's decision while the government in Abu Asbah appealed the leniency of the Tribunal's sentence. The lower Courts rejected the Vhab teacher's appeal and accepted the government's appeal

Domestic Laws of Countries Prohibiting Corporal Punishment • 209

in Abu Asbah, ruling that the teacher in the latter case should be dismissed from his employment."! When the cases reached the Israeli Supreme Court, the teachers contended that since Arab society considers corporal punishment of children in the home and school socially acceptable, the teachers were erroneously dismissed from their jobs. 452 The high Court wholly abjured the cultural relativism argument. Schuz portrays the Court as holding "that the law of the land applies equally to all sectors. She [Justice Beinish] states that norms involving harming the body or souls of children cannot be approved and that Arab children are equally entitled to protection as all other children in the State of Israel."453 According to Schuz, the influence of Plonit can be detected in Vhab and Abu Asbah by the Supreme Court's acquiescence in the heavy penalty of dismissal ultimately imposed on the teachers. (Plonit is not directly on point and was not tendered as such by the Supreme Court in Vhab and Abu Asbah because the school cases did not involve the question of whether the teachers were criminally liable for the corporal punishment-a question that was the centerpiece of Plonit. 454 ) As of this writing, less than five years have passed since the issuance of Plonit by the Supreme Court. It is probably premature, therefore, to expect this sea change in Israeli law to have worked a normative sea change in the population at large. A recent survey indicates some progress, though, showing that, at least as of2002, approximately half of Israelis believed corporal punishment of children to be undesirable.t" It will be interesting to watch for more profound attitudinal shifts after the legal reform has had a decent length of time to percolate through Israeli society. This process may be accelerated by legal reforms that were under consideration by policymakers at the time this chapter was being written. In 1996 the Israeli Minister of Justice appointed a Public Commission for the Re-evaluation of Child Law in Light of the U.N. Convention on the Rights of the Child. 456 The Commission was charged with reassessing all Israeli laws relevant to children, thinking anew about children's rights, and making recommendations about ways in which the laws should be changed to better serve children's interests. In the general report that was being drafted to summarize the Commission's work, there is a section devoted to corporal punishment of children. In this section, the report urges that all laws on the topic should be physically grouped together, pre-

210 • Corporal Punishment of Children: A Human Rights Violation

sumably to make the legal status of spanking more accessible. Substantively, the report proposes that the Knesset should enact legislation, as part of the Civil Code, that will unmistakeably posit every child's right to protection from corporal punishment or any other form of degrading punishment. The provision would apply exclusively to the parent-child relationship. The report takes the position that parents who violate this right could be prosecuted for assault, but that it would be wiser in most cases to forego that expedient. There are a variety of reasons given for this preference including especially the desire to deter possible parental revenge against the child. The drafters, like their colleagues in other countries that have banned parental corporal punishment of children through legislation, have it in mind to rely, for the most part, upon the informative effect of the ban. To promote this objective, the report requests that the government should undertake a public education campaign about the ban. The report also stipulates that an identical ban and policy on prosecution for assault should safeguard children in correctional institutions. With respect to teachers, the report advocates three changes. First, a statute should be passed, straightforwardly stating that it is a criminal offense for a teacher to use corporal punishment on a student. In contradistinction to the proposed ban on parental corporal punishment, the drafters purposefully recommend provision for criminal liability within the ban on school corporal punishment. This difference in treatment results from the drafters' view that teachers should have expertise in handling children and that there is less danger of retaliation against the child in schools, which are public places and less fraught with charged emotional relationships than the family sphere. Second, the report advises that a law should be added to the Civil Code reiterating the child's right to be insulated from corporal punishment in the schools. Third, the report suggests making disciplinary hearings, conducted in relation to teachers who have corporally punished students, more child-centered. These revisions regarding school corporal punishment of children are recommended as well for curbing such blows in institutional or familial foster care. The Commission additionally encourages that language against corporal punishment or other degrading punishment of children should be incorporated in the various ethical codes that guide professional conduct."? This description of the Commission's draft report, insofar as it addresses corporal punishment of children, is not meant to be exhaustive.

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I have given some of the highlights to convey the direction in which Israel may be moving on this matter in the near future. If the government does adopt the proposed legislation, Israel will have devised one of the most, if not the most, comprehensive and well thought-out legal systems in the world for abolishing corporal punishment of children. But, even if the status quo continues without the boon of these reforms, Israel can still correctly be numbered among those countries that have outlawed all corporal punishment-though the prohibition is primarily by means of judicial decision rather than enactment. While a statute lucidly and crisply prohibiting such punishment would be a definite improvement, pedagogically speaking, on Plonit's less navigable judicial opinion, the fact remains that under Israel's legal system, Plonit binds all Israelis to its edict.

212 • Corporal Punishment of Children: A Human Rights Violation

ENDNOTES 1

See infra Ch. III, Parts A(i)-(xi), B.

2 See e-mail from Peter Newell.Toint Coordinator of the Global Initiative to End All Corporal Punishment of Children, and Coordinator of the "Children Are Unbeatable!" Alliance, London, England, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (Apr. 18, 2005) (on file with author); email from Nadine Block, Executive Director, Center for Effective Discipline, and CoChair, EpOCH-USA (End Physical Punishment of Children), Columbus, Ohio, to Suan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (June 21, 2004) (on file with author); e-mail from Peter Newell.Toint Coordinator of the Global Initiative to End All Corporal Punishment of Children, and Coordinator of the "Children Are Unbeatable!" Alliance, London, England, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (Dec. 1, 2003) (on file with author).

3

See discussion infra Ch. III, Parts A-B.

4

See discussion infra Ch. IV

5 The five nations that have had statutory prohibitions on all corporal punishment of children for ten or more years are Sweden, Finland, Norway, Austria, and Cyprus. See infra Ch. III, Part A(i)-(v).

6

See infra Ch. III, Part A(i).

7 See PETER NEWELL, CHILDREN ARE PEOPLE Too: THE CASE AGAINST PHYSICAL PUNISHMENT 67 (1989); Dennis A. Olson, Comment, The Swedish Ban of Corporal Punishment, 1984 BYU L. REv. 447,447. 8 6 kap. 1 § para. 2 foraldrabalkcn [Swedish Children and Parents Code ch. 6, § 1, para. 2] (Swedish Ministry of Justice trans.) (stating that "[t]he parent or guardian shall exercise necessary supervision in accordance with the child's age and other circumstances" and that "[t]he child may not be subjected to physical punishment or other injurious or humiliating treatment") (also quoted in NEWELL supra note 7, at 73).

9 6 kap. 1 § foraldrabalkcn [Swedish Children and Parents Code ch. 6, § 1] (Swedish Ministry of Justice trans.). 10 See Memorandum Attached to e-mail from Johanna Schiratzki, Associate Professor, Director of the Institute for Social Civil Law, Department of Law, Stockholm University, Stockholm, Sweden, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (Oct. 24, 2003) (on file with author) [hereinafter Schiratzki Oct. 24th Memorandum]. 11

See ide at 2.

12 3 kap 5 § brottsbalken [Ch. 3, § 5 of the Swedish Penal Code, as amended]; email from Johanna Schiratzki, Associate Professor, Director of the Institute for Social Civil Law, Department of Law, Stockholm University, Stockholm, Sweden, to Susan

Domestic Laws of Countries Prohibiting Corporal Punishment • 213

H. Bitensky, Professor of Law, Michigan State University College of Law 1 (Dec. 11, 2003) (on file with author) [hereinafter Schiratzki Dec. 11th e-mail]. 13

See Schiratzki Oct. 24th Memorandum, supra note 10, at 2.

14 See Sharon Rustemier, Legal Status and Prevalence ofCorporal Punishment in the 45 Member-States ofthe Council ofEurope 9 (2003) (forthcoming as the basis for a section of a handbook on corporal punishment of children to be published by the Council of Europe and for a Report Card to be published by UNICEF's Innocenti Research Centre, Florence, Italy). 15 See NEWELL, supra note 7, at 70-73; Adrienne Ahlgren Haeuser, Swedish Parents Don't Spank, 63 MOTHERING 42,42,44 (1992); Olson, supra note 7, at 447-52. 16 See Joan E. Durrant, Legal Reform and Attitudes Toward Physical Punishment in Sweden, 11 INT'L 1. CHILD. RTS. 147, 148-49 (2003).

17 See BARBRO HINDBERG, ENDING CORPORAL PUNISHMENT: SWEDISH EXPERIENCE OF EFFORTS TO PREVENT ALL FORMS OF VIOLENCE AGAINST CHILDREN-AND THE RESULTS 10-11 (2001); NEWELL, supra note 7, at 71; Olson, supra note 7, at 448-51. For additional descriptions of the legal status of corporal punishment in Sweden before 1979, see SIMONE EK, RADDA BARNEN [SWEDISH SAVE THE CHIDREN], THE FIRST ANTI-SPANKING LAW IN THE WORLD 1-5 (1994) (also presented as a paper before the U.N. Committee on the Rights of the Child on Oct. 10, 1994, in Geneva, Switzerland); Klaus A. Ziegert, The Swedish Prohibition ofCorporal Punishment: A Preliminary Report, 45 1. MARRIAGE & FAM. 917, 919 (1983); Adrienne A. Haeuser, Reducing Violence Towards U.S. Children: Transferring Positive Innovations from Sweden 16-17 (1988) (unpublished report of study visit to Sweden May 14 through June 16, 1988, in fulfillment of a grant award from the U.S. Department of Health and Human Services) (on file with the University ofMichigan Journal ofLaw Reform) [hereinafter Haeuser, Transferring Innovations]. 18 See HINDBERG, supra note 17, at 11-12; NEWELL, supra note 7, at 71; Olson, supra note 7, at 451; Ziegert, supra note 17, at 919. 19 See NEWELL, supra note 7, at 71-73; Olson, supra note 7, at 451; Ziegert, supra note 17, at 919. 20

See NEWELL, supra note 7, at 73.

21 See ide at 74-75, 80; SWEDISH MINISTRY OF JUSTICE, CAN You BRING UP CHILDREN SUCCESSFULLY WITHOUT SMACKING AND SPANKING? (1979) (example of an attempt to use the ban to influence societal attitudes in relation to corporal punishment of children); Thomas Hammarberg, Preface to HINDBERG, supra note 17, at 9; Olson, supra note 7, at 453-54; Ziegert, supra note 17, at 920.

22 SWEDISH MINISTRY OF JUSTICE, supra note 21; see HINDBERG, supra note 17, at 13-14. 23 3 kap. 5 § brottsbalken [Swedish Penal Code, as amended ch. 3, § 5] (Norman Bishop trans.); see Schiratzki Oct. 24th Memorandum, supra note 10, at 2.

214 • Corporal Punishment of Children: A Human Rights Violation 24

See Schiratzki Oct. 24th Memorandum, supra note 10, at 2-3.

25 See Telephone Interview with Goran Hakansson, then Permanent Undersecretary, Swedish Ministry of Health and Social Affairs (July 19, 1996); Dean M. Herman, A Statutory Proposal to Prohibit the Infliction ofViolence upon Children, 19 FAM. L.Q. 1, 16-17 (1985); cf. NEWELL, supra note 7, at 81 (describing Swedish authorities' assault prosecution of a father for spanking his son); Ziegert, supra note 17, at 920 (noting that the threat of prosecution hangs over parents who would spank in Sweden).

Some writers have had the misconception that parents in Sweden may not be prosecuted for inflicting "subabuse" corporal punishment on their children because the Civil Code ban on such punishment mentions no possibility of criminal sanctions. See, e.g., Haeuser, Transferring Innovations, supra note 17, at 18; Olson, supra note 7, at 453-55; Murray A. Straus & Carrie L. Yodanis, Corporal Punishment by Parents: Implications for Primary Prevention ofAssaults on Spouses and Children, 2 U. CHI. L. SeH. ROUNDTABLE 35,65 (1995). 26 See Hammarberg, supra note 21, at 9; Schiratzki Oct. 24th Memorandum, supra note 10, at 6; Elizabeth Ann Gibbons, Note, Surveying Massachusetts' Child Abuse Laws: The Best Protection for Children?, 26 SUFFOLK U. L. REV. 107,144 (1992) (mentioning that prosecution of parents for corporally punishing their children is rare in Sweden); Interview with Goran Hakansson, then Permanent Undersecretary, Swedish Ministry of Health and Social Affairs, in Dublin, Ireland (Aug. 21, 1996) [hereinafter Hakansson Dublin Interview]; Letter from Katj a Leven, Attorney, law firm of Lagerlof & Leman, Stockholm, Sweden, to Nicholas 1. Stasevich 6 (May 30, 1996) (on file with the University ofMichigan Journal ofLaw Reform) [hereinafter Leven Letter]. 27 See Schiratzki Oct. 24th Memorandum, supra note 10, at 4-5; Hakansson Dublin Interview, supra note 26.

28 1 kap. 8 § brottsbalken [Swedish Penal Code ch. 1, § 8] (National Swedish Council of Crime Prevention trans.). 29 2 kap. 1 § skadestandslag SFS 1972:207, SFS 2001: 732 [Swedish Tort Liability Act, as amended, ch. 2, § 1] (Norman Bishop trans.); see Schiratzki Dec. 11th e-mail, supra note 12, at 1-2.

30

See Schiratzki Oct. 24th Memorandum, supra note 10, at 8-9.

31 See ide at 8. The statutory scheme, which makes parental use of corporal punishment a factor in child custody decisions, is comprised of any array of provisions. The statute mandating that the primary consideration for purposes of custody should be the child's best interests, reads as follows:

The best interests of the child shall be the primary consideration in decisions according to this chapter. When considering what is in the best interests of the child special consideration should be given to the child's need of a close and good contact with both its parents. The risk of the child being subj ect to unfair treatment, wrongful abduction or retainment or otherwise fare badly should be considered.

Domestic Laws of Countries Prohibiting Corporal Punishment • 215

6 kap. 2a § foraldrabalkcn [Swedish Children and Parents Code ch. 6, § 2a] (Norman Bishop trans.). This "best interests" statute supplements the following provisions: If, when exercising custody of a child, a parent is guilty of abuse or neglect or is otherwise wanting in his or her care of the child in a manner which entails an enduring risk to the child's health or development, the court shall make a decision changing the custody position.

Questions concerning a change of custody position as provided in this section shall be considered on the application of the social welfare committee or, of the court's own motion, in a divorce case between the parents or some other case referred to in Section 5 or 6. 6 kap. 7 § foraldrabalkcn [Swedish Children and Parents Code ch. 6, § 7] (Swedish Ministry of Justice trans.). The Swedish Social Welfare Committee, referred to in the above quoted statutory provision, is obliged to act so as to ensure that children are raised in a proper environment, as follows: The social welfare committee shall endeavor to ensure that children and young persons grow up in good and secure conditions, act in close cooperation with families to promote the comprehensive personal development and the favorable physical and social development of the children and young persons, and ensure that children and young persons in danger of developing in an undesirable direction receive the protection and support they need and, if their best interests so demand, are cared for and brought up away from their own homes. 5 kap. 1 § socialtjanstlag (2001 :453) [Swedish Social Services Act ch. 5, § 1, Swedish Code of Statutes 2001 :453] (International Secretariat of the Swedish Ministry of Health and Social Affairs & Katja Leven trans.). Accordingly, the committee is empowered to initiate judicial proceedings to arrange for the care of a child jeopardized by physical punishment. 2 § lagen med sarskilda bestammelser om vard av unga [Swedish Care of the Young Persons Act (Special Provisions) § 2] (International Secretariat of the Swedish Ministry of Health and Social Affairs trans.). 32 See Durrant, supra note 16, at 163 (reporting that since 1981 "public education about the law has continued in schools, well-baby clinics, and universally available and universally accessed parent education programs"); EK, supra note 17, at 1; NEWELL, supra note 7, at 73-77; Ziegert, supra note 17, at 922-23. The Swedish Ministry of Justice's education campaign about the law forbidding corporal punishment of children has included information conveyed on television and through other mass media, ads on milk cartons, and production of a brochure that was distributed to all households with children and translated into a number of languages. See HINDBERG, supra note 17, at 13.

216 • Corporal Punishment of Children: A Human Rights Violation 33 See Haeuser, Transferring Innovations, supra note 17, at 26, 28-29. 34 Compare Durrant, supra note 16, passim, Joan E. Durrant & Staffan Janson, Legal Reform, Corporal Punishment and Child Abuse: The Case of Sweden passim (under review) (manuscript on file with author), HINDBERG, supra note 17, at 14-17, and Staffan Janson, Children and Abuse-Corporal Punishment and Other Forms of Child Abuse in Sweden at the End of the Second Millennium: A Scientific Report Prepared for the Committee on Child Abuse and Related Issues, Ministry ofHealth and Social Affairs, Sweden (English Summary), Article No. S2002.018 passim (unpaginated), with Robert E. Larzelere & Byron Johnson, Evaluations of the Effects of Sweden s Spanking Ban on Physical Child Abuse Rates: A Literature Review, 85 PSyCHOL. REP. 381 passim (1999), and Julian V Roberts, Changing Public Attitudes Towards Corporal Punishment: The Effects ofStatutory Reform in Sweden, 24 CHILD ABUSE & NEGLECT 1027 passim (2000). 35 Durrant, supra note 16, at 148-64 (analyzing methodological weaknesses in Roberts' assessment of the effectiveness of the Swedish ban on corporal punishment of children); Durrant & Janson, supra note 34 (manuscript at 7-30) (analyzing methodological problems in Larzelere and Johnson's evaluation of the effectiveness of the Swedish ban on corporal punishment of children). 36

Roberts, supra note 34, at 1029-34.

37

Durrant, supra note 16, at 148.

38 See ide at 148-52, 161. 39 See ide at 148-52, 161, 169. 40

Larzelere & Johnson, supra note 34, at 382-90.

41

Durrant & Janson, supra note 34, at 11.

42Id. at 12-13. 43Id. at 13. 44 See, e.g., HINDBERG, supra note 17, at 14-17; Durrant, supra note 16, at 152, 154-55, 158-61; Durrant & Janson, supra note 34, at 10-13, 16, 18-20,23,25-27; Janson, supra note 34; e-mail from Barbro Hindberg, Former Expert at the Swedish National Board of Health and Welfare, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (Dec. 19,2003) (on file with author) (reporting that a questionnaire administered in 2000 to children in the ten to twelve age range shows that 86 percent of them have never been corporally punished, 15 percent have been corporally punished on isolated occasions, and 3 percent have been frequently corporally punished). 45 See Janson, supra note 34. 46 See Durrant, supra note 16, at 148-61; cf. Janson, supra note 34 (providing data on the decrease in Sweden of corporal punishment as a child rearing method and of positive attitudes towards such punishment, which decrease appears to be correlated with legislative reform against the practice).

Domestic Laws of Countries Prohibiting Corporal Punishment • 217 47

See Janson, supra note 34.

48Id. 49

See ide

50

See discussion supra Ch. II, Part A.

51

See Janson, supra note 34.

52

See discussion supra Ch. I, Part C.

53

JANSON, supra note 34.

54

See ide

55 See ROWAN BOYSON & Lucy THORPE, EQUAL PROTECTION FOR CHILDREN: AN OVERVIEW OF THE EXPERIENCE OF COUNTRIES THAT ACCORD CHILDREN FULL LEGAL PROTECTION FROM PHYSICAL PUNISHMENT 23-24 (National Society for the Prevention of Cruelty to Children, London, England 2002), available at http://www.nspcc.org.uk/inform/ downloads/EquaIProtectionForChildren.pdf (last visited Dec. 29,2003). 56

See NEWELL, supra note 7, at 87.

57 See Memorandum Attached to e-mail from Marja-Liisa Jarvinen, Partner, Krogerus & Co. Attorneys-at-Law, Helsinki, Finland, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (Aug. 21, 2003) (on file with author) [hereinafter Jarvinen Aug. 21 st Memorandum]. 58 Laki lapsen huollosta j a tapoamsoikeudesta, 1 luku, 1 § , 3 mom. [Finnish Child Custody and Right of Access Act ch. 1, § 1(3)] (Finnish Department of Legislation, Ministry of Justice trans.).

59 See NEWELL, supra note 7, at 86-87 (stating that the lack of debate may have been due to the fact that the new prohibition was part of a comprehensive reform of the laws governing children and that public attention was diverted by other controversial measures in the proposed legislative package). 60 See id.; Memorandum Attached to e-mail from Marja-Liisa Jarvinen, Partner, Krogerus & Co. Attorneys-at-Law, Helsinki, Finland, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1-2 (Nov. 26, 2003) (on file with author) [hereinafter Jarvinen Nov. 26th Memorandum]. 61 Lastensuojelul 30 § [Finnish Child Welfare Act § 30] (Marja-Liisa Jarvinen trans.). 62

See Rustemier, supra note 14, at 8.

63 NEWELL, supra note 7, at 87 (quoting Matti Savolainen of the Ministry of Justice in Helsinki, Finland). 64

See ide at 89; Jarvinen Aug. 21st Memorandum, supra note 57, at 3.

65 Rikoslaki, 21 luku, 5 § [Finnish Penal Code ch. 21, § 5] (Finnish Ministry of Justice trans.).

218 • Corporal Punishment of Children: A Human Rights Violation 66 Rikoslaki, 21 luku, 7 § [Finnish Penal Code ch. 21, § 7] (Finnish Ministry of Justice trans.). 67

See Jarvinen Nov. 26th Memorandum, supra note 60, at 1.

68 Rikoslaki, 4 luku, 4 § [Finnish Penal Code ch. 4, § 4] (Marja-Liisa Jarvinen trans.). 69 Rikoslaki, 4 luku, 5 § [Finnish Penal Code ch. 4, § 5] (Marja-Liisa Jarvinen trans.).

70 See Jarvinen Aug. 21st Memorandum, supra note 57, at 4-6; Jarvinen Nov. 26th Memorandum, supra note 60, at 2. 71 Laki oikeudenkaynnista rikosasioissa, 3 luku, 1 § [Finnish Criminal Procedure Act ch. 3, § 1] (Marja-Liisa Jarvinen trans.). 72 Laki oikeudenkaynnista rikosasioissa, 3 luku, 6 § ,1 mom. [Finnish Criminal Procedure Act ch. 3, § 6(1)] (Marja-Liisa Jarvinen trans.).

73 Laki oikeudenkaynnista rikosasioissa, 3 luku, 9 § , 1 mom. [Finnish Criminal Procedure Act ch. 3, § 9(1)] (Marja-Liisa Jarvinen trans.). 74 Laki oikeudenkaynnista rikosasioissa, 3 luku, 10 § ,1 mom. [Finnish Criminal Procedure Act ch. 3, § 10(1)] (Marja-Liisa Jarvinen trans.). 75 Rikoslaki, 21 luku, 16 § [Finnish Penal Code ch. 21, § 16] (Marj a-Liisa Jarvinen trans.). 76 Laki oikeudenkaynnista rikosasioissa, luku 1, 3 § , 2 mom. [Finnish Criminal Procedure Act ch. 1, § 3(2)] (Marja-Liisa Jarvinen trans.) (emphasis added).

77

See Jarvinen Aug. 21st Memorandum, supra note 57, at 5-6.

78 Vahingonkorvauslaki, 2 luku, 1 § , 1 mom. [Finnish Compensation for Damages Act ch. 2, § 1(1)] (Finnish International Labour Office trans.); see Jarvinen Nov. 26th Memorandum, supra note 60, at 2.

79 See Jarvinen Aug. 21st Memorandum, supra note 57, at 6-7; Letter from Isabella Riska, Attorney, Law Firm of Roschier-Holmberg & Waselius, Helsinki, Finland, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 3 (July 26, 1996) (on file with the University of Michigan Journal of Law Reform).

80

See Jarvinen Aug. 21st Memorandum, supra note 57, at 6-7.

81

See BOYSON & THORPE, supra note 55, at 24-25; NEWELL, supra note 7, at 87-89.

82 See BOYSON & THORPE, supra note 55, at 25 (referring to Heikki Sariola & Antti Uutela, The Prevalance and Context ofFamily Violence Against Children in Finland, 16 CHILD ABUSE & NEGLECT 823 (1992)). 83

See ide

84

See ide

85Id.

Domestic Laws of Countries Prohibiting Corporal Punishment • 219 86

See id. at 26.

87

See id. at 27-28.

88 Endring i 1987 av barnelovens § 30,3. ledd (Lov av 6. februar 1987 ill. 110m endring i barneloven § 30) [Norwegian Parent and Child Act art. 30, § 3, as amended by the Amending Act No. 11, Feb. 6, 1987] (Finn Erik Engzelius trans); see Letter from Finn Erik Engzelius, Partner, Law Firm of Thommessen Krefting Greve Lund AS, Oslo, Norway, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 2 (July 14, 2003) (on file with author) [hereinafter Engzelius July 14th Letter].

89 See Engzelius July 14th Letter, supra note 88, at 1-2 (among other things, describing the contents of the preparatory works (Ot prp nr 8 (1986-87)). 90 See Letter from Finn Erik Engzelius, Partner, Law Firm ofThommessen Krefting Greve Lund AS, Oslo, Norway, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 & n.l (Aug. 4, 2003) (on file with author) [hereinafter Engzelius Aug. 4th Letter]. 91 Lov om grunnskolen og den vidaregaende opplaeringa (opplaeringslova) av 17 juli 1998 nr 61, § 2-9, 3. ledd [Norwegian Act on Education § 2-9(3)] (Monica Nordvoll, Attorney, Law Firm of Thommessen Krefting Greve Lund AS, trans.). 92

See Engzelius July 14th Letter, supra note 88, at 2.

93 Lov om barneverntj enester av 17 juli 1992 nr. 100 § 5-9, 3.ledd, litra (a) [Norwegian Child Welfare Services Act § 5-9(3)(a)] (Monica Nordvoll, Attorney, Law Firm of Thommessen Krefting Greve Lund AS, trans.). 94

See Engzelius July 14th Letter, supra note 88, at 2.

95 See Telephone Interview with Malfrid Grude Flekkoy, then Interim Director, Division of Families and Global Change, Institute for Families in Society, University of South Carolina (July 9, 1996); Letter from Johan Felix Lous, then Executive Officer, Norwegian Royal Ministry of Children and Family Affairs, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 4 (Oct. 30, 1995) (on file with the University ofMichigan Journal ofLaw Reform) [hereinafter Lous Letter]. It should be noted that Malfrid Grude Flckkoy was the Norwegian Ombudsperson for Children from 1981 to 1989, spanning the period during which Norway's statute forbidding parental corporal punishment of children was debated among Norway's legislators and ultimately enacted. See Telephone Interview with Malfrid Grude Flekkoy, supra. 96

Engzelius July 14th Letter, supra note 88, at 3.

97

Engzelius Aug. 4th Letter, supra note 90, at 1-2.

98

See Engzelius July 14th Letter, supra note 88, at 3.

99 Straffeloven av 22.mai 1902 nr. 10, § 228 [Norwegian Criminal Act art. 228, § 1] (Finn Erik Engzelius, Partner, Law Firm ofThommessen Krefting Greve Lund AS, trans.).

220 • Corporal Punishment of Children: A Human Rights Violation 100

See Engzelius Aug. 4th Letter, supra note 90, at 1.

101 Straffeloven av 22. mai 1909 nr. 10, § 229 [Norwegian Criminal Act art. 229] (Finn Erik Engzelius, Partner, Law Firm of Thommessen Krefting Greve Lund AS, trans.).

102

See Engzelius Aug. 4th Letter, supra note 90, at 1.

103 See Engzelius July 14th Letter, supra note 88, at 3; Lous Letter, supra note 95, at 2-3. 104

See Rt-1990-1155 (388-90).

105 Id. 106

See

ide

107 Id. 108

See Engzelius July 14th Letter, supra note 88, at 2.

109

Straffedom av Halogaland lagmannsrett 1995-11-29 (LH-1995-00497).

110

See

ide

vt« 112

See

ide

113 Id.

114Id. 115

See Engzelius July 14th Letter, supra note 88, at 3-4.

116 Lov om skadeserstatning av 13. juni 1969 nr. 26, § 3-5 [Norwegian Tort Act No. 26, arts. 3-5] (Finn Erik Engzelius, Partner, Law Firm of Thommessen Krefting Greve Lund AS, trans.). 117 LG-2000-02503 (Monica Nordvoll, Attorney, Law Firm ofThommessen Krefting Greve Lund AS, trans.).

118Id. 119

See

120

Engzelius July 14th Letter, supra note 88, at 4.

121

See

ide

ide

122 Lov om barn og foreldre (barnelova) av 8 april 1981 nr 7, § 34, 3. ledd [Norwegian Parent and Child Act § 34, para. 3] (Monica Nordvoll, Attorney, Law Firm of Thommessen Krefting Greve Lund AS, trans.).

123

See Engzelius July 14th Letter, supra note 88, at 4.

124

See BOYSON & THORPE, supra note 55, at 28-29.

125

See

ide

at 30-31.

Domestic Laws of Countries Prohibiting Corporal Punishment • 221 126

See NEWELL, supra note 7, at 68.

127 § 146a Allgemeines Burgerliches Gesetzbuch [Austrian Civil Code § 146a] (Berlitz Translation Services trans.) [hereinafter ABGB]. 128 See Memorandum from Dr. Axel Reidlinger, Attorney, Law Firm of Freshfields Bruckhaus Deringer, Vienna, Austria, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (Aug. 5,2003) [hereinafter Reidlinger Aug. 5th Memorandum].

129 § 47/3 Schulunterrichtsgestez [Austrian Teaching Act § 47/3] (Berlitz Translation Services trans.).

130

See Reidlinger Aug. 5th Memorandum, supra note 128, at 1.

131 Memorandum from Dr. Axel Reidlinger, Attorney, Law Firm of Freshfields Bruckhaus Deringer, Vienna, Austria, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (Oct. 2,2003) [hereinafter Reidlinger Oct. 2nd Memorandum].

132 See Reidlinger Aug. 5th Memorandum, supra note 128, at 1; Reidlinger Oct. 2nd Memorandum, supra note 131, at 1. 133

See Reidlinger Oct. 2nd Memorandum, supra note 131, at 1.

134

See Reidlinger Aug. 5th Memorandum, supra note 128, at 1.

135

See Rustemier, supra note 14, at 8.

136 See Interview with Dr. Michael Stormann, Executive Public Prosecutor and Section Head of the Section on National Family Law, Austrian Ministry of Justice, in Vienna, Austria (June 24, 1996). 137 See Initial Reports of States Parties Due in 1994 to the Committee on the Rights of the Child: Austria, paras. 268,270-271, U.N. Doc. CRC/C/ll/Add. 14 (1997) [hereinafter Austria s Initial Report]; Reidlinger Aug. 5th Memorandum, supra note 128, at 2; Interview with Dr. Michael Stormann, supra note 136.

138 § 83 Abs 1-2 Strafgesetzbuch [Austrian Penal Code § 83, pts. 1-2] (Berlitz Translation Services trans.) [hereinafter StGB].

139

See Reidlinger Aug. 5th Memorandum, supra note 128, at 2.

140 § 92 Abs 1-2 StGB [Austrian Penal Code § 92, pts.I-2] (Berlitz Translation Services trans.). 141

Reidlinger Aug. 5th Memorandum, supra note 128, at 2.

142 See ide at 2-3; see also Austria s Initial Report, supra note 137, para. 275; Letter from Dr. Kurt Heller, Attorney, Law Firm of Heller, Lober, Bahn & Partners, Vienna, Austria, to Nicholas 1. Stasevich 2-3 (May 28, 1996) (on file with the University ofMichigan Journal ofLaw Reform).

143 § 1295 Abs 1 ABGB [Austrian Civil Code § 1295/1] (Inter-Lingua trans.); see Letter from Dr. Kurt Heller, Attorney, Law Firm of Heller, Lober, Bahn & Partners,

222 • Corporal Punishment of Children: A Human Rights Violation

Vienna, Austria, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1-2 (July 11, 1996) (on file with the University ofMichigan Journal ofLaw Reform). 144 See Reidlinger Aug. 5th Memorandum, supra note 128, at 2. The statutory scheme, which would apply so as to allow the student civil relief from the political subdivision for corporal punishment by a teacher in the subdivision's employ, and which would then allow the subdivision to recover from the teacher provides, in pertinent part, as follows:

§ 1.(1) The federal state, the national states, the districts, the local authorities, each other public corporation and the supporters of the national insurance-in the following legal entity-are, according to the regulations of the civil law, liable for the injuries to property or to persons which were illegally caused by the fault of the persons who acted as their organs while executing the law. § 3.(1) If the legal entity has made good the claimant's damage because of this statute, it can [have] recourse to the persons who acted as its organ and caused or committed the wrongdoing intentionally or by gross negligence. Bundesgesetzblatt Nr. 20/1949 idFBGBl.I.Nr. 194/1999 [Austrian Governmental Liability Act, Federal Law Gazette No. 20/1949 in the version of Federal Law Gazette I. No. 194/1999] (Dr. Axel Reidlinger, Attorney, Law Firm of Freshfields Bruckhaus Deringer, Vienna, Austria, trans.) [hereinafter BGBl]. 145 Oberster Gerichtshof 6/24/1992, 1 Ob 573/92 (Berlitz Translation Services trans.) [hereinafter OGH]; see also Erwin Bernat, Austria: Legislation for Assisted Reproduction and Interpreting the Ban on Corporal Punishment, 32 U. LOUISVILLE 1. FAM. L. 247,252-53 (1993-94) (describing this decision).

The Austrian legal system does not require that lower Austrian courts must follow decisions by the Austrian Supreme Court. See Interview with Dr. Michael Stormann, supra note 136. 146

OGH 6/24/1992, 1 Ob 573/92, supra note 145.

147 See Austria s Initial Report, supra note 137, paras. 263-262, 266; BOYSON & THORPE, supra note 55, at 31. 148

See BOYSON & THORPE, supra note 55, at 31.

149

Austria s Initial Report, supra note 137, para. 258.

150

BOYSON & THORPE, supra note 55, at 31-32.

151

See ide at 32.

152 Act of June 17,1994, Law 147(1), OFFICIAL GAZETTE OF THE REpUBLIC OF CYPRUS No. 2886 (Leonidas Markides, Embassy of the Republic of Cyprus, trans.). 153

Id. § 3(1), (3).

154

Id. § 4(1).

Domestic Laws of Countries Prohibiting Corporal Punishment • 223 155

See Letter from Anna Panayiotidou, Partner, Law Firm ofAndreas Neocleous

& Co., Limassol, Cyprus, to Susan H. Bitensky, Professor of Law, Michigan State

University College of Law 102 (Mar. 11, 2004) (on file with author) [hereinafter Panayiotidou Mar. 11th Letter]. Credit should also be given throughout the section on Cyprus to Maria Koundourou, an advocate in the law firm of Andreas Neocleous & Co., who collaborated with Anna Panayiotidou in providing me with legal assistance concerning that nation's laws against corporal punishment of children. 156 Law Which Provides for the Prevention of Violence Within the Family and Protection of Victims, Annex (I), Laws of Cyprus 2000/1, Law No. 119(1) of 2000, Criminal Code, Ch. 154, § § 3(1), (3), 9-10(1),15(3)-16,26,31 (Republic of Cyprus Press and Information Office of the Ministry of Interior trans.) [hereinafter Law No. 119(1) of 2000, Criminal Code Ch. 154]; see Panayiotidou Mar. 11th Letter, supra note 155, at 1-2. 157

Law No. 119(1) of2000, Criminal Code, Ch. 154, supra note 156, § 3(1), (3).

158

See Panayiotidou Mar. 11th Letter, supra note 155, at 5 (emphasis added).

159 Law No. 119(1) of 2000, Criminal Code, Ch. 154, supra note 156, §§ 151-155,171-173(2),231,234,242. 160

Law No. 119(1) of 2000, Criminal Code Ch. 154, supra note 156, § 242.

161

See Panayiotidou Mar. 11th Letter, supra note 155, at 5.

162

See BOYSON & THORPE, supra note 55, at 34.

163

Law No. 119(1) of2000, Criminal Code, Ch. 154, supra note 156, § 6 (2)(b).

164

Law No. 119(1) of2000, Criminal Code Ch. 154, supra note 156, § 7(1).

165

Law No. 119(1) of2000, Criminal Code, Ch. 154, supra note 156, § 8(1).

166 See, e.g., Attorney General of the Republic v. Eleni Ioannou (Criminal Appeal 7403, Nov. 27,2003) (involving a mother's systematic and conscious physical and psychological abuse of her daughter, including punching, kicking, biting, and beating with a wooden spoon or the metal rod of a broom); Attorney General of the Republic v.A.B. (Criminal Appeal 7329, Aug. 6,2002) (arising out of a father's sexual attacks on his daughter); Charalambos Charalambous v. Athanasia Dafiotou-Charalambous, from Greece, Natural Mother of Minors Nikos, Markos and Andreas (Appeal 69, June 13, 1997) (entailing a father's beating his son, all over the latter's body, with a trouser belt). 167 See Attorney General of the Republic v. Eleni Ioannou (Criminal Appeal 7403, Nov. 27, 2003); see also Panayiotidou Mar. 11th Letter, supra note 155, at 4-5 (describing the Supreme Court's opinion in the Ioannou case). 168

See Rustemier, supra note 14, at 8.

169 The Convention on the Rights of the Child (Ratifying) Law of 1990, Annex (I), Laws of Cyprus 1990/1Y, Law No. 243/1990 (Andreas Neocleous & Co. trans.). 170 U.N. Convention on the Rights of the Child, Nov. 20, 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49 (A/44/49), at 166, U.N. Doc. A/RES/44/25 [hereinafter Children's Convention].

224 • Corporal Punishment of Children: A Human Rights Violation 171

See Letter from Anna Panayiotidou, Partner, Law Firm ofAndreas Neocleous

& Co., Limassol, Cyprus, to Susan H. Bitensky, Professor of Law, Michigan State

University College of Law 1 (Apr. 30, 2004) (on file with author) [hereinafter Panayiotidou Apr. 3Oth Letter]. 172 Children's Convention, supra note 170, arts. 19(1), 28(2), at 169-170. See Panayiotidou Mar. 11th Letter, supra note 155, at 5-6; Letter from Anna Panayiotidou, Partner, Law Firm of Andreas Neocleous & Co., Limassol, Cyprus, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 2-4 (Apr. 14, 2004) (on file with author) [hereinafter Panayiotidou Apr. 14th Letter]. 173

See discussion supra Ch. II, Part A.

174 Cypriot Constitution, 1960, art. 7.1 (Andreas Neocleous & Co. trans.); see Panayiotidou Apr. 14th Letter, supra note 172, at 2-4. 175 Cypriot Criminal Code, Ch. 154, § 17 (Andreas Neocleous & Co. trans.) [hereinafter Cypriot Criminal Code Ch. 154]; see Panayiotidou Mar. 11th Letter, supra note 155, at 6. 176 Cypriot Criminal Code, Ch. 154, supra note 175, § 17; see Panayiotidou Mar. 11th Letter, supra note 155, at 6. 177

See Panayiotidou April 14th Letter, supra note 172, at 3.

178

See Panayiotidou Mar. 11th Letter, supra note 155, at 7.

179 Regulation 23(1) of the Regulations Regarding Private Children Shelters of 1982, No. 82 Annex 111(1), p. 827 (Andreas Neocleous & Co. trans.). 180 Regulation 24(1)-(2) of the Regulations Regarding Private Children Shelters of 1982, No. 82 Annex 111(1), at 827 (Andreas Neocleous & Co. trans.). 181

Id.

182

Panayiotidou Mar. 11th Letter, supra note 155, at 7.

183 Cypriot Criminal Code, Ch. 154, supra note 175, § 231 (providing that "whosoever unlawfully causes grievous bodily harm to another person, he is guilty of a criminal offence and shall be liable to imprisonment for a term of seven years or to a fine or to both"). 184 Cypriot Criminal Code, Ch. 154, supra note 175, § 234 (asserting that "whosoever unlawfully injures another person, he is guilty of a criminal offence and shall be liable to imprisonment for a term of three years"). 185 Cypriot Criminal Code, Ch. 154, supra note 175, § 243 (stating that "whosoever commits assault occasioning actual bodily harm, he is guilty of an offence and shall be liable to imprisonment for a term of three years"). 186

Cypriot Criminal Code, Ch. 154, supra note 175, § 242.

187

Id.

188

Children's Law § 54(1), Laws of Cyprus, Vol. VI, Ch. 352 (Andreas Neocleous

& Co. trans.).

Domestic Laws of Countries Prohibiting Corporal Punishment • 225 189

Panayiotidou Apr. 14th Letter, supra note 172, at 2-3.

190

See Panayiotidou Mar. 11th Letter, supra note 155, at 8-9.

191 See Cypriot Civil Wrongs Law Ch. 148, § 3 (enunciating, in part, that "[t ]he following enumerated in the Law below constitute civil wrongs, and in accordance with the stipulations of this law, any person, who sustains harm or damage by reason of a civil wrong ... has the right to claim from the person who committed or is responsible for such civil wrong the remedies which the Court has the power to grant") (Andreas Neocleous & Co. trans.); Cypriot Civil Wrongs Law Ch. 148, § 26( 1) (stating that an actionable "attack is composed of the intentional use of every type of violence against another person, either by a strike, contact, displacement or in any other way, either directly or indirectly, without his consent, or with his consent if such consent was obtained fraudulently, or after an attempt or threat of an act or gesture of use of such force against another person if the person who makes the attempt or threatens use of violence instills in the other the belief which is founded on a reasonable cause, that he has at that particular point in time the intention and the ability to realize his aim") (Andreas Neocleous & Co. trans.); Cypriot Civil Wrongs Law Ch. 148, § 67 (noting that "it does not constitute an obstacle in an action for a civil wrong that the facts on which the action is based constitute a crime or criminal offence by virtue of the provisions of any statute") (Andreas Neocleous & Co. trans.). 192

See Panayiotidou Apr. 14th Letter, supra note 172, at 4.

The Relations of Parents and Children Law § 21, Annex (I), Laws of Cyprus Law No. 216/1990 (Andreas Neocleous & Co. trans.); see Panayiotidou Mar. 11th Letter, supra note 155, at 9; Panayiotidou Apr. 14th Letter, supra note 172, at 4. 193

1990/I~

194

See Panayiotidou Mar. 11th Letter, supra note 155, at 9.

195

See Panayiotidou Apr. 14th Letter, supra note 172, at 4.

196

The Relations of Parents and Children Law § 6(2), Annex (I), Laws of Cyprus Law No. 216/1990 (Andreas Neocleous & Co. trans.).

1990/I~ 197

See Panayiotidou Apr. 30th Letter, supra note 171, at 2.

198

The Relations of Parents and Children Law § 6(3), Annex (I), Laws of Cyprus Law No. 216/1990 (Andreas Neocleous & Co. trans.).

1990/I~ 199

See Panayiotidou Mar. 11th Letter, supra note 155, at 10.

200

Law 119(1) of 2000, Criminal Code, Ch. 154, supra note 156, § 22(1).

201 Law 119(1) of 2000, Criminal Code, Ch. 154, supra note 156, § 22(1)-(2), (3)(a-d). 202

See BOYSON & THORPE, supra note 55, at 33-34.

203

See ide at 34.

204 Originally, the statute was legislated as a 1985 amendment to the Danish Act on Parenthood and Guardianship. See Memorandum Attached to e-mail from Jorn Vestergaard, Associate Professor, Institute of Legal Science, Faculty of Law, University of Copenhagen, Copenhagen, Denmark, to Susan H. Bitensky, Professor of Law,

226 • Corporal Punishment of Children: A Human Rights Violation Michigan State University College of Law 1 (Oct. 2,2003) (on file with author) [hereinafter Vestergaard Oct. 2nd Memorandum]. 205

See NEWELL, supra note 7, at 91.

206 Lov nr. 387 af 14. juni 1995 om foraeldremyndighed og samvaer, jf. § 2, stk. 2 [Danish Act on Parental Custody/Authority and Visiting Rights No. 387, § 2(2)] (June 14, 1995)] (revision of 1985 law) (Law Firm of Kromann & Munter trans.). 207

Vestergaard Oct. 2nd Memorandum, supra note 204, at 1-2.

208

See ide at 2.

209

See ide at 3.

210 Lov nr. 416 om aendring af loy om foraeldremyndighed og samvaer § 1 [Danish Act to Amend the Act on Parental Custody/Authority and Visiting Rights No. 416 § 1] (Law Firm of Kromann & Munter trans.). 211

See Vestergaard Oct. 2nd Memorandum, supra note 204, at 3.

212 Undervisningsministeriets bekendtgorelse om foranstaltninger til fremme af god orden i folkeskolen nr. 27 af 12/01/1995 [Danish Ministry of Education Order No. 27 Concerning the Promotion of Order in the Schools (Jan. 12, 1995)] (Jorn Vestergaard trans.). Actually, Denmark forbade corporal punishment of children in the schools as long ago as 1967. See BOYSON & THORPE, supra note 55, at 36. 213

See Vestergaard Oct. 2nd Memorandum, supra note 204, at 5-6.

214 Undervisningsministeriets bekendtgorelse om foranstaltninger til fremme af god orden i folkeskolen nr. 27 af 12/01/1995, jf. § 5 [Danish Ministry of Education Order No. 27 Concerning the Promotion of Order in the Schools § 8 (Jan. 12, 1995)] (Jorn Vestergaard trans.); see also Vestergaard Oct. 2nd Memorandum, supra note 204, at 4-6. 215

See Vestergaard Oct. 2nd Memorandum, supra note 204, at 5-6.

216

See ide at 6-8.

217 Bekendtgorelse 620 af21/06/2001 om magtanvendelse m.v.i. dogninstitutioner for born og unge m. v., j f. §§ 1-2 [Danish Ministry of Social Welfare Order 620 §§ 1-2 (June 21,2001)] (Jorn Vestergaard trans.).

218 Lovbekendtgerelse nr. 764 af26/08/2003 om social service, kapitel21, § 108, stk. 1 [Danish 1997 Act on Social Welfare ch. 21, § 108(1) (Aug. 26,2003)] (Jorn Vestergaard trans.). 219 Lovbekendtgorelse nr.764 af26/08/2003 om social service, kapitel21, § 108 stk.2 [Danish 1997 Act on Social Welfare ch.21, § 108(2) (Aug. 26,2003)] (Jorn Vestergaard trans.).

220

See Vestergaard Oct. 2nd Memorandum, supra note 204, at 7, 10.

221 See Vestergaard Oct. 2nd Memorandum, supra note 204, at 8; e-mail from J ern Vestergaard, Associate Professor, Institute of Legal Science, Faculty of Law,

Domestic Laws of Countries Prohibiting Corporal Punishment • 227

University of Copenhagen, Copenhagen, Denmark, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (Oct. 23, 2003) (on file with author) [hereinafter Vestergaard Oct. 23rd e-mail]. 222

See Vestergaard Oct. 23rd e-mail, supra note 221, at 1.

223

See Rustemier, supra note 14, at 8.

224 See Vestergaard Oct. 2nd Memorandum, supra note 204, at 12-14; Vestergaard Oct. 23rd e-mail, supra note 221, at 1.

225 Straffelov nr. 886, § 213 [Danish Criminal Code No. 886 § 213] (Law Firm of Kromann & Munter trans.). 226 Lovbekendtgorelse 814 af30/09/2003, Straffelov nr, 886, § 244 [Amendment of Sept. 30,2003, to Danish Criminal Code No. 886 § 244] (Jorn Vestergaard trans.). 227 Lovbekendtgorelse 814 af30/09/2003, Straffelov nr, 886, § 245 [Amendment of Sept. 30,2003, to Danish Criminal Code No. 886 § 245] (Jorn Vestergaard trans.). 228 Lovbekendtgorelse 814 af30/09/2003, Straffelov nr, 886, § 246 [Amendment of Sept. 30,2003, to Danish Criminal Code No. 886 § 246] (Jorn Vestergaard trans.). 229

BOYSON & THORPE, supra note 55, at 38.

230 Id. at 39; see also Letter from Jorn Vestergaard, Associate Professor, Institute of Legal Science, Faculty of Law, University of Copenhagen, Copenhagen, Denmark, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (July 3, 1997) (on file with the University ofMichigan Journal ofLaw Reform) (containing the identical quote) [hereinafter Vestergaard Letter]. 231

See Vestergaard Oct. 2nd Memorandum, supra note 204, at 14.

232 See BOYSON & THORPE, supra note 55, at 39 (noting that the information on there being no prosecutions of parents for corporal punishment, comes from inquiries made to police and prosecutors by the Danish National Council for Children). 233

See Vestergaard Letter, supra note 230, at 1.

234

See Vestergaard Oct. 2nd Memorandum, supra note 204, at 14.

235 Erstatningsansvarsloven, Iovbekendtgorelse nr, 599 af 08/09/1985 med senere aendringer [Danish Act on Torts No. 599 (Sept. 8, 1985)]; see Vestergaard Oct. 2nd Memorandum, supra note 204, at 14. 236 Erstatningsansvarsloven, Iovbekendtgorelse nr, 599 af 08/09/1985 med senere aendringer § 26 [Danish Act on Torts No. 599 § 26 (Sept. 8, 1985)]; see Vestergaard Oct. 2nd Memorandum, supra note 204, at 14-15. 237

Vestergaard Oct. 2nd Memorandum, supra note 204, at 14-15.

238 See ide By way of illustration, Professor Vestergaard relates that the Board on Compensation to Victims denied monetary recovery in a case where a stepfather had assaulted a baby for two months from the time the infant was three days old and so as to cause severe injuries. Id. at 15. The Board's rationale was that the violence had not been sufficiently demeaning. I d.

228 • Corporal Punishment of Children: A Human Rights Violation 239

See id. at 15; Vestergaard Oct. 23rd E-mail, supra note 221, at 2.

240

See Vestergaard Oct. 2nd Memorandum, supra note 204, at 16.

241

See BOYSON & THORPE, supra note 55, at 38.

242 Clanak 87, Obiteljski zakon (Narodne novine 162/98) [Croatian Family Act art. 87 (Official Gazette 163/03,17/04)] (Goran Zekovic et al. trans.). Croatia enacted new family legislation in 2003 that incorporates and continues the parental corporal punishment ban but renumbers it from Article 87 to Article 88. Clanak 88, Obiteljski zakon (Narodne novine 116/03) [Croatian Family Act art. 88 (Official Gazette 116/03, 17/04)] (Goran Zekovic et al. trans.); see Memorandum Attached to e-mail from Goran Zekovic, Staff Attorney, American Bar Association-Central Europe and Eurasian Law Initiative [hereinafter American Bar Association-CEELI], Croatia, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (Dec. 18,2003) (on file with author) [hereinafter Zekovic Dec.18th Memorandum]. 243

See Zekovic Dec. 18th Memorandum, supra note 242, at 1-2.

244 Clanak 92, Obiteljskog zakona (Narodne novine 116/03) [Croatian Family Act art. 92 (Official Gazette 116/03,17/04)] (GoranZekovic et al. trans.). 245

See Zekovic Dec. 18th Memorandum, supra note 242, at 2-4.

246

See id. at 4-5.

247 Clanak 213, Kaznenog zakona (Narodne novine 110/97,27/98, 129/00,51/01) [Croatian Criminal Code art. 213 (Official Gazette 110/97,27/98,129/00,51/01)] (Goran Zekovic et al. trans.). 248 See Zekovic Dec. 18th Memorandum, supra note 242, at 4-5; e-mail from Goran Zekovic, Staff Attorney, American Bar Association-CEELI, Croatia, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (Mar. 1, 2004,7:38 A.M.) [hereinafter Zekovic Mar. 1st, 7:38 e-mail]. 249

See Zekovic Dec. 18th Memorandum, supra note 242, at 4-6, 8-9.

250 Zakon 0 zastiti od nasilja u obitelji (Narodne novine 116/03) [Croatian Act on Protection from Family Violence (Official Gazette 116/03)] (Goran Zekovic et al. trans.). 251 Clanak 4, Zakon 0 zastiti od nasilja u obitelji (Narodne novine 116/03) [Croatian Act on Protection from Family Violence art. 4 (Official Gazette 116/03)] (Goran Zekovic et al. trans.). 252 See e-mail from Goran Zekovic, Staff Attorney, American Bar AssociationCEELI, Croatia, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (Jan. 12, 2004) [hereinafter Zekovic Jan. 12th e-mail].

253 Clanak 6, Zakon 0 zastiti od nasilja u obitelji (Narodne novine 116/03) [Croatian Act on Protection from Family Violence art. 6 (Official Gazette 116/03)] (Goran Zekovic et al. trans.). 254

Clanak 7, Zakon

0

zastiti od nasilja u obitelji (Narodne novine 116/03)

Domestic Laws of Countries Prohibiting Corporal Punishment • 229

[Croatian Act on Protection from Family Violence art. 7 (Official Gazette 116/03)] (Goran Zekovic et al. trans.). 255 Clanak 8, Zakon 0 zastiti od nasilja u obitelji (Narodne novine 116/03) [Croatian Act on Protection from Family Violence art. 8 (Official Gazette 116/03)] (Goran Zekovic et al. trans.). 256

See Zekovic Dec. 18th Memorandum, supra note 242, at 4-6, 8-9.

257 Clanak 200, Zakona 0 obveznim odnosima (Narodne novine 53/91, 73/91, 3/94, 7/96, 112/99) [Croatian Act on Obligations art. 200 (Official Gazette 53/91, 73/91, 3/94, 7/96, 112/99)] (Goran Zekovic et al. trans.). 258 See Zekovic Dec. 18th Memorandum, supra note 242, at 7-8; e-mail from Goran Zekovic, Staff Attorney, American Bar Association-CEELI, Croatia, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (Mar. 1, 2004, 4:51 A.M.) (on file with author).

259 Clanak 114, Obiteljskog zakona (Narodne novine 116/03, 17/04) [Croatian Family Act art. 114 (Official Gazette 116/03,17/04)] (Goran Zekovic et al. trans.). 260 Clanak 100, st. 1, Obiteljskog zakona (Narodne novine 116/03, 17/04) [Croatian Family Act art. 100,,-r 1 (Official Gazette 116/03, 17/04)] (Goran Zekovic et al. trans.). 261 Clanak 108, st. 1 Obiteljskog zakona (Narodne novine 116/03, 17/04) [Croatian Family Act art. 108, ,-r 1 (Official Gazette 116/03, 17/04)] (Goran Zekovic et al. trans.).

262

See Zekovic Dec. 18th Memorandum, supra note 242, at 7-9.

263

The statute applicable to preschools states:

Teachers and professional associates cannot be persons who were validly convicted for a criminal offence against the dignity and moral of a person, for criminal offence against marriage, family and youth, for criminal offence against life and body, and for criminal offence against the Republic of Croatia, as well as the person to whom a safety measure or protection measure of forbidding to upbring and educate was pronounced. Clanak 25, Zakona 0 predskolskorn odgoju i obrazovanju (Narodne novine 10/97) [Croatian Act on Preschool Upbringing and Education art. 25 (Official Gazette 10/97)] (Goran Zekovic et al. trans.). 264

The statute regulating elementary schools declares:

A person cannot work in an elementary school if he or she has been validly convicted for a criminal offence against the Republic of Croatia, criminal offence against sexual freedom and sexual morality, criminal offence of breaching family obligations, criminal offence of neglecting and abusing a child or a minor, or some other criminal offence of physical maltreatment of a child or a minor. Teachers and professional associates are obliged to under-

230 • Corporal Punishment of Children: A Human Rights Violation

take measures for protection of child's rights, and should immediately notify institution for social care or other governing body specifically about forms of physical or mental violence, sexual abuse, neglect or unconcerned behavior, maltreatment or exploitation of a child or a pupil. Clanak 70, Zakona 0 osnovnom skolstvu (Narodne novine 69/03) [Croatian Act on Elementary Schooling art. 70 (Official Gazette 69/03)] (Goran Zekovic et al. trans.). 265

The statute concerning secondary schools provides:

A person cannot work in a secondary school if he or she has been validly convicted for a criminal offence against the Republic of Croatia, criminal offence of accepting bribery or criminal offence against sexual freedom and sexual morality, criminal offence of breaching family obligations, criminal offence ofneglecting and abusing a child or a minor, or some other criminal offence ofphysical maltreatment ofa child or a minor. Secondary school teachers are obliged to undertake measures for protection of child's rights, and should immediately notify institution for social care or other governing body specifically about forms of physical or mental violence, sexual abuse, neglect or unconcerned behavior, maltreatment or exploitation of a child or a pupil. Clanak 75, Zakona 0 srednjem skolstvu (Narodne novine 69/03) [Croatian Act on Secondary Schooling art. 75 (Official Gazette 69/03)] (Goran Zekovic et al. trans.) (emphasis added). 266 Clanak 70, Zakona 0 osnovnom skolstvu (Narodne novine 69/03) [Croatian Act on Elementary Schooling art. 70 (Official Gazette 69/03)], supra note 264; Clanak 75, Zakona 0 srednjem skolstvu (Narodne novine 69/03) [Croatian Act on Secondary Schooling art. 70 (Official Gazette 69/03)], supra note 265. 267

See Rustemier, supra note 14, at 8.

268 See Clanak 213, Kaznenog zakona (Narodne novine 110/97,27/98, 129/00, 51/01) [Croatian Criminal Code art. 213 (Official Gazette 110/97,27/98,129/00, 51/01)], supra note 247; Clanak 200, Zakona obveznim odnosima (Narodne novine 53/91, 73/91, 3/94, 7/96, 112/99) [Croatian Act on Obligations art. 200 (Official Gazette 53/91,73/91,3/94,7/96, 112/99)], supra note 257; Zekovic Dec. 18th Memorandum, supra note 242, at 11-12. 269

See Zekovic Dec. 18th Memorandum, supra note 242, at 11-12.

270

See BOYSON & THORPE, supra note 55, at 42.

271 9. pants, Bernu tiesibu aizsardzibas likums [Latvian Protection of the Rights of the Child Law § 9, para. 2] (Latvian Translation and Terminology Centre trans.). 272 Letter from I. Zalpetcrc, Head of the Latvian Secretariat of the Minister for Special Assignments for Children and Family Affairs, Latvia, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (Sept. 5, 2003) (on file with author) [hereinafter Secretariat's Sept. 5th Letter].

Domestic Laws of Countries Prohibiting Corporal Punishment • 231

See Letter from Laila Rieksta-Riekstina, Acting Head of the Latvian Secretariat of the Minister for Special Assignments for Children and Family Affairs, Latvia, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1, 3 (July 28, 2003) (on file with author) [hereinafter Secretariat's July 28th Letter]; Secretariat's Sept. 5th Letter, supra note 272, at 1. 273

274

Latvian Criminal Law § 174 (Latvian Translation and Terminology Centre

trans.). 275 51.pants, Bernu tiesibiu aizsardzibas likums [Latvian Protection of the Rights of the Child Law § 51] (Latvian Translation and Terminology Centre trans.). 276 1.pants, Bernu tiesibu aizsardzibas likums [Latvian Protection of the Rights of the Child Law § 1] (Latvian Translation and Terminology Centre trans.); see also BOYSON & THORPE, supra note 55, at 40 (referring to the 2000 amendment as defining "violence as being physical, sexual and emotional"). 277

Secretariat's Sept. 5th Letter, supra note 272, at 1-2.

278 Latvian Criminal Law § 48(b) (Latvian Translation and Terminology Centre trans.); see Secretariat's July 28th Letter, supra note 273, at 3; Secretariat's Sept. 5th Letter, supra note 272, at 1-2. 279 See Secretariat's Sept. 5th Letter, supra note 272, at 2; e-mail from Kristine Klukovica, Latvian Office of the Secretariat of the Minister for Special Assignments for Children and Family Affairs, Latvia, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (Oct. 23, 2003) (on file with author).

280 51.pants, Bernu tiesibu aizsardzibas likums [Latvian Protection of the Rights of the Child Law § 51] (Latvian Translation and Terminology Centre trans.). 281

Id.

282

Secretariat's July 28th Letter, supra note 273, at 3.

283 52.pants, Bernu tiesibu aizsardzibas likums [Latvian Protection of the Rights of the Child Law § 52] (Latvian Translation and Terminology Centre trans.). 284

See BOYSON & THORPE, supra note 55, at 41.

285

See Durrant, supra note 16, at 166.

286

See BOYSON & THORPE, supra note 55, at 52.

287

See Durrant, supra note 16, at 166.

288

BOYSON & THORPE, supra note 55, at 52.

Memorandum Attached to e-mail from Peggy Wuestenhagen, Assistant to Professor Dr. Werner Beulke, Holder of the Chair in Criminal Law, Criminal Procedure and Criminology, University of Passau, Germany, to Professor Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (Sept. 17, 2003 ) (on file with author) [hereinafter Beulke Sept. 17th Memorandum]. 289

232 • Corporal Punishment of Children: A Human Rights Violation 290 § 1631 II Gesetz zur Aechtung der Gewalt in der Erziehung (Bundesgesetzblatt 2000 I) [German Ostracism of Force in Upbringing Act § 1631(11) (Federal Law Gazette 2000 I)] (Antonia Harbusch trans.).

291

See Beulke Sept. 17th Memorandum, supra note 289, at 1.

292 A statute supporting nonpunitive physical contact with one's child provides that "[p ]arents have the duty and the right to care for the underage child (parental care). The parental care comprises the care for the person of the child (personal custody) and the care for the property of the child (property)." § 1626 I Buergerliches Gesetzbuch (Bundesgesetzblatt 2002 I, seite 42, geaendert auf seite 2909) [German Personal Custody Law § 1626(1) (Federal Law Gazette 2002 I, at 42, amended, at 2909) [Antonia Harbusch trans.). A related statute states that "[p]ersonal custody comprises especially the duty and the right to care for the child, to educate and supervise it and to determine its abode." § 1631 I Buergerliches Gesetzbuch (Bundesgesetzblatt 2002 I, seite 42, geaendert auf seite 2909) [German Personal Custody Law § 1631(I) (Federal Law Gazette 2002 I, at 42, amended, at 2909)] (Antonia Harbusch trans.). See Beulke Sept. 17th Memorandum, supra note 289, at 1. 293 § 16 I Kinder- und Jugendhilfegesetz (Bundesgesetzblatt 1998 I, seite 3546) [German Youth Welfare Act § 16(1) (Federal Law Gazette 1998 I, at 3546)] (Antonia Harbusch trans.) (emphasis added).

294

See Beulke Sept. 17th Memorandum, supra note 289, at 2.

295

See ide at 3.

296 See Art. 86 III satz 2 BayEUG (Bayerisches Gesetz- und Verordnungsblatt) (GVBl.) [Bavarian Education and Instruction Act art. 86 III, sentence 2 (Bavarian Law Gazette 2000, at 414, amended in GVBl. 2000, at 632)] (Antonia Harbusch trans.) (providing that "[c]orporal punishment is inadmissible" in the schools); § 39 II satz 2 SaechsSchulG (Saechsisches Gesetz- und Verordnungsblatt) [Saxonian School Act § 39(11), sentence 2 (Saxonian Law Gazette 1998, at 271)] (Antonia Harbusch trans.) (stating that "[c]orporal punishment is forbidden" in the schools); § 90 III satz 2 SchG (Gesetzblatt fuer Baden- Wuerttemberg) [Baden-Wuerttemberg School Act § 90(111), sentence 2 (Law Gazette of Baden-Wuerttemberg 1983, at 397)] (Antonia Harbusch trans. ) (declaring that "[c]orporal punishment is impossible" in the schools); § 45 III satz 2 SchulG (Gesetz- und Verornungsblatt fuer Schleswig-Holstein) [SchleswigHolstein School Act § 45 (III), sentence 2 (Law Gazette of Schleswig-Holstein 1990, at 451)] (Antonia Harbusch trans.) (asserting that "[c]orporal punishment as well as other degrading measures of upbringing are forbidden" in the schools); § 32 III SchOG (Amtsblatt des Saarlandes (ABl. 1996, seite 846, geaendert auf seite 147, 1997) [Saarland School Act § 32(111) (Official Gazette of Saarland 1996, at 846, amended in ABl. 1997, at 147)] (Antonia Harbusch trans.) (stating that "[c]orporal punishment and degrading measures are inadmissible" in the schools); § 42 II Nr. 2 SchulG (Gesetz- und Verordnungsblatt fuer das Land Rheinland-Pfalz 1974, seite 487) [Rhineland-Palatinate School Act § 42(11), no. 2 (Law Gazette of RhinelandPalatinate 1974, at 487)] (Antonia Harbusch trans.) (providing that "[c]orporal pun-

Domestic Laws of Countries Prohibiting Corporal Punishment • 233

ishment and collective punishment are impossible" in the schools); § 26a III SchVG (Gesetz- und Verordnungsblatt fuer das Land Nordrhein-Westfalen 1985, seite 155 [Northrhine-Westphalia School Administration Act § 26a(III) (Law Gazette of Northrhine-Westphalia 1985, at 155)] (Antonia Harbusch trans.) (declaring that "[c]orporal punishment is inadmissible" in the schools); § 60 II SchulG (Gesetz- und Verordnungsblatt fuer Mecklenburg-Vorpommern 1996, seite 205) [MecklenburgVorpommern School Act § 60 (II) (Law Gazette of Mecklenburg-Vorpommern 1996, at 205)] (Antonia Harbusch trans.) (enunciating that "[c]orporal punishment as well as other degrading measures are forbidden" in the schools); § 82 III SchG (Gesetzund Verordnungsblatt fuer das Land Hessen 1992 I, seite 233) [Hesse School Act § 82(111) (Law Gazette of Hesse 1992 I, at 233)] (Antonia Harbusch trans.) (providing that "[ c]orporal punishment and other degrading measures are forbidden" in the schools); § 49 II HmbSG (Hamburgisches Gesetz- und Verordnungsblatt 1997 I, seite 97) [Hamburg School Act § 49(11) (Law Gazette of Hamburg 1997 I, at 97)] (Antonia Harbusch trans.) (proclaiming that "[c]orporal punishment and other degrading educational measures are forbidden" in the schools); § 63 I BbgSchulG satz 4 (Gesetzund Verordnungsblatt fuer das Land Brandenburg 1996 I, seite 102) [Brandenburg School Act § 63(1), sentence 4 (Law Gazette of Brandenburg 1996 I, at 102)] (Antonia Harbusch trans.) (asserting that "[c]orporal punishment as well as other degrading measures are forbidden" in the schools); § 55 II satz 2 SchulG (Gesetz- und Verordnungsblatt fuer Berlin 1980, seite 2103) [Berlin School Act § 55(11), sentence 2 (Law Gazette of Berlin 1980, at 2103)] (Antonia Harbusch trans.) (declaring that "[c]orporal punishment remains forbidden" in the schools); § 51 IV satz 2 SchulG (Gesetz- und Verordnungsblatt fuer den Freistaat Thueringen 1993, seite 445) [Thuringia School Act § 51(IV), sentence 2 (Law Gazette of Thuringia 1993, at 445)] (Antonia Harbusch trans.) (stating that "[c]orporal punishment is forbidden" in the schools). 297 See Beulke Sept. 17th Memorandum, supra note 289, at 5. The federal states in which school corporal punishment is prohibited by inference are Bremen, Lower Saxony, and Saxony Anhalt. See ide 298

See ide at 5-6.

299 Art. 2 II satz 1 Grundgesetz (Bundesgesetzblatt 1949, seite 1) [German Constitution art. 2(11) sentence 1 (Federal Law Gazette 1949, at 1)] (Antonia Harbusch trans.); see Beulke Sept. 17th Memorandum, supra note 289, at 6.

300

Beulke Sept. 17th Memorandum, supra note 289, at 5-6.

301

See Rustemier, supra note 14, at 8.

302 § 223 I Strafgesetzbuch (Bundesgesetzblatt 1998 I, seite 3322) [German Criminal Code § 223(1) (Federal Law Gazette 1998 I, at 3322)] (Antonia Harbusch trans.); see Beulke Sept. 17th Memorandum, supra note 289, at 6. 303

Beulke Sept. 17th Memorandum, supra note 289, at 7.

304

Id.

234 • Corporal Punishment of Children: A Human Rights Violation 305

See id.

306

See id. at 6-7.

307 See id. at 6-7 (citing KARL LACKNER & KRrSTIAN KUEHL, STRAFGESETZBUCH § 223 No. 11 (24th ed. 2001); DRS KINDHAEUSER, STRAFGESETZBUCH § 223 No. 15 (1st ed. 2002)). 308 See id. (citing Thomas Hillenkamp, Juristische Schulung 159 (2001); Andreas Hoyer, Zeitschrift fuer das gesamte Familienrecht 521 (2001); Torsten Noak, Juristische Rundschau 402 (2002)).

309 The statute creating criminal liability for perpetration of dangerous bodily injury states:

Whoever commits bodily harm: 1. through the administration of poison or other substances dangerous to health; 2. by means of a weapon or other dangerous tool; 3. by means of a sneak attack; 4. jointly with another participant; or 5. by means of a treatment dangerous to life, shall be punished with imprisonment from six months to ten years, in less serious cases with imprisonment from three months to five years. § 224 I Strafgesetzbuch (Bundesgesetzblatt 1998 I, seite 3322) [German Criminal Code § 224(1) (Federal Law Gazette 1998 I, at 3322)] (Antonia Harbusch trans.). 310

The statute establishing criminal liability for maltreatment of wards, provides:

Whoever torments or roughly maltreats or, through a malicious neglect of his duty to care for the person, harms the health of a person under eighteen years of age or a person who is defenseless due to frailty or illness, who: 1. is under his care or custody; 2. belongs to his household; 3. has been placed under his control by the person obligated to provide care; or 4. is subordinated to him with the framework of an employment or work relationship, shall be punished with imprisonment from six months to ten years. § 225 I Strafgesetzbuch (Bundesgesetzblatt 1998 I, seite 3322) [German Criminal Code § 225(1) (Federal Law Gazette 1998 I, at 3322)] (Antonia Harbusch trans.). 311 The statute used to assess criminal liability for persons whose administration of corporal punishment causes children serious bodily injury, states:

If the bodily injury has, as a result, that the injured person:

Domestic Laws of Countries Prohibiting Corporal Punishment • 235

1. loses his sight in one eye or in both eyes, his hearing, his speech or his procreative capacity; 2. loses or permanently can no longer use an important bodily member; 3. is permanently disfigured in a substantial way or becomes infirm, paralyzed, mentally ill or disabled, then the punishment shall be imprisonment from one year to ten years. § 226 I Strafgesetzbuch (Bundesgesetzblatt 1998 I, seite 3322) [German Criminal Code § 226(1) (Federal Law Gazette 1998 I, at 3322)] (Antonia Harbusch trans.). 312 The provision on criminal liability for coercion declares that "[w]hoever unlawfully with force or threat of an appreciable harm compels a human being to commit, acquiesce in or omit an act, shall be punished with imprisonment for not more than three years or a fine." § 240 I Strafgesetzbuch (Bundesgesetzblatt 1998 I, seite 3322) [German Criminal Code § 240(1) (Federal Law Gazette 1998 I, at 3322)] (Antonia Harbusch trans.). 313

Beulke Sept. 17th Memorandum, supra note 289, at 10.

314 See ide at 10-12; Memorandum Attached to e-mail from Antonia Harbusch, Assistant to Professor Dr. Werner Beulke, Holder of the Chair in Criminal Law, Criminal Procedure and Criminology, University of Passau, Germany, to Professor Susan H. Bitensky, Professor of Law, Michigan State University College of Law 3 (Oct. 15,2003) [hereinafter Beulke Oct. 15th Memorandum].

315 § 153 I Strafprozessordnung (Bundesgesetzblatt 1987 I, seite 1074, geaendert auf seite 1319) [German Criminal Procedure Code § 153(1) (Federal Law Gazette 1987 I, at 1074, amended, at 1319)] (Antonia Harbusch trans.)

A companion provision adds: In a case involving a less serious criminal offense, the public prosecution office may, with the consent of the court competent to order the opening of the main proceedings and with the consent of the accused, dispense with preferment of public charges and concurrently impose a condition upon the accused if such conditions and instructions are of such nature as to eliminate the public interest in criminal prosecution and if the degree of culpability does not present an obstacle. § 153a I satz 1 Strafprozessordnung (Bundesgesetzblatt 1987 I, seite 1074, geaendert auf seite 1319) [German Criminal Procedure Code § 153a(I), sentence 1 (Federal Law Gazette 1987 I, at 1074, amended, at 1319)] (Antonia Harbusch trans.). The conditions imposed under Section 153a as the quid pro quo for termination of criminal proceedings include showing "serious effort to come to a settlement with the victim ... and by doing this to make good the injustice of his offence partly or predominantly." Id. 316 § 230 I satz 1 Strafprozessordnung (Bundesgesetzblatt 1987 I, seite 1074, geaendert auf seite 1319) [German Criminal Procedure Code § 230 I, sentence 1 (Federal Law Gazette 1987 I, at 1074, as amended, at 1319) (Antonia Harbusch trans.).

236 • Corporal Punishment of Children: A Human Rights Violation 317

See Beulke Oct. 15th Memorandum, supra note 314, at 3.

318 Nr. 235 II Richtlinien fuer das Straf- und das Bussgeldverfahren (Bundesanzeiger 2000, seite 15021) [German Guidelines for Criminal Proceedings and the Fining System No. 235(11) (Federal Register 2000, at 15021)] (Antonia Harbusch trans.). 319

See Beulke Sept. 17th Memorandum, supra note 289, at II.

320 Nr. 235 III Richtlinien fuere das Straf- und das Bussgeldverfahren (Bundesanzeiger 2000, seite 15021) [German Guidelines for Criminal Proceedings and the Fining System No. 235(111) (Federal Register 2000, at 15021)] (Antonia Harbusch trans.). 321 § 30 Sozialgesetzbuch, 8. Buch (Bundesgesetzblatt 1998 I, seite 3546) [German Social Code vol. 8, § 30 (Federal Law Gazette 1998 I, at 3546)] (Antonia Harbusch trans.). 322 § 28 Sozialgesetzbuch, 8. Buch (Bundesgesetzblatt 1998 I, seite 3546) [German Social Code vol. 8, § 28 (Federal Law Gazette 1998 I, at 3546)] (Antonia Harbusch trans.). 323

Beulke Sept. 17th Memorandum, supra note 289, at 11-12.

324 § 823 I Buergerliches Gesetzbuch (Bundesgesetzblatt 2002 I, seite 42, geaendert auf seite 2909) [German Civil Code § 823(1) (Federal Law Gazette 2002 I, at 42, amended, at 2909)] (Antonia Harbusch trans.); see Beulke Sept. 17th Memorandum, supra note 289, at 9, 13. 325 § 823 II satz 1 Buergerliches Gesetzbuch (Bundesgesetzblatt 2002 I, seite 42, geaendert auf seite 2909) [German Civil Code § 823 (II), sentence 1 (Federal Law Gazette 2002 I, at 42, amended, at 2909)] (Antonia Harbusch trans.); see Beulke Sept. 17th Memorandum, supra note 289, at 9, 13.

326

See Beulke Sept. 17th Memorandum, supra note 289, at 13.

327 § 1666 I Buergerliches Gesetzbuch (Bundesgesetzblatt 2002 I, seite 42, geaendert auf seite 2909) [German Civil Code § 1666(1) (Federal Law Gazette 2002 I, at 42, amended, at 2909)] (Antonia Harbusch trans.).

328 See § 1666a I satz 1 Buergerliches Gesetzbuch (Bundesgesetzblatt 2002 I, seite 42, geaendert auf seite 2909) [German Civil Code § 1666a (I), sentence 1 (Federal Law Gazette 2002 I, at 42, amended, at 2909)] (Antonia Harbusch trans.). 329 § 1684 IV satz 1 Buergerliches Gesetzbuch (Bundesgesetzblatt 2002 I, seite 42, geaendert auf seite 2909) [German Civil Code § 1684(IV), sentence 1 (Federal Law Gazette 2002 I, at 42, amended, at 2909)] (Antonia Harbusch trans.). 330

Beulke Sept. 17th Memorandum, supra note 289, at 9-10.

331

See ide at 10.

332 § 1 Kinder- und Jugendhilfegesetz (Bundesgesetzblatt 1998 I, seite 3546) [GermanYouth Welfare Act § 1 (Federal Law Gazette 1998 I, at 3546)] (Antonia Harbusch trans.).

Domestic Laws of Countries Prohibiting Corporal Punishment • 237 333

See BOYSON & THORPE, supra note 55, at 54.

334 Kai-D. Bussman, The Subtle Impact of a Ban of Corporal Punishment in Childrearing: Results of the Evaluation of the German Prohibition (2002) (under review) (manuscript at 9, on file with author) (funded by the German Ministry of Justice and the German Ministry of Family, Senior Citizens, Women and Juveniles). 335

Id.

336 See Durrant, supra note 16, at 167 (synthesizing Bussman's findings); Bussman, supra note 334, (manuscript at 13, diagram-No.4).

337

Bussman, supra note 334, (manuscript at 617-20).

338

See ide (manuscript at 6).

339

Id. (manuscript at 10, 12-15, 17-20); Durrant, supra note 16, at 165-66.

340

Children's Convention, supra note 170.

341 Concluding Observations of the Committee On the Rights of the Child: Germany, 35th Sess., para. 40, U.N. Doc. CRC/C/15/Add. 226 (2004). 342

Id. para. 41.

343 See Memorandum Attached to e-mail from Ivaylo Ganchev, Attorney, Chair of the Board of the Bulgarian Association for Civil Society and Legal Initiatives, Bulgaria, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (Oct. 16,2003) [hereinafter Ganchev Oct. 16th Memorandum] (stating that the exact meaning of the 2000 ban is that "no one can inflict physical punishment on children").

344 Ch1.11.2, Zakon za zakrila na deteto, obn. D~ br. 48, 2000 [Bulgarian Child Protection Act art. 11(2), State Gazette, No. 48 of 2000] (Bulgarian State Agency for Child Protection trans.). 345

See Ganchev Oct. 16th Memorandum, supra note 343, at 1.

346 Ch1.4, Semeen kodeks, obn., D~ br. 41 ot 28.05.1985 g., v sila ot 1.07. 1985 g., izm. i dop., br. 11 ot 7.02.1992 g., popr., br. 15 ot 21. 02.1992 g., izm. i dop., br. 63 ot 15.07.2003 g., dop., br. 84 ot 23.09.2003 g. [Bulgarian Family Code art. 4, State Gazette No. 41/May 28, 1985 amended SG Nos. 11 & 15/1992, 63 & 84/2003] (Bulgarian Ministry of Justice trans.). 347

See Ganchev Oct. 16th Memorandum, supra note 343, at 4.

348

LILYANA NENOVA, FAMILY LAW OF REpUBLIC OF BULGARIA 46 (2d ed. 1994).

349 Cf Memorandum Attached to e-mail from Ivaylo Ganchev, Attorney, Chair of the Board of the Bulgarian Association for Civil Society and Legal Initiatives, Bulgaria, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 7 (Oct. 4, 2003) (on file with author) [hereinafter Ganchev Oct. 4th Memorandum] (explaining that Article 4 of the Family Code and Article 11.2 of the Child Protection Act do not interact in practical terms)].

238 • Corporal Punishment of Children: A Human Rights Violation 350 See id., at 18-27; e-mail from Ivaylo Ganchev, Attorney, Chair of the Board of the Bulgarian Association for Civil Society and Legal Initiatives, Bulgaria, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 2-3 (Oct. 21,2003) (on file with author) [hereinafter Ganchev Oct. 21st e-mail]. 351 See Ganchev Oct. 21st e-mail.supranote350.at 2-3; Ganchev Oct. 4th Memorandum, supra note 349, at 18-21. 352 Ch. 1.134(1), Pravilnik za prilagane na Zakona za narodnata prosveta, Izdaden ot ministyra na obrazovanieto i naukata, obn., D~ br. 68 ot 30.07.1999 g., izm., br. 19 ot 10.03.2000 g., izm. i dop., br. 53 ot 12.06.2001 g., v sila ot 15.09.2001 g., dop., br 7 ot 18.01.2002 g., izm. i dop., br. 68 ot 16.07.2002 g., v sila ot 16.07.2002 g., br. 19 ot 28.02.2003 g., v sila ot 28.02.2003 g., br. 33 at 11.04.2003 g., v sila ot 11.04.2003 g., popr., br.48 ot 23.05.2003 g., izm. i dop., br.65 ot 22.07.2003 g., v sila ot 22.07.2003 g. [Bulgarian Application Regulation of the Public Education Act art. 134 (1), issued by the Minister of Education and Science, promulgated SG, 68/July 30, 1999, amended, 19/Mar. 10,2003, amended and annexed 33/June 12,2001, in force since Sept. 15, 2001, amended 7/Jan. 18,2002, amended and annexed 68/July 16,2002, in force since July 16,2002, 19/Feb. 28,2003, in force since Feb. 28,2003, 33/Apr. 11,2003, in force since Apr. 11, 2003, amended, 48/May 23, 2003, amended and annexed 65/July 22, 2003, in force since July 22, 2003] (Miglena Cholakova trans.) (emphasis deleted).

353

See Ganchev Oct. 4th Memorandum supra note 349, at 25-26.

354 ChI. 20(2), Pravilnik na domovete za otglezhdane i vyzpitanie na deca, lisheni ot roditelska grizha, izdaden ot ministyra na obrazovanieto i naukata, obn., D~ br. 9 ot 1.02.2000 g [Bulgarian Rules for Boarding Schools for Children Deprived of Parental Care art. 20(2), issued by the Minister of Education and Science, promulgated SG issue (c) 9/Feb. 1, 2000] (Miglena Cholakova trans.) (emphasis deleted). 355 ChI. 25(4), Pravilnik za organizaciiata i rabotata na domovete za vremenno nastaniavane na maloletni nepylnoletni, izdaden ot ministyra na vytreshnite raboti, obn., D~ br. 83 ot 21.07.1998 g., izm. i dop., br. 73 ot 19.08.2003 g. [Bulgarian Rules for Organizing and Managing Hostels for Temporary Residence of Juveniles and Minors (issued by the Minister of Interior, promulgated SG issue (c) 83/July 21,1998, amended and annexed, issue (c) 73/Aug. 19,2003)] (Miglena Cholakova trans.) (emphasis deleted).

356

See Ganchev Oct. 4th Memorandum, supra note 349, at 3-4, 21, 23, 26-27.

357

See id. at 13-14; Ganchev Oct. 16th Memorandum, supra note 343, at 4-8.

358 ChI. 128(1), Nakazatelen kodeks obn., D~ br. 26 ot 2.04.1968 g., v sila ot 1.05.1968 g., posledno izm. i dop., br. 92 ot 27.09.2002 g. [Bulgarian Penal Code art. 128(1), promulgated State Gazette No. 26/Apr. 2,1968, last amended SG No. 92/2002] (Bulgarian Ministry of Justice trans.). 359 ChI. 128(2), Nakazatelen kodeks obn., D~ br. 26 ot 2.04.1968 g., v sila ot 1.05.1968 g., posledno izm. i dop., br. 92 ot 27.09.2002 g. [Bulgarian Penal Code art. 128(2), promulgated State Gazette No. 26/Apr. 2, 1968, last amended SG No. 92/2002] (Bulgarian Ministry of Justice trans.).

Domestic Laws of Countries Prohibiting Corporal Punishment • 239 360 ChI. 128(1), Nakazatelen kodeks obn., DY, br. 26 ot 2.04.1968 g., v sila ot 1.05.1968 g., posledno izm. i dop., br. 92 ot 27.09.2002 g. [Bulgarian Penal Code art. 128(1), promulgated State Gazette No. 26/Apr. 2, 1968, last amended SG No. 92/2002] (Bulgarian Ministry of Justice trans.). 361 ChI. 128(2), Nakazatelen kodeks obn., DY, br. 26 ot 2.04.1968 g., v sila ot 1.05.1968 g., posledno izm. i dop., br. 92 ot 27.09.2002 g. [Bulgarian Penal Code art. 128(2), promulgated State Gazette No. 26/Apr. 2, 1968, last amended SG No. 92/2002] (Bulgarian Ministry of Justice trans.). 362 ChI. 130(1), Nakazatelen kodeks obn., DY, br. 26 ot 2.04.1968 g., v sila ot 1.05.1968 g., posledno izm. i dop., br. 92 ot 127.09.2002 g. [Bulgarian Penal Code art. 130(1), promulgated State Gazette No. 26/Apr. 2, 1968, last amended SG No. 92/2002] (Bulgarian Ministry of Justice trans.). 363 ChI. 130(2), Nakazatelen kodeks obn., DY, br. 26 ot 2.04.1968 g., v sila ot 1.05.1968 g., posledno izm. i dop., br. 92 ot 27.09.2002 g. [Bulgarian Penal Code art. 130(2), promulgated State Gazette No. 26/Apr. 2, 1968, last amended SG No. 92/2002] (Bulgarian Ministry of Justice trans.). 364 ChI. 131(1)(4), Nakazatelen kodeks obn., DY, br. 26 ot 2.04.1968 g., v sila ot 1.05.1968 g., posledno izm. i dop., br. 92 ot 27.09.2002 g. [Bulgarian Penal Code art. 131(1)(4), promulgated State Gazette No. 26/Apr. 2, 1968, last amended SG No. 92/2002] (Bulgarian Ministry of Justice trans.).

365

See Ganchev Oct. 4th Memorandum, supra note 349, at 14.

366

See ide at 13-14.

367 ChI. 161(1), Nakazatelen kodeks, Izm.-DY, br. 28 ot 1982 g., dop., br. 89 ot 1986 g., izm., br. 50 ot 1995 g., br. 21 ot 2000 g., predishen tekst na chl. 161, br. 92 ot 2002 g. [Bulgarian Penal Code art. 161(1), as amended SG, Nos. 28/1982,89/1986, 50/1995,21/2000] (Bulgarian Ministry of Justice trans.).

368 Id. chl. 161(1) [art. 161(1)]; see Ganchev Oct. 4th Memorandum, supra note 349, at 13-14. 369

See Ganchev Oct. 4th Memorandum, supra note 349, at 14.

370 ChI. 46(1), Nakazatelno-procesualen kodeks, obn., DY, br. 89 ot 15.11.1974 g., v sila ot 1.03.1975 g., posledno izmenen br.57 ot 24.06.2003 g., v sila ot 24.06.2003 g. [Bulgarian Penal Procedure Code art. 46(1), promulgated State Gazette No. 89 of 1974; last amended SG No. 57/2003] (Bulgarian Ministry of Justice trans.). 371

See Ganchev Oct. 4th Memorandum, supra note 349, at 16.

372

Ganchev Oct. 21st e-mail.supranote350.at 2.

373 ChI. 45, Zakon za zadylzheniiata i dogovorite, obn., DY, br. 275 ot 22.11.1950 g., v sila ot 1.01.1951 g., popr., Izv., br. 2 ot 5.12.1950 g., izm., br. 69 ot 28.08.1951 g., br. 92 ot 7.11.1952 g., DY, br. 85 ot 1.11.1963 g., br. 27 ot 3.04.1973 g., br. 16 ot 25.02.1977 g., br. 28 ot 9.04.1982 g., br. 30 ot 13.04.1990 g., izm. i dop., br. 12 ot 12.02.1993 g., izm., br. 56 ot 29.06.1993 g., izm. i dop., br. 83 ot 1.10.1996 g., v sila

240 • Corporal Punishment of Children: A Human Rights Violation

ot 1.11.1996 g., izm., br. 104 ot 6.12.1996 g., v sila ot 7.01.1997 g., br.83 ot 21.09.1999 g., v sila ot 1.01.2000 g., br. 103 ot 30.11.1999 g., v sila ot 1.01.2000 g., izm. i dop., br. 34 ot 25.04.2000 g., v sila ot 1.01.2001 g., dop., br. 19 ot 28.02.2003 g. [Bulgarian Obligations and Contracts Act art. 45, promulgated State Gazette No. 275/Nov. 22, 1950; rectified SG No. 2/1950; amended SG No. 69/1951; 92/1952; 85/1963; 27/1973; 16/1977; 28/1982; 30/1990; 12 & 56/1993; 83/1996; 19/2003] (Miglena Cholakova trans.). 374

See Ganchev Oct. 21st e-mail, supra note 350, at 2.

375 Memorandum of Clarification from Ivaylo Ganchev, Attorney, Chair of the Board of the Bulgarian Association for Civil Society and Legal Initiatives, Bulgaria, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1-2 (undated) (on file with author). 376 ChI. 74(1), Semeen kodeks, obn., D~ br. 41 ot 28.05.1985 g., v sila ot 1.07.1985 g., izm. i dop., br. 11 ot 7.02.1992 g., popr., br. 15 ot 21.02.1992 g., izm. i dop., br. 63 ot 15.07.2003 g., dop., br. 84 ot 23.09.2003 g. [Bulgarian Family Code art. 74(1), promulgated State Gazette No. 41/May 28,1985; amended SG No. 11 & 15/1992, SG Nos. 63 & 84/2003] (Bulgarian Ministry of Justice trans.). 377

See discussion supra Ch. I, Part C.

378 See e-mail from Ivaylo Ganchev, Attorney, Chair of the Board of the Bulgarian Association for Civil Society and Legal Initiatives, Bulgaria, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (Mar. 19,2004) (on file with author).

379 Barnalog nr. 76/2003, 2. mgr. 28 gr. [Icelandic Children's Act No. 76/2003 art. 28(2)] (Hrefna Fridriksdottir trans.). 380 Alpingistioindi 2002-03, 128. loggafarping. A. pingkjol, bls. 876 [Parliamentary Records 2002-03, 128. Parliamentary Session. A. Documents, at 876] (Hrefna Fridriksdottir trans.). 381 See Memorandum Attached to e-mail from Hrefna Fridriksdottir, Attorney, Governmental Agency for Child Protection in Iceland, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (Oct. 9, 2003) (on file with author) [hereinafter Fridriksdottir Oct. 9th Memorandum]; Memorandum Attached to e-mail from Hrefna Fridriksdottir, Attorney, Governmental Agency for Child Protection in Iceland, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (Oct. 27, 2003) (on file with author) [hereinafter Fridriksdottir Oct. 27th Memorandum].

382 Barnaverndarlog nr. 80/2002, 2. mgr. 1. gr. [Icelandic Child Protection Act No. 80/2002 art. 1(2)] (Icelandic Ministry of Social Affairs trans.). 383

See Fridriksdottir Oct. 9th Memorandum, supra note 381, at 2.

384 Reglugero nr. 270/2000 urn sk6lareglur i grunnsk6la, 2. mgr. 5. gr. [Icelandic Regulation on School Rules No. 270/2000 art. 5(2)] (Hrefna Fridriksdottir trans.).

Domestic Laws of Countries Prohibiting Corporal Punishment • 241 385

See Fridriksdottir Oct. 9th Memorandum, supra note 381, at 2.

386 Grunnskolalog no. 66/1995, 2. mgr. 2. gr. [Icelandic Compulsory School Act No. 66/1995 art. 2(2)] (Icelandic Ministry of Education, Science and Culture trans.). 387 Grunnskolalog no. 66/1995,2. mgr. 29. gr. [Icelandic Compulsory School Act No. 66/1995 art. 29(2)] (Icelandic Ministry of Education, Science and Culture trans.). 388 See Fridriksdottir Oct. 9th Memorandum, supra note 381, at 2; Fridriksdottir Oct. 27th Memorandum, supra note 381, at 1.

389 Reglugero nr. 270/2000 urn sk6lareglur i grunnsk6la, 3. mgr. 5 gr. [Icelandic Regulation on School Rules No. 270/2000 art. 5(3)] (Hrefna Fridriksdottir trans.). 390

See Fridriksdottir Oct. 27th Memorandum, supra note 381, at 1.

391 Fridriksdottir Oct. 9th Memorandum, supra note 381, at 3; Fridriksdottir Oct. 27th Memorandum, supra note 381, at 1. 392 Log urn leiksk6la nr. 78/1994, 1. mgr. 2. gr. [Icelandic Preschools (Nursery Schools) Act No. 78/1994 art. 2(1)] (Icelandic Ministry of Education, Science and Culture trans.). 393

See Fridriksdottir Oct. 9th Memorandum, supra note 381, at 3.

394 Reglugero urn daggaeslu i heimahusum nr. 198/1992, 2. mgr. 16. gr. [Icelandic Regulation on the Day Care of Children in Private Homes No. 198/1992 art. 16(2)] (Icelandic Ministry of Social Affairs trans.). 395 Reglugero urn pj6nustu vid fotlud born og fjolskyldur fatlaora nr. 155/1995, 2. mgr. 9. gr. [Icelandic Regulation on Services to Handicapped Children and the Families of the Handicapped No. 155/1995 art. 9(2)] (Hrefna Fridriksdottir trans.). 396 Barnavernarlog nr. 80/2002, 3. mgr. 82. gr. [Icelandic Child Protection Act No. 80/2002 art. 82(3)] (Icelandic Ministry of Social Affairs trans.); see Fridriksdottir Oct. 9th Memorandum, supra note 381, at 3-4. 397

See Rustemier, supra note 14, at 8.

398

See Fridriksdottir Oct. 9th Memorandum, supra note 381, at 4, 9-10.

399 Barnaverndarlog nr. 80/2002, 98. gr. [Icelandic Child Protection Act No. 80/2002 art. 98] (Icelandic Ministry of Social Affairs trans.). 400 Barnaverndarlog nr, 80/2002, 1. mgr. 99. gr. [Icelandic Child Protection Act No. 80/2002 art. 99( 1)] (Icelandic Ministry of Social Affairs trans.). 401 Barnavemdarlog nr. 80/2002, 2. mgr. 99. gr. [Icelandic Child Protection Act No. 80/2002 art. 99(2)] (Icelandic Ministry of Social Affairs trans.). 402 Almenn hegningarlog nr, 19/1940, sbr. log nr. 82/1998 og log nr. 20/1981, 1. mgr. 217. gr., 2. mgr. 217. gr. [Icelandic General Penal Code No. 19/1940, as amended by Act No. 82/1998 and Act No. 20/1981 art. 217(1)-(2)] (Icelandic Ministry of Justice and Ecclesiastical Affairs trans.).

242 • Corporal Punishment of Children: A Human Rights Violation 403 Almenn hegningarlog nr, 19/1940, sbr. log nr. 82/1998 og log nr. 20/1981, 1. mgr. 218. gr. [Icelandic General Penal Code No. 19/1940, as amended by Act No. 82/1998 and Act No. 20/1981 art. 218(1)] (Icelandic Ministry of Justice and Ecclesiastical Affairs trans.). 404 See Fridriksdottir Oct. 27th Memorandum, supra note 381, at 1; Log urn greioslu rikissjoos a b6tum til polcnda afbrota nr. 69/1995, 1. mgr. 1. gr. [Icelandic Act on State Funded Damages to Crime Victims No. 69/1995 art. 1(1)] (Hrefna Fridriksdottir trans.). 405

See Fridriksdottir Oct. 9th Memorandum, supra note 381, at 5, 9-10.

406 Skaoabotalog nr. 50/1993, 1. mgr. 1 gr. [Icelandic Tort Act No. 50/1993 art. 1(1)] (Hrefna Fridriksdottir trans.). 407

See Fridriksdottir Oct. 27th Memorandum, supra note 381, at 2.

408

See Fridriksdottir Oct. 9th Memorandum, supra note 381, at 9-10.

409

See ide at 5.

410 Barnalog nr. 76/2003, 2. mgr. 34 gr. [Icelandic Law in Respect of Children No. 76/2003 art. 34(2)] (Hrefna Fridriksdottir trans.). 411 Barnalog nr. 76/2003, 1. mgr. 46 gr. [Icelandic Law in Respect of Children No. 76/2003 art. 46(1)] (Hrefna Fridriksdottir trans.). 412 Barnalog nr. 76/2003, 7. mgr. 47 gr. [Icelandic Law in Respect of Children No. 76/2003 art. 47(7)] (Hrefna Fridriksdottir trans.). 413 Frumvarp til barnalaga, pingskjal nr. 181. Alpingistioindi 2002-03, 128. loggjafarping, A. pingkjol, bls. 882 [Bill of Law in Respect of Children, Parliamentary Document 181. Parliamentary Records 2002-03, 128. Parliamentary Session. A. Documents, at 882] (Hrefna Fridriksdottir trans.). 414 Barnaverndarlog nr. 80/2002, 37 gr. [Icelandic Child Protection Act No. 80/2002 art. 37] (Icelandic Ministry of Social Affairs trans.) (emphasis added). 415

Id. 37 gr. [art. 37].

416

See Fridriksdottir Oct. 9th Memorandum, supra note 381, at 6.

417

For example, Article 27, subsection 1 of the Child Protection Act declares:

On the same conditions as those stated in art. 26, and if justified by compelling interests of the child, a child protection committee may by a ruling, against the will of parents or of a child at least 15:

b. rule that a child shall be removed from the home for up to two months, and on necessary arrangements, such as the placement of the child in foster care or in a home or institution, or seek other measures under Sections XIII and XIV to ensure the child's safety, or in order that suitable tests on the child may be carried out, and necessary treatment and care may be provided.

Domestic Laws of Countries Prohibiting Corporal Punishment • 243

Barnaverndarlog nr. 80/2002, 1. mgr. 27 gr. [Icelandic Child Protection Act No. 80/2002 art. 27(1)] (Icelandic Ministry of Social Affairs trans.). Another example may be found in Article 29, subsection 1 of that act: A child protection committee may take court action for a parent or parents to be deprived of custody if the committee believes: a. That daily care, upbringing or relations between parents and child are grossly defective, taking account of the age and maturity of the child,

c. That the child is mistreated, ... or is subject to gross mental or physical harassment or humiliation in the home. d. That it is certain that the child's physical or mental health or his/her development is at risk because the parents are clearly unfit to have custody, due for instance to drug use, mental instability or low intelligence, or that the behaviour of the parents is likely to cause the child serious harm. Barnaverndarlog nr. 80/2002, 1. mgr. 29. gr. [Icelandic Child Protection Act No. 80/2002 art. 29(1)] (Icelandic Ministry of Social Affairs trans.). 418

See Fridriksdottir Oct. 27th Memorandum, supra note 381, at 3.

419 Barnavemdarlog nr. 80/2002, 1 mgr. 24. gr. [Icelandic Child Protection Act No. 80/2002 art. 24( 1)] (Icelandic Ministry of Social Affairs trans.). 420 Barnavemdarlog nr. 80/2002, 1. mgr. 26 gr. [Icelandic Child Protection Act No. 80/2002 art. 26(1)] (Icelandic Ministry of Social Affairs trans.).

Criminal Appeals (Cr. App.) 4596/98, State of Israel v. Plonit, 54 Piskei Din 145 (Rhona Schuz trans.); see Memorandum Attached to e-mail from Dr. Rhona Schuz, Senior Lecturer at Sha' arei Mishpat Law School and Visiting Lecturer at Bar llan University, Israel, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1,4 (Sept. 4, 2003) (on file with author) [hereinafter Schuz Sept. 4th Memorandum]; e-mail from Dr. Rhona Schuz, Senior Lecturer at Sha' arei Mishpat Law School and Visiting Lecturer at Bar llan University, Israel, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (Oct. 1, 2003) (on file with author) [hereinfter Schuz Oct. 1st e-mail]. 421

(~D.)

422 See Rhona Schuz, 'Three Years on ': An Analysis of the Delegalization of Physical Punishment of Children by the Israeli Courts, 11 INT'L 1. CHILD. RTs. 235, 237 (2003). 423

See ide at 237-38.

424 Cr. App. 4596/98, State of Israel v. Plonit, 54 ~D. 145,185,186-87. Assault is a crime in Israel under Article 379 of the Penal Law, 1977, Sefer Chukim 864 (Rhona Schuz trans.).

425 Cr. App. 4596/98, State of Israel v. Plonit, 54 ~D. 145, 171-72. Child abuse is a crime in Israel under Article 368C of the Penal Law, 1977, Sefer Hukim (S.H.)

244 • Corporal Punishment of Children: A Human Rights Violation 864, as amended by Penal Law (Amendment No. 26), 1989, S.H. 10 (Rhona Schuz trans.). 426 See e-mail from Dr. Rhona Schuz, Senior Lecturer at Sha' arei Mishpat Law School and Visiting Lecturer at Bar llan University, Israel, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (Mar. 25, 2004) (on file with author). 427

See Schuz, supra note 422, at 246-47.

428

Cr. App. 4596/98, State of Israel v. Plonit, 54

~D.

145,187.

429 S34Q of the Penal Law, 1977, S.H. 864 (introduced by Penal Law (Amendment 39) (Preliminary and General Part)), 1994, S.H. 348 (Rhona Schuz trans.). 430

See Schuz Oct. 1st e-mail, supra note 421, at 1.

431

Cr.App. 4596/98, State of Israel v. Plonit, 54

432

See Schuz Sept. 4th Memorandum, supra note 421, at 2.

~D.

145, 187.

433 See ide at 3-4 (referring to Cr. App. 5224/97, State of Israel v. Sede-Orr, 52(3), 374).

~D.

434 Cr. App. 4596/98, State of Israel v. Plonit, 54 ~D. 145, 187; see Schuz Sept. 4th Memorandum, supra note 421, at 3-4; Schuz Oct. 1st e-mail.supranote421.at 1-2. 435 Schuz Sept. 4th Memorandum, supra note 421, at 4; Schuz Oct. 1st e-mail, supra note 421, at 1. 436 Section 10 of the Pupils' Rights Law, 2000, S.H.1762 (Rhona Schuz trans.); see also Schuz Sept. 4th Memorandum, supra note 421, at 3 (indicating that the Pupils' Rights Law 2000 was enacted after the Plonit case was decided by the Israeli Supreme Court and explaining that the statute regulates all schools). 437 Tort Ordinance (Amendment No.9), 2000, S.H. 1742 (Rhona Schuz trans.); see also Schuz Sept. 4th Memorandum, supra note 421, at 2-3 (advising that a defense of "reasonable" corporal punishment of children was once available to parents, guardians, teachers, and other child care givers who harmed a child and were civilly sued for damages, but elucidating that the Knesset repealed the defense). 438

See Schuz Sept. 4th Memorandum, supra note 421, at 9.

439 See e-mail from Dr. Rhona Schuz, Senior Lecturer at Sha' arei Mishpat Law School and Visiting Lecturer at Bar llan University, Israel, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (Oct. 28,2003) (on file with author). 440 See e-mail from Dr. Rhona Schuz, Senior Lecturer at Sha' arei Mishpat Law School and Visiting Lecturer at Bar llan University, Israel, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (Oct. 29,2003) (on file with author) [hereinafter Schuz Oct. 29th e-mail].

Domestic Laws of Countries Prohibiting Corporal Punishment • 245 441 Youth (Trial, Punishment and Modes of Treatment) Law, 1971, S.H. 134 (Rhona Schuz trans.); see Schuz Oct. 29th e-mail, supra note 440, at 1.

442

See Schuz Sept. 4th Memorandum, supra note 421, at 6.

443

See Schuz, supra note 422, at 245.

444 F.C. 95830/98, Plonim v. Ploni (2000) (unpublished); see Schuz, supra note 422, at 245; Schuz Sept. 4th Memorandum, supra note 421, at 6. 445 Cr. 40297/00, State of Israel v. Nagar (unpublished) (Rhona Schuz trans.); see Schuz, supra note 422, at 244-46; Schuz Sept. 4th Memorandum, supra note 421, at 5. 446 App. Pub. Servo 1682/02, Vhab v. State of Israel (unpublished) (2002) (Rhona Schuz trans.); App. Pub. Servo 3362/02, State of Israel v. Salam Abu Asbah (unpublished) (2002) (Rhona Schuz trans.). 447 App. Pub. Servo 1682/02, Vhab v. State of Israel (unpublished) (2002); see also Schuz Sept. 4th Memorandum, supra note 421, at 7. 448 App. Pub. Servo 3362/02, State of Israel v. Salam Abu Asbah (unpublished) (2002); see also Schuz Sept. 4th Memorandum, supra note 421, at 7. 449 App. Pub. Servo 1682/02, Vhab v. State of Israel (unpublished) (2002); see also Schuz Sept. 4th Memorandum, supra note 421, at 7. 450 App. Pub. Servo 3362/02, State of Israel v. Salam Abu Asbah (unpublished) (2002); see also Schuz Sept. 4th Memorandum, supra note 421, at 7. 451 App. Pub. Servo 1682/02, Vhab v. State of Israel (unpublished) (2002); App. Pub. Servo 3362/02, State of Israel v. Salam Abu Asbah (unpublished) (2002); see also Schuz Sept. 4th Memorandum, supra note 421, at 7 (identifying the appellants and describing the actions of the lower courts). 452 App. Pub. Servo 1682/02, Vhab v. State of Israel (unpublished) (2002); App. Pub. Servo 3362/02, State of Israel v. Salam Abu Asbah (unpublished) (2002); see also Schuz Sept. 4th Memorandum, supra note 421, at 7 (elucidating the teachers' arguments before the Israeli Supreme Court). 453 App. Pub. Servo 1682/02, Vhab v. State of Israel, para. 4 (unpublished) (2002); App. Pub. Servo 3362/02, State of Israel v. Salam Abu Asbah, para. 5 (unpublished) (2002); see also Schuz, supra note 422, at 245 (reporting the Supreme Court's reaction to the teacher's argument). 454

Schuz Sept. 4th Memorandum, supra note 421, at 8.

455

See Schuz, supra note 422, at 247-49.

456 See Telephone Interview with Tamar Morag, Faculty Member, Faculty of Law and School of Social Work, Tel Aviv University, and Vice-Chair, Israeli Public Committee for the Re-evaluation of Child Law in Light of the U.N. Convention on the Rights of the Child (Dec. 30,2003). 457

See ide

CHAPTER IV

DOMESTIC LAWS OF COUNTRIES PROHIBITING ALL CORPORAL PUNISHMENT OF CHILDREN: THE PECULIAR SITUATIONS OF ITALY AND PORTUGAL In relation to corporal punishment of children, Italy presently occupies a rather curious position in the international arena. In 1996 Italy's Supreme Court of Cassation issued the Cambria decision, ruling in no uncertain terms that parental corporal punishment of children as child rearing praxis is illegal in that country.' In this decision, the high Court proclaimed as a ground-breaking judicial principle that "the use of violence for educational purposes can no longer be considered lawful."2 Before examining Cambria more closely, an explanation is in order as to why the case leaves Italy in rather awkward straits. The problem is that, for all of its eloquent and tough language against corporal punishment of children, the decision binds no one except the parties to the litigation.' This lack of precedential effect is not unique to or a failing of Italy's judicial system, but, rather, is characteristic of civil law (as versus common law) countries." Cambria thus puts Italy's highest Court on record as emphatically de legitimating parental corporal punishment of children while the reality is that such punishment is still perfectly legal under other Italian laws.> The truth is, the legal status of corporal punishment of children in Italy is not equipollent with that of the fifteen nations that have banned all corporal punishment of children through nationally binding laws." Yet, the existence of Cambria also makes it inaccurate to group Italy with every other country that has failed to prohibit all corporal punishment of children. None of the latter can boast the complication of a Cambria. Though Cambria has no compulsory legal effect beyond the parties to the case, as a pronouncement by Italy's Supreme Court, it is still a pedagogical and moral force to be reckoned with. That dynamic

247

248 • Corporal Punishment of Children: A Human Rights Violation

cannot be ignored. And so, I have accordingly given Italy its own chapter reflecting its singular predicament. Portugal shares this chapter because it currently finds itself in a similar perplexity. In 1994 the Supreme Court of Portugal issued a decision repudiating corporal punishment for child rearing purposes in that country.? My report is based on hearsay since, as of this writing, an English translation of that decision is not to be had. Because Portugal is not a common law country.'' it too is in the incongruous position of judicially proclaiming, at the highest level, that corporal punishment of children is proscribed even as the proclamation reins in no lower courts and is unenforceable except as between the actual parties to that case. But let us turn our attention back to Italy and Cambria of which there fortunately is an English translation and about which Judge Francesco Ippolito, the author of the Supreme Court's opinion, graciously gave me an interview. There has been some confusion in the past over the legal reach of Cambria, confusion to which I am afraid that I have been an unwitting contributor." The difficulty arose, I believe, during the interview that I had with Judge Ippolito. 10 He advised that lower courts in Italy were formally free to ignore the new juridical principle forged by Cambria. However, the Judge also stated that the new principle was considered the law of the land because the lower courts would follow the lead of the Supreme Court unless they could give very persuasive reasons for distinguishing the cases coming before them. 11 I misunderstood this exposition by attributing to Cambria a precedential force that it does not enjoy. The misunderstanding probably arose from subtle differences of emphasis and from the fact that the interview was conducted through an interpreter. Other Italian jurists have since enlightened me that lower courts and the Supreme Court of Cassation itself are indeed not expected to completely disregard, without some explication, the Supreme Court's prior rulings, but that this circumstance does not effectively transform those rulings into laws governing all of Italy.'? The resulting schizoid jurisprudence on parental corporal punishment of children in Italy may, perhaps, be taken as a cautionary tale about leaving it up to courts, especially in non-common law countries, to announce bans on such punishment. The Cambria case arose when Natalino Cambria took to repeatedly subjecting his ten-year-old daughter, Danila, to heavy beatings, purport-

Other Prohibitory Domestic Laws: Italy and Portugal • 249

edly to correct her misconduct. He would hit or kick the child for lying, for getting bad grades, or for almost any failure to live up to her father's standards." Cambria's prosecution was heard in the first instance by the Magistrate ofComo-Menaggio who found the accused guilty of the crime of abuse of the means of correction-abuso dei mezzi di correzioneunder Article 571 of the Italian Penal Code.!! In November 1995 the Milan Court of Appeals convicted Cambria for ill-treatment-maltrattamenti in famiglia 0 verso fanciulli-of his daughter under Article 572 of the Italian Penal Code rather than for abuse of the means of correction. 15 On appeal to the Supreme Court of Italy, Cambria argued, among other things, that since the beatings did not cause "the danger of a physicalor mental illness," as required for a conviction under Article 571, he should not have been adjudged guilty of abuse of the means of correction at the first judicial level; he further argued that the Appeals Court should not have convicted him of ill-treatment because he lacked the requisite intent to mistreat a child, having administered the beatings only to correct Danila's waywardness." The Supreme Court of Cassation rejected Cambria's defenses and upheld his conviction for ill-treatment of a child under Article 572 of the Penal Code.!? The Court explained that Article 571 of the Penal Code could not apply to Cambria's case because that provision comes into play only when a legitimate means of correction is used abusively. The Court expounded that corporal punishment, regardless of how it is used, can never be a legitimate means of correction. 18 The Cambria case involved the systematic subjugation of a child through grievous violence. The Court's ruling, however, was, by no means, confined to those facts. Quite the contrary, the Judges of the Supreme Court of Cassation "considered the case as an opportunity to establish the legal principle that parents in Italy are absolutely forbidden from using any violence or corporal punishment to correct their children's conduct."19 What considerations inspired the Court to take this sudden turn? In providing background on the decision, Judge Ippolito related that Cambria was but the culmination of ongoing legal reforms and political and cultural changes since the end of Benito Mussolini's fascist dictatorship over Italy in 1945. The Judge observed that in the 1930s and early 1940s Italian

250 • Corporal Punishment of Children: A Human Rights Violation

courts, as a matter of course, interpreted the country's Penal Code based on the authoritarian and hierarchical structure of the family that prevailed at that time. During this era, the father was the head of the family and almost totally dominated his wife and children. In keeping with this model of family relations, the courts construed Article 571 of the Penal Code as allowing the father to use virtually any means of "correcting" his wife and children. Judge Ippolito stated that as Italy distanced itself from fascism, it also began relinquishing the concept of the authoritarian father." This evolution was reflected in legal innovations such as the inclusion in Italy's 1948 Constitution of various provisions protecting the dignity of the individual as an inalienable right," assuring equal protection.F and recognizing that marriage must be "based on the moral and legal equality of husband and wife."23 Judge Ippolito noted that the Justices in the Cambria case also understood these historical and legal trends within the ambience created by language in the Italian Constitution foreswearing war and the use of violence to settle international disputes.>' In the 1950s Italy's Supreme Court decided that the Constitution's provisions on equality in the marital relationship barred the use by husbands of any means of correction, physical or otherwise, against their wives. In addition, between 1975 and 1995, the Supreme Court issued a series of decisions that were directed toward further inhibiting the use of force against children in some institutional settings. These domestic reforms correspond to certain developments in the international human rights regime governing Italy. The country's Constitutional Court has long taken the position that treaties that Italy has entered into are superior to all other Italian laws." Hence, the Judges who decided Cambria were influenced not only by the Italian Constitution and the revamping of Italian family law, but also by human rights treatiesespecially the U.N. Convention on the Rights of the Child-v-e-to which Italy is a party." Specifically, the Court's opinion relies prominently upon the Preamble's cognizance, in the Convention, of children's need to develop "full[y] and harmonious[ly]" and to be brought up "in the spirit ... of peace, dignity, tolerance, freedom, equality, and solidarity";" upon Article 2's nondiscrimination principle;"? upon Article 3 and Article 18's delineation of the primacy of the best interests of the child;'? and upon Article 19's prohibition on the use of violence against children."

Other Prohibitory Domestic Laws: Italy and Portugal • 251

Judge Ippolito had high hopes that Cambria would set an example for the Italian legal community, and that its lessons would "filter into society" as a new norm.F On the bright side, maybe Cambria has planted a seed that will someday bear fruit. But, right now, the germination period looks to be a prolonged one, and the Italian social and legal situation vis-a-vis corporal punishment of children puts Italian parents squarely in the old school of "spare the rod, spoil the child." As a matter of fact, children have found themselves confronted with sobering prospects. The Italian government reports that the period from 1991 to 2000 saw a burgeoning of different types of mistreatment of children." For example, over that time span, the number of adults being tried for abuse of the means of correction increased by 61 percent, while the incidence of ill-treatment in the family or against children increased by 26 percent. 34 In the meantime, Article 571 of the Penal Code-abuse of the means of correction-peversely continues to serve as authority for permitting parental corporal punishment of children." in spite of Cambria s diametrically opposed holding. Article 571 states: Whoever misuses means of correction or discipline to harm a person subject to his authority, or entrusted to him for purposes of education, instruction, treatment, supervision or custody, or for the exercise of a profession or an art, is punishable with imprisonment up to six months if the act results in a physical or mental injury. If the abuse results in grievous bodily harm the penalties applied are those established in articles 582 and 583 reduced by one-third; if the abuse results in ... death, the penalty applied is imprisonment from three to eight years." As Cecchetti and Menichetti clarify, the "article permits the use of force by a category of individuals aiming at exercising discipline over others";'? an offense occurs under Article 571 only once a threshold has been crossed "in the case of abuse ofjus corrigendi and when such conduct generates the risk of mental or physical injury."38 This interpretation is confirmed by the report accompanying enactment of the Penal Code, in which it is stated that the exercise of violence against another person is legal if it has educational purposes. As if to exacerbate the inequities, the law posits that conviction for abuse of the means of correction should be punished with less stringent sentences than other offenses involving use of violence sans a disciplinary purpose. This twist in the allocation of penalties results from the assumption that a disciplinary purpose is a mitigating rather than

252 • Corporal Punishment of Children: A Human Rights Violation

an aggravating circumstance. The assumption clearly does not take into account the unequal power wielded by adults in comparison to the children who are in the adults' custody or under their tutelage. Cecchetti and Menichetti expose Article 571 as even more malignant than it may initially appear. First, while Article 571 indisputably confers on parents the power to use moderate violence on their children as a mode of correction or edification, it is not indisputable whether the provision makes "moderate" the ceiling. "Legitimate means of correction" is nebulous terminology that gives judges discretion to include within its purview more severe violence. Second, the power conferred by Article 571 on natural parents also extends to adoptive parents, foster parents, and other legal guardians of children.'? Cecchetti and Menichetti remark that several bills that would have repealed Article 571 have been presented to the Italian Parliament, but, so far, without success.t? After Cambria, the Supreme Court of Cassation has waffled incomprehensibly on the corporal punishment issue. For instance, just one year after Cambria was handed down, the Supreme Court in Paglia did an aboutface in declaring as legal principle that pulling children's hair and inflicting light blows upon them are exercises of parental authority congenial to Article 571. 4 1 The Court elaborated: In the responsible exercise of parental authority, recognized as a right/duty of the parents in the interest of the children, the necessary physical and moral power and punishment which is non-arbitrary and/or untimely, even a corporal one although of very weak nature and so not to cross the threshold of violence, can constitute the way to a significant interpersonal communication, where the gesture and the forced interdiction of a behavior express a complement and reinforcement of the verbal communication of notice, prohibition or reproach.F According to Cecchetti and Menichetti, the Court's message is that parental corporal punishment of children is fine, as far as Article 571 is concerned, as long as the punishment does not mutate into abuse by being arbitrary, untimely, or excessive." In fact, the Court in Paglia found abuse of the means of correction violative of Article 571 only because the hairpulling and smacks were untimely and excessive-t-e-net because they were physical drubbings against which Cambria had inveighed without qualification.

Other Prohibitory Domestic Laws: Italy and Portugal • 253

It should be pointed out, in all fairness, that the Italian Parliament has not been consistently unresponsive to parental violence against children. By Law 154 ofApril 5, 2001, "Measures Against Violence Within Family Relations," the Parliament legislated some new protections in the Penal Code for victims of abuse in the family." Law 154, among other things, empowers judges in the context of administering the criminal law, to protect a victim of familial physical abuse, through measures removing the accused from the family home, prohibiting the accused to return to or have access to the home, and ordering the accused to avoid places normally frequented by the victim." Law 154 supplements previously enacted civil laws authorizing judges to deprive an abusing parent of custody of his or her child, or, in the case of abuse that is less prejudicial to the child, to remove the child from the family or remove the abusing parent."? In the case of separating, separated, divorcing, or divorced parents, the Civil Code also authorizes judges to make custody awards, giving "exclusive respect to their [the children's] moral and material interest."48 The Supreme Court of Cassation has interpreted this phraseology to require "giving priority [in relation to custody] to the parent who appears to be more suitable to mimise [sic] the possible damage deriving from the disruption of the family unit and to ensure the best possible development of the child's personality."49 Cecchetti and Menichetti advise that, in such cases, it is not contemplated that a judge will grant custody to a parent who uses corporal punishment on the couple's children.>? While these laws are laudable and represent a salvo against violence that victimizes the child, they still leave Article 571 of the Penal Code untouched. The reforms, therefore, do little or nothing to discourage corporal punishment of children in the Italian family. Moreover, it is not just in the family where corporal punishment of children remains legal. In Italy there are only two venues where reasonable physical chastisement of children is ruled out and that is in the schools>' and as a sentence in the criminal justice system. 52 The ban covering schools is inferred from the absence of corporal punishment in the laws' enumeration of disciplinary measures that instructors may use." School personnel who violate this prohibition may be prosecuted under law ensuring the integrity of the person, and they cannot invoke Penal Code Article 571 to dodge criminal liability. 54 In sorry contrast, the Carbone case is illustrative of the law accommodating corporal punishment of children in institutional settings beyond

254 • Corporal Punishment of Children: A Human Rights Violation

the schoolhouse or courtroom.v Carbone was set in motion by the conduct of legal guardians of children under fourteen years old at a community-house, a child care facility operated by the guardians. The accuseds, in the name of "correction," hit the young inmates with a carpet beater, flogged them with a horsewhip, forced them to engage in humiliating and disgusting chores, used hypnosis on them, and caused personal injuries to one of the girls." The Supreme Court of Cassation judged the guardians to be guilty of abuse of the means of correction under Article 571. It does not appear from the outrageousness of these assaults that the Court could do anything else; defendants' conduct obviously fits conventional concepts of physical child abuse rather than of garden-variety corporal punishment. While this might seem like justice done insofar as the guardians were found liable, the decision is ultimately a mockery of the victims and another unblinking betrayal of Cambria. The Carbone Court managed to do this much damage in one fell swoop simply by categorizing physical chastisement in such settings as within the bounds of Penal Code Article 571. That the instruments of these children's martyrdom were hideous was of no moment to the Court in making the categorization; rather, what mattered was the assailants' "corrective" intention-t-e-a criterion that had been thoroughly discredited in Cambria just one month earlier." This apostasy was made more treacherous by the added effrontery that conviction under Article 571 resulted in defendants receiving lighter sentences than if they had been convicted under other Penal Code provisions such as Article 572. 59 Since Cambria has not made the slightest dent in Penal Code Article 571 's vitality in perpetuating corporal punishment of children, it would be desirable for the Italian government not only to repeal Article 571, but also to enact a scrutable, enduring, and absolute ban on the practice. Indeed, such legislation is indispensable if Italy aspires to more than a pretense of making progress in this area and of complying with its international human rights obligations to protect children from violence. Disconcertingly, according to information from Save the Children Italy and representatives of Telefono Azzurro, the helpline for children, the issue of corporal punishment of children has not been viewed as a priority in Italy and has sunk below the radar screen of public debate.s''

Other Prohibitory Domestic Laws: Italy and Portugal • 255

ENDNOTES 1 Cambria, Cass., sez. VI, 18 marzo 1996 [Supreme Court of Cassation, 6th Penal Section, Mar. 18, 1996], Foro It. II 1996,407 (Triangle Translations trans.) (on file with the University ofMichigan Journal ofLaw Reform). 2

Cambria, Foro. It. II 1996, at 411, Translation at 4.

3 See Memorandum from Roberta Cecchetti, Expert in Child Protection, and Sara Menichetti, Jurist Specializing in Children's Rights, Rome, Italy, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 4-5 (Mar. 31, 2004) (on file with author) [hereinafter Cecchetti-Menichetti Mar. 31 st Memorandum]. 4 Commentators like to point out that civil law and common law systems gradually seem to be drawing closer together. Apparently judges in civil law countries are paying more heed to the persuasive value of prior judicial decisions and judges in common law countries may be more inclined to take liberties with stare decisis. See MARY ANN GLENDONET AL., COMPARATIVE LEGAL TRADITIONS: TEXT, MATERIAL AND CASES ON THE CIVIL AND COMMON LAW TRADITIONS, WITH SPECIAL REFERENCE TO FRENCH, GERMAN, ENGLISH AND EUROPEAN LAW 207-09 (2d ed. 1994) (referring to a tendency among civil law judges to give credence to earlier judicial decisions); Charles H. Koch, Jr., Envisioning a Global Legal Culture, 25 MICH. 1. INT'L L. 1, 51 (2003). Nevertheless, the distinction formally persists as between the two legal systems that civil law judges are not bound by judicial precedents while common law judges are bound. See MARY ANN GLENDON ET AL., supra, at 207-09; Dana T. Blackmore, Eradicating the Long

Standing Existence of a No-Precedent Rule in International Trade Law-Looking Toward Stare Decisis in WTO Dispute Settlement, 29 N.C. 1. INT'L & COM. REG. 487, 494-96 (2004); Koch, Jr., supra, at 51; Mei-Fei Kuo & Kai Wang, Comment, When Is an Innovation in Order?: Justice Bader Ruth Ginsburg and Stare Decisis, 20 U. HAW. L. REV. 835,870-73 (1998). 5 See Cecchetti-Menichetti Mar. 31st Memorandum, supra note 3, at 5; e-mail from Roberta Cecchetti, Expert in Child Protection, Rome, Italy, to Susan H. Bitensky, Professor of Law, Michigan State University College of Law 1 (Dec. 19, 2003) [hereinafter Cecchetti Dec. 19th e-mail]. See inf raCh.IV. notes 35-44 and accompanying text.

6

See Cecchetti Dec. 19th e-mail, supra note 5, at 1.

7 See Global Initiative to End All Corporal Punishment of Children, State-ByState Analysis: Legality of Corporal Punishment Worldwide-Last Updated January 2004, at http://www.endcorporalpunishment.org/pages/progress/table_m-p.html (last

visited Aug. 4,2004). 8 See Nicholas Stewart, The Relationship Between the European Court ofJustice and the Courts of the Member States of the European Communities, 5-AuT INT'L L.

PRACTICUM 41, at *41 (1992). 9 See, e.g., Susan H. Bitensky, Spare the Rod, Embrace Our Humanity: Toward a New Legal Regime Prohibiting Corporal Punishment of Children, 31 U. MICH. 1.L.

256 • Corporal Punishment of Children: A Human Rights Violation

REFORM 353,380-86 (1998) [hereinafter Bitensky, Spare the Rod]; Susan H. Bitensky, Final Straw: To Spank or Not to Spank?, CHI. TRIB., July 25, 1996, § 1, at 25. 10 Interview with Judge Francesco Ippolito, Judge of the Corte Suprema di Cassazione, Republica Italiana, in Rome, Italy (June 11, 1996) [hereinafter Ippolito Interview] . 11 Ippolito Interview, supra note 10; see also Bitensky, Spare the Rod, supra note 9, at 382 n.127 (describing Judge Ippolito's statements on the legal effect of Cambria).

12 See Cecchetti-Menichetti Mar. 31st Memorandum, supra note 3, at 5 (elucidating that "in Italy, lower courts are free to ignore the Court of Cassation's enunciation of the juridical principle (stated by Cambria decision) forbidding all corporal punishment of children, even if, in such a case, they have to give an in-depth account of the reasoning behind a decision which is so different from that given by the Court of Cassation").

13 See Cambria, Cass., sez. VI, 18 marzo 1996 [Supreme Court of Cassation, 6th Penal Section, Mar. 18, 1996], Foro. It. II 1996,407,409, Translation, at 2-3 (Triangle Translations trans.) (on file with the University ofMichigan Journal ofLaw Reform) (omissions in original). See also Ippolito Interview, supra note 10. 14 See Cambria, Foro It. II 1996, at 408, Translation, at 1, para. 1. For the contents of and citation to Penal Code Article 571, see infra Ch. IV, note 36 and accompanying text.

15

The provision making ill-treatment a crime states as follows:

Whoever, apart from the cases specified in the preceding Article, maltreats a member of his family or a person under the age of fourteen years, or a person subject to his authority, or entrusted to him for purposes of education, instruction, treatment, or supervision or custody, or by reason of his practice of a profession or trade, shall be punished by imprisonment for from one to five years. If the act results in serious personal injury, imprisonment for from four to eight years shall be imposed; if it results in very serious injury, imprisonment for from seven to fifteen years; if it results in death, imprisonment for from twelve to twenty years. CODICE PENALE [C.~] art. 572 (Italy), translated in THE ITALIAN PENAL CODE 190-91 (Edward M. Wise & Allen Maitlan trans., 1978). 16 See Cambria, Foro It. II 1996, at 408, Translation, at 1-2; see also Ippolito Interview, supra note 10.

17

Cambria, Foro It. II 1996, at 409,412, Translation, at 3,6.

18 Id. at 411, Translation, at 4 (stating that "the crime committed cannot be said to be the one described in article 571 because the means of correction used were unlawful both in terms of their nature and in terms of the potential damage they could inflict"); see also Ippolito Interview, supra note 10 (indicating that the Supreme Court

Other Prohibitory Domestic Laws: Italy and Portugal • 257

wanted to make clear that physical punishment absolutely cannot be employed to correct or educate a child). 19

See Ippolito Interview, supra note 10.

20

Id.

21 See, e.g., COSTITUZIONE [Constitution] arts. 2, 3, 32, 36, 41 (Italy), translated in Gisberth H. Flanz, Italy, in IX CONSTITUTIONS OF THE COUNTRIES OF THE WORLD 1, 1,7-9 (Gisberth H. Flanz & Patricie H. Ward eds., 2003) [hereinafter COST.]; Ippolito Interview, supra note 10. 22

See, e.g., COST. arts. 3,37; see also Ippolito Interview, supra note 10.

23

COST. art. 29; see also Ippolito Interview, supra note 10.

24

COST. art. 11; see also Ippolito Interview, supra note 10.

25

See Ippolito Interview, supra note 10.

26 U.N. Convention on the Rights of the Child, Nov. 20, 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49 (A/44/49), at 166, U.N. Doc. A/RES/44/25. 27 Italy entered into the U.N. Convention on the Rights of the Child on September 5, 1991. See Status of UN Convention on the Rights of the Child, 30 LL.M. 1780 (1991).

28 Cambria, Cass., sez. VI, 18 marzo 1996 [Supreme Court of Cassation, 6th Penal Section, Mar. 18, 1996], Foro. It. II 1996,407,410, Translation, at 3 (Triangle Translations trans.) (on file with the University ofMichigan Journal ofLaw Reform) (omissions in original). 29

Cambria, Foro It. II 1996, at 410, Translation, at 4.

30

Cambria, Foro It. II 1996 at 410, Translation, at 3-4.

31

Cambria, Foro It. II 1996 at 410, Translation, at 3.

32

Ippolito Interview, supra note 10.

33

See Cecchetti-Menichetti Mar. 31st Memorandum, supra note 3, at 3.

34 See ide (citing statistics from Quaderno 25, I numeri italiani, Infanzia e adolescenza in cifre, 2002, pagina 68, Firenze, Instituto degli Innocenti [Book 25, Italian Numbers, Childhood and Adolescence in Numbers, 2002, at 68]).

35

See ide at 3-5.

36 Art. 571 C.~, Abuso dei mezzi di correzione 0 di disciplina [Italian Penal Code art. 571, Abuse of Means of Correction or Discipline] (Roberta Cecchetti & Oran Williams trans.) 37

Cecchetti-Menichetti Mar. 31st Memorandum, supra note 3, at 4.

38

Id.

39

See ide

258 • Corporal Punishment of Children: A Human Rights Violation 40

Id. at 4 & n.21.

41 Cass., Pen., Sez. VI, 07-11-1997, Paglia, n. 3789, pagina 33, Rivista Codice Penale, Volume 8, N. 7, 1999 [Italian Supreme Court of Cassation, Penal Section VI, Nov. 7, 1997, Paglia, No. 3789, at 33, Journal of Penal Code Vol. 8, N.7, 1999] (Roberta Cecchetti & Oran Williams trans.) [hereinafter Paglia]. 42

Id.

43

Cecchetti-Menichetti Mar. 31st Memorandum, supra note 3, at 5-6.

44 Paglia, supra note 41, at 32; see Cecchetti-Menichetti Mar. 31st Memorandum, supra note 3, at 5-6. 45 Legge [L.] 154/2001, "Misure contro la violenza nelle relazioni familiari" [Italian Law of 2001, No. 154, "Measures Against Violence Within Family Relations"] (Roberta Cecchetti & Oran Williams trans.). 46

Id.

47

See Cecchetti-Menichetti Mar. 31st Memorandum, supra note 3, at 2 & nne

8-9. 48 Art. 155 Codice Civile, "Provvedimenti riguardo ai figli" [Italian Civil Code art. 155, "Provisions in Respect to the Children"] (Roberta Cecchetti & Oran Williams trans.). 49 Casso Civ., Sez. I, 19-04-2002,5714 [Italian Court of Cassation, Civil Section I, Apr. 19,2002, No. 5714] (Roberta Cecchetti & Oran Williams trans.). 50

Cecchetti-Menichetti Mar. 31st Memorandum, supra note 3, at 15.

51 Regolamento Generale dei servizi dell'istruzione elementare. Regio Decreto 1297/28 [Italian Royal Decree of 1928, No. 1297]. 52 L. 354/1975, Norme sull' ordinamento penitenziario e sulla esecuzione delle misure privative e limitative della Iiberta [Italian Law 354 of 1975, Regulations on the Penitentiary System and the Execution of Measures Depriving and Limiting Liberty] (Roberta Cecchetti & Oran Williams trans.).

53 Id.; Statuto delle studentesse e degli studenti della scuola secondaria, DPR 249/98, GU 29 Luglio 1998, No. 175 [Italian Law of 1998, No. 249]; see also Cecchetti-Menichetti Mar. 31st Memorandum, supra note 3, at 7 (clarifying how Italian law gives rise to a prohibition on corporal punishment of children in schools). 54

See Cecchetti-Menichetti Mar. 31st Memorandum, supra note 3, at 8.

55 Casso Pen., Sez. VI, 19-01-1996, Carbone, Rivista Cassazione Penale, Vol. 9, 1997 [Italian Supreme Court of Cassation, Penal Section VI, Jan. 16, 1996, Carbone, Journal of Penal Cassation, Vol. 9, 1997] (Roberta Cecchetti & Oran Williams trans.) [hereinafter Carbone]. 56

Id. at 40.

Other Prohibitory Domestic Laws:Italy and Portugal • 259 57

See ide at 41.

58

See Cecchetti-Menichetti Mar. 31st Memorandum, supra note 3, at 9 & n.40.

59

See ide at 9.

60 See ROWAN BOYSON & Lucy THORPE, EQUAL PROTECTION FOR CHILDREN: AN OVERVIEW OF THE EXPERIENCE OF COUNTRIES THAT ACCORD CHILDREN FULL LEGAL PROTECTION FROM PHYSICAL PUNISHMENT 48 (National Society for the Prevention of Cruelty to Children, London, England 2002), http://www.nspcc.org.uk/inform/downloads/Equal ProtectionForChildren.pdf (last visited Dec. 29,2003).

CHAPTER V

EXAMPLES OF DOMESTIC LAWS OF COUNTRIES PERMITTING SOME CORPORAL PUNISHMENT OF CHILDREN As can readily be inferred from Chapter III, the laws of most countries still give carte blanche to "subabuse" corporal punishment of children in various settings and to varying degrees. Information published by the World Health Organization in 2002 recites that corporal punishment of children as a penal sentence was then legal in at least sixty countries; corporal punishment of children in schools and other institutions was legal in at least sixty-five countries; and corporal punishment of children in the family was legal in all but, at that time, eleven countries. The Organization reckoned that in those nations where such punishment remained legally and socially acceptable, it was still "extremely common."! While there is strength in numbers, that does not mean that there is legality or humanity in them. It should not be overlooked, in the following pages, that each of the nations permitting corporal punishment of children is in stark violation of the international human rights law obligation to protect children from that practice.' It would neither be feasible nor productive to canvas the pertinent laws of this vast majority of "rogue" countries. Instead, the focus here will be exclusively on the United States and Canada as providing sufficient exemplars of legalized parental and other corporal punishment of children. I do not choose these two out of any partiality or hostility toward the Western Hemisphere (though I am a U.S. citizen and live a stone's throw from Ontario). I have selected the United States because the subject of corporal punishment of children is mostly regulated by states, rather than by the national government, and since there are fifty states, the United States is a plentiful source of variations on the theme. And, I have selected Canada inasmuch as its Supreme Court recently issued a decision on the legality of corporal punishment of children ' that is emblematic of the piecemeal reforms some countries are experimenting with.

261

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A.

THE UNITED STATES

This part presents a representative sampling of American state laws, as well as a few relevant federal laws, on corporal punishment of children. Some of the laws are pristine enactments devoid ofjudicial interpolation, others are comprised of statutes that have been interpretively embellished by courts, some of the laws are embodied only in judges' holdings, and still others are administrative regulations. All are organized according to content. The state laws reviewed here are first categorized with respect to the contexts they cover, i.e., the family, schools, foster care, residential and nonresidential care, and the criminal justice system. Within each such category, the laws are then further divided by the manner in which they limit the universe of permissible corporal punishment of children. Many state laws overlap across these divisions by combining two or more standards of limitation. To avoid the tedium sure to come from reading long lists of the names of states, this part provides summaries of the contents of state laws that are conceptually the same or mostly the same in relation to limitations placed on the punishment, with only occasional detailed discussions of the laws of individual states. Of course, each summary is supported by an endnote that sets forth citations to individual state laws. I recommend that readers, who are interested in which state is doing what, should consult these endnotes. As to familial corporal punishment of American children, no discussion of the topic would be complete without a preliminary foray into the federal constitutional miasma that envelopes this form of discipline. The U.S. Supreme Court provided the atmospherics in DeShaney v. Winnebago County Department ofSocial Services, a decision concerning classic, prosecutable physical child abuse rather than reasonable corporal punishment.! Nevertheless, the facts of the case deserve close attention as they bring out, in all its shamelessness, the extreme nature of the Court's holding that, as a by-product, also normatively beglooms the terrain that antispanking reformers must traverse in the United States. Joshua DeShaney had the misfortune to be born in 1979.5 This was truly a life fated to be "nasty, brutish, and short."6 In 1980, Joshua's parents divorced and a Court awarded custody of the child to his father. By January 1982, Winnebago County authorities were put on notice that the

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toddler might have been physically abused by his father. The County Department of Social Services interviewed the father who denied that any abuse had occurred, and the Department backed off. In January 1983, when Joshua was admitted to a local hospital, the examining physician found evidence of child abuse and notified the Department. A juvenile Court ordered that the boy be left in the temporary custody of the hospital, but, upon recommendation of the Department and various experts, the Court ultimately decided that Joshua should be released to his father. One month later, hospital personnel again treated Joshua for suspicious injuries and notified the Department. The assigned caseworker determined that no action was warranted. However, the caseworker paid monthly visits to Joshua over the course of the next six months and observed questionable head injuries. In November 1983, for the third time, the hospital treated Joshua for injuries consistent with physical abuse and reported the matter to the Department. The caseworker made two more visits to the DeShaney household, but was told that the child was too sick to see her. The Department did nothing in response. In March 1984, Mr. DeShaney beat his four-year-old son so mercilessly that he fell into a life-threatening coma. Emergency brain surgery was performed, revealing a number of hemorrhages induced over time by repeated head injuries. Joshua had suffered brain damage so horrendous that his prognosis was commitment for the rest of his life to an institution for the profoundly retarded. The father was convicted of child abuse under state law.7 Joshua and his mother then brought suit against Winnebago County, its Social Services Department, and certain of its employees, claiming that defendants had violated Joshua's substantive liberty right, guaranteed under the Due Process Clause of the Fourteenth Amendment to the u.S. Constitution, by failing to protect him against his father's violence of which defendants knew or should have known." The Supreme Court, in one infamous sentence, ruled "that a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause."9 Nor was the Court persuaded by petitioners' alternative argument that even if government owes no such affirmative constitutional duty to the general public, the state had created the duty in this instance because of its previous interactions, i.e., its" 'special relationship,'" with Joshua.'? In dicta, Justice Rehnquist's opinion for the Court suggests that the protective duty would only devolve upon the state if it took persons into its custody and kept them there without their consent,

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effectively disabling them from looking after their own needs. The Court judged that since the state did not itself perpetrate Joshua's physical injuries and did not have him in custody when they occurred, "the State had no constitutional duty to protect Joshua."11 Justices Brennan, Marshall, and Blackmun dissociated themselves from the decision with withering dissents.'? Many legal scholars were quick to criticize DeShaney both because of its deficient legal reasoning and/or as a policy disgrace. 13 They argued that the holding is based on fallacious textualism.!" distortions of history and original intent,'> unprincipled or incompetent manipulation of precedents,16 and moral bankruptcy.'? I will refrain from recounting those arguments, other than to name them, since, as previously stated, I invoke DeShaney here not because it deals with corporal punishment, but, instead, for the normative tone it has set on the broader problem of the state's relationship to violence against children. One can only hope that someday a more enlightened Supreme Court will remove this stain from its jurisprudence by taking these scholarly arguments to heart and overruling DeShaney. To repeat, DeShaney held that states have no positive constitutional obligation, under the substantive due process doctrine of the Fourteenth Amendment, to protect individuals, including helpless babies, from the violence of private actors, including parents. This means that, as a federal constitutional matter, states are free to protect or not protect children from the ravages of privately perpetrated bodily assault-whether it is in the form of moderate corporal punishment or more severe physical child abuse. Of course, Americans love their children as much as any other national group. Majoritarian sentiment has thus ensured that states would pass laws against privately perpetrated severe physical child abuse. The insidiousness of DeShaney, aside from its disheartening result for Joshua and his mother, is that the decision conveys an assuredly unintended but yet very real subliminal message that government is not supposed to save children from interpersonal violence because they are not sufficiently valued, and violence against them is not sufficiently upsetting to their elders. While many jurists disagree with the DeShaney Court's legal reasoning, they comprehend the technicalities and jurisprudential biases that spawned it. They understand that, as part of the lawyerly lexicon, most of the rights in the amendments to the Constitution only restrain governmental action, 18

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and that the American constitutional culture is averse to recognizing positive rights to demand that government supply goods or services.'? For the moment, whether any of the Court's rationales may have been pretextual and/or could have been destroyed with legal counterarguments is neither here nor there. These are not rationales that are readily known or accessible to the lay public. What the public takes away from the existence of the DeShaney decision is the Court's implicit message as to where children and their bodily integrity rank in the constitutional order. "Poor Joshua"!20 Poor American children! This is their constitutional refuge. Considering this constitutional default, it is no surprise to learn that the District of Columbia and all states in the United States, except perhaps one, acquiesce in parental corporal punishment of children." At least sixteen state legislatures, with unembarrassed aplomb, authorize parents or guardians to use reasonable physical force on their children when that degree of force is necessary or believed to be necessary to maintain discipline.F Indeed, the reasonableness principle, or close variants on it (reasonable and moderate, reasonable and necessary, reasonable and appropriate), is the basic standard governing parental physical chastisement of children in the United States.P Alabama's statute provides one of the more uncomplicated statements of the standard, as follows: A parent, guardian or other person responsible for the care and supervision of a minor ... may use reasonable and appropriate physical force upon the minor ... when and to the extent that he reasonably believes it necessary and appropriate to maintain discipline or to promote the welfare of the minor.>' Subsequent state judicial exploration of this enactment uncovers that the legislature's intent was to protect parents and guardians from prosecution for assault if they use "subabuse" corporal punishment on their children." Some other state jurisdictions likewise spell this out,26 but reasonable parental corporal punishment as a defense to criminal assault or child abuse charges is the necessary effect of all statutes granting parents permission to use such punishment.?? What is reasonable differs from state to state, with a few states intimating that reasonableness has a subjective component." and with many states relying upon an objective measure that is typically broken down into discrete characteristics." There is controversy amongst the states as to whether reasonableness should be determined by subjective or objective indicia or by a combination of both'?

266 • Corporal Punishment of Children: A Human Rights Violation

In trying to pinpoint that talismanic moment at which legal corporal punishment of children is transubstantiated into criminal child abuse or assault and battery, each jurisdiction appears to have adopted its own criterion or, sometimes, multiple criteria in mind-numbing proliferation. Some state statutes resort, among other things, to generalized descriptions of the supposed opposite of reasonable corporal punishment. These statutes may classify the opposite as cruel or inhuman" or excessive.F for example. Several states create an imaginary interregnum, on one side of which are the concrete acts of parents that are legal, and on the other side of which are those that are illegal." Arkansas' statute is paradigmatic, demarcating child abuse by including under that rubric parental throwing, kicking, burning, biting or cutting a child, striking a child with a closed fist, shaking a child, striking a child on the face, and so on.>' Appealing to gradations of parental intent is another approach that many states have chosen for making the distinction." These states posit, as one of the elements of various levels of criminal child abuse, that the parent must act intentionally;" knowingly,"? willfully," negligently," nonaccidentally," and/or recklessly.'! Some state courts look for parental malice'? and a court in the District of Columbia has offered that a parent's lack of genuine disciplinary purpose is one way for the child abuse threshold to be reached." A good number of state statutes and court decisions additionally consult the child's attributes as a means of identifying when the line has been crossed. Some of these statutes and decisions stipulate that the child's age, sex, size, and/or condition are factors, among a range of similar considerations, that bear on the legitimacy of parental corporal punishment." Some states further introduce as a factor the peccancy of the child's misbehavior that elicited the punishment." A large contingent of states concentrate on the type of harm that parental use of force visits upon the child." There are multiple statutory versions of this device. Some statutes tersely outlaw force resulting in injury or death and leave it at that."? Others go into more detail, with laundry lists of adverse effects on the child that separate legal corporal punishment from illegal child abuse or assault and battery. Delaware's law includes, among an amalgam of other standards, the limitation that par-

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ents may only use reasonable corporal punishment, with reasonableness understood to exclude" any ... act that is likely to cause or does cause physical injury, disfigurement, mental distress, unnecessary degradation or substantial risk of serious physical injury or death."48 These particular harms, or some of them, are very commonly referred to in state statutes as beyond the perimeter of reasonable corporal punishment." Other frequently recurring symptomatology of child abuse, as laid down by state legislators, includes extreme or extraordinary pain>? and impairment of the function of a bodily organ.>! The occasional statutes that provide extensive itemizations of illegal injuries to children are well represented by the Utah law which provides a nonexhaustive list of horrors: bone fractures, intracranial bleeding, swelling or contusion of the brain, burns, any damage to internal organs, severe emotional harm, severe developmental delay or retardation, severe impairment of a child's ability to function, permanent disfigurement, protracted loss or impairment of the function of a bodily member, limb, or organ, and temporary cessation of breathing. 52 Despite the variegated legislative attempts to sort out acceptable parental corporal punishment from prosecutable physical child abuse, there is just so much legislators can do. Courts are therefore left to founder in a discretionary wish-wash when applying the sorting process to concrete cases. In what is almost certainly an understatement, a Florida court put its finger on the problem in remarking that "we recognize that drawing a line between prohibited child abuse and permissible corporal punishment, administered by parents who believe in this form of discipline, is not an easy task."53 Operating within this unmanageable murk, courts are compelled to compensate by making judgment calls, inevitably predicated on individual judges' own values and life experiences, as to when punishment is reasonable and when it is excessive. The results are inconsistent>' and make this area of the law a slippery guide for parents and professionals. Comparison of even a small number of cases from Ohio lifts the curtain on an imbroglio of disparities. In In re Miles, the mother of nine-yearold Joey approved her fiance's biting Joey on the face as a reprimand for the child's having bitten his sibling on the face. The finance's bite left marks from his upper and lower teeth. The trial Court rejected the mother's claim that the bite was merely corporal punishment meant to modify Joey's behavior and found him to be an abused child. Although the Ohio

268 • Corporal Punishment of Children: A Human Rights Violation

Court ofAppeals viewed the incident with obvious distaste, it reversed and remanded on the ground that the record did not contain sufficient evidence of abuse under Ohio Iaw." Similarly, in City ofShaker Heights v. Wright, a father "harsh[ly]" whipped his ten-year-old son, Darnay, with a belt so as to cause welts on the child's legs from which scars remained for six months. 56 The jury convicted defendant of the crime of child endangering. The Ohio Court of Appeals, denominating the whipping as disciplinary corporal punishment, reversed because the city had failed to prove the crime by sufficient evidence.>? Yet, the Ohio Court of Appeals did find child abuse with respect to parental physical punishment in another case where the adult's conduct was arguably no worse than in In re Miles or Wright. In In re K.B., the appellate Court ruled that K.B., a toddler, had been abused in the family home inasmuch as she had been spanked with substantial force so as to produce several bruises on her cheek, upper abdomen, back, and right arm, locations not in customary toddler "bumper" zones.v Or, consider State v. Howard.i? The prosecution introduced evidence that a father struck his twelve-year-old son, Everett, at least twice on the back and/or head with a broom handle causing a three- to four-inch reddish mark on the boy's back. The jury returned a verdict that defendant was guilty of domestic violence and child abuse. On appeal, the father contested the conviction on the ground that he had been using reasonable corporal punishment to discipline Everett. The Ohio Court ofAppeals decided that the evidence of the attack with the broom handle was sufficient to support the jury's verdict that defendant was guilty of these crirnes.v? The long and the short of it appears to be that if a parent in the United States physically punishes a child without an implement and/or so as to leave no marks on the victim's body, the parent will probably steer clear of criminal liability. For punishment done with implements and/or carried out so as to cause bruises or more severe injuries on the child's body, the parent mayor may not find himself or herself in hot water with the American criminal justice system. Thus, state statutes and judicial decisions on parental corporal punishment of children put both children and their parents at risk-the children at risk of physical and/or psychological trauma and the parents at risk of committing a crime. Parents and children confront some of the same risks in relation to parental tort liability for corporal punishment of children. As in the crim-

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inal law context, "[b]oth the malice-type ... analysis and the reasonable/necessary analysis are used" to fix the boundary between privileged physical punishment and punishment that may engender civil liability, with the reasonable/necessary standard most predominant.v' Under the latter standard, the parental privilege may be overridden when the parent exercises force exceeding that which is reasonably necessary to correct a child.s- The Restatement (Second) ofTorts isolates the factors that should be used in assessing reasonableness/necessity: the age, gender, and physical and mental condition of the child, the type of offense committed by the child and the motive inspiring it, the effect of the child's behavior on other children in the same family, whether the force is reasonably necessary and appropriate to get the child to adhere to a proper instruction, and whether the force is disproportionate to the offense, needlessly degrading, or likely to cause serious or permanent harm.v' Although the law on parental civil liability for excessive corporal punishment appears to present children with the possibility of another means of redress besides the criminal law, it should be pointed out that beginning in the late nineteenth century parents across the United States enjoyed a catholic civil immunity from the personal tort claims of their children. 64 Today, a majority of jurisdictions have vitiated parental tort immunity to one degree or another. Some states have abrogated the immunity only for particular types of cases, such as those arising from sexual abuse, vehicular accidents, and/or intentional torts, while a number of states have eliminated parental tort immunity altogether. 65 In view of these legal reforms, when a parent corporally punishes a child in this day and age, in a jurisdiction where the immunity is limited to parental negligence or where there is no parental immunity at all, the question arises as to whether the corporally punished child may successfully civilly sue his or her parent for any resulting bodily harm. The answer seems to vary depending on permutations in the law and in the facts of the corporal punishment. For example, if the jurisdiction limits parental immunity to injury caused by negligence and the child's harm was negligently caused by the corporal punishment, the child's suit would probably not succeed due to the immunity-even if the punishment was excessive. If the jurisdiction has completely withdrawn parental immunity, and the child's harm was negligently caused by corporal punishment that was not excessive, the child's suit still would probably not succeed because of the extant parental privilege to use reasonable corporal pun-

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ishment on the child. If the jurisdiction, however, has totally revoked parental immunity and the child's harm was negligently or intentionally caused by corporal punishment that was excessive, the child's suit might prevail because the use of force went beyond the confines of the parental privilege. Of course, the laxity of u.s. law toward parental physical chastisement of children and the uncertainties created by that law would be of no import if American parents did not spank their children. According to Straus, almost a majority of American parents are, in principle, against hitting as a necessary part of child rearing.s- This represents a substantial attitudinal shift since a 1989 Harris poll showed that 86 percent of the respondents, representing a random sample of 1,250 American adults, then supported parental spanking."? But, evidently parents are having trouble conforming practice to newly gained principle. Straus also reports that a whopping 94 percent of American parents still continue to smack their toddlers." The foregoing is meant to be a sort of aerial snapshot of the legal situation in the United States vis-a-vis parental corporal punishment of children-sufficient to impart an accurate photomap without getting bogged down in overwhelming minutiae. However, no picture would be complete without taking a magnifying glass to Minnesota, which almost rivals Italy and Portugal on the peculiarity index. When last I wrote (in 1998) about Minnesota and parental corporal punishment, I expounded upon the complex statutory scheme by which that state appeared to have banned such punishrnentw-s-a legal jigsaw puzzle initially drawn to my attention by Victor Vieth, a former Minnesota prosecutor." In my opinion, that scheme remains intact," although there is at least one scholar who begs to differ." Our disagreement will be discussed below. It is worth slogging through the relevant Minnesota enactments, not only because they continue to present an aberration in American law, but also because the Minnesota Court of Appeals has recently decided cases that, although only tangential to the existence of the ban, may easily be misconstrued as invalidating it." In fact, the ban resides in no one statute, but, rather, can only be discerned by teasing it out of four statutory provisions read in interrelationship with each other. Whether Minnesota's legislators ever meant for these four provisions to give rise to the ban is not

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known. I venture to guess that they knew not what they did. Yet, they did do it. And, since they did it, some Minnesota courts have accepted prosecutors' arguments that the prohibition exists." Let us begin the analysis with Minnesota's criminal defense of reasonable parental corporal punishment, which is set forth not once but twice. This admittedly does not bode well for a legal discourse that would find an interdiction on such punishment. The defense appears in Section 609.06, subdivision l(b) of the Minnesota statutes, as follows: Except as otherwise provided in subdivision 2, reasonable force may be used upon or toward the person of another without the other's consent when the following circumstances exist or the actor reasonably believes them to exist: (b) when used by a parent, guardian, teacher, or other lawful custodian of a child or pupil, in the exercise of lawful authority, to restrain or correct such child or pupil.75 It appears again in Section 609.379, subdivision l(a) of the Minnesota statutes." Section 609.379, subdivision l(a), in its essential elements, tracks the language of Section 608.06, subdivision 1(b), thereby indicating that both provisions refer to the same justifiable "reasonable force."77 Section 609.379, subdivision 2 goes on to list the crimes to which reasonable force may be asserted as a defense." And, here is the nub of the matter: subdivision 2 does not include the crime of assault in the fifth degree. 79 Therefore, in Minnesota, these statutes appear to dictate that use of reasonable force against a child cannot be a defense to fifth degree criminal assault charges. 80 This analysis still leaves unsettled the question of whether reasonable parental corporal punishment of children has the characteristics of and can consequently be classified, in the first place, as an assault pursuant to Minnesota law. That is, is it possible under Minnesota law for such punishment not to be a criminal assault once it has been excluded as a defense to assault? The solution lies in the Minnesota criminal assault statute. Section 609.224, subdivision 1(1)-(2) defines fifth degree assault as an act committed "with intent to cause fear in another of immediate bodily harm or death" or when someone "intentionally inflicts or attempts to

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inflict bodily harm upon another."81 Section 609.02, subdivision 7 of the Minnesota statutes defines bodily harm as "physical pain or injury, illness, or any impairment of physical condition."82 As Vieth put it, "[a]pplying these statutes to acts of corporal punishment [of children], it is clear that such discipline constitutes an assault. This is because physical punishment, at a minimum, involves the infliction of pain or placing the child in fear of pain."83 Indeed, placing the child in pain is an integral feature of and one of the cardinal sins of corporal punishment.84 I trust that to this point, and sheerly as a result of statutory construction, it is plain enough that in Minnesota, moderate parental corporal punishment of children both is not a defense to criminal assault and is the crime of fifth degree assault. There is, though, other Minnesota legislation that I have reconsidered since 1998, and that has made me wonder if this conclusion is quite so pat. The enactments in issue provide definitions of child abuse, and are, therefore, at some remove from the assault question. But, it occurred to me that they might factor into the calculus because, if reasonable parental corporal punishment of children is not child abuse, perhaps that could have the effect of undoing the punishment's status as assault as well. The potential conundrum should be put to rest, if it can be. Section 260C.007, subdivision 5 of the Minnesota statutes defines child abuse as "an act that involves a minor victim and that constitutes a violation of ... Section 609.224 [the fifth degree assault statute]."85 Notice two things about section 260C.007, subdivision 5. By its very terms and also because it makes child abuse in Minnesota fifth degree assault, the conduct addressed entails no prerequisite of bodily injury in order to be tagged as child abuse. Reasonable corporal punishment of children that does not cause them any injury could, under this view, be considered child abuse as well as assault. This is interesting, but, it turns out, not material. For, whether the discipline is or is not child abuse under Section 260C.007, the punishment is, in any event, still the crime of assault. So far, so good: this child abuse statute does not counteract corporal punishment's standing as assault. The provision that, when counterposed to Section 260C.007, subdivision 5 perhaps could raise eyebrows somewhat higher is Section 260C.007, subdivision 13(1) of the Minnesota statutes, which defines one specific form of child abuse-something called "domestic child abuse."

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This section states that the phrase refers to "any physical injury to a minor family or household member other than by accidental means."86 Conceivable snags presented by this language may derive from the fact that it does not call domestic child abuse a criminal assault, and requires physical injury for the conduct covered to be categorized as domestic child abuse. If reasonable parental corporal punishment of children is domestic child abuse, rather than other child abuse, does that signify that familial corporal punishment, which causes no bodily injury, is not deemed abusive? And, if it is not a species of child abuse, then is such punishment also not criminally assaultive? Indeed, even if the punishment does physically injure the child, would it still not be criminal assault because Section 260C.007, subdivision 13(1) does not say that domestic child abuse is an assault as the unadorned child abuse definitional provision does? The short response to all of these inquiries is no. Chapter 260C of the Minnesota statutes sets forth the child protection provisions of the Minnesota Juvenile Court Act."? Section 260C.007, subdivision 1 thereof advises that, "[a]s used in this chapter," the terms defined have the meanings assigned to them by subdivision 1.88 As per this directive, the definition of domestic child abuse should have no bearing on the functioning of laws beyond Chapter 260C of the Minnesota statutes. But, even if this directive was not as clear as it is, Section 260C.007, subdivision 13(1) would still not trump the interaction of the other statutes that make reasonable parental corporal punishment of children an assault. The raison d'eire of the Minnesota Juvenile Court Act is to provide protective arrangements for the victims of child abuse, domestic or otherwise, by, for example, removing the child from the family home to assure his or her well-being.s? As such, the "[i]nitiation of an action in domestic child abuse [does not] prevent the imposition of civil or criminal sanctions upon the abuser,""? Perforce, Section 260C.007, subdivision 13(1), the domestic child abuse provision, cannot and does not affect the operation of Minnesota's other remedial laws. The Minnesota child protection laws and the state's criminal code exist side by side and not at cross-purposes with each other. The upshot is that reasonable parental corporal punishment of children should continue to be a fifth degree assault under Minnesota statutes. I mentioned earlier that, in spite of the above analysis, this conclusion has its detractors. One commentator contends that a relatively recent decision by the Minnesota Court of Appeals (a lower appellate court) makes

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the ultimate effect of the first four statutes discussed here-the effect of creating a ban-e-nugatory,"! The case that she invokes is In re J.B.B. In this suit, Watonwan County Human Services filed a Child in Need of Protection or Services petition under Chapter 260C of the Minnesota statutes, alleging that the father ofT.B and M.B., ages six and five respectively, sporadically used a wooden lath to spank the children on their buttocks and wrists as discipline; plaintiff claimed that the punishment made the children victims of physical abuse. The lath was a piece of wood approximately eighteen inches long and one-quarter inch thick. The evidence showed that the children were not physically injured by this form of discipline, although the spankings were painful and caused T.B. to be frightened of his father. The trial Court, citing to no statutory law, granted the petition.v' The father appealed, arguing that the adjudication of the petition was not supported by adequate evidence that T.B. and M.B. had suffered and would continue to suffer from child abuse. Watonwan County countered that because Section 260C.007 of the Minnesota statutes calls child abuse a criminal assault even when there is no bodily injury to the victim, proof of such injury was not required to sustain the petition. In a not wholly coherent exposition of its thinking, the Court ofAppeals first declared that in the absence of excessive force or physical injury, corporal punishment does not merit an order that children need protective services. Second, the Court announced its understanding that it is essential under Section 260C.007 to show physical injury in order to find that children are victims of child abuse. Third, the Court reasoned that Section 260C.007's reference to Minnesota criminal statutes also incorporates (apparently by implication) the defense of reasonable corporal punishment of children. Combining these rationales, the Court adjudged that the county had not met its burden of demonstrating that T.B. and M.B. were physically injured by the spankings with the lath. The Court consequently reversed." I take a dim view of the precedential value of In re J.B.B. as a negation of the statutory mandate that reasonable parental corporal punishment of children is fifth degree assault in Minnesota. The appellate Court opinion is, in my estimation, poorly reasoned. The Court does not appear to be confident of whether it is deciding a child abuse case, a domestic child abuse case, or neither; and, the Court completely overlooks the statutory analysis that makes parental spanking assault in the fifth degree. There is

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not even an inkling that the Court was aware of such a possibility. Another basis for my skepticism about the decision's effect is that, on its facts, this is not a case about whether reasonable parental corporal punishment of T.B and M.B. is fifth degree assault. Instead, the case only turned on, and its precedential value should only extend to, the issue of when a protective services order is appropriate. State ~ Bridges, a decision rendered by the Minnesota Court ofAppeals after the dissentient commentator's analysis of In re J.B.B., is just as inapposite.?" This suit began when a father used a belt to strike the bare skin of his son's thigh as punishment, leaving a large bruise. Minnesota prosecuted the father for malicious punishment of a child'" and fifth degree assault, among other crimes." The trial Court instructed the jury that the defendant was not guilty of a crime ifhe had used reasonable force to correct a child and that this defense applied to all counts. Although the jury found the accused guilty of all charges, the trial Court sentenced him only for committing the crime of malicious punishment of a child."? On appeal, the father argued that the state had failed to meet its burden of proof and that his conviction should be reversed. The Court of Appeals was unimpressed, deciding that the state had introduced sufficient evidence from which a jury could conclude that defendant had committed the crime of malicious punishment of a child." The Court of Appeals again did not even mention, let alone refute, the statutory analysis evincing that in relation to fifth degree assault, there is no defense of reasonable parental use of force on a child and that this use of force is itself fifth degree assault. How can a judicial decision stand for the invalidation of a proposition that the Court does not even address? Hence, Bridges has nothing to do with whether reasonable parental corporal punishment of a child is fifth degree assault and cannot serve as authority for precluding such punishment from being treated as an assault. Although Minnesota has lived with its prohibition on parental corporal punishment for many years, the state's prosecutors have been disinclined to bring assault charges against parents who use mild corporal punishment on their children."? Coincidentally, this policy duplicates the prosecutorial restraint exercised in relation to cursory incidents of parental corporal punishment in European countries that have banned spanking.t'?

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In the United States, parental corporal punishment may also influence judicial child custody decisions as between divorced or divorcing parents. Child custody disputes are usually governed by state laws. The pertinent state statutes are not particularly edifying about the role of corporal punishment as a criterion for resolving such quarrels. Some statutes do make domestic violence against the child or against his or her other family members a factor antipathetic to granting custody to the perpetrator.t"' But, the statutes generally do not specify what level of violence counts and what does not, leaving the public in the dark about whether reasonable corporal punishment qualifies as violence militating against custody.I''? One exception can be found in Wyoming's enactments. Section 14-3-429, subdivision b(iii) authorizes courts to transfer custody temporarily of a neglected child.l'" Section 14-3-402, subdivision a(xiii)(B) defines a "neglected child" as a juvenile who suffers physical or mental injury, harm, or imminent risk of the same by abuse including "excessive or unreasonable corporal punishment."104 Much more guidance on custody is available from state case law. In essence, the judicial decisions, taken together, convey a standard very like that which is set forth in the Wyoming statutes. The standard runs on two tracks. On the first track, courts tend to hold that parental exercise of moderate physical chastisement of children will not, by itself, usually prejudice the chastising parent's chances of obtaining custody.l'" On the second track, courts tend to rule that parental use of excessive corporal punishment will defeat an award of custody. 106 Boland v. Leska is a first track case out of Pennsylvania. 107 After bearing two boys, Mary and William dissolved their marriage and agreed that she would have custody of the children. Mary then married Gerald. Mary and William subsequently tussled over custody. The lower Court found that Gerald had grabbed one of the boys, Sean, by his pajama top in exasperation over the boy's refusal to respond to his mother's questions about a missing key. The grabbing caused a minor bruise on Sean's neck that required no medical treatment. The Court found that, on another occasion, Gerald had slapped Sean once on the face upon discovering that the child had mislaid a sweater. There was no physical injury, and Gerald apologized to Sean immediately after hitting him. The hearing Court concluded that these interactions were not child abuse under Pennsylvania law because Gerald acted without malice and

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because neither incident involved extreme force nor was part of an ongoing course of unjustified punishment. The hearing Court ordered that Sean and his brother be left in the custody of their mother and Gerald in spite of the latter's resort to physical punishments. The Superior Court of Pennsylvania affirmed, holding that the custody award properly served the children's best interests.l'"

R.M v. S. G. is a second track case that arose in Alaska. 109 Rose and Scott divorced, agreeing that she would have legal and physical custody of their three daughters. Rose then married Michael. It afterwards came to Scott's attention that Michael was physically punishing the children. Scott sought full custody of the girls after obtaining a domestic violence restraining order. The hearing Court found that Michael had been engaging in "extreme physical discipline" of his stepdaughters. 110 Evidence was introduced showing that Michael spanked the children with objects including a belt, a metal spoon, and a spatula, and that he spanked one child hard enough to cause bleeding. The lower Court characterized this as unacceptable corporal punishment. In light of the girls' preference to live with their father, Rose's inability to help foster the relationship between her daughters and Scott, and Michael's unrestrained corporal punishment, the hearing Court awarded custody to Scott as being in the children's best interests. The Supreme Court of Alaska affirmed. 111 Although child custody cases usually follow one or the other track depending upon the reasonableness of the corporal punishment, not every case on the second track ends up with courts giving custody to the nonviolent parent. There are deviations. For example, in Marshall v. Marshall, the Ohio Court of Appeals upheld the trial Court's order continuing the children's custody with their divorced father even though evidence had been adduced that, among other spankings, the father had once used corporal punishment on his progeny that was "inexcusable in its severity and duration." 112 The appellate Court's rationale was that the excessive corporal punishment was an isolated incident.U' a rationale that has been adopted by some other courts confronted with analogous circumstances.'!" Regardless of Marshall and kindred cases, though, the trend is that, overall, American state courts are inclined to adhere to the bifurcated analysis illustrated above in Boland and R.M. In sum, the legality of "subabuse" parental corporal punishment of children in the United States is, with the probable exception of Minnesota,

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omnipresent and ossified even though the relevant laws come from fifty different legislatures. The same may be said of state judiciaries' handling of child custody cases involving reasonable parental corporal punishment of children. In the absence of other conduct detrimental to the children, a parent's exercise of reasonable corporal punishment will not induce the courts to deny custody to that parent. The legal status of school corporal punishment of children is also governed in the main by state law, but presents the contrasting picture of a nation at odds with itself. Nonetheless, any discussion ofAmerican law on school corporal punishment must begin with national constitutional law, i.e., with the u.s. Supreme Court's five to four, 1977 decision in Ingraham v. Wright.r> For, Ingraham has provided the canvas upon which the states, as a federal constitutional matter, have drawn up either pro- or antipaddling scenarios for themselves in relation to the public school context. In Ingraham, petitioners James Ingraham and Roosevelt Andrews were students at a public junior high school in Florida. That state, at the time, had a statute permitting corporal punishment of children in schools as long as it was not degrading or too severe or was not administered without consulting the principal.!" Because he did not follow his teacher's directions with the desired alacrity, Ingraham received more than twenty licks with a paddle on his clothed buttocks while being pinned to a table in the principal's office. As a result, he developed a hematoma requiring medical intervention and necessitating his absence from school for several days. Andrews was also paddled on several occasions, sometimes on his arms, for minor infractions of school rules. In one of these disciplinary sessions, he was hit so hard that he lost the full use of his arm for a week. The paddle, by the way, was a flat piece of wood approximately two feet long, three to four inches wide, and one-half inch thick. I I? The Supreme Court agreed to hear two of petitioners' claims in the ensuing SUit. I I 8 The first claim was that corporal punishment of public school students as a disciplinary technique constitutes cruel and unusual punishment in violation of the Eighth Amendment to the u.S. Constitution. The second claim was that administering such punishment without first giving students notice and an opportunity to be heard violates the procedural protections of the Due Process Clause of the Fourteenth Amendment to the Constitution.!'? The high Court rejected both claims.t-''

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For our purposes here, it is necessary only to study Ingraham s analysis of the Eighth Amendment issue. That Amendment provides that "[ e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."121 The Court really had only one explanation for its disposition of the Eighth Amendment issue, i.e., that the Amendment's guarantee against cruel and unusual punishments is a constraint exclusively on criminal punishments and, therefore, cannot protect children from public school disciplinary penalties.t-? According to the majority opinion, the stinginess of the Eighth Amendment's reach is supported by stare decisis and original intent.l-' The doctrinal underpinning the Ingraham decision can be attacked from many angles. Justice White's dissent highlights that the Ingraham Court's reliance on stare decisis is strangely misplaced inasmuch as the Supreme Court itself had not previously limited the application of the Eighth Amendment solely to criminal punishments. 124 As Justice White's dissent further brings out, the majority's originalist interpretation of the Eighth Amendment, based exclusively on inferences proposed by the Justices,"> does not square with the self-evident textualism of the Eighth Amendment. For, the drafters failed to cabin the language of the amendment with the word "criminal," thereby demonstrating that the provision was created to forbid "all inhumane or barbaric punishments, no matter what the nature of the offense for which the punishment is imposed."126 Petitioners had argued that the framers of the Eighth Amendment could not have imagined the modern American compulsory public school system and its power to mete out noncriminal punishments.t-? The deduction they were hoping the Court would make, of course, is that had the framers known, surely they would have desired to protect schoolchildren at least as well as prisoners are protected. The Court attempted to rebuff this argument by distinguishing prisoners' lives from those of schoolchildren: The schoolchild has little need for the protection of the Eighth Amendment. Though attendance may not always be voluntary, the public school remains an open institution. Except perhaps when very young, the child is not physically restrained from leaving school during school hours; and at the end of the school day, the child is invariably free to return home. Even while at school, the child brings with

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him the support of family and friends and is rarely apart from teachers and other pupils who may witness and protest any instances of mistreatment. 128 The Ingraham majority opinion's attempt to immunize school corporal punishment from Eighth Amendment strictures on the theory that schoolchildren are, in certain key ways, distinguishable from prisoners seems extraordinarily flimsy. This is not to say that schoolchildren are subject to exactly the same circumstances as prisoners; obviously many circumstances are different for each group. The problem is that the particular living conditions selected by the Court are ones actually shared by schoolchildren and prisoners to a large extent. School attendance is as involuntary as imprisonment in the sense that all states make a number of years of schooling of some sort compulsory. 129 Children-and not just the "very young" ones singled out by the Court 130-are therefore restrained from leaving the premises during school hours. To say, as the Court's opinion does, that the child "brings with him [to school] the support of family and friends" is much too ambitious a generalization, unsupported by any data, and is more descriptive of a romantic, Norman Rockwellian vision of the lives of American schoolchildren. Indeed, looking back on my own experience (1981-1987) as Associate Counsel to the New York City Board of Education, it was quite evident that large numbers of children saw their schools as havens from dysfunctional, abusive, and/or neglectful families and the often anarchic neighborhoods in which they resided. Prisons are not regarded as havens, of course, but the point is that neither in schools nor in prisons is the emotional support of friends and relatives always at hand. The majority's added offering that children in school are with their teachers, and that this somehow protects students,'!' borders on the ridiculous since it is often teachers who do the punishing. Regardless of the thinness of its analytical foundation and the acidity of Justice White's dissent, the Court held in Ingraham that the Eighth Amendment's prohibition on cruel and unusual punishments simply does not apply to children in public elementary and secondary schools.l''? Or, to put the holding in more vivid terms, Ingraham means that no matter how brutal or outlandish a physical punishment may be, if the recipient is a child in public school, he or she can make no viable Eighth Amendment complaint.

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Ill-conceived when it was decided in 1977, Ingraham has become increasingly absurd. One need only consider it in comparison to the u.s. Supreme Court's 1992 decision in Hudson v. McMillian. I33 In that case, a prison inmate was beaten by security guards while he was handcuffed and shackled. The guards punched him in the mouth, eyes, chest, and stomach, and kicked him from behind. The victim suffered minor bruises and swelling, some loosened teeth, and a crack in his partial dental plate. The U.S. Court of Appeals for the Fifth Circuit acknowledged the use of force to be excessive, but refused to rule for the prisoner because his injuries were minor and required no medical attention. The Supreme Court reversed, holding that the use of excessive force against a prisoner may constitute an Eighth Amendment violation even though the prisoner's injuries (which must be more than de minimis) are minor.'>' In contrast, in Ingraham a schoolchild who suffered injuries requiring medical intervention after being paddled over twenty times was denied recourse to an Eighth Amendment claim. Putting Ingraham together with Hudson creates the bizarre situation where convicted criminals are accorded more constitutional protection against violence in prison than children are provided in school. Ill-conceived when Ingraham was decided by a bare majority in 1977 and made absurd by the juxtaposition of the Hudson case in 1992, Ingraham has become a complete anachronism in the twenty-first century. There is no reason why, under the Supreme Court's own Eighth Amendment jurisprudence, Ingraham should not be overruled. It is by now well accepted that the cryptic phraseology of "cruel and unusual punishments" in the Eighth Amendment can best be interpreted by adverting to sources outside of the Constitution itself. The Supreme Court has determined that the clause "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,"!" and that the clause's meaning may be updated "as public opinion becomes enlightened by a humane justice."136 Perceptions of decency and humanity do evolve. They are affected by increasing knowledge and by a populace's gravitation toward the altruistic practices that assure survival and human flourishing. There are signs that a palpable evolution has taken place in relation to corporal punishment of children-signs that were not present when Ingraham was decided. Our knowledge base has undergone a radical expansion with

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respect to understanding corporal punishment's potential serious adverse outcomes for children, as disclosed by meta-analyses and other scientific and theoretical work.P? There is a growing consensus among child care and other professionals in the United States that school corporal punishment should be banned. 138 In 1977, the Ingraham Court deemed it highly significant that only two states then forbade this punishment.P? now more than half the states forbid it. 140 With these domestic developments in mind, I think it is safe to say that American standards of decency and humanity have come to substantially oppose physical chastisement of children in American schools. But it is not just homeland vistas that the Court contemplates in gauging the current standards of decency and humane justice that are to inform Eighth Amendment construction. The Supreme Court has, at times and on an unpredictable basis, also referred to international and foreign law.141 If the Court was to use this interpretive technique in a relitigation of school corporal punishment under the Eighth Amendment, I suspect that the Justices would be shocked. As documented earlier in this book, at least five major human rights treaties have been authoritatively interpreted to implicitly prohibit not just school corporal punishment, but all corporal punishment of children. 142 That corporal punishment is a human rights law violation denotes the evolving standards of decency in the international community and reflects an advance in our comprehension as to what is humane justice toward children. As such, this body of human rights law should infuse any future interpretations of whether and how the Eighth Amendment's proscription against cruel and unusual punishment applies to corporal punishment of children in public schools. Similarly, if the Court was to study the laws of foreign jurisdictions, it would learn that, as of this writing, at least fifteen countries have prohibited all corporal punishment of children within their respective borders. As Chapter III attests, those countries are Sweden, Finland, Norway, Austria, Cyprus, Denmark, Croatia, Latvia, Germany, Bulgaria, Iceland, Israel, Ukraine, Romania, and Hungary.l'f Moreover, all industrialized countries, except the United States and one state in Australia, have interdicted school corporal punishment of children. 144 These facts, too, are persuasive evidence of evolving modern standards of decency that should be used to keep the Eighth Amendment true to its purpose.

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Although Ingraham is ripe for overruling, that devoutly to be wished for day has not yet arrived. What this means in terms of state regulatory power is that, as far as the u.s. Constitution is concerned, states are free either to ban or permit corporal punishment of children in the public elementary and secondary schools. The majority's unmoored eisegesis in Ingraham casts schoolchildren out from under the Constitution, their bodily integrity relegated to a political and legal determination within each state government's discretion. Ingraham is the agent provocateur that has instigated a house divided. Before charting these fault lines, it should be noted that the national government forbids corporal punishment in a couple of federally funded, specialized programs with educational components. A federal administrative regulation enjoins corporal punishment of preschoolers enrolled in Head Start.!" a child development program that, among other things, prepares young children from low-income families for school. 146 The federal government also forbids such punishment on the part of private foster care providers paid by the government to take care of and help educate unaccompanied alien children.!"? On the subfederal level, twenty-six states and the District of Columbia presently prohibit all public school corporal punishment of children. 148 Some of these states crack down on such punishment in private schools toO. I49 In what may seem like a confounding paradox, many of these prohibitory statutes ban corporal punishment while also allowing school personnel to use physical force on students for nonpunitive ends. 150 The California statute exemplifies the pattern. It outlaws corporal punishment in the public schools, but authorizes certain personnel in those schools to employ physical force for the purpose of quelling a disturbance that threatens personal injury or property damage or for the purpose of obtaining weapons or dangerous objects within the control of students. 151 This paradigm recalls the description in the third chapter of analogous allowances of force in nations that have banned all corporal punishment of children. The presence of the same statutory pattern in so many different kinds of legal systems apparently manifests a common recognition that, even where corporal punishment is thoroughly disowned, nonpunitive physical intervention may still be called for to handle certain emergency situations.

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Of the twenty-four remaining states, some give their blessing as, a matter of state law, to school corporal punishment while many others endow local public school districts with the power to ban or permit the punishment on a district-by-district basis.'>? Straying slightly from the fold, Utah repudiates public school physical chastisement unless a student's parent or guardian gives written permission otherwise, and New Hampshire "discourages" such chastisement while legally authorizing it. 153 State statutes exist that expressly permit corporal punishment in private schools as wel1. 154 In the states that enable districts to approve physical punishment of children in public schools, the laws may place restraints on the nature or occasion of the corporal punishment or on the intent with which it is wielded. For instance, there are state laws that require that the physical force used must be reasonable.l> reasonable and appropriate.I" or necessary;'>? or must have the goals of maintaining discipline!" and/or serving the welfare of a ruinor.l>? Although a state or school district permits teachers to corporally punish students, teachers who act upon this permission to an excess may find themselves susceptible to state court civil actions for damagesl'" or to state criminal prosecutions for assault and battery or related offenses.'?' Criteria for forfeiting teacher civil or, more rarely, criminal immunity from suits complaining about the use of force'") The Attorney General of California issued an astonishing opinion in 1995 that the "[l]egislature may enact a statute authorizing the courtroom paddling of a minor who is adjudged a ward of the juvenile court for placing graffiti upon real or personal property,"202 but the California legislature never followed through by passing such an enactment. 203 Whether corporal punishment of children is allowed when they are held by the criminal justice system in preadjudicative detention or postadjudicative confinement is dealt with separately. There are various types of detention and confinement facilities for delinquent or allegedly delinquent juveniles. In more than thirty states, corporal punishment of children is explicitly disavowed in some of these facilities.i'" Federal regulations forbid corporal punishment in institutions housing youths who have been convicted of federal offenses.i'" Because most juvenile delinquents run afoul of state criminal laws, rather than national ones, the population affected by these regulations is relatively small in number.i'" This exegesis of the laws on corporal punishment of children in the United States unearths identifiable trends. With the exception of the laws on parental physical chastisement, the thrust of legal developments over time has been toward ending this form of punishment. Certainly this is

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true of school physical punishments. In 1977, only two states had outlawed the practice; today, that figure has risen to twenty-six plus the District of Columbia. Of the remaining states, many delegate the power to local school districts to ban or permit the punishment as they see fit. This means that even in the remaining twenty-four states, there are sizable areas of geographic breadth and/or population density in which school corporal punishment is also proscribed-"? The situation is even more antithetical to spanking in relation to foster care since most states and the District of Columbia debar foster parents from using this sort of discipline. The laws applicable to other residential child care settings are more of a hodgepodge, although most state laws do not countenance any corporal punishment in nonresidential child care facilities such as day care. Finally, state courts do not sentence juvenile delinquents to flogging, whipping, or the like, and well over half of the states prohibit corporal punishment of juvenile accuseds or convicts when detained or jailed. Thus, the only institutional locations where approximately half the states permit corporal punishment of children throughout the state's territory is in certain residential child care facilities; other locations are largely covered by bans. This developing legal trend against corporal punishment of children in the United States runs up against a brick wall only with respect to parental disciplinary powers inasmuch as every state but one authorizes reasonable or moderate parental corporal punishment of children, the renegade being Minnesota. Although this legalized parental prerogative is in accord with the DeShaney decision's utter refusal to give children constitutional shelter from privately perpetrated violence, the whole legal edifice is deeply ironic and contrary to traditional American values. For, the philosophical and architectural blueprint underpinning the government of the United States, as laid down by the likes of John Locke.s'" is that the republic has been formed to protect the individual and especially to protect the individual from physical assaults on his or her person and property by other individuals. The Justices of the DeShaney Court, their brethren in the state courts, and lawmakers generally in the United States, have lost sight of this fundamental principle when it comes to parents' physical assaults on their children. As Senator William Darrah Kelley declared on the floor of the U.S. Senate in 1871 during the debacle that was Reconstruction:

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Sir, a Government ... that cannot snatch from oppression the feeblest ... child, is not a Government. It is wanting in the vital attribute of government. The power to protect its people inheres indestructibly in all Governments, and that frame of constitution or laws which does not provide for it fails to establish government.w? Even in 1871 Senator Kelley had the insight and humanism to include children as among the individuals who, by their very existence, deserve government's fervent efforts at protecting them from interpersonal violence. Senator Kelley's feelings in this regard were, by no means, eccentric for a nineteenth century American. Many of the crusaders against slavery around the time of the Civil War simultaneously worked against corporal punishment of children of all races, seeing in that punishment a hallmark of the oppression borne by slaves."? Kelley's words and the abolitionists' struggles on behalf of children should resonate loudly in our own era-an era that, unlike any that have gone before, incubated and gave life to the U.N. Convention on the Rights of the Child-!' and a remarkable blossoming of human rights law in general."? If government, to be government, had to protect children from oppression in the nineteenth century, how much more inexorable and exigent is this proposition and how much more encompassing must be the protection in the twentyfirst century. B.

CANADA

On January 30, 2004, the Canadian Supreme Court handed down Canadian Foundation for Children, Youth and the Law v. Attorney General of Canada (Canadian FoundationlP? a decision that took some laudable half measures against corporal punishment of children, but that carefully skirted a total ban. As will be seen in the analysis that follows, the Court had to engage in prodigious legalistic contortions to achieve this middle path. Legally, it would have been a far cleaner shot to have simply given appellant the relief sought by removing corporal punishment of children as a defense to the crime of assault. Unlike the comprehensive digest undertaken in this book of other countries' laws on corporal punishment of children, examination of Canada's jurisprudence will be confined to the Canadian Foundation case. The previous dissertation on the laws of the fifty states of the United

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States should suffice, not to replicate the legal posture of every nation that permits some such punishment, but, rather, to convey a gamut of possible permissive legal prototypes and to familiarize the reader with some specimens. A fifty-first encyclopedic description of yet another legal system in the same category would not, I believe, add anything of value. My aim in looking to Canada is, instead, to scrutinize a transformative effort by a country that is in the throes of progressing beyond the legal regimes of its neighbor to the south. Canadian Foundation is that effort. The suit was brought by the Canadian Foundation for Children, Youth and the Law (the Foundation) challenging the constitutionality under the Canadian Charter of Rights and Freedoms (Canadian Charter or Charterj-!" of Section 43 of the Canadian Criminal Code. 215 Section 43 provides that "[ e]very schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances."216 Section 43, without qualification, thus affords schoolteachers, parents, or persons standing in the place of parents a defense to criminal assault charges."? In so doing, Section 43 cuts children adrift, alone and comfortless in their exposure to conduct that is a crime when committed against anyone else in Canada.i" Indeed, Canada's criminal assault statute, Section 265 of the Criminal Code, states: (1) A person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (b) he attempts or threatens, by an act or a gesture, to apply force to another person, ifhe has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.i'" The Supreme Court's majority opinion tacitly and rightfully assumes that, but for Section 43, a regular spanking would conform to the description of common assault given in Section 265, subdivisions (1)(a) and/or (b).220

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The Foundation sought a declaration from the judiciary that Section 43 violates three provisions of the Canadian Charter. First, the Foundation argued that Section 43 contradicts Section 7 of the Charter."! Section 7 of the Charter declares that "[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."222 Second, the Foundation claimed that Section 43 offends Section 12 of the Charter.F" Section 12 announces that "[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment."224 Third, the Foundation contended that Section 43 contravenes Section 15, subdivision (1) of the Charter since the former section deprives children of the legal protection against assaults that is granted to adults.I" Section 15, subdivision (1) states that "[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."226 With respect to Section 7 of the Canadian Charter, the Supreme Court explained that an applicant has a two-part burden. The applicant must prove a deprivation of life, liberty, and/or security of the person, and must also prove that the deprivation is a breach of fundamental justice."? Both sides to the litigation agreed that Section 43 adversely affects children's security of the person, and, consequently, the Court found that the first burden of proof had been met. Responding to its other burden, the Foundation maintained that Section 43 breaches three principles of fundamental justice: the principle that the child must be given independent procedural rights, the principle that legislation concerning children must serve their best interests, and the principle that criminal statutes must not be vague or overbroad. The high Court's opinion acknowledges that there is a principle of fundamental justice that accuseds must enjoy adequate procedural protections in the criminal justice system. The Justices understood the Foundation to be adding the gloss that in order for Section 43 to pass muster under Section 7 of the Charter, it would be necessary to arrange for separate representation of the child's interests. Assuming arguendo that Canadian law recognized procedural rights for crime victims (something which Canadian law had not actually done), the Court decided that Section

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43 comports with the alleged separate representation requirement inasmuch as the Crown automatically asserts the child's interests, as well as the government's, during a criminal prosecution of the child's physical punisher. "The Crown's decision to prosecute and its conduct of the prosecution will necessarily reflect society's concern for the physical and mental security of the child."228 The majority opinion admits that the best interests of the child has attained the status of an important legal principle in Canada. Nevertheless, the opinion reasons that because this principle is highly manipulable and not essential to dispensing justice (in the sense that it may be eclipsed by other considerations vital to achieving just results), the best interests of the child does not rank as a principle of fundamental justice. The Foundation's vagueness theory was that Section 43 fails to provide meaningful notice as to the nature of the conduct that is illegal and to limit its enforcers' discretion. The Court parsed the wording of Section 43 and, in the parsing, pulled a virtual sleight of hand. The Court relied upon statutory construction to narrow the scope of Section 43 and, only after making radical excisions, did the Court consider whether Section 43 was too vague. This is adroit lawyering, and no legerdemain, if the narrowing process does not overstep from the realm ofjudicial interpretation into that of judicial legislation, i.e., improper amendment of the statute. As will be seen below, a sustainable argument can be made that, in disassembling and then discarding parts of Section 43, the authors of Canadian Foundation exchanged their judicial robes for legislators' attire. In its first excision, the Court construed Section 43 's requirement that the force used be "by way of correction" to connote that the child must have the capacity for learning from the correction; the implication is, the opinion says, that the force exempted from criminal liability under Section 43 is force that cannot be used on children under two years old or on children unable to learn due to disability or some other factor"? The Court sought to corroborate this excision with case law interpreting Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which outlaws inhuman and degrading treatment-w The Canadian Court appeared to fasten on the ruling of the European Court of Human Rights that, in adjudging whether parental exercise of force upon a child is severe enough to come within Article 3's proscription, "'all

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the circumstances of the case' " must be considered, '" such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim.'''231 The Canadian Supreme Court characterized these circumstances as determinative of the prospective educative effect of the use of force on the child. From this characterization, the Canadian Court assumed that "by way of correction" must also denote that Section 43 is only relevant to the extent that corporal punishment is administered for its future didactic effect on the child.P? Three dissenting Justices fumed in reaction that the Court essentially rewrote Section 43 to make it more anatomized and ablated before assessing its constitutionality on vagueness grounds under Section 7 of the Canadian Charter-a manner of proceeding outside the functional role of the judiciary.s'" I could critique this part of the majority opinion in Canadian Foundation on another ground as well. In my opinion, Canadian Foundation makes an untenable leap from the European Court's enumeration of factors bearing on the severity of the physical force employed to the conclusion that these factors instead bear on and circumscribe the purpose of the force. This is a queer mixing of apples and oranges. Neither the sleights of hand nor the fuming stopped there, however. The Court also arguably took liberties with Section 43 's prerequsite that the force must not exceed what is "reasonable." The Court's logic was as follows. The Section 43 defense is only available as against common assault, i.e., "simple non-consensual application of force" that produces no "harm ... [or] prospect of bodily harm."234 Therefore, Section 43 's reference to reasonableness must be read in a more exacting fashion to limit the defense's use solely to force that produces neither harm nor the threat of bodily harm. Therefore, the constitutionality of Section 43, under Section 7 of the Charter, can only be evaluated on the assumption that "reasonable" is tantamount to raising no fear of bodily harm. 235 Continuing its dissection of the word "reasonable," the Court purported to consult human rights treaties to which Canada is a party-" and found that they verify the accuracy of this formulation of "reasonable" parental force as force without harm to the child.P? I say "purported" because the Court overlooked the crucial fact that the monitoring bodies for these treaties have steadfastly maintained that any corporal punishment

296 • Corporal Punishment of Children: A Human Rights Violation

of children is intolerable under international human rights Iaw.-" The Court did concede, though, that the treaties bar school corporal punishment of children, and accordingly the Court ruled that reasonable corporal punishment cannot include that used by teachers. Apparently nervous about taking this concession too far, the Court assured Canadians that it would still be reasonable for a teacher to use physical force to remove children from classrooms or to enforce obedience to instructions-exceptions that may well swallow the new rule. The Court narrowed-the dissenters would say rewrote-Section 43 's use of the word "reasonable" even further as a result of evidence introduced in the case. Because this evidence demonstrates consensus among experts that it is harmful to deliver cuffs to teenagers or to any child's head, and to hit any child by means of objects (such as rulers or belts), the Court also deemed legal "reasonable" force to exclude these kinds of corporal punishment.239 Justice Arbour's dissent suggests that, inasmuch as Canadian lower courts previously applied Section 43 inconsistently, that statute's standard of reasonableness had been shown to be vague in practice.>'? Chief Justice McLachlin's majority opinion owns "that judicial decisions on s.43 in the past have sometimes been unclear and inconsistent, sending a muddled message as to what is and is not permitted."241 But, the Court managed to duck the legal ramifications of such irreconcilable precedents by devising the stragagem that what counts in assessing constitutionally defective vagueness is not how Section 43 's reasonableness standard has been applied in the past, but, rather, how the standard will be used in a postCanadian Foundation future. Or, to put the matter more starkly, the McLachlin opinion admits that the black and white letter of the law contains relatively open-ended terminology (such as "by way of correction" or "reasonable" force) that has confounded courts for years, but rules that such confounding is of no consequence to ascertaining vagueness because the high Court is injecting into that terminology "a core meaning."242 To repeat and summarize, that core meaning is as follows: Section 43 does not govern physical chastisement employed against any children so as to cause them bodily harm or fear of the same, against children under two years old, against other children unable to learn from a smack, against teenagers, against any child's head, against any child by means of implements, and against any child when done by school personnel.

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Naturally, once Section 43's language was tortured into such streamlined and detailed prohibitions on its applicability, the Court was able to handily rule that the provision does not violate the principle of fundamental justice against vagueness. Given this analysis, the Court was able to reject the Foundation's charge that Section 43 violates Section 7 of the Canadian Charter on vagueness grounds. It also then became quite easy to dispose of the Foundation's argument that Section 43 violates the principle of fundamental justice against statutory overbreadth since that argument was predicated on Section 43 covering use of force against children under two and over twelve years of age.243 Having washed its hands of concerns raised under Section 7 of the Canadian Charter, the McLachlin Court turned its attention to the Foundation's claim that Section 43 breaches Section 12 of the Charter. The latter section, it will be recalled, establishes "the right not to be subjected to any cruel and unusual treatment or punishment."244 The Foundation's argument was that because Section 43 had the effect of authorizing use of corrective force against children, it was thereby authorizing the cruel and unusual treatment or punishment forbidden by Section 12. The Court elucidated that in order to pursue a Section 12 complaint, the applicant must show that Section 43 entailed treatment or punishment by the state and that such treatment or punishment was cruel and unusual. The Court held that Canadian Foundation could not carry the day under Section 12. The Foundation had not shown state action insofar as Section 43 excepts from criminal liability parental or other privately perpetrated use of corrective force against children.v" Finally, the Court considered the Foundation's allegation that because Section 43 accedes to conduct toward children that would be criminal if acted out toward adults, Section 43 contemns the Charter's equality guarantee in Section 15, subdivision (1).246 Section 15, subdivision (1) includes age as a prohibited basis of discrimination.e" The Foundation contended that Section 43's exculpatory effect necessarily discriminates against children according to age so as to debase their human dignity, the protection of which is central to Section 15. The Court gave this contention a cold shoulder too. It began its rebuttal by enunciating the legal tests for determining whether the constitu-

298 • Corporal Punishment of Children: A Human Rights Violation

tional equality right is invaded. The opinion states that in deciding equality, judges are compelled to put themselves in the shoes of a reasonable person who has the claimant's traits and finds himself or herself in the claimant's situation.>" "The test is whether a reasonable person possessing the claimant's attributes and in the claimant's circumstances would conclude that the law marginalizes the claimant or treats her as less worthy on the basis of irrelevant characteristics."249 Where the claimant is a child, the cognitive deficiencies that are a function of immaturity mean that "[t]he best we can do is to adopt the perspective of the reasonable person acting on behalf of a child, who seriously considers and values the child's views and developmental needs."250 The Court promised that, as such, it would not neglect the subjective viewpoint of the child. The majority consequently framed the issue as whether, from the perspective of a person acting on the child's behalf in the manner identified above, Section 43 impugns the child's human dignity and freedom. In judging this question, the Court appealed to another legal test, i.e., four indicia of the vitality of a person's-here, the child's-human dignity: preexisting disadvantage of the child, correspondence between Section 43 's age distinction, and the child's attributes or circumstances, whether Section 43 has ameliorative purposes or effects, and the nature of the interest affected by Section 43. The Court found fulfillment of three of the indicia without much strain. There was preexisting disadvantage as children are "a highly vulnerable group."251 The nature of the interest affected was bodily integrity and that is "profound."252 And, Section 43 was not drafted to relieve slights to a more disadvantaged group than children.F" Based on these indicia, Section 43's age distinction would appear to have put children's dignity in a precarious position. The ultimate conclusion about Section 43's damage to children's dignity thus was contingent on the remaining indicator, i.e., correspondence. The Court expatiated upon how the correspondence indicator should be applied. A law that" 'properly accommodates the claimant's needs, capacities, and circumstances' will not generally offend s.15(1)."254 Contrariwise, "a law that imposes restrictions or denies benefits on account of presumed or unjustly attributed characteristics is likely to deny essential human worth and to be discriminatory."255 The opinion declares that Section 43 is a proper accommodation of children's needs, capacities, and

Domestic Laws Permitting Corporal Punishment • 299

circumstances for several reasons. Section 43 is a compromise serving children's often dueling needs for safety and education. The statute responds to the need for safety by saving from prosecution "only minimal force of transient or trivial impact"; all other force against children exposes the perpetrators to criminal liability.v" The statute meets the need for education by providing parents and adults standing in the place of parents license to resort to reasonable force if that is what it really takes to educate the child. Moreover, in granting this license, Section 43 deflects the harm to children that would result if the criminal law could intrude into and disrupt families when parents use such force. In this respect, as well, Section 43 corresponds to the child's need for intact, durable family relationships with adults attempting to nurture the child. The Court thus settled that the child's dignity is not disparaged, in violation of Section 15 of the Charter, by Section 43 's distinction based on age. 257 Two of the dissenting opinions, one by Justice Binnie and the other by Justice Deschamps, are preoccupied mainly with the Court's disposition of the Canadian Foundation's constitutional equality argument.vf Justice Binnie's partial dissent turns, in large measure, on the technical proposition that it should not have been the Foundation's burden to prove that legalized use of force exclusively against children ignores the needs, circumstances, and dignity of children so as to establish a violation of Section 15, subdivision (1) of the Charter. Rather, it should have been the Crown's burden to furnish a social justification for this discrimination against children under Section 1 of the Charter.P? Section 1 allows the government to engage in discriminatory practices that are inconsistent with Section 15 if the Crown can demonstrate that the objective of the discriminatory legislation is "pressing and substantial."260 Justice Binnie's reasoning was that the Crown would be able to justify Section 43 's discrimination insofar as parental corporal punishment is concerned because of Section 43 's pressing and substantial legislative objective of minimizing the interference of the Criminal Code with the family. Therefore, Justice Binnie would have ruled that, to the extent Section 43 immunizes parental punishers or other adults standing in their place, it does not impinge upon Section 15 of the Charter. But, not so vis-a-vis teachers. Justice Binnie distinguished the role of teachers on the ground that the teacher-student relationship is not as committed or loving as the parentchild relationship, and that teacher corporal punishment may therefore be more harmful to the child."!

300 • Corporal Punishment of Children: A Human Rights Violation

Justice Deschamps would have completely invalidated Section 43 under both Sections 7 and 15 of the Charter, but provided a separate analysis only under Section 15.262 Like Justice Binnie, Justice Deschamps' opinion finds that Section 43 trespasses on the Charter's equality right because the intensity of the corporal punishment exculpated by Section 43 includes and goes beyond mild force and has no educational value, meaning that a statute embodying the punishment's legality cannot be attuned to the real needs, capacities, or circumstances of children. Justice Deschamps' opinion dilates upon this as follows: It cannot be seriously argued that children need corporal punishment to grow and learn. Indeed, their capacities and circumstances would generally point in the opposite direction-that they can learn through reason and example while feeling secure in their physical safety and bodily integrity. By condoning assaults on children by their parents or teachers, s. 43 perpetuates the notion of children as property rather than human beings and sends the message that their bodily integrity and physical security is to be sacrificed to the will of their parents, however misguided.s-' For Justice Deschamps, corporal punishment is more likely to cripple children than to help them grow and learn, and absolving such punishment from criminal prosecution degrades corporal punishment's victims to the status of property or inferior beings. Since, by Justice Deschamps' lights, Section 43 is discriminatory within the prohibition of Section 15 of the Charter, his dissent proceeds to a consideration of whether the Crown was able to rationalize the discrimination under Section 1 of the Charter. The Deschamps opinion, like Justice Binnie's, asserts that one of the legislative objectives behind Section 43 is indeed pressing and substantial-but this time it is an altogether different objective, i.e., that of giving parents and care givers a degree of flexibility in child rearing. Criticizing Justice Binnie, Deschamps refuses to accept respondent's contention that, because Section 43 is designed to constrain the intrusion of the criminal law into private family life, ergo, an objective of the section must be child protection. Justice Deschamps laid bare that Section 43's ostensible pursuit of child protection was nothing other than parent and teacher protection parading in disguise.

Domestic Laws Permitting Corporal Punishment • 301

Since Justice Deschamps did, however, find that Section 43 had one bona fide pressing and substantial objective, he undertook to ascertain whether Section 43 's discrimination could be justified under Section 1 of the Charter. He opined that the Crown had not proffered sufficiently extenuating circumstances for its discrimination. Section 43 impairs the equal right of children, already a vulnerable group, to bodily integrity and security, and this is an impairment of the first magnitude. Yet, there is no feature of Section 43 that redeems the devastation it wreaks: the statute has no compelling salutary effects, and it is not narrowly tailored to the one legitimate end it serves.P" The result of the Canadian Foundation decision is that the Supreme Court dismissed the applicant's appeal and upheld the constitutionality of Section 43-but not the same Section 43 as the Court started out with. The Court upheld the constitutionality of a revised, sleeker Section 43 that no longer extends a protective mantle over seven modes of corporal punishment of children that had previously come within the section. The bottom line is that these seven kinds of punishment are no longer legal in Canada. They are corporal punishment of children that results in bodily harm or the prospect of the same, corporal punishment against children under two years old, corporal punishment of children who are disabled or otherwise unable to learn from a spanking, corporal punishment of teenagers, corporal punishment on any child's head, corporal punishment of any child via implements, and corporal punishment of any child by school personnel. While Canadian Foundation refused to strike down Section 43 in its entirety as unconstitutional and thereby to criminalize all corporal punishment of children, the case surely represents an advance against the legality of such punishment. To achieve this partial reform, the Court had to engage in some clumsy analytical shenanigans. But, they also could have been avoided if the Court had merely lapsed into unthinking conservatism and preserved the status quo. In a sense, the shenanigans, though sophistical from a purely legalistic standpoint, may be regarded as markers of a Court and society struggling with social and legal change on this subject. One need only contrast the Canadian situation with that in the United States to see how much headway the decision made. Remember that in the United States there are no flat-out, across-the-nation prohibitions on the

302 • Corporal Punishment of Children: A Human Rights Violation

seven types of corporal punishment of children now criminalized in Canada-'> Parental corporal punishment causing bodily harm, say bruises or welts, are legal under many state statutes as interpreted by state courts. 266 States do not generally bar corporal punishment against any particular age group of children or on any particular parts of their bodies."? Some states permit implements to be used. 268 And, twenty-four jurisdictions still are regulated by state legislation that begrudges children freedom from corporal punishment in school.w? In sum, while Canada is no Sweden, it also is no United States. In a world genuinely worthy of children, Canadian Foundation would have invalidated Section 43 in total, and, shortly afterwards, the Canadian Parliament would have enacted a statute baldly outlawing all corporal punishment of children. But, it is helpful to bear in mind that the world, including its laws, is a work in progress and that Rome was not built in a day. It cannot be predicted with any certainty when or whether Canada will ban all corporal punishment of children. It has, however, begun that journey, intentionally or not. Many countries that have prohibited all such punishment began the process leading to the bans by removing corporal punishment of children as a defense to criminal assault charges'?? In chipping away at the defense, Canadian Foundation may have begun that process in Canada.

Domestic Laws Permitting Corporal Punishment • 303

ENDNOTES 1 WORLD HEALTH ORGANIZATION: WORLD REPORT ON VIOLENCE AND HEALTH 64 (Etienne G. Krug et al. eds., 2002).

2

See discussion supra Ch. II.

3 Canadian Foundation for Children, Youth and the Law v. Attorney General in Right of Canada, [2004] S.C.R. 257. 4

DeShaney v. Winnebago County Dep't of Soc. Serv., 489 U.S. 189 (1989).

5

Id. at 191.

6

THOMAS HOBBES, LEVIATHAN: PARTS I AND II, at 107 (The Liberal Arts Press, Inc.

1958) (1651). 7

DeShaney v. Winnebago County Dep't of Soc. Serv., 489 U.S. 189, 191-93

(1989). 8

Id. at 193.

9

Id. at 197.

10

Id. at 197-200.

11

Id. at 199-201.

12

Id. at 203-13 (Brennan, I, Marshall, I, Blackmun, I, dissenting).

13 See, e.g., Akhil Reed Amar, Remember the Thirteenth, 10 CONST. COMMENT. 403,403-06 (1993); Susan Bandes, The Negative Constitution: A Critique, 88 MICH. L. REV. 2271,2286-97 (1990); Jack M. Beermann, Administrative Failure and Local Democracy: The Politics of DeShaney, 1990 DUKE L.I 1078 passim (1990); Thomas A. Eaton & Michael Lewis Wells, Governmental Inaction as a Constitutional Tort: DeShaney and Its Aftermath, 66 WASH. L. REV. 107, 107-27 (1991); Steven I Heyman, The First Duty of Government: Protection, Liberty and the Fourteenth Amendment, 41 DUKE L.I 507, 508-12, 557-63 (1991); Mary Kate Kearney, Breaking the Silence: Tort Liability for Failing to Protect Childrenfrom Abuse, 42 BUFF. L. REV. 405,407,421-28 (1994); Laura Oren, The State's Failure to Protect Children and Substantive Due Process: DeShaney in Context, 68 N.C.L. REV. 659, 659-65, 686-701 (1990); Aviam Soifer, MoralAmbition, Formalism, and the "Free World" of DeShaney, 57 GEO WASH. L. REV. 1513 passim (1989); Amy Sinden, In Search of Affirmative Duties Toward Children Under a Post-DeShaney Constitution, 139 U. PA. L. REV. 227 passim (1990). 14

See, e.g., Heyman, supra note 13, at 557-63; Soifer, supra note 13, at 1517-19.

15 See, e.g., Beermann, supra note 13, at 1078, 1083-84; Heyman, supra note 13, at 557-63; Oren, supra note 13, at 688-91; Soifer, supra note 13, at 1521-26. 16 See, e.g., Bandes, supra note 13, at 2294-97; see also DeShaney v. Winnebago County Dep't of Soc. Serv., 489 U.S. 189,205-08 (1989) (Brennan, I, dissenting) (taking the DeShaney majority to task for lumping petitioners' claim with inapposite cases).

304 • Corporal Punishment of Children: A Human Rights Violation 17 See, e.g., Soifer, supra note 13, at 1529-32; cf, Amar, supra note 13, at 405 (analogizing Joshua DeShaney's plight to that of a slave); Beermann, supra note 13, at 1087, 1089 (referring to the DeShaney case as "outrageous").

18 See 2 RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 14.4, at 525 (3d ed. 1999); Frank I. Michelman, W(h)ither the Constitution?, 21 CARDOZO L. REV. 1063, 1073-75 (2000); Jeremy M. Miller, RICO and the Bill ofRights: An Essay on a Crumbling Utopian Ideal, 104 COM. L.1. 336,352-55 (1999); Tobias Barrington Wolff, The Thirteenth Amendment and Slavery in the Global Economy, 102 COLUM. L. REV. 973,980 (2002). 19 See Bandes, supra note 13, at 2272-78; Eric Blumenson & Eva S. Nilsen, One Strike and You're Out? Constitutional Constraints on Zero Tolerance in Public Education, 81 WASH. U. L.Q. 65, 94 (2003); Frank B. Cross, The Error ofPositive Rights, 48 UCLA L. REV. 857,868-74 (2001); Mark Tushnet, An Essay on Rights, 62

TEX. L. REV. 1363, 1392-93 (1984). 20 DeShaney v. Winnebago County Dep't of Soc. Serv., 489 U.S. 189,213 (1989) (Blackmun, 1., dissenting).

21

See 2 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 10.3(a), at 136-38 (2d

ed.2003). 22 See, e.g., ALA. CODE § 13A-3-24(1) (1994); ALASKA STAT. § 11.81.430(a)(1) (Michie 2002); ARIz. REV. STAT. ANN. § 13-403(1) (West 2001); ARK. CODE ANN. § 52-605(1) (Michie 1997); COLO. REV. STAT. § 18-1-703(1)(a) (2002); CONN. GEN. STAT. ANN. § 53a-18(1) (West 2001); IND. CODE ANN. § 31-34-1-15(1) (Michie 1997); LA. REV. STAT. ANN. § 14:18(4) (West 1997); ME. REV. STAT. ANN. tit. 17-A, § 106(1), (4) (West 1983); MISS. CODE ANN. § 43-21-105(m) (Supp. 2002); MONT. CODE ANN. § 453-107 (2001); OR. REV. STAT. § 161.205(1) (2001); S.D. CODIFIED LAWS § 22-18-5 (Michie 1998); WIS. STAT. ANN. § 939.45(5)(b) (West 1996).

23

See 2 LAFAVE, supra note 21, § 10.3(a), at 136-37.

24

ALA. CODE § 13A-3-24(1) (1994).

25

See Ex parte T.D.T., 745 So. 2d 899,903 (Ala. 1999).

26 See, e.g., GA. CODE ANN. § 16-3-20(3) (1999); LA. REV. STAT. ANN. § 14:18(4) (West 1997); UTAH CODE ANN. § 76-2-401(1)(c)-(2) (Supp. 2002); Newby v. United States, 797 A.2d 1233, 1241 (D.C. 2002); Raford v. State, 828 So. 2d 1012, 1020 (Fla. 2002); Anderson v. State, 487 A.2d 294,297 (Md. Ct. Spec. App. 1985). 27 See 2 LAFAVE, supra note 21, §§ 10.1, 10.3(a), at 116, 136-38 (indicating that reasonable parental corporal punishment of a child is a defense to criminal charges).

28 See, e.g., State v. Hunt, 406 ~2d 208,222 (Ariz. Ct. App. 1965) (stating that the "test of unreasonableness is met at that point where the parent ceases to act in good faith and with parental affection"); Natural Mother v. Hinds County Welfare Dep't, 579 So. 2d 1269,1271 (Miss. 1991) (borrowing the test of unreasonableness from Hunt, supra).

Domestic Laws Permitting Corporal Punishment • 305 29 See, e.g., ARK. CODE ANN. § 9-27-303(3)(C)(i)-(iii) (Michie 2002) (providing that the age, size, and condition of the child, location of an injury, and frequency or recurrence of injuries should be considered in determining whether physical chastisement is reasonable); People ex rel. E.S., 49 ~3d 1221, 1225-26 (Colo. Ct. App. 2002) (observing that when a child sustains a nonaccidental injury from corporal punishment, the reasonableness of that punishment is a question for the jury and jury members may consider the size and extent of bruising on a child in ascertaining reasonableness); In re Rodney C., 398 N.Y.S. 2d 511,514-16 (N.Y. Fam. Ct. 1977) (stating that the reasonableness of parental use of force is based on an objective standard that consists of taking into account the age, sex, and physical and mental condition of the child, the means of punishment, the purpose of the punishment, etc.); State v. Singleton, 705 ~2d 825, 827 (Wash. Ct. App. 1985) (adopting an objective measure of corporal punishment's reasonableness under which the trier of fact should consider the age, size, sex, and physical condition of both child and parent, the nature of the child's misconduct, the marks or wounds left on the child's body by the punishment, the means used to punish, etc.).

30

See 2 LAFAVE, supra note 21, § 10.3(a), at 137.

31 See, e.g., CAL. PENAL CODE § 273d(a) (West 1999); CONN. GEN. STAT. ANN. § 5320 (West 2001); IDAHO CODE § 16-2002(e) (Michie Supp. 2000); KAN. STAT. ANN. § 21-3609 (1995); Ky. REv. STAT. ANN. § 508.100(1)(c) (Michie 1999); MINN. STAT. ANN. § 609.377(1) (West 2003); Mo. ANN. STAT. § 568.060(1) (West 1999); NEB. REv. STAT. § 28-710(3)(b) (1995); N.M. STAT. ANN. § 30-6-1(D)(2) (Michie Supp. 2002); N.M. STAT. ANN. § 32A-4-2(B)(5) (Michie 1999); N.C. GEN. STAT. § 7B-101(1)(c) (2002); S.D. CODIFIED LAWS § 26-10-1 (Michie Supp. 2003); State v. McNichols, 2002 WL 31538788, at *2 (Ohio App. 4 Dist. Nov. 12, 2002).

32 See, e.g., 325 ILL. COMPo STAT. ANN. 5/3, § 3(e) (West 2001); NEV. REV. STAT. § 432B.150 (2001); N.Y. FAM. CT. ACT § 1012(f)(i)(B) (McKinney Supp. 2003); N.D. CENT. CODE § 50-25.1-02(5)(a) (1999); R.I. GEN. LAWS § 40-11-2(1)(i)-(ii) (Supp. 2002); S.C. CODE ANN. § 20-7-490(C)(1) (Law. Co-op. 1985); W VA. CODE ANN. § 491-3(a) (Michie 2001); Wyo. STAT. ANN. § 14-3-202(a)(ii) (Michie 2003). 33 See, e.g., ARK. CODE ANN. § 9-27-303(3)(A)(iv)-(vii) (Michie 2002); DEL. CODE ANN. tit. 11, § 468(1)(c) (2001); WASH. REV. CODE ANN. § 9A.16.100 (West 2000). 34

ARK. CODE ANN. § 9-27-303(3)(A)(vi) (Michie 2002).

35 See, e.g., ARK. CODE ANN. § 9-27-303(3)(A)(vi) (Michie 2002) (engaging in certain acts intentionally or knowingly constitutes abuse); CAL. PENAL CODE § 273d(a) (West 1999) (willful infliction of certain punishment or injury is a felony); HAW. REV. STAT. ANN. § 703-309(1 )(b) (Michie Supp. 2002) (use of force is not justifiable if, among other things, it is designed to cause or known to create a risk of causing certain adverse effects); IOWA CODE ANN. § 726.6(1)(a)-(b) (West Supp. 2003) (child endangerment occurs when a parent knowingly creates certain risks to the child or intentionally causes bodily injury); KAN. STAT. ANN. § 21-3609 (1995) (abuse is intentionally committing certain types of acts resulting in great bodily harm); LA. REV.

306 • Corporal Punishment of Children: A Human Rights Violation

STAT. ANN. § 14.93(A) (West 1986) (intentional or criminally negligent mistreatment or neglect causing unjustifiable pain or suffering constitutes the crime of cruelty to juveniles); NEB. REV. STAT. § 28-710(3)(b) (1995) (abuse or neglect includes knowingly, intentionally, or negligently causing a child to be cruelly punished); NEV. REV. STAT. § 200.508(4)(a) (2001) (abuse or neglect means causing nonaccidental physical or mental injury); TENN. CODE ANN. § 39-15-401(a) (Supp. 2002) (a crime is committed when a person knowingly and nonaccidentally inflicts injury); W VA. CODE ANN. § 49-1-3(a)(1) (Michie 2001) (an abused child is one whose health or welfare is threatened by knowing or intentional infliction or attempts at infliction of certain injuries or by knowingly allowing such infliction); Wyo. STAT. ANN. § 6-2-503(b) (2003) (child abuse occurs due to intentional or reckless infliction of physical injury); State v. Hunt, 406 ~2d 208,222 (Ariz. Ct. App. 1965) (a malicious desire to inflict pain makes corporal punishment unreasonable); Newby v. United States, 797 A.2d 1233, 1243 (D.C. 2002) (the defense of reasonable corporal punishment can be defeated by evidence that the parent did not have a genuine disciplinary purpose); State v. McDonald, 785 So. 2d 640, 646 (Fla. Dist. Ct. App. 2001) (aggravated child abuse occurs in cases where there is actual malice on the part of the parent that is not momentary anger or frustration); State v. Spencer, 486 So. 2d 870, 874 (La. Ct. App. 1986) (the cruelty to juveniles statute does not require that the parent intend to cause the child unjustifiable pain or suffering; rather, the statute requires that intentional or criminally negligent mistreatment or neglect causes unjustifiable pain or suffering); lB. v. Dep't of Pub. Welfare, 824 A.2d 342, 345 (Pa. Commonw. Ct. 2003) (parent must not corporally punish with malicious intent). 36 See, e.g., ARK. CODE ANN. § 9-27-303(3)(A)(vi) (Michie 2002); IOWA CODE ANN. § 726.6(1)(b)-(c) (West Supp. 2003); KAN. STAT. ANN. § 21-3609 (1995); LA. REV. STAT. ANN. § 14:93(A) (West 1986); NEB. REV. STAT. § 28-710(3)(a)-(b) (1995); N.H. REV. STAT. ANN. § 169-C:3(II)(b) (2001); W VA. CODE ANN. § 49-1-3(a)(1) (Michie 2001); Wyo. STAT. ANN. § 6-2-503(b) (2003).

37 See, e.g., ARK. CODE ANN. § 9-27-303(3)(A)(vi) (Michie 2002); HAW. REv. STAT. ANN. § 703-309(1)(b) (Michie Supp. 2002); IOWA CODE ANN. § 726.6(1)(a) (West Supp. 2003); NEB. REV. STAT. § 28-710(3)(a)-(b) (1995); TENN. CODE ANN. § 39-15401(a) (Supp. 2002); W VA. CODE ANN. § 49-1-3(a)(1) (Michie 2001). 38 See, e.g., CAL. PENAL CODE § 273d(a) (West 1999); NEV. REV. STAT. § 200.508(1) (2001). 39 See, e.g., LA. REV. STAT. ANN. § 14:93(A) (West 1986); NEB. REV. STAT. § 28710(3)(a)-(b) (1995). 40 See, e.g., NEV. REV. STAT. § 200.508(4)(a) (2001); N.H. REV. STAT. ANN. § 169C:3(II)(d) (2001); TENN. CODE ANN. § 39-15-401(a) (Supp. 2002). 41

See, e.g., Wyo. STAT. ANN. § 6-2-503(b) (2003).

42 See, e.g., State v. Hunt, 406 ~2d 208, 222 (Ariz. Ct. App. 1965); State v. McDonald, 785 So. 2d 640, 646 (Fla. Dist. Ct. App. 2001) (stating that evidence of actual malice is one way to show aggravated child abuse); lB. v. Dep't of Pub. Welfare, 824 A.2d 342, 345 (Pa. Commonw. Ct. 2003).

Domestic Laws Permitting Corporal Punishment • 307 43

See, e.g., Newby v. United States, 797 A.2d 1233, 1243 (D.C. 2002).

44 See ARK. CODE ANN. § 9-27-303(C)(iii) (Michie 2002); DEL. CODE ANN. tit. 11, § 468(1)(b) (2001); FLA. STAT. ANN. § 39.01(30)(a)(4) (Harrison 1991); HAW. REV. STAT. ANN. § 703-309(1)(a) (Michie Supp. 2002); WASH. REV. CODE ANN. § 9A.16.100 (West 2000); State v. Hunt, 406 ~2d 208,222 (Ariz. Ct. App. 1965) (noting that the degree of severity of corporal punishment must be calibrated to age, sex, and physical condition of the child and to the child's tolerance of pain); People v. Thomas, 65 Cal. App. 3d 854, 857 (Cal. Ct. App. 1976) (opining that the child's size and age are relevant to determining reasonableness of corporal punishment); Wolfe v. State, 743 So. 2d 380,385 (Miss. 1999) (stating that the age and condition of the child are pertinent to deciding if discipline is moderate and reasonable); Ronningen v. C.W, 290 N.W2d 675, 678 (N.D. 1980) (legality of physical discipline should include considerations of the child's health, age, size, and intelligence); State v. Thorpe, 429 A.2d 785,788 (R.!. 1981) (averring that the "accepted degree of corporal punishment must vary in relation to the sensitivity and character of the child, the child's age, sex, physical condition, as well as in relation to the particular offense for which punishment is to be meted out"). 45 See, e.g., State v. Arnold, 543 N.W2d 600, 603 (Iowa 1996); State v. Straight, 347 ~2d 482, 490 (Mont. 1959) (baby-sitter); Ronningen v C.W, 290 N.W2d 675, 678 (N.D. 1980); Sepesi v. Goris, No. WD-02-028, 2003 WL 1702505, at *3 (Ohio Ct. App. Mar. 31,2003) (stepmother); State v. Thorpe, 429 A.2d 785,788 (R.!. 1981); Harbaugh v. Commonwealth, 167 S.E. 2d 329,332 (Va. 1969) (prospective adopting parents); State v. Singleton, 705 ~2d 825, 827 (Wash. Ct. App. 1985) (stepfather); Steber v. Norris, 205 N.W 173, 175 (Wis. 1925) (officer of the juvenile court operating farm for delinquent or unruly boys). 46 See, e.g., CAL. PENAL CODE § 273d(a) (West 1999) ("traumatic condition"); CAL. WELF. & INST. CODE § 300(a) (West Supp. 2003) ("serious physical injury"); DEL. CODE ANN. tit. 11, § 468( 1)(c) (2001) ("physical injury, disfigurement, mental distress, unnecessary degradation, or substantial risk of serious physical injury or death"); FLA. STAT. ANN. § 39.01(30)(a)(4)(a)-(k) (Harrison 2003) (likely to result in physical injury defined as anyone of a long list of injuries); GA. CODE ANN. § 19-75(b)(3)(A) (1999) ("physical injury or death"); HAW. REv. STAT. ANN. § 703-309(1)(b) (Michie Supp. 2002) (causing or creating a risk of causing "substantial bodily injury, disfigurement, extreme pain or mental distress, or neurological damage"); IOWA CODE ANN. § 232.71B(1)(f) (West Supp. 2003) ("physical injury"); Ky. REV. STAT. ANN. § 503.11 O( 1)(b) (Banks-Baldwin 1994) (causing or creating a "substantial risk of causing death, serious physical injury, disfigurement, extreme pain, or extreme mental distress"); ME. REV. STAT. ANN. tit. 17-A, § 106(1), (4) (West 1983) ("force that creates a substantial risk of death, serious bodily injury, or extraordinary pain"); Mo. ANN. STAT. § 563.061(1)(2) (West 1999) ("designed to cause or believed to create a substantial risk of causing death, serious physical injury, disfigurement, extreme pain or extreme emotional distress"); NEB. REV. STAT. § 28-1413(1)(b) (1995) (force "designed to cause or known to create a substantial risk of causing death, serious bodily harm, disfigurement, extreme pain or mental distress, or gross degradation"); NEV. REV. STAT. § 200.508(1) (2001) ("unjustifiable physical pain or mental suffer-

308 • Corporal Punishment of Children: A Human Rights Violation

ing"); N.H. REV. STAT. ANN. § 627:6(IV) (Supp. 2002) ("force that creates a risk of death, serious bodily injury, or substantial pain"); N.C. GEN STAT. § 14-318.4(a3) (2002) ("serious bodily injury" defined as "bodily injury that creates a substantial risk of death, ... causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ, or that results in prolonged hospitalization"); N.D. CENT. CODE § 12.1-05-05(1) (Supp. 2001) ("force used must not create a substantial risk of death, serious bodily injury, disfigurement, or gross degradation"); OHIO REV. CODE ANN. §§ 2919.22(B)(3), 2901.01(A)(5) (Anderson 2002 & Supp. 2002) (no "substantial risk of serious physical harm" defined as carrying a substantial risk of death, as involving some permanent incapacity or some temporary substantial incapacity, as involving some permanent disfigurement or serious temporary disfigurement, as involving acute pain of such duration as to produce substantial suffering or involving any degree of prolonged or intractable pain, as producing any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment); 18 PA. CONS. STAT. ANN. § 509(1)(ii) (West 1998) (force used "is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation"); R.I. GEN. LAWS § 4011-2(1)(ii) (Supp. 2002) (creates or allows to be created "a substantial risk of physical or mental injury"); S.C. CODE ANN. § 16-3-95(A)-(D) (Law. Co-op. 2003) (prohibits "great bodily injury" defined as creating "a substantial risk of death or which causes serious or permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ"); UTAH CODE ANN. §§ 76-2-401(1)(c), (2), 76-5-109(1)(d) (Supp. 2002) (prohibits "serious bodily injury" defined to include a long list of adverse effects); W VA. CODE ANN. § 49-1-3(a)(1) (Michie 2001) (barring infliction of physical, mental, or emotional injury); WIS. STAT. ANN. § 939 .45(5)(b) (West 1996) (it is never reasonable discipline to use force intended to cause great bodily harm or death or to use force that creates an unreasonable risk of great bodily harm or death); Wyo. STAT. ANN. § 14-3-202(a)(ii)(B)-(D) (2003) (prohibits physical or mental injury, harm, or imminent danger to the physical or mental health or welfare; defines physical injury as any harm to a child including disfigurement, impairment of any bodily organ, skin bruising if greater in magnitude than minor bruising associated with reasonable corporal punishment, bleeding, burns, bone fracture, subdural hematoma, or substantial malnutrition). 47 See, e.g., GA. CODE ANN. § 19-7-5(b)(3)(A) (1999); IOWA CODE ANN. § 232.71(B)(4)(f) (West Supp. 2003); R.I. GEN. LAWS §§ 40-11-2(1)(ii), 11-9-5.3(d) (2002 & Supp. 2002); W VA. CODE ANN. § 49-1-3(a)(1) (Michie 2001). 48

DEL. CODE ANN. tit. 11, § 468 (l)(c) (2001).

49 See, e.g., HAW. REv. STAT. ANN. § 703-309(1)(b) (Michie Supp. 2002); Ky. REv. STAT. ANN. § 503.110(1)(b) (Banks-Baldwin 1994); Mo. ANN. STAT. § 563.061(1)(2) (West 1999); NEB. REV. STAT. § 28-1413(1)(b) (1995); N.D. CENT. CODE § 12.1-0505(1) (Supp. 2001); 18 PA. CONS. STAT. ANN. § 509(1)(ii) (West 1998).

Domestic Laws Permitting Corporal Punishment • 309 50 See, e.g., HAW. REv. STAT. ANN. § 703-309(1)(b) (Michie Supp. 2002); Ky. REv. STAT. ANN. § 503.110(1)(b) (Banks-Baldwin 1994); ME. REV. STAT. ANN. tit. 17-A, § 106(1), (4) (West 1983); Mo. ANN. STAT. § 563.061(1), (2) (West 1999); NEB. REV. STAT. § 28-1413(1)(b) (1995); N.C. GEN. STAT. § 14-318.4(a3) (2002); 18 PA. CONS. STAT. ANN. § 509(1)(ii) (West 1998). 51 See, e.g., N.C. GEN. STAT. § 14-318.4(a3) (2002); S.C. CODE ANN. § 16-3-95(C) (Law. Co-op. 2003); Wyo. STAT. ANN. § 14-3-202(a)(ii)(B) (2003). 52

UTAH CODE ANN. §§ 76-5-109(1)(d), 76-2-401(2) (Supp. 2002).

53

State v. McDonald, 785 So. 2d 640,647 (Fla. Dist. Ct. App. 2001).

54 Compare McDonald, 785 So.2d at 641-43, 646-47 (reversing dismissal of child abuse charges and remanding where parental spanking of six-year-old caused bruising on the child's buttocks, upper thighs, and back, and elicited medical attention), and In re K.B., No. 21365,2003 WL 21658319, at *4-*6 (Ohio Ct. App. July 16, 2003) (holding that evidence of multiple bruising, caused by mother's boyfriend, on toddler's body in locations atypical for accidents, was sufficient to show child abuse), and State v. Howard, No. 98-L-265, 1999 WL 1313691, at *1-*5 (Ohio Ct. App. Dec. 3, 1999) (ruling that evidence of father's using a broom handle to hit his twelve-year-old son on the head and/or back, so as to produce a red mark on the child's back, was sufficient to show domestic violence and child abuse), with In re Miles, No. 01CA0054, 2002 WL 1065704, at *1-*2 (Ohio Ct. App. May 22,2002) (adjudging that evidence that mother's fiance bit nine-year-old boy on cheek, so as to leave teeth marks, did not support finding of child abuse), and State v. Figarola, 788 So. 2d 1109,1110-11 (Fla. Dist. Ct. App. 2001) (determining that it was not child abuse when a father struck his son twice so as to split the boy's lip, but, rather, that attack was reasonable corporal punishment), and City of Shaker Heights v. Wright, No. 69517, 1996 WL 355309, at *1-*8 (Ohio Ct. App. June 27, 1996) (deciding that evidence of father's whipping his ten-year-old son with a belt, so as to cause welts on the boy's legs from which scars remained for six months afterwards, was insufficient to show child endangering), and R.S.M. v. Dep't of Health and Rehabilitative Serv., 640 So.2d 1126, 1126-27 (Fla. Dist. Ct. App. 1994) (holding that where evidence was that father used corporal punishment on his fourteen-year-old son, so as to cause bruising, the punishment was not excessive and not child abuse); cf, David Orentlicher, Spanking and Other Corporal Punishment of Children by Parents: Overvaluing Pain, Undervaluing Children, 35 HODs. L. REV. 147, 152-54 (1998) (commenting that it is problematic for courts to apply the reasonableness standard so as to clearly separate legal parental corporal punishment from illegal child abuse).

55 In re Miles, No. 01CA0054, 2002 WL 1065704, at *1-*2 (Ohio Ct. App. May 22,2002). 56 City of Shaker Heights v. Wright, No. 69517, 1996 WL 355309, at *1-*8 (Ohio Ct. App. June 27, 1996).

57

Id. at *1, *8.

310 • Corporal Punishment of Children: A Human Rights Violation 58

In re K.B., No. 21365, 2003 WL 21658319, at *4-*6 (Ohio Ct. App. July 16,

2003). 59

State v. Howard, No. 98-L-265, 1999 WL 1313691 (Ohio Ct. App. Dec. 3,

1999). 60

Id. at *5.

61 Deana Pollard, Banning Child Corporal Punishment, 77 TUL. L. REV. 575, 642-43 (2003) [hereinafter Pollard, Banning]; see also 1 AMERICAN LAW INSTITUTE, RESTATEMENT (SECOND) OF THE LAW OF TORTS § 147(1), at 265 (1965) (providing that a parent has the privilege to use such reasonable force upon his or her child as the parent "reasonably believes to be necessary for its proper control, training, or education"); DAN B. DOBBS & PAUL T. HAYDEN, TORTS AND COMPENSATION: PERSONAL ACCOUNTABILITY AND SOCIAL RESPONSIBILITY FOR INJURY ch. 4, § 1(e), at 85 (4th ed. 2001) (elucidating that although the boundaries of the parental privilege to use physical force on children "are ill-defined," the Restatement (Second) of the Law ofTorts recommends that "parents may use the force they reasonably believe necessary"); VICTOR E. SCHWARTZ ET AL., PROSSER, WADE AND SCHWARTZ'S TORTS CASES AND MATERIAL 125 (10th ed. 2000) (describing the parental privilege as allowing the parent to use reasonable physical force on the child when necessary to maintain "orderly discipline"). 62 See PROSSER AND KEETON ON THE LAW OF TORTS § 27, at 158 (W Page Keeton general ed., 5th ed. 1984); Pollard, Banning, supra note 61, at 643; see also 1 AMERICAN LAW INSTITUTE, supra note 61, § 155(a), at 273 (stating that if an actor uses force upon a child in excess of that which is privileged, the actor is civilly liable for so much of the force as is excessive). 63

1 AMERICAN LAW INSTITUTE, supra note 61, § 150, at 268.

64 See DOBBS & HAYDEN, supra note 61, ch. 12, § 1, at 386; SCHWARTZET AL., supra note 61, at 629-30. 65 See DAN B. DOBBS, THE LAW OF TORTS § 280, at 753-55 (2000); see also SCHWARTZET AL., supra note 61, at 630-31 (describing the trend toward general or partial abrogation of the parental immunity from torts suits brought by children). 66 Murray A. Straus, Advising Parents About Corporal Punishment: The Research Evidence and its Implications for Pediatric Practice, at http://pubpages.unh.edu l-mas2/CP67B.pdf (last visited June 23, 2004); see also Michael Regalado et al., Parents 'Discipline of Young Children: Results from the National Survey of Early Childhood Health, 113 PEDIATRICS 1952, 1956 (2004) (relating that "[i]n general, there is a tendency [among American parents of very young children] to favor using nonaversive practices over the use of corporal punishment"). 67 See IRWIN A. HYMAN, READING, WRITING, AND THE HICKORY STICK: THE ApPALLING STORY OF PHYSICAL AND PSYCHOLOGICAL ABUSE IN AMERICAN SCHOOLS 56 (1990). 68 Straus, supra note 66; see Regalado et al., supra note 66, at 1956 (finding that "[s]panking is reported by most parents in the [child's] third year") (emphasis added).

Domestic Laws Permitting Corporal Punishment • 311 69 Susan H. Bitensky, Spare the Rod, Embrace Our Humanity: Toward a New Legal Regime Prohibiting Corporal Punishment of Children, 31 MICH. IL. REFORM 353,386-88 (1998) [hereinafter Bitensky, Spare the Rod].

70 See Letter from Victor I. Vieth, then Senior Attorney, National Center for Prosecution of Child Abuse, to Nadine Block, Executive Director, Center for Effective Discipline and Co-Chair of EPOCH-USA (End Physical Punishment of Children) (Oct. 29, 1997) (on file with the University of Michigan Journal of Law Reform) [hereinafter Vieth Letter]. 71 For others who agree with me regarding the illegality of parental corporal punishment in Minnesota, see Tamar Ezer, Children s Rights in Israel: An End to Corporal Punishment?, 5 OR. REV. INT'L L. 139, 168 (2003), and Victor I. Vieth, Passover in Minnesota: Mandated Reporting and the Unequal Protection ofAbused Children, 24 WM. MITCHELL L. REV. 131, 143 (1998) [hereinafter Vieth, Unequal Protection ]. 72 See, e.g., Pollard, Banning, supra note 61, at 577 n.3; Deana A. Pollard, Banning Corporal Punishment: A ConstitutionalAnalysis, 52 AM. U. L. REv. 447,450 n.9 (2002) [hereinafter Pollard, Constitutional Analysis].

73 See State v. Bridges, No. C9-01-1842, 2002 WL 31368016 (Minn. App. Oct. 22,2002) (unpublished); In re IB.B., No. CO-00-1606, 2001 WL 243221 (Minn. App. Mar. 13,2001) (unpublished). 74 Telephone Interview with Victor I. Vieth, Director, National Child Protection Training Center of the American Prosecutors Research Institute (June 3, 2004). 75 MINN. STAT. ANN. § 609.06(1)(6) (West, WESTLAW current with 2004 Reg. Sess. laws through chs. 140, 144, 147, 150 to 152 and 158). 76

MINN. STAT. ANN. § 609.379(1)(a) (West 2003).

77

The exact wording of Section 609.379, subdivision l(a) is:

Reasonable force may be used upon or toward the person of a child without the child's consent when the following circumstance exists or the actor reasonably believes it to exist: (a) when used by a parent, legal guardian, teacher, or other caretaker of a child or pupil, in the exercise of lawful authority, to restrain or correct the child or pupil.

Id. § 609.379(1)(a). 78 The text of Section 609.372, subdivision 2, states: "This section applies to sections 260B.425, 260C.425, 609.255, 609.376, 609.378, and 626.556." MINN. STAT. ANN. § 609.379(2) (West 2003). 79 Section 609.379, subdivision 2 concerns the following: contributing to a child's status as a juvenile petty offender or to delinquency, MINN. STAT. ANN. § 260B.425 (West, WESTLAW current with 2004 Reg. Sess. laws through chs. 140, 144, 147, 150

312 • Corporal Punishment of Children: A Human Rights Violation to 152 and 158); contributing to a child's need for protection services, MINN. STAT. ANN. § 260C.425 (West, WESTLAW current with 2004 Reg. Sess. laws through chs. 140, 144, 147, 150 to 152 and 158); false imprisonment, MINN. STAT. ANN. § 609.255 (West, WESTLAW current with 2004 Reg. Sess. laws through chs. 140, 144, 147, 150 to 152 and 158); definitions of various terms used in the criminal code, MINN. STAT. ANN. § 609.376 (West, WESTLAW current with 2004 Reg. Sess. laws through chs. 140, 144, 147, 150 to 152 and 158); neglect or endangerment of a child, MINN. STAT. ANN. § 609.378 (West, WESTLAW current with 2004 Reg. Sess. laws through chs. 140, 144, 147, 150 to 152 and 158); and reporting of maltreatment of minors, MINN. STAT. ANN. § 626.556 (West, WESTLAW current with 2004 Reg. Sess. laws through chs. 140, 144, 147, 150 to 152 and 158). 80 See Ezer, supra note 71, at 168; Victor I. Vieth, Corporal Punishment in the United States: A Callfor a New Approach to the Prosecution ofDisciplinarians, 15 1. Juv. L. 22, 42 & n.160 (1994) [hereinafter Vieth, Corporal Punishment]; Vieth, Unequal Protection, supra note 71, at 143. 81 MINN. STAT. ANN. § 609.224(1)(1)-(2) (West, WESTLAW current with Reg. Sess. laws through chs. 140, 144, 147, 150 to 152 and 158). 82 MINN. STAT. ANN. § 609.02(7) (West, WESTLAW current with Reg. Sess. laws through chs. 140, 144, 147, 150 to 152 and 158). 83

Vieth, Corporal Punishment, supra note 80, at 44.

84

See discussion supra Ch. I, Part A.

85 MINN. STAT. ANN. § 260C.007(5) (West, WESTLAW current with Reg. Sess. laws through chs. 140, 144, 147, 150 to 152 and 158). 86 MINN. STAT. ANN. § 260C.007(13)(I) (West, WESTLAW current with Reg. Sess. laws through chs. 140, 144, 147, 150 to 152 and 158). 87 MINN. STAT. ANN. § 260C.00l(l) (West, WESTLAW current with Reg. Sess. laws through chs. 140, 144, 147, 150 to 152 and 158). 88 MINN. STAT. ANN. § 260C.007(1) (West, WESTLAW current with Reg. Sess. laws through chs. 140, 144, 147, 150 to 152 and 158). 89 MINN. STAT. ANN. § 260C.00l(2) (West, WESTLAW current with Reg. Sess. laws through chs. 140, 144, 147, 150 to 152 and 158). 90 6 STEVEN 1. KIRSCH, MINNESOTA PRACTICE, METHOD OF PRACTICE § 40.13 (3d ed. 1990) (emphasis added). 91 In re 1.B.B., No. CO-00-1606, 2001 WL 243221 (Minn. App. Mar. 13,2001) (unpublished); see Pollard, Banning, supra note 61, at 577 n.3; Pollard, Constitutional Analysis, supra note 72, at 450 n.9. 92

In re 1.B.B., 2001 WL 243221, at *1-*3.

93

Id. at *2-*5.

Domestic Laws Permitting Corporal Punishment • 313 94 State v. Bridges, No. C9-01-1842, 2002 WL 31368016 (Minn. App. Oct. 22, 2002) (unpublished).

95

Id. at *1-*2.

96 Id. at *1. Section 609.377 of the Minnesota statutes addresses the crime of malicious punishment of a child:

A parent, legal guardian, or caretaker who, by an intentional act or a series of intentional acts with respect to a child, evidences unreasonable force or cruel discipline that is excessive under the circumstances is guilty of malicious punishment of a child and may be sentenced as provided in subdivisions 2 to 6. MINN. STAT. ANN. § 609.377(1) (West 2003). 97

Bridges, 2002 WL 31368016, at *1-*2.

98

Id.

99

See Vieth, Unequal Protection, supra note 71, at 144; Vieth Letter, supra note

70. 100

See discussion supra Ch. III, Part A(i), (iv)-(vi), (ix).

101 See, e.g., ARK. CODE ANN. § 9-15-215(a)(I) (West, WESTLAW current through the 2003 Reg. Sess.); CAL. FAM. CODE § 3044(a) (West, WESTLAW current with urgency legis. through ch. 46 & res. ch. 1 of 2004 Reg. Sess., ch. 1 (end) of 3d Exec. Sess., chs. 1 & 2 (proposition 57) & res. ch. 1 (proposition 58) of 5th Exec. Sess., & propositions 55 & 56); DEL CODE ANN. tit. 13, § 705A(a) (WESTLAW current through 2003 Reg. Sess. of the 142d General Assemb.); HAW. REV. STAT. ANN. § 571-46(9) (Matthew Bender & Co., WESTLAW current through 2003 Reg. & Spec. Sess.); NEV. REV. STAT. ANN. § 125C.230(1) (West, WESTLAW current through 2003 Reg. Sess. of 72d Leg. & 19th & 20th Spec. Sess. (2003)). 102 See, e.g., ARK. CODE ANN. § 9-15-215(a)(I) (West, WESTLAW current through 2003 Reg. Sess.); CAL. FAM. CODE § 3004(a) (West, WESTLAW current with urgency legis. through ch.46 & res. ch. 1 of 2004 Reg. Sess., ch. 1 (end) of 3d Exec. Sess., chs. 1 & 2 (proposition 57) & res. ch. 1 (proposition 58) of 5th Exec. Sess., & propositions 55 & 56); DEL. CODE ANN. tit. 13, § 705A(a) (WESTLAW current through 2003 Reg. Sess. of the 142d General Assemb.); HAW. REV. STAT. ANN. § 571-46(9) (Matthew Bender & Co., WESTLAW current through 2003 Reg. & Spec. Sess.); NEV. REV. STAT. ANN. § 125C.230(1) (West, WESTLAW current through 2003 Reg. Sess. of 72d Leg. & 19th & 20th Spec. Sess. (2003)).

103

Wyo. STAT. ANN. § 14-3-429(b)(iii) (WESTLAW current through 2003 Reg.

Sess.). 104

Wyo. STAT. ANN. § 14-3-402(a)(xii)(B) (WESTLAW current through 2003 Reg.

Sess.). 105 See, e.g., Boland v. Leska, 454 A.2d 75,77-78 (Pa. Super. Ct. 1982); Buchheit v. Stinson, 579 S.E.2d 853, 854-58 (Ga. Ct. App. 2003); Hack v. Hack, 695 S.W2d

314 • Corporal Punishment of Children: A Human Rights Violation

498,500-01 (Mo. Ct. App. 1985); Puett v. Miller, 23 ~3d 979,981-82 (Okla. Civ. App. 2001); Leonard P Edwards, Corporal Punishment and the Legal System, 36 SANTA CLARA L. REv. 983,1010-11 (1996); cf In re J.~, 692 N.E.2d 338,339-47 (Ill. App. Ct. 1998) (reversing decision of lower Court making child a ward of the Court, because mother's relatively frequent use of a wooden spoon to spank her child was not excessive corporal punishment); Simmons v. Simmons, 554 So. 2d 238,242 (La. Ct. App. 1989) (reversing lower Court's award of sole custody of the child, Randy, to father since mother's isolated instances of using corporal punishment with a fly swatter on other children in the family did not require removal of Randy from mother's care); Thompson v. Koontz, 2000 WL 1739291, at *1-*6 (Ohio Ct. App. Nov. 22, 2000) (affirming trial Court's refusal to issue a civil temporary protection order against custodial mother inasmuch as mother's whipping of her child, so as to leave bruises, welts, and other marks, was legal reasonable corporal punishment). 106 See, e.g., R.M. v. S.G., 13 ~3d 747,749,751,753 (Alaska 2000); Law v. Law, 676 N.E.2d 771,773 (Ind. Ct. App. 1977); Albert S. v. Pamela G.M., 737 N.Y.S.2d 196,197 (N.Y. App. Div. 2002); Kivler v. Olczak, 692 N.Y.S.2d 549,550-51 (N.Y. App. Div. 1999); Boxell v. Boxell, No. L-85-130, 1986 WL 2690, at *1, *3 (Ohio Ct. App. Feb. 28, 1986); Gerety v. Gerety, 306 A.2d 693, 694-96 (Vt. 1973).

107

Boland v. Leska, 454 A.2d 75 (Pa. Super. Ct. 1982).

108

Id. at 76-79.

109

R.M. v. S.G., 13 ~3d 747 (Alaska 2000).

110

Id. at 749.

111

Id. at 749,751-53.

112 Marshall v. Marshall, No. 1-99-81,2000 WL 177969, at *3 & n.5 (Ohio Ct. App. Feb. 16, 2000). 113

Id. at *3.

114 See, e.g., Rial v. Rial, No. M2002-01750-COA-R3-CY: 2003 WL 21805303, at *2-*4 (Tenn. Ct. App. Aug. 7,2003). Although the trial Court did not alter custody due to the custodial father's excessive corporal punishment of the children, the Court did order, among other things, that the father should participate with his children in family counseling and that the father's wife by a second marriage was prohibited from using corporal punishment on the children. Id. at *4. The appellate Court affirmed. Id.

115

Ingraham v. Wright, 430 U.S. 651 (1977) (5-4 decision).

116 See ide at 653,657 n.6 (describing Florida's statute, as of the 1970-1971 academic year, governing corporal punishment of children in the schools).

117

Id. at 656-57.

118 Id. at 658-59. Petitioners' third claim was that public school corporal punishment is a substantive due process violation under the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. Id. at 659 n.12.

Domestic Laws Permitting Corporal Punishment • 315 119

Id. at 659.

120

Id. at 671, 682.

121

U.S. CaNST. amend. VIII.

122

Ingraham v. Wright, 430 U.S. 651, 664-71 (1977).

123

Id. at 664-68.

124 Id. at 688 & n.4 (White, I, dissenting). One of the cases in which the Supreme Court has extended the Eighth Amendment's application beyond criminal punishments is Estelle v. Gamble, 429 U.S. 97 (1976). In that case, the Court held that prison authorities' intentional disregard of prisoners' medical needs violates the Eighth Amendment's guarantee against cruel and unusual punishments. Id. at 104-05, 108. Clearly, ignoring a prisoner's medical needs is not a judicially imposed punishment for perpetration of a crime. See Ingraham v. Wright, 430 U.S. 651, 688 n.4 (1977) (White, I, dissenting). 125 Id. at 664-66; see also Victoria I Dodd, The Education Justice: The Honorable Lewis Franklin Powell, Jr., 29 FORDHAM URB. L.I 683,691 (2001) (detailing that Justice Powell's opinion for the Court in Ingraham relied upon the Virginia Declaration of Rights of 1776 and the English Bill of Rights of 1689 in ascribing meaning to the Eighth Amendment). 126

Ingraham v. Wright, 430 U.S. 651, 685 (1977) (White, I, dissenting).

127

Id. at 668-69.

128

Id. at 670.

129 See National Center for Education Statistics, Digest ofEducation Statistics, 2002: Ch. 2. Elementary and Secondary Education: Table 150, at http://nces.ed .gov/programs/digest/d02/ tables/dt150.asp (last visited Feb. 16,2004) (containing table 150, prepared in May 2001, covering statistics on compulsory education in each state as of 2000, except for Colorado and the District of Columbia); Marsha L. Levick & Francine T. Sherman, When Individual Differences Demand Equal Treatment: An Equal Rights Approach to the Special Needs of Girls in the Juvenile Justice System, 18 WIS. WOMEN'S L.I 9,42 n.189 (2003); Judith G. Mcmullen, Behind Closed Doors: Should States Regulate Homeschooling?, 54 S.C. L. REV. 75,98 (2002).

130

Ingraham v. Wright, 430 U.S. 651, 670 (1977).

131

Id. at 670.

132

Id. at 671.

133

Hudson v. McMillian, 503 U.S. 1 (1992).

134

Id. at 4-5, 9-10.

135 Trop v. Dulles, 356 U.S. 86, 101 (1958); accord Atkins v. Virginia, 122 S. Ct. 2242,2247 (2002); see also Hope v. Pelzer, 536 U.S. 730, 742 (2002) (referring to

316 • Corporal Punishment of Children: A Human Rights Violation

the Eighth Amendment's import in terms of contemporary values of decency, dignity and civilization). 136

Weems v. United States, 217 U.S. 349, 378 (1910).

137

See discussion supra Ch. I, Part C.

138 Among the forty national organizations opposed to school corporal punishment are the American Academy of Pediatrics, the American Bar Association, the American Medical Association, the American Psychiatric Association, the American Psychological Association, the National Association of Elementary School Principals, the National Association for the Advancement of Colored People, the National Association of Social Workers, the National Education Association, the National Mental Health Association, the National Association of School Nurses, the National Association of School Psychologists, and the National Association of State Boards of Education. Center for Effective Discipline, Discipline at School (NCACPS): US. Organizations Opposed to School Corporal Punishment, at http://www.stophitting .com/disatschool/usorgs.php (last visited Feb. 4,2004).

139

See Ingraham v. Wright, 430 U.S. 651,663 (1977).

140 See infra Ch. ~ Part A, notes 148-153 and accompanying text. See also John Dayton, 89 WEST'S EDUC. L. REP. 729,739 (1994) (commenting that changes since 1977 in state legislation on school corporal punishment "cast some doubt on the future influence" of the Ingraham decision). 141 See DAVID WEISSBRODT ET AL., INTERNATIONAL HUMAN RIGHTS: LAW, POLICY, AND PROCESS 740-42 (3d ed. 2001). 142

See supra Ch. II.

143

See supra Ch. III.

144 See Center for Effective Discipline, Discipline at School (NCACPS): Facts About Corporal Punishment Worldwide, at http://www.stophitting.com/disatschool /worldwide.php (last visited Jan. 23, 2004). Up until January 30, 2004, Canada also had the distinction of being one of the only industrialized countries to allow school corporal punishment. See ide However, on that date, the Supreme Court of Canada decided a case in which it held, among other things, that school corporal punishment would no longer be legal in that nation. Canadian Foundation for Children, Youth and the Law v. Attorney General of Canada, [2004] D.L.R. 257.

145

45 C.ER. § 1304.52(h)(l)(iv) (West, WESTLAW current through June 25,2004).

146 HEAD START BUREAU, U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES, GENERAL INFORMATION, ABOUT HEAD START, at http://www2.acf.dhhs.gov/programs/hsb/about /generalinformationlindex.htm (last visited July 7, 2004). 147 Notice: Services to Unaccompanied Alien Children, 69 Fed. Reg. 4095001(1)(17) (July 7, 2004), 2004 WL 1494091, at *40952. 148 See ALASKA ADMIN. CODE tit. 4, § 07.010(c) (West, WESTLAW current through register 169 (Apr. 2004)); CAL. EDUC. CODE ANN. § 49001 (West, WESTLAW current

Domestic Laws Permitting Corporal Punishment • 317 with urgency legis. through ch. 44 & res. ch. 1 of 2004 Reg. Sess., ch. 1 (end) of 3d Exec. Sess., chs. 1 & 2 (proposition 57) & res. ch.l (proposition 58) of 5th Exec. Sess., & propositions 55 & 56); DEL. CODE ANN. tit. 14, § 702 (WESTLAW current through 2003 Reg. Sess. of 142d General Assemb.); HAw. REV. STAT. ANN. § 302A1141 (Matthew Bender & Co., WESTLAW current through 2003 Reg. & Spec. Sess.); 105 Ill. Compo Stat. 5/24-24 (West, WESTLAW current through ~A. 93-672 of 2004 Reg. Sess.); Iow« CODE ANN. § 280.21(1)-(2) (West, WESTLAW current through end of 2003 1st Exec. Sess.); MD. CODE ANN., EDUC. § 7-306(a) (West, WESTLAW current with laws from 2004 Reg. Sess. effective through May 26,2004); MAss. GEN. LAws ANN. ch. 71, § 37G (West, WESTLAW current through ch.115 of 2004 2d Ann. Sess.); MICH. COMPo LAws ANN. § 380.1312(3)-(4) (West, WESTLAW current through ~A. 2004, No. 102); MINN. STAT. ANN. § 121A.58 (West, WESTLAW current with 2004 Reg. Sess. laws through chs. 140, 144, 147, 150 to 152 and 158); MONT. CODE ANN. § 20-4-302 (3)-(4) (West, WESTLAW current through 2003 Reg. Sess. of 58th Leg.); NEB. REV. STAT. § 79-295 (WESTLAW current through 1st Reg. Sess. of 98th Leg. (2003)); NEV. REV. STAT. ANN. § 392.4633 (WESTLAW current through 2003 Reg. Sess. of 72d Leg. and 19th & 20th Spec. Sess. (2003)); N.J. STAT. ANN. § 18A: 6-1 (West, WESTLAW current through L. 2004, c. 1 to 16); N.Y. COMPo CODES R. & REGS. tit. 8, § 19.5(a)-(b) (West, WESTLAW current through Dec. 31, 2003); N.D. CENT. CODE § 15.1-19-02 (Matthew Bender & Co., WESTLAW current through 2003 General & Spec. Sess.); OR. REV. STAT. § 339.250(12) (West, WESTLAW current through end of 2001 Reg. Sess.); VT. STAT. ANN. tit. 16, § 1161a(b)-(c) (amended on other grounds 2004) (WESTLAW current through 2003-2004 Adjourned Sess. of 67th Leg.); VA. CODE ANN. § 22.1-279.1 (West, WESTLAW current through end of 2003 Reg. Sess.); WASH. REV. CODE ANN. §§ 9A.16.100, 28A.150.300 (West, WESTLAW current with 2004 legis. effective through May 3, 2004); W VA CODE ANN. § 18A-5-1(e) (West, WESTLAW current with laws of 2004 Reg. Sess. effective before Apr. 15,2004); WIS. STAT. ANN. § 118.31 (West, WESTLAW current through 2003 Act 137, published Mar. 4,2004). Connecticut's only pertinent statute provides that a teacher may use reasonable force upon a student to the extent that the teacher reasonably believes the force to be necessary to protect the teacher or others from immediate physical injury, to protect property from physical damage, to obtain possession of a dangerous instrument or controlled substance from a minor, or to restrain or remove a juvenile for the purpose of maintaining order. CONN. GEN. STAT. ANN. § 53a-18(1), (6) (West, WESTLAW current through 2003 Jan. Reg. Sess., June 30th Spec. Sess. & Sept. 8th Spec. Sess.). But, according to the Office of Legal and Governmental Affairs of the Connecticut State Department of Education, it is established that corporal punishment of children is not legal in the state's public elementary and secondary schools. Telephone Interview with Ronald Harris, StaffAttorney, Office of Legal and Governmental Affairs, Connecticut State Department of Education (June 14, 2004). On a first reading, Maine's legislation might appear to permit school corporal punishment. ME. REv. STAT. ANN. tit. 17-A, § 106(2) (West, WESTLAW current through 2003 1st Spec. Sess. of 121st Leg.) (stating that a teacher is justified in using reasonable physical force against a person who creates a disturbance when and to the

318 • Corporal Punishment of Children: A Human Rights Violation

extent that the teacher reasonably believes the force is necessary to control the disturbing behavior or to remove the person from the scene of the disturbance). However, the opposite is true. See Maine Department of Education, Abuse and Neglect of Children, http://www.maine.gov/search?q=cache: q5Q4j7U2- BCw :http://www.maine. gov/educati on!sh/abuse. doc+%22corporal+punishment%22+site%3 Awww.maine.gov %Feducation&access=p&client=test_collectionwww.maine.gov%2Feducation&output=xml_no_dtd&proxystylesheet=test_collection&site=test_collection&num+10 (last visited June 7, 2004) (advising that "[ s]ince re-codification of the Maine Criminal Code in the mid-1970s, school personnel no longer have the unilateral right to use corporal punishment to discipline students. (Title 17-A, sec. 106(2) )"). Rhode Island does not have a legislative enactment forbidding corporal punishment of children in the schools. That fact is not dispostive, though. For, the Rhode Island Board of Regents for Elementary and Secondary Education has promulgated regulations banning such punishment in the public schools. R.I. BOARD OF REGENTS FOR ELEMENTARY AND SECONDARY EDUCATION, PHYSICAL RESTRAINT REGULATIONS §§ 2.3, 3.5, 6.1, 6.2(a)-(b), 7.2, 9.0 (2002) [hereinafter REGENTS, REGULATIONS]. Section 3.5 defines corporal punishment "as the infliction of bodily pain as a penalty for disapproved behavior" and mandates that "[c]orporal punishment as defined shall not be used in public education programs." REGENTS, REGULATIONS, supra, § 3.5. Sections 2.3,6.1, 7.2, and 9.0 allow the use of force necessary to protect students or others from physical injury or harm. REGENTS, REGULATIONS, supra, §§ 2.3, 6.1, 7.2, 9.0. Section 6.2, subdivisions (a) and (b) make clear that such force may not be used as a means of punishing students or as "an intervention designed to, or likely to cause physical pain." REGENTS, REGULATIONS, supra, § 6.2(a)-(b). South Dakota's statutes are quite cryptic and, as a consequence, quite baffling. One provides that teachers can use physical force if it is reasonable and necessary for "supervisory control over students." S.D. CODIFIED LAWS § 13-32-2 (WESTLAW current through end of 2004 Reg. Sess.). The other provides that a teacher may use reasonable and necessary force to restrain or correct a child. S.D. CODIFIED LAWS § 22-18-5 (WESTLAW current through end of 2004 Reg. Sess.). The South Dakota Deputy Attorney General and Counsel to the South Dakota Department of Education has acknowledged that the language of these statutes could be interpreted either to permit or prohibit corporal punishment in the schools. Telephone Interview with Craig Eichstadt, South Dakota Deputy Attorney General and Counsel to the South Dakota Department of Education (June 17, 2004) [hereinafter Eichstadt Interview]. However, he related that when South Dakota school personnel inquire as to his opinion on the legal status of school corporal punishment in that state, he tells them that this type of punishment is prohibited. Eichstadt Interview, supra. What tips the scales for him is the legislative history of Section 13-32-2. The present language amends a former version of this provision, which averred that school personnel had the "authority, to administer physical punishment on an insubordinate or disobedient student" so as to maintain "supervisory control over the student." See Eichstadt Interview, supra. The amendment notably deleted the phrase "physical punishment on an insubordinate or disobedient student," thereby implying that the physical force now permitted under the section may not be for punitive purposes. See Eichstadt Interview, supra.

Domestic Laws Permitting Corporal Punishment • 319

Finally, it should be pointed out that the District of Columbia forbids corporal punishment in its public schools. D.C. MUN. REGS. tit. 5, § 2403 (Weil Publishing, WESTLAW current through Apr. 2004 revisions). The District also prohibits corporal punishment in its publicly financed charter schools. D.C. CODE ANN. § 38-1702.07(f) (WESTLAW current through May 4, 2004). 149 See, e.g., N.J. STAT. ANN. § 18A:6-1 (West, WESTLAW current through L.2004, c. 1 to 16) (expressly including private schools within the prohibition of school corporal punishment); HAw. REV. STAT. ANN. § 302A-1141 (Matthew Bender & Co., WESTLAW current through 2003 Reg. & Spec. Sess.) (declining to distinguish between public and private schools in imposing a ban on corporal punishment of schoolchildren). 150 See, e.g., CAL. EDUC. CODE ANN. § 49001(a) (West, WESTLAW current with urgency legis. through ch.44 & res. ch.1 of 2004 Reg. Sess., ch.1 (end) of 3d Exec. Sess., chs. 1 & 2 (proposition 57) & res. ch. 1 (proposition 58) of 5th Exec. Sess., & propositions 55 & 56) (stating that although corporal punishment may not be used on public school students, physical force may be used on them to quell a disturbance threatening personal injury or property damage, in self-defense, or to obtain possession of weapons or dangerous objects within the control of students); DEL. CODE ANN. tit. 14, § 702(a)-(c) (WESTLAW current through 2003 Reg. Sess. of 142d General Assemb.) (declaring that although public school corporal punishment is barred, public school personnel have authority to use reasonable force to quell a disturbance or to prevent conduct threatening physical injury, to obtain a weapon or dangerous object from a pupil, in self-defense or in defense of others, and to protect property); IOWA CODE ANN. § 280.21(1) (West, WESTLAW current through end of2003 1st Exec. Sess.) (averring that corporal punishment may not be employed in public schools, but allowing public school personnel to use reasonable force to protect persons or property or to obtain possession from a student of a weapon or dangerous object); MONT. CODE ANN. § 20-4-302(2)-(4) (West, WESTLAW current through 2003 Reg. Sess. of 58th Leg.) (enunciating that while public school corporal punishment is outlawed, public school personnel may use reasonable and necessary physical restraint to quell a disturbance, to protect oneself or others from physical injury, to maintain the orderly conduct of a student, or to obtain from a student a weapon or dangerous object); N.Y. COMPo CODES R. & REGS. tit. 8, § 19.5(a)-(b) (West, WESTLAW current through L. 2004, chs. 4 to 38, 40, 42 to 49, 52,61 to 64,66 to 77,79 to 85 and 91) (declaring that corporal punishment may not be used on public schoolchildren, but allowing public school personnel to use reasonable physical force to protect themselves or others from physical injury, to protect property, or to aid in restraining or removing a pupil whose behavior interferes with the orderly exercise and performance of school functionsprovided the pupil has refused to comply with an earlier request to refrain from further disruption).

151 CAL. EDUC. CODE ANN. § 49001(a) (West, WESTLAW current with urgency legis. through ch.44 & res. ch.1 of 2004 Reg. Sess., ch.1 (end) of 3d Exec. Sess., chs. 1 & 2 (proposition 57) & res. ch.1 (proposition 58) of 5th Exec. Sess., & propositions 55 & 56).

320 • Corporal Punishment of Children: A Human Rights Violation 152 For jurisdictions that allow school corporal punishment as a matter of state law, see, for example, 70 OKLA. STAT. ANN. § 24-100.4(B) (West, WESTLAW current with chs. of the first 2005 First Regular Sess. effective through July 1, 2005); 21 OKLA. STAT. ANN. § 844 (West, WESTLAW current with chs. of the first 2005 First Regular Sess. effective through July 1, 2005); TENN. CODE ANN. § 49-6-4103 (West, WESTLAW current with laws from 2005 First Reg. Sess. effective through June 6, 2005); TENN. CODE ANN. § 49-6-4402(a)-(b) (West, WESTLAW current with laws from 2005 First Reg. Sess. effective through June 6, 2005). Even so, the Oklahoma legislature has expressed a preference that schools should try to use means of discipline other than corporal punishment. 70 OKLA. STAT. ANN. § 6-113.1 (West, WESTLAW current with chs. of the first 2005 First Reg. Sess. effective through July 1, 2005).

For states that give discretion to local public school districts to ban or permit corporal punishment, see, for example, ALA CODE § 16-28A-1 (WESTLAW current through end of 2003 Organizational, Reg. & 1st Spec. Sess.); ARIz. REv. STAT. ANN. § 15843(B)(2) (West, WESTLAW current through legis. effective May 19,2004); ARK. CODE ANN. §§ 6-17-112(a), 6-18-505(c)(1) (West, WESTLAW current through end of 2003 Reg. Sess.); COLO. REV. STAT. ANN. §§ 18-1-703(1)(a), 22-32-109.1(1)-(2)(a)(IV) (West, WESTLAW current through ch. 87 of 2004 2d Reg. Sess. of 64th General Assemb.); FLA. STAT. ANN. § 1003.32(1)(k) (West, WESTLAW current with 2004 legis. effective through May 21,2004); GA. CODE ANN. §§ 20-2-730,20-2-731 (West, WESTLAW current through end of 2003 Reg. Sess.); IND. CODE ANN. §§ 20-8.1-5.1-3(3)(b), 20-8. 1-5. 1-4(4)(a)-(b), 20-8.1-5.1-7(a)(1) (West, WESTLAW current through ~L. 1 of 2004 2d Reg. Sess.); LA. REV. STAT. ANN. §§ 17:223(A), 17:416.1(B) (West, WESTLAW current through all 2004 1st Extraordinary Sess. Acts); Mo. STAT. ANN. §§ 160.261(1), (8),563.061(1) (West, WESTLAW current through West ID4 of 2d Reg. Sess. of 92d General Assemb. (2004)); N.H. REV. STAT. § 627:6(II)(a) (New Hampshire, WESTLAW current through end of2004 Reg. Sess.); N.M. STAT. ANN. § 22-5-4.3(B) (West, WESTLAW current through 1st Spec. Sess. of 46th Leg. (2003)); N.C. GEN. STAT. §§ 115C390, 115C-391(a) (West, WESTLAW current through 2003 2d Exec. Sess.); 22 PA.ADC § 12:5(a) (West, WESTLAW current through supp. 365 (Apr. 2005)); S.C. CODE ANN. § 59-63-260 (WESTLAW current through end of 2003 Reg. Sess.); TENN. CODE ANN. §§ 49-6-4103, 49-6-4104, 49-6-4402 (West, WESTLAW current with laws from 2004 2d Reg. Sess. effective Apr. 30,2004); TEX. EDUC. CODE ANN. § 22.0512(c) (West, WESTLAW current through end of 2004 4th Called Sess.); TEX. PENAL CODE ANN. § 9.62 (West, WESTLAW current through end of2004 4th Called Sess.); Wyo. STAT. ANN. § 214-308(a)-(b) (WESTLAW current through 2003 Reg. Sess.); In re C.M. 1., 915 ~2d 62, 68 (Kan. 1996) (providing dictum that responsibility for maintaining disciplinary standards for students in Kansas public schools rests with local boards of education); Kansas Department of Education Regulation No. 91-15-1, http://www .ksbe.state. ks. us/Welcome.html (last visited June 22, 2004) (announcing that local boards of education shall adopt rules governing the conduct of students and shall provide procedures for the rules' enforcement); Telephone Interview with Sarah Browning, Special Assistant to the Commissioner, New Hampshire Department of Education (June

Domestic Laws Permitting Corporal Punishment • 321 8,2004) (explaining that in New Hampshire disciplinary policies, including use of corporal punishment, concerning public school students are set by school boards). The Kentucky and Ohio statutes each provide a unique system regarding school corporal punishment. Under Kentucky's system, if the public school board takes the position that corporal punishment of students is acceptable, the affected school's council (comprised of teachers, school administrators, and parents) may override that decision and bar such punishment; however, if the board prohibits the punishment, that is the last word on the issue. Ky. REv. STAT. ANN. § 158.444(1)-(2) (West, WESTLAW current through end of 2003 Reg. Sess.); Telephone Interview with Anne Keating, Assistant General Counsel, Office of Legal and Legislative Service, Kentucky Department of Eduation (June 14,2004). The Ohio statute prohibits school corporal punishment of children unless a local school board adopts a resolution permitting such punishment and forms a task force to study disciplinary procedures. OHIO REV. CODE ANN. § 3319.41 (West, WESTLAW current through 2004 File 76 of 125th General Assemb. (2003-2004), approved by May 6, 2004). 153 UTAH CODE ANN. § 53A-11-802(1) (Matthew Bender & Co., WESTLAW current through 2003 2d Spec. Sess.); Charles H. Marston, Deputy Commissioner, New Hampshire Department of Education, Memorandum on State Board Policy Regarding Corporal Punishment, to Members of the State Board of Education 1 (Nov. 14, 1989). 154 See, e.g., OHIO REv. CODE ANN. § 3319.41(E) (West, WESTLAW current through 2004 File 76 of the 125th General Assemb. (2003-2004), apv. by May 6, 2004). 155 See, e.g., MISS. CODE ANN. § 37-11-57(2) (West, WESTLAW current through end of 2003 Reg. Sess.); Mo. STAT. ANN. § 160.261(8) (West, WESTLAW current through West ID4 of 2d Reg. Sess. of the 92d General Assemb. (2004)); N.C. GEN. STAT. § 115C-390 (West, WESTLAW current through 2003 2d Exec. Sess.); TENN. CODE ANN. § 49-6-4103 (West, WESTLAW current with laws from 2004 2nd Reg. Sess. effective Apr. 30,2004). 156 See, e.g., COLO. REV. STAT. ANN. § 18-1-703(1)(a) (West, WESTLAW current through ch. 87 of 2004 2d Reg. Sess. of 64th General Assemb.). 157 See, e.g., COLO. REV. STAT. ANN. § 18-1-703(1)(a) (West, WESTLAW current through ch. 87 of 2004 2d Reg. Sess. of 64th General Assemb.); IND. CODE ANN. § 208.1-5.1-4(b) (West, WESTLAW current through ~L.1 of 2004 2d Reg. Sess.) ("reasonably necessary"); Ky. REV. STAT. ANN. § 503.110(1)(a) (West, WESTLAW current through end of 2003 Reg. Sess.). 158 See, e.g., COLO. REV. STAT. ANN. § 18-1-703(1)(a) (West, WESTLAW current through ch. 87 of 2004 2d Reg. Sess. of 64th General Assemb.); Ky. REv. STAT. ANN. § 503.110(1)(a) (West, WESTLAW current through end of 2003 Reg. Sess.); Mo. STAT. ANN. § 563.061(1)(1) (West, WESTLAW current through West ID4 of the 2d Reg. Sess. of92d General Assemb. (2004)); TENN. CODE ANN. § 49-6-4103 (West, WESTLAW current with laws from 2004 2d Reg. Sess. effective Apr. 30, 2004).

322 • Corporal Punishment of Children: A Human Rights Violation 159 See, e.g., COLO REV. STAT. ANN. § 18-1-703(1)(a) (West, WESTLAW current through ch. 87 of 2004 2d Reg. Sess. of 64th General Assemb.); Ky. REv. STAT. ANN. § 503.110(1)(a) (West, WESTLAW current through end of 2003 Reg. Sess.); Mo. STAT. ANN. § 563.061(1)(1) (West, WESTLAW current through West ID4 of2d Reg. Sess. of 92nd General Assemb. (2004). 160 See SCHWARTZ ET AL., supra note 61, at 126; Carolyn Peri Weiss, Note, Curbing Violence or Teaching It: Criminal Immunity for Teachers Who Inflict Corporal Punishment, 74 WASH. U. L.Q. 1251, 1255-57 (1996); cf. DOBBS & HAYDEN, supra note 61, ch. 4, § 2, at 85-86 (commenting that like parents, teachers have a privilege in some jurisdictions to use reasonable corporal punishment on children if necessary to maintain order, thereby implying that unreasonable or unnecessary punishment could subject the teacher to tort liability). 161 See Weiss, supra note 160, at 1255-57; see, e.g., People v. Wehmeyer, 509 N.E. 2d 605, 606-07, 612 (Ill. App. Ct. 1987) (upholding principal's criminalliability for battery stemming from teacher's paddling of student's buttocks twenty-four times); People v. DeCaro, 308 N.E.2d 196, 196-98 (Ill. App. Ct. 1974) (exonerating teacher of criminal battery for spanking students on their buttocks and legs so as to cause bruises, and explaining that even if the corporal punishment was excessive, it was not of a criminal nature); Commonwealth v. Douglass, 588 A.2d 53, 54-55, 58 (Pa. Super. Ct. 1991) (affirming principal's criminal conviction for simple assault in using excessive corporal punishment on a student); cf. People v. Ball, 317 N.E.2d 54, 55-57 (Ill. 1974) (upholding, under a reasonableness standard, teacher's criminal conviction for battery arising from paddling of student so as to cause severe bruising). 162

See Weiss, supra note 160, at 1256-57.

163 See, e.g., MISS CODE ANN. § 37-11-57(2) (West, WESTLAW current through end of 2003 Reg. Sess.). 164

Id.

165 See, e.g., ALA. CODE § 16-28A-1 (WESTLAW current through end of 2003 Organizational, Reg. & 1st Spec. Sess.) (stating that if public school corporal punishment is administered in accordance with approved policy, the punisher is immune from civil or criminal liability); ARK. CODE ANN. § 6-17-112(a) (West, WESTLAW current through end of 2003 Reg. Sess.) (announcing that if public school corporal punishment is in substantial compliance with school district's student disciplinary policy, the punisher is immune from civil liability); Mo. STAT. ANN. § 160.261(6) (West, WESTLAW current through West ID4 of 2d Reg. Sess. of 92d General Assemb. (2004)) (declaring that if public school corporal punishment is in conformity with the disciplinary policy of the relevant board, the punisher is immune from civil liability). 166 See, e.g., Gottlieb v. Laurel Highlands Sch. Dist., 272 F.3d 168 (3d Cir. 2001); Moore v. Willis Indep. Sch. Dist., 233 F.3d 871 (5th Cir. 2000); Neal v. Fulton County Bd. of Educ., 229 F.3d 1069 (2000); Saylor v. Bd. of Educ., 118 F.3d 507 (1997); Lillard v. Shelby County Bd. of Educ., 76 F.3d 716 (6th Cir. 1996); ~B. v. Koch, 96 F.3d 1298 (9th Cir. 1996); Wallace v. Batavia Sch. Dist. 101, 68 F.3d 1010 (7th Cir.

Domestic Laws Permitting Corporal Punishment • 323

1995); Garcia v. Miera, 817 F.2d 650 (10th Cir. 1987); Hall v. Tawney, 621 F.2d 607 (4th Cir. 1980). 167

U.S. CONST. amend XlV, § 1.

168

See 2 ROTUNDA & NOWAK, supra note 18, § 14.6, at 529-30.

169

See ide § 14.6, at 530-32.

170

Ingraham v. Wright, 430 U.S. 651, 659 n.12 (1977).

171

Id. at 672-74.

172 Moore v. Willis Indep. Sch. Dist., 233 F.3d 871,871-73 & n.3, 874-75 (5th Cir.2000). 173

Id. at 875.

174

Id. at 875-76.

175 Saylor v. Bd. ofEduc., 118 F.3d 507,514 (6th Cir. 1997); Garcia v. Miera, 817 F.2d 650,655 (10th Cir. 1987); Hall v. Tawney, 621 F.2d 607,613 (4th Cir. 1980). 176

Wallace v. Batavia Sch. Dist. 101,68 F.3d 1010, 1014-16 (7th Cir. 1995).

177

Id. at 1016.

See Gottlieb v. Laurel Highlands Sch. Dist., 272 F.3d 168, 173 (3d Cir. 2001); v. Koch, 96 F.3d 1298, 1303-04 (9th Cir. 1996).

178

~B.

See Gottlieb v. Laurel Highlands Sch. Dist., 272 F.3d 168, 173 (3d Cir. 2001); v. Koch, 96 F.3d 1298, 1303-04 (9th Cir. 1996).

179

~B.

180

Orentlicher, supra note 54, at 155.

181 ~B.

v. Koch, 96 F.3d 1298, 1299-1300, 1304 (9th Cir. 1996).

182

Id. at 1304.

183

See Neal v. Fulton County Bd. of Educ., 229 F.3d 1069, 1075 (11th Cir. 2000).

184

Id. at 1076.

185 See Orentlicher, supra note 54, at 155; Jerry R. Parkinson, Federal Court Treatment of Corporal Punishment in Public Schools: Jurisprudence that Is Literally Shocking to the Conscience, 39 S.D. L. REv. 276, 303-04 (1994).

186

Garcia v. Miera, 817 F.2d 650,656 (10th Cir. 1987).

187

Neal v. Fulton County Bd. of Educ., 229 F.3d 1069, 1076 (11th Cir. 2000).

188 See, e.g., ALA. ADMIN CODE r. 660-5-49-.03(2)(a)(1) (WESTLAW current through Mar. 31, 2004); ARIZ. ADMIN. CODE REG. 6-5-5833(C)(1) (West, WESTLAW current through Mar. 31,2004); ARK. REG. 016 15 010 (6.0)(A)(13) (Weil Publishing, WESTLAW current through Dec., 2003 (issue 42)); CAL. CODE REGS. tit. 22, § 89372(a), (c)(4) (West, WESTLAW current through June 4, 2004, register 2004, no. 25); CONN. AGENCIES REGS. §§ 17a-145-151(c), 17A-150-109(c) (West, WESTLAW current with material published in CONN. L.I through Mar. 9,2004); CODE DEL. REGS. § 9200201 (3.1.8.1.1)

324 • Corporal Punishment of Children: A Human Rights Violation (Weil Publishing, WESTLAW current through Dec. 2003 (issue 85)); D.C. MUN. REGs. tit. 29, § 6018.5(a) (Weil Publishing, WESTLAW current through Dec. 2003); FLA. ADMIN. CODE ANN. r. 65C-13.010(1)(b)(5)(f) (West, WESTLAW current through Feb. 1, 2004); GA. COMPo R. & REGS. r. 290-9-2-.07(8)(c)(9) (West, WESTLAW current through Feb. 29,2004); HAw. ADMIN. RULES § 17-890-25(a) (Weil Publishing, WESTLAW current through Dec., 2003); IDAHO ADMIN. CODE tit. 06, ch.02, § 16.06.02.446(01)(a) (West, WESTLAW current through Apr. 7,2004); ILL. ADMIN. CODE tit. 89, § 402.21(c) (West, WESTLAW current with amendments received through Apr. 2, 2004); Iowx ADMIN. CODE r. 441-113.18(237)(2) (West, WESTLAW current through Mar. 17, 2004); Iowx ADMIN. CODE r. 441-114.20(237)(2) (West, WESTLAW current through Mar. 17, 2004); Iowx CODE ANN. § 234.40 (West, WESTLAW current through end of 2003 1st Exec. Sess.); KAN. ADMIN. REGS. § 28-4-338(b)(2) (West, WESTLAW current through rules/regulations filed before Apr. 1,2003); 922 Ky. ADMIN. REGS. 1:330, § 2(7) (West, WESTLAW current through regs. in effect as of Aug. 15, 2003 and emergency regs. in effect as of July 15,2003); MD. REGS. CODE tit. 07, § 07.05.02.09(C)(10)(a) (West, WESTLAW current through Md. Register vol. 31, issue 6, Mar. 19,2004); MAss. REGS. CODE tit. 110, § 7.111(2) (West, WESTLAW current through Feb. 13,2004, Register #993); MICH. ADMIN. CODE r. 400.12406(3)(a) (West, WESTLAW current through May 15, 2004); MINN. R. 2960.3080(8)(A)(I) (West, WESTLAW current through Oct. 6, 2003); Mo. CODE REGS. ANN. tit. 13, § 40-60.030(5)(E) (West, WESTLAW current through Feb. 29, 2004); Mo. CODE REGS. ANN. tit. 13, § 40-60.05(5)(A) (West, WESTLAW current through Feb. 29, 2004); Mo. CODE REGS. ANN. tit. 13, § 40-73.060 (6)(A)(2)(B)(VI) (West, WESTLAW current through Feb. 29,2004); NEB. ADMIN. CODE 6-003.32(2)(a) (West, WESTLAW current through update #290, Mar. 17,2004); NEV. ADMIN. CODE ch. 424, § 530(1)(b), (2) (West, WESTLAW current through Mar. 5,2004, supplement 2004-1); N.H. CODE ADMIN. R. ANN. He-C § 6446.21(b)(5) (West, WESTLAW current through amendments available as of Mar. 15,2004); N.J. ADMIN. CODE tit. 10, § 122C-2.8(a)(12) (West, WESTLAW current through Apr. 5,2004); N.M. ADMIN. CODE tit. 8, § 8.27.3(25.1.5) (Weil Publishing, WESTLAW current through Dec., 2003 (update issue 12)); N.C. ADMIN. CODE tit. lOA, r. 70E.0401(a)(II) (West, WESTLAW current through Feb. 19,2004); N.D. ADMIN. CODE § 75-03-14-05(7)(a) (West, WESTLAW current through supplement 300 (June 1, 2004)); OHIO ADMIN. CODE § 5101 :2-709(E)(I) (West, WESTLAW current through Apr. 30,2004); OKLA. STAT. ANN. tit. 10, § 7202(7) (West, WESTLAW current through end of 2003 1st Reg. Sess.); OKLA. ADMIN. CODE § 340:75-7-265(c) (West, WESTLAW current through Aug. 15,2000); OR. ADMIN. R. 309-046-0190(7)(a)(A) (West, WESTLAW current through Mar. 15,2004); 55 PA. CODE § 3700.63(b)(2) (West, WESTLAW current through Supp. 355 (June, 2004)); R.I. CODE R. 03 000 021(IV) (G)(3)(f) (Weil Publishing, WESTLAW current through update issue 141 (Dec. 2003)); 40 TEX. ADMIN. CODE § 720.31(h) (West, WESTLAW current through May 31, 2004); UTAH ADMIN. CODE 501-12-13(B) (West, WESTLAW current through Dec. 1,2003); VT. CODE R. 13 162 007 (324.1) (Weil Publishing, Westlaw current through Dec. 2003 (issue no. 170)); 22 VA. ADMIN. CODE § 40-130270(C)(4)(b)(7) (WESTLAW current through 20: 11 VA.R. Feb. 9, 2004); WASH. ADMIN. CODE § 388-148-0470(1)(a), (e) (West, WESTLAW current with amendments adopted through May 5,2004); W VA. CODE ST. R. § 78-2-9.7.b.l (West, WESTLAW current

Domestic Laws Permitting Corporal Punishment • 325 through Apr., 2004); Urena v. Wing, 687 N.Y.S.2d 365,366 (N.Y. App. Div. 1999) (upholding removal of children from foster care due to foster parents' use of corporal punishment); see also N.Y. COMPo CODES R. & REGS. tit. 18, § 441.9(c) (West, WESTLAW current through Sept. 15,2003) (providing that corporal punishment is prohibited with respect to child care agencies). 189

CODE ME. R. § 10-148, ch.17, § 9(D)(1) (West, WESTLAW current through May,

2004). 190 See, e.g., ALASKA ADMIN. CODE tit. 7, § 56.550(b)(8) (West, WESTLAW current through Register 169 (Apr. 2004)) (stating that a child placement agency must obtain information about prospective foster parents concerning their "values, feelings, and practices in regard to parenting, child discipline, and care"); S.D. ADMIN. R. 67:42:05:15 (West, WESTLAW current through Apr. 18, 2004) (providing that discipline by foster parents "must be appropriate to the child's age and developmental level" and must give the child "positive guidance, redirection, and setting of clear-cut limits").

191

S.D. ADMIN. R. 67:42:05:15 (West, WESTLAW current through Apr. 18,2004).

192 See, e.g., TENN. COMPo R. & REGS. 0250-4-9-.05(1)(f)(5) (West, WESTLAW current through Apr. 1, 2004) (declaring that "[i]f corporal punishment is permitted, such policies and procedures must: (i) [r]equire the written consent of the parent, guardian, or legal custodian" and "(ii) [r]equire reporting of the corporal punishment incident to the agency's administration"). 193 See 42 U.S.C.A. § 290jj(a)(1) (West, WESTLAW current through Pub. L. No. 108-273 (excluding Pub. L. No. 108-265) approved July 7, 2004). 194 See 42 U.S.C.A. § 290jj(a)(2) (West, WESTLAW current through Pub. L. No. 108-273 (excluding Pub. L. No. 108-265) approved July 7, 2004); 42 U.S.C.A. § 290ii(a) (West, WESTLAW current through Pub. L. No. 108-273 (excluding Pub. L. No. 108-265) approved July 7, 2004). 195 See, e.g., ALASKA ADMIN. CODE tit. 7, § 50.435(f) (West, WESTLAW current through Register 169 (Apr. 2004)) (youth community care, including residential child care facilities); ALA. ADMIN. CODE r. 660-5-49.03(1)(a)(1), (2)(a)(1) (WESTLAW current through Mar. 31,2004) (residential child care providers); ARIz. ADMIN. CODE R. 6-57456(C)(1)-(2) (West, WESTLAW current through Dec. 31, 2003 (supp. 03-4)) (child welfare agencies operating residential group care facilities); CODE ARK. R. 016 15 008 (508)(2)(a) (Weil Publishing, WESTLAW current through Dec., 2003 (issue 42)) (psychiatric residential treatment facilities); CODE ARK R. 016 01 004 (3030)(E)(1) (Weil Publishing, WESTLAW current through Dec., 2003 (issue 42)) (Alexander Youth Services Center); CAL. CODE REGS. tit. 22, § 84300.1(a)(5) (West, WESTLAW current through Mar. 26,2004, Register 2004, no. 13) (group homes); CODE DEL. REGS. 9 100 105 (3.3.9.1.2) (Weil Publishing, WESTLAW current through Dec., 2003 (issue 85)) (residential child care facilities); D.C. MUN. REGS. tit. 29, § 6203.4 (Weil Publishing, WESTLAW current through Dec. 2003) (youth shelters, emergency care facilities, and youth group homes); D.C. MUN. REGS. tit. 29, § 6303.1(c) (Weil Publishing, WESTLAW current through Dec., 2003); GA. COMPo R. & REGS. r. 290-4-4-.06(i)(3) (West, WEST-

326 • Corporal Punishment of Children: A Human Rights Violation LAW current through Feb. 29, 2004) (residential treatment facilties); IDAHO ADMIN. CODE 16.03.11.004(31) (West, WESTLAW current through Feb. 4, 2004) (intermediate care facilities for the mentally retarded); IDAHO ADMIN. CODE 16.03.22.250(16) (West, WESTLAW current through Feb. 4, 2004) (residential or assisted living facilties); KAN. ADMIN. REGS. 28-4-274(c)(3)(A) (West, WESTLAW current through rules/regulation filed before Apr. 1,2003) (group boarding homes and residential centers); CODE ME. R. 10-148, ch.18, § 4(d)(6)(b)(v)(b) (West, WESTLAW current through Feb., 2004) (residential child care facilities); CODE ME. R. 10-148, ch. 8, § 4(C)(4)(b)(v) (West, WESTLAW current through Feb. 2004) (shelters for homeless children); CODE ME. R. 10-148, ch. 9, § 4(D)(6)(b)(v)(b) (West, WESTLAW current through Feb. 2004) (emergency shelters for children); CODE ME. R. 14-472, ch. 1, § II(F)(2) (West, WESTLAW current through Feb. 2004) (inpatient and residential settings); MD. REGs. CODE tit. 01, ch. 04, § 21(B) (West, WESTLAW current through Md. Register vol. 31, issue 6, Mar. 19,2004) (residential child care programs); MAss. REGS. CODE tit. 102, § 3.07 (7)(g)( 1) (West, WESTLAW current through Feb. 13,2004, Register #993) (residential programs serving children and teen parents); MINN. R. 2960.0080(5)(A)(1) (West, WESTLAW current through Oct. 6, 2003) (programs, including residential ones, for children); NEB. ADMIN. CODE tit. 401, ch. 7, § 004.04 (West, WESTLAW current through update #289, Feb. 5,2004) (youth rehabilitation and treatment centers); NEB. ADMIN. CODE tit. 471, ch. 32, § 007.05L (West, WESTLAW current through update #289, Feb. 5,2004) (health and substance abuse residential treatment services for children and adolescents); N.J. ADMIN. CODE tit. 8, ch. 43D, § 13.1(a)(8) (West, WESTLAW current through Apr. 5, 2004) (pediatric community transitional homes); N.J. ADMIN. CODE tit. 10, ch. 37B, § 4.14(5)( d)( 1) (West, WESTLAW current through Apr. 5, 2004) (psychiatric community residences for youth); N.J. ADMIN. CODE tit. 10, ch. 124, § 4.11(e)(1) (West, WESTLAW current through Apr. 5,2004) (children's shelter facilities and homes); N.J. ADMIN. CODE tit. 10, ch. 127, § 6.14(d)(1) (West, WESTLAW current through Apr. 5,2004) (residential child care facilities); N.J. ADMIN. CODE tit. 8, ch. 25, § 3.1(a)(1) (West, WESTLAW current through Apr. 5,2004) (youth camps); N.M. ADMIN. CODE tit. 7, ch. 20, § 11.24(A) (Weil Publishing, WESTLAW current through Dec., 2003 (update issue 12)) (child and adolescent mental health services including those provided at residential treatment centers); N.M. ADMIN. CODE tit. 7, ch. 8, § 3.80(F)(12) (Weil Publishing, WESTLAW current through Dec. 2003 (update issue 12)) (residential shelter care facilities for children); OKLA. ADMIN. CODE tit. 340, ch. 75, § 11-48(b)(1) (West, WESTLAW current through Aug. 15,2000) (community-based contract residential care for children); 55 PA. CODE § 3800.32(b) (West, WESTLAW current through Supp. 352 (Mar., 2004) (child residential treatment facilities); R.I. GEN. LAws § 42-72.9-2 (Matthew Bender & Co., WESTLAW current through Jan. 2003 Sess.) (residential facilities for children); R.I. CODE R. 03 000 014 (VI)(N)(2)(a) (Weil Publishing, WESTLAW current through update issue 141 (Dec. 2003)) (residential group care programs, residential treatment programs, and shelter care programs for children); s.C. CODE ANN. § 44-24280 (WESTLAW current through end of 2003 Reg. Sess.) (inpatient mental health treatment facilities to which children are committed); s.C. CODE ANN. REGs. 61-103(C)(11) (WESTLAW current through state Register vol. 27, issue no. 12, effective Dec. 26,2003) (residential treatment facilities for children and adolescents); TENN. COMPo R. & REGS.

Domestic Laws Permitting Corporal Punishment • 327 0250-4-10-.08(6)(a) (West, WESTLAW current through Apr. 1,2004) (runaway houses); TENN. COMPo R. & REGS. 0940-5-6-06(1)(d) (West, WESTLAW current through Apr. 1, 2004) (all facilities); WASH. ADMIN. CODE § 388-148-0470(1)(a), (e) (West, WESTLAW current with amendments adopted through May 5, 2004) (child residential homes); WASH. ADMIN. CODE § 246-323-050(5)(a)(ii) (West, WESTLAW current with amendments adopted through Mar. 3, 2004) (residential treatment facilities for psychiatrically impaired minors); Wyo. R. & REGs. ch. 6, § 3(b )(ii) (West, WESTLAW current with amendments received through Mar. 30,2004) (all child care facilities). 196 See, e.g., LA. REV. STAT. ANN. § 46:1413(H) (WESTLAW current through all 2003 Reg. Sess. Acts) (child care facilities); 114 S.C. CODE ANN. REGs. 590(E)(4)(f) (WESTLAW current through state Register vol. 27, issue no. 12, effective Dec. 26, 2003) (residential group care facilities for children); TENN. COMPo R. & REGS. 0250-45-.07(2)(e) (West, WESTLAW current through Apr. 1,2004) (residential child caring agencies). 197 See, e.g., ALA. ADMIN. CODE r. 660-5-49-.03(2)(a)(I) (WESTLAW current through Mar. 31,2004) (nonresidential providers); ALA. ADMIN. CODE r. 660-5-27.06(9)(b)(I) (WESTLAW current through Mar. 31,2004) (day care); CAL. CODE REGS. tit. 22, § 102423(a)(4) (West, WESTLAW current through June 4, 2004, Register 2004, no. 23) (family day care homes for children); CONN. AGENCIES REGS. § 19a-79-3a(d)(2)(B) (West, WESTLAW current with material published in Conn. L.I through June 15,2004) (child day care centers); CODE DEL. REGs. 9 100 105.3.3.9.1.2 (Weil Publishing, WESTLAW current through Dec. 2003 (issue 85)) (child day treatment programs); CODE DEL. REGS. 9 100 101.2.19.1.1.3 (Weil Publishing, WESTLAW current through Dec. 2003 (issue 85)) (day care centers for children); FLA. ADMIN. CODE ANN. r. 65C-22.001(8)(b) (West, WESTLAW current through May 1,2004) (child care facilities); GA. COMPo R. & REGS. r. 290-2-1-.11(1)(ii) (West, WESTLAW current through Apr. 30,2004) (group day care homes for children); ILL. ADMIN. CODE tit. 89, § 406.9(p)(6) (West, WESTLAW current with amendments received through Apr. 2, 2004) (day care homes for children); ILL. ADMIN. CODE tit. 89, § 408.45(h)(6) (West, WESTLAW current with amendments received through Apr. 2,2004) (group day care homes for children); ILL. ADMIN. CODE tit. 89, § 407.270(c)(6)(A) (West, WESTLAW current with amendments received through Apr. 2, 2004) (day care centers for children); IOWA ADMIN. CODE r. 441109. 12(237A)(2)(a) (West, WESTLAW current through Mar. 17,2004) (child care centers); KAN. ADMIN. REGS. 28-4-427(d)(2)(A) (West, WESTLAW current through rules/regulation filed before Apr. 1,2003) (child care centers and preschools); KAN. ADMIN. REGS. 28-4-132(b)(2)(A) (West, WESTLAW current through rules/regulation filed before Apr. 1,2003) (child care); 922 Ky. ADMIN. REGS. 2:100(42) (West, WESTLAW current through regulations in effect as of Aug. 15,2003 and emergency regulations in effect as of July 15,2003) (day care for children); CODE ME. R. § XVII(A)(3) (West, WESTLAW current through Feb. 2004) (child care facilities); MD. REGs. CODE tit. 07, § 37(A)(2)(b) (West, WESTLAW current through Md. Register vol. 31, issue 11, May 28,2004) (family day care); MAss. REGS. CODE tit. 102, § 7:10(1)(b)(I) (West, WESTLAW current through Feb. 13, 2004, Register #993) (group child day care and school-age child care programs); MICH. ADMIN. CODE r. 400. 1804(2)(a) (West, WESTLAW

328 • Corporal Punishment of Children: A Human Rights Violation current through Apr. 1,2004) (family and group day care homes); MICH. ADMIN. CODE r. 400.5107(2)(a) (West, WESTLAW current through Apr. 1,2004) (child day care centers); MINN. R. 9502.0395(2)(A) (West, WESTLAW current through Oct. 6,2003) (child day care facilities); MONT. ADMIN. R. 37.95.715(4)(a) (West, WESTLAW current through Dec. 31,2003) (group and family day care homes); MONT. ADMIN. R. 37.95.606(1) (West, WESTLAW current through Dec. 31, 2003) (child day care centers); N.H. CODE ADMIN. R. Ann. [HE-C] 4002.27(e)(2) (West, WESTLAW current through amendments available as of Mar. 15,2004) (child care programs); N.Y. COMPo CODES R. & REGS. tit. 18, § 416.9(e) (West, WESTLAW current through Sept. 15,2003) (group family day care homes); N.Y. COMPo CODES R. & REGS. tit. 18, § 418-1.9(e) (West, WESTLAW current through Sept. 15,2003) (child day care centers); OHIO ADMIN. CODE § 5101: 2-1222(C)(3) (West, WESTLAW current through Jan. 31,2004) (child day care centers); OHIO ADMIN. CODE § 5101:2-13-22 (West, WESTLAW current through Jan. 31,2004) (family day care homes); OHIO ADMIN. CODE § 5101:2-18-22(C)(I) (West, WESTLAW current through Jan. 31,2004) (child day camps); OKLA. ADMIN. CODE § 340:40-13-2(d)(5) (West, WESTLAW current through Aug. 15,2000) (child day care services); 55 PA. CODE § 3270.113(b) (West, WESTLAW current through Supp. 355 (June, 2004)) (child day care centers); 55 PA. CODE § 3800.32(b) (West, WESTLAW current through Supp. 352 (Mar. 2004)) (child day treatment facilities); R.I. CODE R. 03 000 016(11)(19) (Weil Publishing, WESTLAW current through update issue 141 (Dec. 2003)) (child day care centers); R.I. CODE R. 03 000018 (111)(4) (Weil Publishing, WESTLAW current through update issue 141 (Dec. 2003)) (family day care homes); S.D. ADMIN. R. 67:42:14:20(1) (West, WESTLAW current through Mar. 1,2004) (before and after school care); S.D. ADMIN. R. 67:42:10:11(1) (West, WESTLAW current through Mar. 1,2004) (child day care centers); TENN. COMPo R. & REGS. 0520-12-1-.05(f) (West, WESTLAW current through Apr. 1, 2004) (child care centers and school-age child care programs); TENN. COMPo R. & REGS. 1240-4-3-.09(2)(f) (West, WESTLAW current through Apr. 1, 2004) (child care centers serving preschool children); 40 TEX. ADMIN. CODE § 746.2805(1) (West, WESTLAW current through Feb. 29,2004) (child care centers); UTAH ADMIN. CODE 430-60-8(3)(a) (West, WESTLAW current through Dec. 1,2003) (hourly child care center); VT. CODE R. 13 162 009(F)(2) (Weil Publishing, WESTLAW current through Dec. 2003 (issue no. 170)) (children's day care); VT. CODE R. 13 162 008 (G)( 4) (Weil Publishing, WESTLAW current through Dec. 2003 (issue no. 170)) (early childhood programs); 22 VA. ADMIN. CODE § 40-110-830 (1) (WESTLAW current through 20:11 VA.R. Feb. 9,2004) (licensed family day homes); WASH. ADMIN. CODE § 388-155-130(4)(a) (West, WESTLAW current with amendments adopted through Mar. 3,2004) (family child day care homes); W VA. CODE ST. R. § 78-1-7.1.a.5.A (West, WESTLAW current through Mar. 2004) (child day care centers); WIS. ADMIN. CODE § DWD 55.08(7)(b) (West, WESTLAW current through regulation no. 579 (Mar. 2004)) (child day care); WIS. ADMIN. CODE § HFS 55.44(2)(c)(I) (West, WESTLAW current through regulation no. 579 (Mar. 2004)) (day camps for children); WIS. ADMIN. CODE § HFS 46.07(2)(2)(e)(1) (West, WESTLAW current through regulation no. 579 (Mar. 2004)) (group day care centers for children). 198 114 S.C. CODE ANN. REGS. 503(B)(16)(b), (e) (WESTLAW current through state Register vol. 27, issue no. 12, effective Dec. 26,2003).

Domestic Laws Permitting Corporal Punishment • 329 199 See, e.g., Mo. ANN. STAT. § 210.258(5) (West, WESTLAW current through West ID4 of 2d Reg. Sess. of 92d General Assemb. (2004)); N.C. GEN. STAT. § 110-91(10) (Matthew Bender & Co., WESTLAW current through 2003 Reg. Sess.). 200 See NICHOLS N. KITTRIE ET AL., SENTENCING, SANCTIONS, AND CORRECTIONS: FEDERALAND STATE LAW, POLICY, AND PRACTICE 736 (2d ed. 2002); Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. CHI. L. REV. 591, 607 (1996); Scott Bloom, Comment, Spare the Rod, Spoil the Child? A Legal Framework for Recent Corporal Punishment Proposals, 25 GOLDEN GATE U. L. REV. 361, 368 (1995). 201

Roper v. Simmons, 125 S. Ct. 1183 (2005).

202

78 Ops. Cal. Att'y Gen. 197 (1995), 1995 WL 413858, at *1, *5.

203 Research of California legislation subsequent to the Attorney General's opinion revealed no statutes permitting courtroom paddling of juveniles.

204 See, e.g., ALASKA ADMIN. CODE tit. 7, § 52.335 (West, WESTLAW current through Register 169 (Apr. 2004)) (juvenile correctional facilities and juvenile detention facilities); CAL. PENAL CODE § 673 (West, WESTLAW current through ch. 33 & res. ch. 1 of 2004 Reg. Sess., ch. 1 (end) of 5th Exec. Sess., & propositions 55 & 56) (reformatories); CAL. CODE REGS. tit. 15, § 1390 (West, WESTLAW current through June 18,2004, Register 2004, no. 25) (juvenile facilities under the supervision of the board of corrections); COLO. DEPARTMENT OF CORRECTIONS ADMIN. R. 150-01(IV)(E)(3)(p)(9) (effective date July 15, 2005) (all department of corrections facilities); FLA. DEPARTMENT OF JUVENILE JUSTICE ADMIN. SERVICES POLICY 4060 (effective Mar. 1, 2002) (preadjudication detention, and postadjudication detention before placement); FLA. DEPARTMENT OF JUVENILE JUSTICE PROTECTIVE ACTION RESPONSE POLICY 1508-03 (effective date June 1, 2001, revised Aug. 15, 2003) (all juvenile justice facilities); GA. DEPARTMENT OF JUVENILE JUSTICE POLICY 163, ch. 16.3.1, at http://www.djj.state.ga.us/policy/Policy PDFIRulesandDiscipline_ PDF IDJJ%20 16.3%20Disciplinary%20Process.pdf (effective date June 15, 2003) (youth development and regional youth detention centers); IDAHO ADMIN. CODE 05.01.02.225.01(a) (West, WESTLAW current through May 5,2004) (secure juvenile detention facilities); IDAHO DEPARTMENT OF JUVENILE CORRECTIONS ADMIN. R. 05.01.02.225.01.a, at http://www.2.state.id.us/adm/adminrules/rules/idapa05 10102.pdf (last visited July 1,2005) (secure juvenile detention facilities); 730 ILL. COMPo STAT. ANN. 5/3-10-8(a)(I) (West, WESTLAW current through ~A. 93-675 of2004 Reg. Sess.) (juvenile division of department of corrections); IOWA ADMIN. CODE r. 441105.16(232)(2) (West, WESTLAW current through May 26, 2004) (juvenile detention homes); KAN. ADMIN. REGS. 28-4-355a(b)(I) (West, WESTLAW current through rules and regulation file before June 1, 2004) (detention centers and secure care centers for children); 505 Ky. ADMIN. REGS. 2:090(1)(h) (West, WESTLAW current through regulations in effect as of Aug. 15, 2003 and emergency regulations in effect as of July 15, 2003) (juvenile detention facilities); ME. REv. STAT. ANN. tit. 34-A, § 3032(2), (5)(B) (West, WESTLAW current through 2003 1st Spec. Sess. of 121st Leg.) (juvenile correctional facilities); MINN. R. 2960.0080(5)(A)(I) (West, WESTLAW current through Oct. 6, 2003) (license holders of certain programs for children); MINN. R. 2960. 0020( 45) (West, WESTLAW current through Oct. 6, 2003) (defining "license

330 • Corporal Punishment of Children: A Human Rights Violation holder" as, among other things, an entity that is legally responsible for a facility that has been granted a license by the commissioner of corrections); Mo. CODE REGS. ANN. tit. 13, § 110-2.120(5) (West, WESTLAW current through May 31, 2004) (division of youth services facilities, including a community detention facility); MONT. ADMIN. R. 20.9.627(1) (West, WESTLAW current through Dec. 31, 2003) (juvenile corrections facilities); NEB. ADMIN. CODE ch. 12, § 001.05 (West, WESTLAW current through update #290 dated Mar. 17,2004) (juvenile detention facilities); N.1. ADMIN. CODE tit. 13, § 92-7.3(f)(1) (West, WESTLAW current through June 21,2004) (juvenile detention facilities); N.Y. COMPo CODES R. & REGS. tit. 9, § 179.1.2(c)(2) (West, WESTLAW current through Dec. 31, 2003) (secure centers for youth); N.C. ADMIN. CODE tit. 28, r. 3A.0303(b)(1) (West, WESTLAW current through Apr. 16, 2004) (juvenile justice and delinquency prevention programs); OHIO ADMIN. CODE § 5139-36-16(J)(I) (West, WESTLAW current through Apr. 30, 2004) (community corrections facilities for juveniles); OHIO ADMIN. CODE § 5139-37-15(A) (West, WESTLAW current through Apr. 30, 2004) (detention centers for youth); OKLA. STAT. ANN. tit. 10, § 7302-6.3(B)(I) (West, WESTLAW current through chs. emergency effective through ch.163 of 2004 2d Reg. Sess.) (facilities operated by or through contract with the department of juvenile justice); OR. ADMIN. R. 416-490-0010(5)(a)(A)-(B) (West, WESTLAW current through Apr. 15,2004) (youth authority correctional facilities); OR. ADMIN. R. 416-400-0000(1) (West, WESTLAW current through Apr. 15,2004) (youth authority youth correctional facilities); 55 PA. CODE § 3800.2(d)(2) (West, WESTLAW current through Supp.355 (June 2004)) (secure settings including child detention centers); 55 PA. CODE § 3800.32(b) (West, WESTLAW current through Supp. 355 (June 2004)) (secure settings including child detention centers); S.C. DEPARTMENT OF JUVENILE JUSTICE POLICY No. G9.16.1.12 (effective date Aug. 1,2004) (juvenile residential facilities); S.C. DEPARTMENT OF JUVENILE JUSTICE POLICY No. G-9.19.F.12 (effective date July 15, 2004) (juvenile residential facilities); S.C. DEPARTMENT OF JUVENILE JUSTICE POLICY No. 13.1.A.l (effective date Apr. 15,2004) (juveniles in care of the department); TENN. R. COURT rule 7(c) (West, WESTLAW current with amendments received through Mar. 15, 2004) (child detention facilities); TEX. YOUTH COMMISSION GENERAL ADMIN. POLICY ch. 95.A.l(f), at http://austin.tyc.state.tx.us/Cfinternet/gap/95/gap951.htm (last visited July 28,2005) (facilities overseen by youth commission); UTAH ADMIN. CODE R5473-3(20) (West, WESTLAW current through Dec. 1, 2003) (juvenile jail in which child is detained beyond six hours); 6 VA. ADMIN. CODE § 35-140-50(4) (WESTLAW current through 20:11 VA.R., Feb. 9,2004) (all juvenile residential facilities); W VA. CODE ANN. § 49-5-16a(l) (West, WESTLAW current through end of 2004 2d Extraordinary Sess.) (correctional, detention, predispositional detention centers and other facilities wherein juveniles may be housed); WIS. ADMIN. CODE § 376.07(1) (West, WESTLAW current through reg. no. 581 (May, 2004)) (type 1 secured correctional facilities for youth); WIS. ADMIN. CODE § Doc 396.15(2) (West, WESTLAW current through reg. no. 581 (May, 2004)) (type 2 secured correctional facilities for youth); WIS. ADMIN. CODE § Doc 346.30(7) (West, WESTLAW current through reg. no. 581 (May, 2004)) (juvenile secure detention); Williams v. McKeithen, 121 F.Supp. 2d 943, 944-45, 953 (M.D. La. 2000) (approving settlement agreement concerning operation of adult and juvenile prisons and including a prohibition on Louisiana's use of corporal punishment on incarcerated juveniles).

Domestic Laws Permitting Corporal Punishment • 331 205 See 28 C.F.R. § 541.10(a), (b)(5) (West, WESTLAW current through July 14, 2004) (stating that the regulation applies to all persons in the care, custody, and control (direct or constructive) of the federal Bureau of Prisons, and that staff under the authority of the Bureau "may not impose or allow imposition of corporal punishment of any kind"); FEDERAL DEPARTMENT OF PRISONS, U.S. DEPARTMENT OF JUSTICE, LEGAL RESOURCE GUIDE TO THE FEDERAL BUREAU OF PRISONS 2004, paras. III.B.4, IVE, at http://www.bop.gov/ipapg/legal_guide.pdf (last visited July 20, 2004) [hereinafter FEDERAL DEPARTMENT OF PRISONS, LEGAL GUIDE] (noting that the federal Bureau of Prisons contracts for placement of federal juvenile offenders in state and local facilities, and declaring that "corporal punishment ... is not permitted under any circumstances" in Bureau facilities). 206 See FEDERAL DEPARTMENT OF PRISONS, LEGAL GUIDE, supra note 205, para. B.4 (referring to the "very small number of federal juvenile[]" delinquents); JOHN SCALIA, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT, JUVENILE DELINQUENTS IN THE FEDERAL CRIMINAL JUSTICE SYSTEM para. 5 (Feb. 1997), at http://www.ojp.usdoj.gov/bjs/pub/pdf /jdfcjs.pdf (last visited July 20, 2004) (remarking that "[a]djudication of juveniles in the Federal system is limited"). 207 See Center for Effective Discipline, Discipline at School (NCACPS): Within the Largest 100 US. School Districts 9, 804, 307 Students in the Following Districts Are Protected from Paddling, at http://www.stophitting.com/disatschool/1 OOlargest

.php (last visited June 4, 2004). For example, this Web site lists the following school districts as among those (in states that delegate decision-making authority over corporal punishment to local districts) that ban corporal punishment: Mobile County, Ala.; Tucson, Ariz.; Mesa, Ariz.; Jefferson County, Colo.; Denver, Colo.; Miami-Dade, Fla.; Broward County, Fla.; Palm Beach County, Fla.; Orange County, Fla.; Brevard County; Fla.; Volusia County, Fla.; Seminole County, Fla.; Pasco County, Fla.; Pinellas County, Fla.; Lee County, Fla.; Gwinnett County, Ga.; Cobb County, Ga.; DeKalb County, Ga.; Fulton County, Ga.; Clayton County, Ga.; Atlanta, Ga.; Wichita, Kan.; Jefferson County, Ky.; Orleans Parish, La.; East Baton Rouge Parish, La.; Jefferson Parish, La.; Caddo Parish, La.; Albuquerque, N.M.; Charlotte-Mecklenburg, N.C.; Guilford County, N.C.; Cumberland County, N.C.; Wake County, N.C.; Cleveland, Ohio; Columbus, Ohio; Cincinnati, Ohio; Greenville County, S.C.; Knox County, Tenn.; Nashville-Davidson County, Tenn.; Houston, Tex.; Austin, Tex.; Fort Worth, Tex.; EI Paso, Tex.; Cypress Fairbanks, Tex.; Northside (San Antonio), Tex.; Fort Bend, Tex.; North East (San Antonio), Tex.; San Antonio, Tex.; Arlington, Tex.; Y sleta (EI Paso), Tex. Id. 208 JOHN LOCKE, An Essay Concerning the True Original, Extent and End ofCivil Government, in TREATISE OF CIVIL GOVERNMENT AND A LETTER CONCERNING TOLERATION 3,

6-15, 18-26,56-65,82-85 (Charles L. Sherman ed., Irvington Publishers, Inc. 1979) (1689). 209

CONGo GLOBE, 42d Cong., 1st Sess. 339 (1871).

210 See Stephen Nissenbaum, Lighting the Freedom Tree, N.Y. TIMES, Dec. 25, 1996, at A17.

332 • Corporal Punishment of Children: A Human Rights Violation 211 U.N. Convention on the Rights of the Child, Nov. 20, 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49 (A/44/49), at 166, U.N. Doc. A/RES/44/25 (1989) [hereinafter Children's Convention]. 212 See LOUIS HENKIN, THE AGE OF RIGHTS 1, 13-21 (1990); PAUL GORDON LAUREN, THE EVOLUTION OF INTERNATIONAL HUMAN RIGHTS: VISIONS SEEN 199-211,225-47, 302 (2d ed. 2003); Gene M. Lyons & James Mayall, Stating the Problem of Group Rights, in INTERNATIONAL HUMAN RIGHTS IN THE 21ST CENTURY: PROTECTING THE RIGHTS OF GROUPS 3, 3 (Gene M. Lyons & James Mayall eds., 2003). 213 Canadian Foundation for Children, Youth and the Law v. Attorney General of Canada, [2004] D.L.R. 257 [hereinafter Canadian Foundation].

214 CANADIAN CHARTER OF RIGHTS AND FREEDOMS (enacted as Schedule B to the Canada Act 1982), in IV CONSTITUTIIONS OF THE COUNTRIES OF THE WORLD 60-76 (Gisbert H. Flanz ed., 1999) [hereinafter CANADIAN CHARTER]. 215

Criminal Code, R.S.C., ch. C-46, § 43 (1985) (Can.).

216

Id.

217 See Canadian Foundation, [2004] D.L.R. at 272-73,278. Justice Arbour notes in a separate opinion that section 43 can also successfully be raised as a defense to crimes other than common assault. Id. at 313,316 (Arbour, 1., dissenting). 218

Id. at 287.

219

Criminal Code, R.S.C., ch. C-46, § 265(1) (1985) (Can.).

220

Canadian Foundation, [2004] D.L.R. at 272.

221

See ide

222

CANADIAN CHARTER, supra note 214, § 7.

223

See Canadian Foundation, [2004] D.L.R. at 272.

224

CANADIAN CHARTER, supra note 214, § 12.

225

See Canadian Foundation, [2004] D.L.R. at 272.

226

CANADIAN CHARTER, supra note 214, § 15(1).

227

Canadian Foundation, [2004] D.L.R. at 273.

228

Id. at 273-74.

229

Id. at 275-79.

230 European Convention for the Protection of Human Rights and Fundamental Freedoms, done on Nov. 4, 1950,213 U.N.T.S. 221. 231 Canadian Foundation, [2004] D.L.R. at 282 (quoting from A v. United Kingdom, judgment of Sept. 25, 1998, Reports of Judgments and Decisions 1998-VI, 2692, at 2699-2700). 232

Id.

Domestic Laws Permitting Corporal Punishment • 333 233 Id. at 297, 314, 340-41 (Binnie, 1., dissenting in part, Arbour, 1., Deschamps, 1., dissenting). 234

Id. at 280.

235

Id. at 280-81.

236 Id. at 281-82. (The Court represented that it was consulting the U.N. Convention on the Rights of the Child, Children's Convention, supra note 211, and the International Covenant on Civil and Political Rights, opened for signature Dec. 19,1966, G.A. Res. 2200/21, Annex, U.N. GAOR, 21st Sess., Supp. No. 16 (A/6316), at 49, U.N. Doc. A/2200/21.) 237

Id. at 281.

238

Id. at 281-82; see discussion supra Ch. II.

239

Canadian Foundation, [2004] D.L.R. at 283.

240

Id. at 317-24 (Arbour, 1., dissenting).

241

Id. at 284.

242

Id.

243

Id. at 284-86.

244

CANADIAN CHARTER, supra note 214, § 12.

245

Canadian Foundation, [2004] D.L.R. at 286-87.

246

Id. at 287.

247

CANADIAN CHARTER, supra note 214, § 15(1).

248

Canadian Foundation, [2004] D.L.R. at 287-93.

249

Id. at 288.

250

Id.

251

Id. at 289.

252

Id.

253

Id.

254 Id. (quoting from Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, at para. 70). 255 Id. (quoting from Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 439, at para. 37). 256

Id.

257

Id. at 289-91, 293.

258 Id. at 294-312, 339, 341-51 (Binnie, 1., dissenting in part, Deschamps, 1., dissenting).

334 • Corporal Punishment of Children: A Human Rights Violation 259

Id. at 297,299,301-11 (Binnie, 1., dissenting in part).

260

Id. at 308 (Binnie, 1., dissenting in part).

261

Id. at 309-11 (Binnie, 1., dissenting in part).

262

Id. at 339 (Deschamps, 1., dissenting).

263

Id. at 344-45 (Deschamps, 1., dissenting).

264

Id. at 344-49 (Deschamps, 1., dissenting).

265

See discussion supra Ch. ~ Part A.

266

See supra Ch. ~ Part A, notes 55-57 and accompanying text.

267

See discussion supra Ch. ~ Part A.

268

See supra Ch. ~ Part A, note 56 and accompanying text.

269

See supra Ch. ~ Part A, notes 148-153 and accompanying text.

270

See discussion supra Ch. III, Part A(i)-(iv).

CHAPTER VI

THE UTILITY OF LAW IN AMELIORATING ADVERSE OUTCOMES ASSOCIATED WITH CORPORAL PUNISHMENT OF CHILDREN AND IN ULTIMATELY ELIMINATING SUCH PUNISHMENT The case has been made here that international human rights law mandates that countries abolish all corporal punishment of children.' As of this writing, fourteen countries have enacted legislation banning the practice entirely and Israel has achieved the same end by judicial decision." The first chapter of this book has made abundantly clear, based on psychological data and ethical and political considerations, that abolition is the optimum outcome as a policy matter.' Having established the foregoing propositions, the only socially responsible thing to do is to urge that other countries should also pass statutes prohibiting all corporal punishment of children. I intentionally use the word "statutes" to signal that I do not regard judicial decisions as an especially felicitous vehicle for banning corporal punishment of children. I have arrived at this conclusion because judicial decisions have a binding effect on the future decisions of lower courts and of the deciding court itself only in common law jurisdictions" and because, even in these jurisdictions, the opinions accompanying judgments are often rambling opuses in which a ban may easily be lost sight of. Statutes tend to present the ban in more intelligible and concise language that is accessible for lawyers and laypersons alike.' These may be the reasons why the monitoring committee so often recommends statutory bans to state parties not yet in compliance with the U.N. Convention on the Rights of the Child's interdiction of corporal punishment." That said, a fundamental question is still left dangling. Is it wise to go about this particular social reform via the law? Nothing prevents nations that opt for statutory bans from supplementing their efforts with education campaigns, private counseling, and other social service programs.

335

336 • Corporal Punishment of Children: A Human Rights Violation

But, why not exclusively rely upon such campaigns and programs? Why should abolitionists turn to the heavy hand of the law when other tactics might work with a gentler and perhaps less minatory touch? Would not a subtler approach be more productive and more humane? A.

ADDRESSING THE POTENTIAL DOWNSIDES IN USING LAW TO ABOLISH CORPORAL PUNISHMENT OF CHILDREN

I have identified three potential downsides in using law to attain eradication of corporal punishment of children. First, abolitionary law that is enforced may have the untoward effect of clogging courts with litigation against throngs of misguided but well-meaning parents; and, if the law is not enforced, the government may stand accused of attempting a farcical solution by pronouncement. Second, law may be too invasive of private family life. Third, law may provoke a backlash that will sabotage abolitionists' purposes. With respect to the first possible drawback, the throngs can rest easy. As the earlier discussions disclose concerning the legal prohibitions already in place in eleven countries, these prohibitions have not given rise to wholesale prosecutions of or tort actions against parents for engaging in reasonable or light corporal punishment of children. In the prohibitory jurisdictions, prosecutorial restraint tends to be the watchword, and tort claims for such punishment are the exception." (The other abolitionist countries have bans of too recent a vintage to comment on the experiences there, or information on such experiences was not available to me.) Even in Sweden, where the ban has been law for a quarter of a century, the number of prosecutions against parents for corporally punishing their children has been negligible." In most of these countries, the policy has been to trust to the pedagogical or expressive effect of legal bans instead of seeking the imposition of more immediate deterrents like incarceration or fines." In this instructive capacity, it is understood that law works through a slow process of intellectual osmosis. Because education takes time, the law's educational effect also takes time and tangible results may not become apparent for years or even decades. Many people do not think of law as pedagogy. It is more common to conceptualize law as the tough and unforgiving taskmaster rather than as kindly mentor. This stands to reason inasmuch as the taskmaster's rebukes are fully visible to the public eye in the form of jail terms, etc., while the

Utility of Law Ameliorating or Eliminating Corporal Punishment • 337

law's expressive process operates in a quieter, more stealthy manner, or sometimes even on a subconscious level, that does not draw public notice.'? Yet, whatever else its functions, that law has an educational role cannot be gainsaid. Perhaps law is the most powerful pedagogue of all. Unlike the most superb schoolteacher, tutor or university professor, law is cloaked with the prestige of the state. 11 Governments, if in good standing and democratically elected, are not lightweight players in most societies. Instead, they constitute concentrations of legitimized sovereign power as well as symbols of popular will. 12 Further, governments compose and publish laws with all the ceremony and formality attendant on established lawmaking procedures. The fact of state authorship, and the pageantry and might enabling it, thus necessarily enhance the credibility of laws' messages." A salient example of law's norm-setting capacity, even in the absence of regular official enforcement, can be found in the American experience with antismoking ordinances. The authorities rarely enforce ordinances prohibiting smoking in public buildings." Rather, these laws are "selfenforcing," meaning that the law has strengthened the norm against smoking to the point where nonsmokers feel free to urge smokers to desist, and smokers do not dare to light up anyway." Another example is an inexplicable American enthusiasm for paying taxes though the penalty for typical tax offenses is puny and the likelihood of detecting an omission to pay is slim to nonexistent." Nor are these isolated examples. Commentators cite to everything from "pooper-scooper" laws for dog owners to carpool lane laws for drivers to child safety seat laws to confirm this potent expressive dimension of even unenforced laws.'? Law as a didactic instrumentality does not, however, only respond to the prosaic. It is also intriguingly put on display through the reciprocal interaction between law and a society's aspirations. Law absorbs its content from the values held by the reigning government and its supporters. Yet, law is not, despite its association with preserving the status quo, a static phenomenon. Law assimilates a society's values and priorities as they are and also those values and priorities which comprise that society's goals and needs. It is in this initiatory phase that jurisprudence may have its most creative normative effect since law gives discernable shape and substance to the ofttimes broadbrush ideals toward which a nation strives.l''

338 • Corporal Punishment of Children: A Human Rights Violation

As was previously mentioned, the countries that have thus far adopted binding legal prohibitions on all corporal punishment have mostly settled upon a nonlitigious strategy that depends on the prohibitions' expressive effect. This is so although each country has, in addition to the prohibition, available avenues for criminal and civil redress against prohibition violators.'? That these means of redress are infrequently used does not abrogate the fact that the mere threat of liability in itself is exhoratory by buoying the antispanking message of the bans.s'' The buoying is accomplished in two ways. The overhanging possibility, however remote, of prosecution or tort liability apprises parents that their safest course would be to completely abandon corporal punishment of children. The off chance of incurring criminal or civil liability may further inspire the thought that the state takes physical assaults against children quite as seriously as physical assaults against adults. (This ideational process is especially plausible because, in many jurisdictions, lesser assaults against adults are usually not actively prosecuted either. 21) Comparison of the manner in which the legal system treats corporal punishment of children and physical assaults on adults is likely to equalize the status of adults and children as potential victims of bodily attacks. The resulting norm is one that every civilized nation should want to celebrate: that children are just as protected against violence and, hence, at least as treasured as adults are. Some may argue that creating bans and attendant penalties, which are not enforced, is a recipe for disaster. Their argument would probably be that laws that are not enforced are bound to spontaneously undermine their own ends and will ultimately weaken and disserve the rule of law in general. 22 While this criticism is theoretically attractive, it does not appear to be valid in practice. The experience in countries, where the effect of such unenforced debarments on spanking have been studied, shows that they have put these societies on the path of gradual abolition." Nor, to my knowledge, has there been any disintegration of the legal systems in abolitionist countries. This is especially noteworthy in connection with Sweden, which has had plenty of time to descend into unbridled lawlessness. Yet, nothing of the sort has occurred. Another case in point are those laws, mentioned above, that make adult perpetrators of trivial physical assaults on other adults criminally liable. In the United States these laws are scarcely ever enforced.>' Again, the result has not been a noticeable decay of law and order.

Utility of Law Ameliorating or Eliminating Corporal Punishment • 339

Furthermore, the nonenforcement argument may be rendered moot by the possibility of prosecuting corporal punishers and substituting diversion in lieu of more orthodox sentences such as fines or incarceration. In some jurisdictions in the United States, certain criminal offenses occurring among family members are handled by diverting appropriate defendants into rehabilitative services rather than subjecting them to punitive options." Diversion in the context of selected prosecutions for corporal punishment of children could be adapted to assist offenders to learn more about child development and to acquire more effective, nonviolent parenting skills. Criminalization of corporal punishment, working in tandem with sporadic enforcement and consistent diversion, could even reduce the number of prosecutions against parents because, once knowledge of child development and improved parenting skills becomes a legal necessity, the incidence of more severe child abuse and neglect may ebb as well. But, the remonstrance with which we began bears repeating, that whether governments choose an unenforced prohibition, as most do, or the odd prosecution with diversion, there is no basis for conjuring the surreal image of multitudes of worthy parents atremble in the dock. Another downside of enactments condemning corporal punishment of children may be that they intrude too much on family life, including parental child rearing prerogatives." I too am a parent and, although my son is grown-up now, it definitely raised my hackles to have busybodies telling me how to mother him when he was younger. And, then, what relationship is closer and invokes more protective feelings than that of parent towards child? What business does the impersonal state have poking its bureaucratic nose into such family intimacies? Surely, except for the occasional bad apple, parents want to do and do do what is best for their progeny? There are, however, a number of myths concealed in these rhetorical questions. Conventional parental child abuse is of pandemic proportions and, so, there are evidently more than a few bad apples out there.?? In this connection, it should be remembered that Gershoff's meta-analyses discovered an undeniable correlation between parental corporal punishment of a child and ensuing severe physical abuse of that child. Governmental intervention against reasonable corporal punishment of children may, therefore, have the precautionary effect of nipping severe child abuse in the bud.

340 • Corporal Punishment of Children: A Human Rights Violation

But, even if the foregoing propositions were not the sad reality, Gershoff's meta-analyses laid bare an equally undeniable nexus between parental corporal punishment of children and nine other adverse outcomes for those children: decreased moral internalization, increased child aggression, increased child delinquent and antisocial conduct, decreased quality of the parent-child relationship, and decreased child mental health, and upon reaching maturity, increased adult aggression, increased adult criminal and antisocial behavior, decreased adult mental health, and increased risk of abusing one's own children or spouse. On the other side of the scale, the meta-analyses found that corporal punishment is associated with only one arguably beneficial outcome for children, i.e., that children will immediately, but temporarily, suspend the misbehavior for which they are being punished." Thus, on balance, reasonable corporal punishment of children puts them-and we have no way of knowing which ones-at risk of costly maladaptions, with a minuscule benefit to compensate for the potential harm. To make matters worse, corporal punishment of children has been a global phenomenon with an overly long pedigree." Most nations have still not wholly banned it in spite of the peril in which it places children'? The practice remains unchecked, not because parents or other caretakers want to jeopardize children, but perhaps because they do not know any better, have difficulty controlling the urge to hit a child who bucks adult authoritY,31 or attach ideological or religious significance to spanking. There is, consequently, every reason for government to keep a watchful eye on the familial sanctum. Given the heavy risks inherent in corporal punishment, it is the duty of any government responsive to family values and family welfare to bring home, through the potent medium of the law, that this punishment is forthwith a malefaction and a scandal. It may seem counterintuitive, but in so doing, the state acts to foster healthier parent-child ties inasmuch as corporal punishment of children is linked with a deterioration of that relationship.F Moreover, a legal prohibition on all corporal punishment of children should reduce the number of instances in which states are compelled to take the drastic step of removing children from families or of restraining parents from having contact with their children. The reduction would follow from the fact that reasonable parental corporal punishment, as mentioned before, may lead to classic prosecutable physical child abuse-the kind of abuse that goads the

Utility of Law Ameliorating or Eliminating Corporal Punishment • 341

state into breaking up the family in order to rescue the child." If there are fewer incidents of reasonable corporal punishment of children, more children are likely to stay in parental custody. Nor will parents be tormented with the apprehension of not knowing when they have crossed the line between legal corporal punishment and criminal child abuse or tortious conduct. As the discussion of the laws on corporal punishment in the United States and Canada demonstrates, there is no bright-line test that separates the legal from the illegal in jurisdictions that permit some such punishment. 34 This is a nastly predicament for the poor parent or teacher who tries to regulate his or her conduct in a legal morass of this nature. In sum, total bans on all corporal punishment of children dispel the ambiguity, create a more comfortable and reassuring environment for adults as well as for children, and fortify the integrity and privacy of the family. It should also be borne in mind that bans on corporal punishment are akin to forms of governmental intervention to which parents are already quite accustomed. Just think of the many ways in which governments have long involved themselves in child rearing decisions. For example, in the United States, a country that tends to pride itself on minimizing state involvement in family affairs, government has criminalized conventional physical child abuse," required childhood vaccinations.v' made schooling compulsory for certain age groups of children;'? and has routinely regulated when children may drink," drive." vote.t? enter into contracts," and marry." The third arguable problem with banning all corporal punishment of children is that it could backfire by instigating a revolt among parents who would pick up the rod with even more regularity and ardor. There is, after all, that familiar knee-jerk reaction of responding to an emphatic "don't" with "don't tell me don't." I do not pretend to be able to predict human behavior. However, I do not need to. None of the fifteen nations that have adopted legal prohibitions on all physical chastisement of children have thereby provoked a backlash." Nor is there any credible indication in these countries that parents and other child care givers are resorting to corporal punishment or child abuse with any greater frequency." Hence, the only downsides that I can conceive of with respect to outlawing all corporal punishment of children, turn out to be straw men. I did not, in all truth, contrive these problems to be straw men; they simply fall apart upon inspection.

342 • Corporal Punishment of Children: A Human Rights Violation

Not only does using law to abolish physical punishment of children steer clear of any significant pitfalls, but legal reform of this tenor offers some unique benefits, beyond the pedagogy discussed above, which cannot be accomplished as effectively through education campaigns or social services alone. Before exploring these benefits, I wish to make certain that my position is not misunderstood. I do not advocate relying upon legal reform to the exclusion of all else in the project of gaining abolition. It is my view that the more skills and expertise that can profitably be brought to bear, the better. In light of how habitual and rooted corporal punishment is in many places, I believe it behooves governments to employ legal prohibitions and education campaigns and social services to do away with the practice successfully and finally. B.

A LEGAL PROHIBITION ON CORPORAL PUNISHMENT OF CHILDREN SERVES AS A SOCIETYWIDE "ENLIGHTENED WITNESS"THAT MAY ASSIST CHILDREN IN AVOIDING REPRESSION OF ANGER

This chapter has already discussed one of law's singular benefits-its peerless norm-setting influence. The present discussion concerns the therapeutic nature of legal prohibitions of all corporal punishment of children. I am referring to the psychological effect on youths of knowing that they live in a society that has outlawed physical chastisement of children. In essence, the legal prohibition has the potential to assume the role of what psychologist Alice Miller calls the "enlightened witness."45 What is an enlightened witness, and how does he or she enlighten and why should we care? According to Miller, the enlightened witness is "an adult to whom ... [children] could confide their feelings, especially their feelings of hatred" that well up against persons who mistreat the children." For instance, a child who has been corporally punished by a parent-let us say by her mother-may be stung by the embarrassment and pain the spanking causes. Miller explains that this child may be afraid to express her anger to her mother who is bigger, stronger, and also the girl's source of love and material support." This vulnerability and dependency is intrinsic to childhood and places the child in a dilemma. There is, from the child's standpoint, reason for apprehension of parental reprisals in the form of further violence or deprivation of maternal care should the child speak her mind." If the child has no enlightened witness to whom she can pour out her feelings and by whom those feelings can be legitimated, the child may have no alternative other than to repress them without ever con-

Utility of Law Ameliorating or Eliminating Corporal Punishment • 343

sciously admitting their existence." And, as we have seen, repression may have dire repercussions when that child grows Up.50 One such consequence is the repetition compulsion-the need to avenge earlier humiliation and hurt by humiliating and hurting others once the child matures enough to play the aggressor. The vengeance never works, of course, because it never can salve the injuries." Repression may precipitate a cascade of maladies. The former childvictim may end up turning her stored up animosity against herself, possibly resulting in depression or other self-destructive psychological disturbances.v Or, she may be destined to acting out and repeating violent or mean-spirited acts against others, thereby interfering with her development and sustenation of healthy, fulfilling personal relationships.>' In the process, her own newly minted victims obviously suffer psychic, if not physical, harms too. But the suffering of others does not bother her; she is now short on empathy. Miller tells us that a former child-victim in the grips of repetition compulsion is able to persecute her fellow human beings "without the slightest feeling of sympathy for ... [the] victims because ... [the perpetrator has] identified totally with the aggressive side of ... [her] psyche."54 Miller has had the intellectual courage-some would say folly-to pursue these psychological reactions to their logical political denouement. For, if, as children, these people never had an outlet for their rebelliousness and rankling at being assaulted, they may, as adults, hit out beyond the family hearth. If summoned by the historical moment to fulfill positions of political or military power or even just to function as the minions and foot soldiers of the powerful, these former child-victims may repeat and repeat again, without compunction, unjustifiable acts of violence against masses of strangers.v' I know that for those readers who have not read Miller's books prior to picking up this one, the bridge she constructs between ordinary childhood spankings and other cruel child rearing practices, on the one hand, and unjust wars and other societal violence, on the other hand, may appear outlandish. You do not need to accept this chain reaction from the personal to the political in order to conclude that reasonable corporal punishment of children is a human rights law violation or to favor national legal prohibitions on such punishment. I raise Miller's concatenation because it makes sense to me, and, if it is accurate, gives the reader an idea of how very much may be at stake in ministering to children with enlightened witnesses.

344 • Corporal Punishment of Children: A Human Rights Violation

Unfortunately, many physically disciplined children do not have access to such a person. This is where the law might come in. Miller once suggested to me that the law could function as an enlightened witness for such children, albeit an imperfect one. If I comprehend her correctly, the idea is that a legal prohibition on all corporal punishment of children, while not an audience for the child's pent up hostility, could still enable the child to make conscious and accept his or her own seething feelings." When it is illegal to hit a child and the child is aware of that fact, then that child knows he or she is right to take umbrage at being hit. Corporally punished children, through the lens of the law, can more readily perceive that they have been wronged and admit to themselves that they are, in fact, riled at the punisher.>? The law as enlightened witness could, therefore, help children avoid repression and the blight on their lives that repression may engender. In my opinion, law is quintessentially suited for this role because it is lasting and commanding; it is therefore etched in the public consciousness more indelibly than other methods of communication. It is not so easy to repeal a law. Law is an institutionalization of the prohibition that ensures the directive will not unravel with the vicissitudes of preference, motivation, or resources.v Law tends to be heeded more readily than pure exhortation because of a solidity and dominion that no amount of sermonizing can replicate. 59 It is fair to ask, however, whether children can be expected to know the law. They do not read law books; younger children do not read newspapers either. In order for a legal ban on all corporal punishment of children to fulfill the mission of enlightened witness, children must be informed of the existence of the ban. This dissemination has already been taking place, with varying degrees of conscientiousness, in nations that have adopted bans.s? Some of these governments have also taught children that international human rights law forbids spanking, thereby converting that body of law into an enlightened witness as well.v! The need for each child to learn about these laws, so they can don the mantle of the enlightened witness, makes education campaigns about the bans (as opposed to supplementary campaigns only about the inadvisability of spanking) a requirement rather than just elective edification. Teaching children about national and international bans requires no special expertise. It can be undertaken by relatives, friends, schoolteach-

Utility of Law Ameliorating or Eliminating Corporal Punishment • 345

ers, pediatricians, social workers, psychologists, the media, and anyone else with whom children interact. The government itself can publicize the laws wherever there is space for a poster to be tacked up. Sweden even put the message on milk cartons, apparently attempting to instigate family discussions at the dinner table.v- Over time, the existence of the bans should resolve into conventional wisdom. Then the public education campaigns could perhaps slacken. One would hope that, at that juncture, common knowledge of the bans would naturally become the child's knowledge too, imbibed along with mother's milk or during story time at father's knee. C.

A LEGAL PROHIBITION ON CORPORAL PUNISHMENT OF CHILDREN PRESERVES HARD WON LESSONS ABOUTTHEVALUE OF HUMANE TREATMENT OF CHILDREN

Time is long, memory short. Lessons learned may fade from human consciousness, even lessons hard won with blood and tears. World War I was so horrific that it was dubbed "the war to end all wars."63 But, as the immediate horror and senseless loss receded from recollection, it was war upon war without much hiatus.>' This forgetful creature, man, unaccountably allows to waft away into a clouded and recondite past precisely some of the historical lessons most essential to the future well-being of the human race. It has taken centuries of philosophical and spiritual seeking for us as a species to arrive at the fundamental, seemingly elementary conclusion that each person, simply by virtue of being a person, has human rights.v' It was only after the Holocaust that this concept took on unprecedented dynamism and was cemented into more than an evanescent presence by the advent of international human rights law. In welcome number, human rights declarations and treaties have proliferated since then.w Although enforcement of the human rights so pronounced would run up against the inveterate obstacle of state sovereignty, as well as other difficulties.v? apparently forgetfulness of these rights was not in the cards this time. It took still longer for the international community to come to the full realization that "[ c]hildren are people too"68 and, as such, have human rights too. There is a rueful irony in the delay since children are more innocent and defenseless than adults and historically have been sinned against without anyone recognizing the sins as sins. Mistreating children was part of the unthinking crassitude of bygone times.v? But science and

346 • Corporal Punishment of Children: A Human Rights Violation

law have been children's allies. With epiphanic progress in the field of psychology'? and with the adoption of the U.N. Convention on the Rights of the Child"! and other human rights legal instruments.I- the normative context has inevitably begun to evolve in children's interests. Law has been a midwife to children's emergence as first class citizens of the world who, no less than adults, are bearers of human dignity and inalienable rights. Law has not only attended at the birthing, but, like some unflagging mother hen, has been the means by which children's rights have been preserved from our propensity for collective amnesia. As it has done with adult rights, law has cemented children's rights in place, giving them a permanence that only law (and maybe custom) can impart. Included among these rights, of course, is the child's right to be free of all corporal punishment. This right has been a long time coming. Even today many people are not aware of corporal punishment's pain, degradation, inequity, and short- and long-term psychological fallout for children." International human rights laws and national bans against corporal punishment of children ensure, insofar as anything can be ensured through the centuries, that we will gradually learn to scorn the rod and will remember with dedicated vigilance what we have learned so excruciatingly slowly.

Utility of Law Ameliorating or Eliminating Corporal Punishment • 347

ENDNOTES 1

See supra Ch. II.

2

See supra Ch. III.

3

See supra Ch. I.

4 See Dana T. Blackmore, Eradicating the Long Standing Existence of a NoPrecedent Rule in International Trade Law-Looking Toward Stare Decisis in WTO Dispute Settlement, 29 N.C. 1. INT'L & COM. REG. 487,495-97 (2004) (noting that in the common law systems judicial decisions are regarded as binding precedents while in civil law systems judicial decisions do not have the same effect); see also discussion supra Ch. III, Part B, and Ch. IV; cf, Youngsik Lim, An Empirical Analysis of Supreme Court Justices' Decision Making, 29 1. LEGAL STUD. 721, 721 (2000) (contrasting judges under the common law as lawmakers with judges in civil law countries as law interpreters).

5 See Frederick Shauer, Judicial Opinion Writing: Opinions as Rules, 62 U. CHI. L. REV. 1455, 1465-66 (1995) (observing that statutes merely prescribe, but judicial opinions explain and justify); cf, John Leubsdorf, The Structure ofJudicial Opinions, 86 MINN. L. REV. 447,447 (2001) (claiming that judicial opinions in common law jurisdictions tell stories and speak with multiple voices); Telephone Interview with Tamar Morag, Faculty Member, Faculty of Law and School of Social Work, Tel Aviv University, and Vice-Chair, Israeli Public Committee for the Re-evaluation of Child Law in Light of the U.N. Convention on the Rights of the Child (Dec. 30, 2003) (asserting that a statute would more clearly state the ban on corporal punishment of children than the Plonit decision announcing a ban by the Israeli Supreme Court).

6 U.N. Convention on the Rights of the Child, Nov. 20, 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49 (A/44/49), at 166, U.N. Doc. A/RES/44/25 [hereinafter Children's Convention]; see discussion supra Ch. II, Part A. 7

See supra Ch. III, Part A(i), (iii)-(iv), (vi), (ix).

8 See PETER NEWELL, CHILDREN ARE PEOPLE Too: THE CASE AGAINST PHYSICAL PUNISHMENT 81 (1989); see also Letter from Katja Leven, Attorney with the Law Firm of Lagerlof & Leman, Stockholm, Sweden, to Nicholas 1. Stasevich (May 30,1996) (on file with the University of Michigan Journal of Law Reform) (reporting that her research turned up only one Swedish prosecution of a parent for mild corporal punishment of a child).

9

See supra Ch. III, Part A(i), (iii)-(iv), (vi), (ix).

10 See Amitai Etzioni, Social Norms: Internalization, Persuasion, and History, 34 L. & SOC'Y REV. 157, 166-67 (2000) (remarking that internalization of norms may be accomplished through nonrational processes such as identification with authority figures); Lior Jacob Strahilevitz, How Changes in Property Regimes Influence Social Norms: Commodifying California's Carpool Lanes, 75 IND. L.1. 1231, 1280 (2000) (claiming that people may internalize a norm without thinking about it); W Bradley

348 • Corporal Punishment of Children: A Human Rights Violation Wendel, Mixed Signals: Rational-Choice Theories of Social Norms and the Pragmatics ofExplanation, 77 IND. L.I 1, 37 (2002) (proposing that norms can operate on a subconscious level). 11 See EDWIN W PATTERSON, JURISPRUDENCE: MEN AND IDEAS OF THE LAW 150, 159 (1953); Arthur I Jacobson, The Other Path of the Law, 103 YALE L.I 2213,2224 (1994); cf, Wendel, supra note 10, at 59 (declaring that legal rules are understood as

an expression of the state taking sides). 12 See Sean E. Brotherson & Jeffrey B. Teichert, Value of the Law in Shaping Social Perspectives on Marriage, 3 IL. & FAM. STUD. 23, 53 (2001); Richard H. McAdams, The Origin, Development, and Regulation ofNorms, 96 MICH. L. REV. 338, 402-03 (1997); Eric A. Posner, Law and Social Norms: The Case of Tax Compliance, 86 VA. L. REV. 1781, 1799 (2000); cf, Alex Geisinger, A Belief Change Theory of Expressive Law, 88 IOWA L. REV. 35, 65 (2002) (stating that if a person

believes that passage of a norm-changing law is the result of majoritarian pressures, that person will be more likely to comply with the new norm). 13 See McAdams, supra note 12, at 397-98, 402-06 (noting that the very process of lawmaking, complemented by media attention, may endow laws with an expressive function); John K. Palchak & Stanley T. Leung, No State Required? A Critical Review ofthe Polycentric Legal Order, 38 GONZ. L. REV. 289, 331 (2002-2003) (averring that government-made laws have a unique legitmacy); Posner, supra note 12, at 1799 (stating that governmental behavior draws special attention because the citizenry cares about what government does); cf. Geisinger, supra note 12, at 70 (observing that people obey laws because they believe law should be followed). 14 See Robert D. Cooter, Decentralized Law for a Complex Economy: The Structural Approach to Adjudicating the New Law Merchant, 144 U. PA. L. REV. 1643, 1674-75 (1996). 15 See McAdams, supra note 12, at 404-06; see also Robert A. Kagan & Jerome H. Skolnick, Banning Smoking: Compliance Without Enforcement, in SMOKING POLICY: LAW, POLITICS, AND CULTURE 69, 70-79, 85-87 (Robert L. Rabin & Stephen D. Sugarman eds., 1993) (analyzing data showing that there is compliance with ordinances banning smoking in spite of pervasive nonenforcment by officials and explaining that the compliance is due, at least in part, to the sheer normative power of the ordinances). 16

See Posner, supra note 12, at 1782.

17 See Cooter, supra note 14, at 1675 ("pooper-scooper" laws, i.e., laws requiring a dog owner to clean up his or her dog's excrement on the street or lawn); McAdams, supra note 12, at 407-08 (child safety seats in cars); Strahilevitz, supra note 10, at 1278 (carpool lanes). 18 See Aristotle, Nicomachean Ethics, in THE BASIC WORKS OF ARISTOTLE 952, 1105 (Richard McKeon ed., Random House 1941); GEORGE P FLETCHER, BASIC CONCEPTS OF LEGAL THOUGHT 4 (1996); David R. Barnhizer, Prophets, Priests and Power Blockers: Three Fundamental Roles ofJudges and Legal Scholars in America, 50 U. PITT. L.

Utility of Law Ameliorating or Eliminating Corporal Punishment • 349

REV. 127, 162-63 (1988); Paul Brest, The Thirty-First Cleveland-Marshall Fund Lecture: Constitutional Citizenship, 34 CLEV. ST. L. REV. 175, 179 (1986); Keith Burgess-Jackson, Bad Samaritanism and the Pedagogical Function ofLaw, 8 CRIM. JUST. 1. 1, 3-4, 26 (1985); Anne Norton, Transubstantiation: The Dialectic of Constitutional Authority, 55 U. CHI. L. REV. 458,459,469 (1988); Philip Soper, The Moral Value ofLaw, 84 MICH. L. REV. 63, 85 (1985). 19

See discussion supra Ch. III.

20 See Christopher R. Leslie, Creating Criminals: The Injuries Inflicted by "Unenforced" Sodomy Laws, 35 HARV. C.R.-C.L. L. REV. 103, 103-04, 110 (2000) (noting that an unenforced criminal law may still affect society); McAdams, supra note 12, at 397-98 (describing how criminal sanctions may strengthen a norm "merely by 'expressing' it without any enforcement"); Strahilevitz, supra note 10, at 1276, 1278 (observing that laws on carpooling work even without enforcement, except that overly heavy-handed laws may generate a backlash); Elizabeth Ann Gibbons, Note, Surveying Massachusetts' Child Abuse Laws: The Best Protection for Children?, 26 SUFFOLK U. L. REV. 107, 122 (1992) (arguing that the existence of criminal penalties for parental neglect of a child "clearly identifies societal expectations and unless parents are notified of these expectations, criminal law's goal of deterrence cannot be achieved"). But see Ted Sampsell-Jones, Culture and Contempt: The Limitations of Expressive Criminal Law, 27 SEATTLE U. L. REV. 133, 135-36, 177-83 (2003) (suggesting that the expressive function of criminal drug laws may produce resistance rather than support). 21 See Victor I. Vieth, When Parental Discipline Is a Crime: Overcoming the Defense of Reasonable Force, 32 PROSECUTOR 29, 30 (July/Aug. 1998); see also Natalie Loder Clark, Crime Begins at Home: Let's Stop Punishing Victims and Perpetuating Violence, 28 WM. & MARY L. REV. 263, 279 (1987) (observing that many people regard simple assaults as minor crimes and are therefore reluctant to use criminal remedies in response to them); David T. Johnson, The Organization of Prosecution and the Possibility of Order, 32 LAW & SOC'y REV. 247,291-92 (1998) (stating that American prosecutors triage cases and that such triage teaches defendants that their offenses are not of sufficient gravity to justify even a careful assessment); cf, Kenneth 1. Melilli, Prosecutorial Discretion in an Adversary System, 1992 B.Y.U. L. REV. 669, 675 (asserting that police may merely warn rather than arrest for minor infractions). 22 See Andre R. Imbrogno, Corporal Punishment in America's Public Schools and the UN Convention on the Rights ofthe Child: A Case for Nonratification, 29 1.L. & EDUC. 125, 143 (2000); Margaret Raymond, Penumbral Crimes, 39 AM. CRIM. L. REV. 1395, 1422, 1425-26 (2002); cf, Tamar Ezer, Children's Rights in Israel: An End to Corporal Punishment?, 5 OR. REV. INT'L L. 139, 207 (2003) (remarking that some experts regard as unenforceable the Israeli Supreme Court's decision banning corporal punishment of children and that these experts maintain that the decision will erode respect for the law and the Court). 23

See supra Ch. III, Part A(i), (iv), (vi), (ix).

350 • Corporal Punishment of Children: A Human Rights Violation 24

See Vieth, supra note 21, at 30; Clark, supra note 21, at 279.

25 See Douglas 1. Besharov, Child Abuse: Arrest and Prosecution DecisionMaking, 24 AM. CRIM. L. REV. 315, 355 (1986); Developments in the Law: Legal Responses to Domestic Violence, 106 HARV. L. REV. 1498, 1541-43 (1993); Melissa Hooper, When Domestic Violence Diversion Is No Longer an Option: What to Do with the Female Offender, 11 BERKELEY WOMEN'S L.1. 168, 168 (1996); Diane E. Reynolds, Note, The Use of Pretrial Diversion Programs in Spouse Abuse Cases: A New Solution to an Old Problem, 3 OHIO ST. 1. ON DISP. RESOL. 415,422-24 (1988). 26 See Leonard P Edwards, Corporal Punishment and the Legal System, 36 SANTA CLARA L. REV. 983, 991 (1996); Kandice K. Johnson, Crime or Punishment: The Parental Corporal Punishment Defense-Reasonable and Necessary, or Excused Abuse?, 1998 U. ILL. L. REV. 413,425 [hereinafter Johnson, Crime or Punishment]; David Orentlicher, Spanking and Other Corporal Punishment ofChildren by Parents: Overvaluing Pain, Undervaluing Children, 35 Hous. L. REV. 147, 167-69 (1998); Patricia E. Weidler, Parental Physical Discipline in Maine and New Hampshire: An Analysis ofTwo States'Approaches to Protecting Children from Parental Violence, 3 WHITTIER 1. CHILD & FAM. ADVOC. 77, 87-88 (2003).

27 WORLD HEALTH ORGANIZATION, WORLD REPORT ON VIOLENCE AND HEALTH (Etienne G. Krug et al. eds., 2002).

According to the World Health Organization, there were an estimated 57,000 deaths attributed to homicide among children under 15 years of age in 2000. Global estimates of child homicide suggest that infants and very young children are at greatest risk, with rates for the 0-4-year-old age group more than double those of 5-14-year-olds.

Id. at 60. A 1995 survey in the United States asked parents how they disciplined their children.... An estimated rate of physical abuse of 49 per 1000 children was obtained from this survey when the following behaviours were included: hitting the child with an object, other than on the buttocks; kicking the child; beating the child; and threatening the child with a knife or gun. Available research suggests that the rates for many other countries are no lower, and may be indeed higher than the estimates of physical abuse in the United States.

Id. at 62. 28

See supra Ch. I, Part C, note 99 and accompanying text.

29 See WORLD HEALTH ORGANIZATION, supra note 27, at 64 (corporal punishment of children is a global phenomenon); Edwards, supra note 26, at 986-87, 1018 (corporal punishment of children has gone on all over the world and for "centuries"); Johnson, Crime or Punishment, supra note 26, at 415 (parents have used corporal punishment "throughout time"); Deana Pollard, Banning Child Corporal Punishment, 77 TUL. L. REV. 575,579 (2003) (adults have been spanking children "since the dawn of time").

Utility of Law Ameliorating or Eliminating Corporal Punishment • 351 30

See supra Ch.

~

note 1 and accompanying text.

31 See discussion supra Ch. I, Parts A, C. But see Weidler, supra note 26, at 117 (observing that parents can learn to stop spanking their children).

32

See supra Ch. I, Part C, note 99 and accompanying text.

33

See ide

34 See discussion supra Ch. ~ Parts A-B; Edwards, supra note 26, at 999-1000; Johnson, Crime or Punishment, supra note 26, at 413,416-18; Mary Kate Kearney,

Substantive Due Process and Parental Corporal Punishment: Democracy and the Excluded Child, 32 SAN DIEGO L. REV. 1,5,33 (1995); Orentlicher, supra note 26, at 153-54; Weidler, supra note 26, at 116, 120; Scott A. Davidson, Note, When Is Parental Discipline Child Abuse? The Vagueness of Child Abuse Laws, 34 U. LOUISVILLE J. FAM. L. 403,404,408,412 (1995-1996). 35

See discussion supra Ch.

~

Part A.

36 See Jacobson v. Massachusetts, 197 U.S. 11,30-34 (1905) (ruling that states may exercise their police powers to require vaccinations of children); 2 THOMAS A. JACOBS, CHILDREN AND THE LAW: RIGHTS & OBLIGATIONS § 10:13 (2004); 2 DONALD T. KRAMER, LEGAL RIGHTS OF CHILDREN § 24.08, at 451-54 (2d ed. 1994).

37

See discussion supra Ch.

~

Part A.

38 See, e.g., FLA. STAT. ANN. § 562.11(1)(a) (West, WESTLAW current through ch. 472 and H.J.R. No.1 and S.J.R. No. 2394 (end) of 18th Leg.) (stipulating that it is unlawful to provide alcoholic beverages to persons under twenty-one years of age); Ky. REV. STAT. ANN. § 244.080(1) (West, WESTLAW current through end of2003 Reg. Sess.) (prohibiting provision of alcoholic drinks to minors); MISS. CODE ANN. § 67-353(a) (West, WESTLAW current through end of 2003 Reg. Sess.) (stating that it is illegal to furnish alcoholic beverages to anyone under twenty-one years of age); Francis Barry McCarthy, The Confused Constitutional Status and Meaning ofParental Rights, 22 GA. L. REV. 975,1012 & n.143 (1988). 39 See, e.g., CAL. VEHICLE CODE § 12814.6 (West, WESTLAW current with urgency legisl. through ch. 209 & res. chs. 1 & 2 (proposition 57) & res. ch. 1 (proposition 58) of 5th Exec. Sess., & propositions 55 & 56) (setting conditions for obtaining a driver's license in relation to persons who are at least sixteen but under eighteen years of age); IDAHO CODE § 49-307A (Matthew Bender & Co., WESTLAW current through 2003 Sess.) (restricting school attendance driving permits to persons who are at least fourteen and under sixteen years old); VA. CODE ANN. § 46.2-335(A) (West, WESTLAW current through end of 2004 Spec. Sess. II) (allowing persons over the age of fifteen years and six months to obtain a learner's permit); McCarthy, supra note 38, at 1012 & n.143. 40 See, e.g., U.S. CONST. amend. XXVI, § 1 (establishing the minimum age for exercising the right to vote as eighteen years of age); McCarthy, supra note 38, at 1012 & n.143.

352 • Corporal Punishment of Children: A Human Rights Violation 41 See, e.g., OHIO REV. CODE ANN. § 3109.01 (West, WESTLAW current through 2004 file 94 of 125th GA (2003-2004), apv. by June 15, 2004) (declaring that all persons who are eighteen years of age or older are legally capable of entering into contracts); W VA. CODE ANN. § 33-6-4(b) (West, WESTLAW current through end of 2004 2d Extraordinary Sess.) (providing that a minor who is not less than fifteen years old can contract for life, accident or sickness insurance); 2 JACOBS, supra note 36, § 11:09; McCarthy, supra note 38, at 1012 & n.143. 42 See, e.g., ALASKA STAT. § 25.05.171(a) (Matthew Bender & Co., WESTLAW current through Aug. 12,2003) (asserting that a person who is at least sixteen years old but under eighteen years old can get a marriage license with the consent of his or her parents); MICH. COMPo LAWS ANN. § 551.51(1) (West, WESTLAW current through ~A. 2004, No. 201-211,213-218) (forbidding marriage of persons under sixteen years of age); Wyo. STAT. ANN. § 20-1-102(a) (WESTLAW current through 2003 Reg. Sess.) (stating that at the time of marriage, the parties to it must be at least sixteen years of age); McCarthy, supra note 38, at 1012 & n.143. 43

See supra Ch. III.

44

See id.

45 ALICE MILLER, BANISHED KNOWLEDGE: FACING CHILDHOOD INJURIES 167-75 (Leila Vennewitz trans., 1990) [hereinafter MILLER, BANISHED KNOWLEDGE]; see also ALICE MILLER, FOR YOUR OWN GOOD: HIDDEN CRUELTY IN CHILD-REARING AND THE ROOTS OF VIOLENCE 240-42 (Hildegarde Hannum & Hunter Hannum trans., 1990) [hereinafter MILLER, HIDDEN CRUELTY] (referring to the role of the enlightened witness without expressly naming it as such). 46

MILLER, HIDDEN CRUELTY, supra note 45, at 240.

47 See PHILIP GREVEN, SPARE THE CHILD: THE RELIGIOUS ROOTS OF PUNISHMENT AND THE PSYCHOLOGICAL IMPACT OF PHYSICAL ABUSE 132 (1991); ALICE MILLER, THE DRAMA OF THE GIFTED CHILD 8 (Ruth Ward trans., 1981) [hereinafter MILLER, GIFTED CHILD]; ALICE MILLER, THOU SHALT NOT BE AWARE: SOCIETY'S BETRAYAL OF THE CHILD 6 (Hildegarde Hannum & Hunter Hannum trans., 1990); 1. KONRAD STETTBACHER, MAKING SENSE OF SUFFERING: THE HEALING CONFRONTATION WITH YOUR OWN PAST 27-28 (1991).

48 See GREVEN, supra note 47, at 123; PENELOPE LEACH, YOUR GROWING CHILD: FROM BABYHOOD THROUGH ADOLESCENCE 224 (1996); ALICE MILLER, BREAKING DOWN THE WALL OF SILENCE 55 (Simon Worrall trans., 1991) [hereinafter MILLER, WALL OF SILENCE]. 49

See MILLER, HIDDEN CRUELTY, supra note 45, at 6-7,61,240-41.

50

See supra Ch. I, Part C.

51

See MILLER, HIDDEN CRUELTY, supra note 45, at 172.

52 See GREVEN, supra note 47, at 130-41, 148-74 (associating repressed childhood anger with such inward-turning adult disorders as depression, obsessive-compulsive behavior, dissociation, and paranoia); MILLER, GIFTED CHILD, supra note 47, at 30-38 (explaining that when a child is forced to adapt to parental dictates that are not

Utility of Law Ameliorating or Eliminating Corporal Punishment • 353

geared to the child's needs, the child will split feelings of need from the rest of his or her psyche and submerge such feelings); MILLER, WALL OF SILENCE, supra note 48, at 86-87, 108-09, 111 (indicating that paranoia, such as that exhibited by Adolf Hitler and Nicolae Ceausescu, may result from beatings and other harsh discipline during childhood); STETTBACHER, supra note 47, at 16, 18 (pointing out that physical attacks on a child can lead to "a constant state of readiness to ward off perceived dangers"). 53 The anger repressed in childhood is acted out or repeated in adult life as aggression against others who are perceived as surrogates for the once punitive parents. See GREVEN, supra note 47, at 126-27; MILLER, HIDDEN CRUELTY, supra note 45, at 61,65-66,115-17,172; MILLER, WALL OF SILENCE, supra note 48, at 91,108; WILLIAM SEARS & MARTHA SEARS, THE DISCIPLINE BOOK: EVERYTHING You NEED TO KNOW TO HAVE A BETTER-BEHAVED CHILD-FROM BIRTH TO AGE TEN 153-54 (1995); Dean M. Herman, A Statutory Proposal to Prohibit the Infliction of Violence upon Children, 19 FAM. L.Q. 1, 36 (1985); see also Elizabeth Thompson Gershoff, Corporal Punishment by Parents and Associated Child Behaviors and Experiences: A MetaAnalytic and Theoretical Review, 128 PSYCHOL. BULL. 539, 543-44 (2002) (finding a correlation between corporal punishment of children, and adult aggression and antisocial behavior). 54

MILLER, HIDDEN CRUELTY, supra note 45, at 115-16.

55 Id. at 62,66-75,79-84,86-91, 115, 139-97,242-43,264-65; ALICE MILLER, THE UNTOUCHED KEy: TRACING CHILDHOOD TRAUMA IN CREATIVITY AND DESTRUCTIVENESS 50-54,62-68 (Hildegarde Hannum & Hunter Hannum trans., 1990); MILLER, WALL OF SILENCE, supra note 53, at 81-113. Other authors have also concluded that corporal punishment of children contributes to promoting man's inhumanity to man on a societal scale. See, e.g., GREVEN, supra note 47, at 199,201-04,206-07; BENJAMIN SPOCK, DR. SPOCKON PARENTING 151-52 (1988); Herman, supra note 53, at 36-39. 56 Interview with Alice Miller, Psychologist and Author, in Barcelona, Spain (Oct. 19, 1997).

57 Id.; cf, Gibbons, supra note 20, at 135 (pointing out that criminalizing parental physical abuse of children "will educate victims that their parent's behavior was unacceptable").

58 See PATTERSON, supra note 11, at 197; Larry Cata Backer, Culturally Significant Speech: Law, Courts, Society and Racial Equity, 21 U. ARK. LITTLE ROCK L. REv. 845, 873 (1999); Jules L. Coleman & Brian Leiter, Determinacy, Objectivity, and Authority, 142 U. PA. L. REV. 549,582-83 (1993); Jacobson, supra note 11, at 2223. 59

See supra Ch. VI, Part A, notes 11-13, 18 and accompanying text.

60

See discussion supra Ch. III.

61

See supra Ch. III, Part A(i), notes 49-50 and accompanying text.

62 See BARBRO HINDBERG, ENDING CORPORAL PUNISHMENT: SWEDISH EXPERIENCE OF EFFORTS TO PREVENT ALL FORMS OF VIOLENCE AGAINST CHILDREN-AND THE RESULTS 13

354 • Corporal Punishment of Children: A Human Rights Violation (Swedish Ministry of Health and Social Affairs and Swedish Ministry for Foreign Affairs 2001). 63 "The War to End All Wars": President Woodrow Wilson's Address to Congress on April 2, 1917, at http://facnotes.ifrance.com/facnotes/9THE%20WAR%20TO %20END%20ALL%20 WARS.htm (last visited Aug. 5,2004). 64 Since World War I, the globe has been convulsed by World War II and has witnessed an endless procession of regional military confrontations. See GEOFFREY PERRET, A COUNTRY MADE By WAR: FROM THE REVOLUTION TO VIETNAM-THE STORY OF AMERICA'S RISE TO POWER 307-40,357,363-88 (1989) (depicting aspects of World Wars I and II). To name just a few since 1945, there have been international military clashes involving Korea, Vietnam, Grenada, and Panama, and in the Middle East and the Balkan countries. See II THOMAS G. PATERSONET AL., AMERICAN FOREIGN RELATIONS: A HISTORY SINCE 1895, at 267-75,316-20,340-51,374-79,445-46,475-77,484-85, 488, 490-91(5th ed. 2000) (recounting wars embroiling the listed nations). This enumeration does not cover the torrent of civil wars internal to various countries such as have occurred in Rwanda and Liberia. See Raymond Bonner, Rwanda Facing Difficult Struggle for Rebirth, THE PATRIOT LEDGER, Dec. 30, 1994, at 4; William Johnson, Hope

and Despair; From Mandela s Election in South Africa to the Nightmare in Rwanda, 1994 Was a Year in Which Hope Grew a Little Taller than Despair, MONTREAL GAZETTE, Dec. 30, 1994, at B3; BBC News (U.K. Edition), Country Profile: Liberia, at http://news.bbc.co.uk/l/hi/world/africa/country_profiles/l043500.stm (last visited Aug. 6, 2004). 65 See, e.g., Universal Declaration of Human Rights, art. 1, G.A. Res. 217A (III), U.N. GAOR, 3d Sess., pt. 1, U.N. Doc. Al810, at 71,72 (1948) (providing, in part, that "[a]ll human beings are born free and equal in dignity and rights"); PAUL GORDON LAUREN, THE EVOLUTION OF INTERNATIONAL HUMAN RIGHTS: VISIONS SEEN 227-28 (2d ed. 2003). 66 See LOUIS HENKIN, THE AGEOF RIGHTS 1, 13-21 (1990); LAUREN, supra note 65, at 199-211,225-47,302. 67 See HENKIN, supra note 66, at 43; LAUREN, supra note 65, at 199-201; Louis Henkin, That "S" Word: Sovereignty, and Globalization, and Human Rights, Et Cetera, 68 FORDHAM L. REV. 1,2-5,7 (1999); Dieter Kastrup, From Nuremberg to

Rome and Beyond: The Fight Against Genocide, War Crimes, and Crimes Against Humanity, 23 FORDHAM INT'L L.I 404, 412 (1999); Ranee K.L. Panjabi, Human Rights in the 1990s: Promise or Peril?, 82 CORNELL INT'L L.I 229,230 (1995). 68

NEWELL, supra note 8, at ix.

69

See supra Ch. VI, Part A, note 29 and accompanying text.

70

See discussion supra Ch. I, Part C.

71

Children's Convention, supra note 6, at 166; see discussion supra Ch. II,

Part A. 72

See discussion supra Ch. II, Part B.

73

See discussion supra Ch. I, Parts A-C.

AFTERWORD

The ordinary meaning of relevant treaty language and the constructions of that language by courts, commissions, or treaty monitoring committees, whose members' interpretations are knowledgeable and authoritative and should therefore be accorded deference, makes the conclusion inescapable that all "subabuse" corporal punishment of children is a human rights violation. With this legal development, human rights law took a giant stride toward becoming fully humane and thus far worthier of its appellation. For, to leave children and only children unprotected from violence, especially that violence which they are told is discipline for their own good, is to cast them out of the family of man, devalued, hurt, confused, cowering, and silenced. It is to make tears course down little faces and to make little bodies quail before the very adults who should be a refuge from tears and quailings. It is to plant resentment in infant breasts and to put these children at risk of persisting increased aggression, increased antisocial and criminal conduct, and increased mental illness. But that is not all. Strange though it may seem, corporal punishment of children also may become a source of parental gall and wormwood. Parents who use physical chastisement may unsuspectingly provoke the alienation of their children and division of their families, even if the parents have not strayed across those hazy boundaries between legal corporal punishment and criminal assault or child abuse in countries that still permit such punishment. The international human rights law prohibition on corporal punishment of children and the fifteen national bans on such chastisement are obviously designed to spare children from a great deal of unnecessary suffering. What is less obvious, but just as true, is that these are intensely family-friendly provisions that have the potential to help improve and facilitate healthy parental control over children's behaviors. It goes without saying that what is family-friendly is also societyfriendly. It has long been held that families are the building blocks of nations. Stronger families mean more robust sovereign states. The legal prohibition on all corporal punishment of children may additionally fur355

356 • Corporal Punishment of Children: A Human Rights Violation

ther societal interests in peace, democracy, and respect for human rights by populating the world with fewer inordinately aggressive, antisocial, unfeeling, and emotionally disturbed individuals. We have it literally within our hands to contribute to making this roiling maelstrom of a planet less furious and fearsome. But, even if the prospect for such global contributions is an exaggerated and vain hope, each family or school that disdains to hit its young will still become a more compassionate and life-affirming corner of the world. Though the effect of refraining from this violence goes no farther than home or schoolhouse, the quality of life in those modest little corners matters too-indeed, makes all the difference for those who live in them. Renouncing corporal punishment of our children and students is a measure within the reach of the most disenfranchised and outcast adults. Anyone and everyone can stop; it requires no arcane knowledge and no herculean fortitude. National bans on corporal punishment of children assist us to stop. They create a sympathetic mind-set and unrelenting social pressure conducive to abstention. Besides, it is our imperative and high duty to cease corporally punishing children once and for all under international human rights law.

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CASES

A v. United Kingdom, 90 Eur. Ct. H.R. 2692 (1998) A v. United Kingdom, App. No. 25599/94, 1998 VI Eur. Ct. H.R. 2692 (1997) (Commission report) Albert S. v. Pamela G.M., 737 N.Y.S.2d 196 (N.Y. App. Div. 2002) Anderson v. State, 487 A.2d 294 (Md. Ct. Spec. App. 1985) App. No. 10592/83 v. United Kingdom, 9 Eur. H.R. Rep. 277 (1987) (Commission report) App. No. 25599/94, 22 Eur. H.R. Rep. 190 (1996) (Commission report) Assenov and Others v. Bulgaria, 96 Eur. Ct. H.R. 3264 (1998) Atkins v. Virginia, 122 S. Ct. 2242 (2002) Attorney General of the Republic of Cyprus v. A. B. (Criminal Appeal 7329, Aug. 6, 2002) Attorney General of the Republic of Cyprus v. Eleni Ioannou (Criminal Appeal 7403, Nov. 27,2003) Boland v. Leska, 454 A.2d 75 (Pa. Super. Ct. 1982) Boxell v. Boxell, No. L-85-130, 1986 WL 2690 (Ohio Ct. App. Feb. 28, 1986) Buchheit v. Stinson, 579 S.E.2d 853 (Ga. Ct. App. 2003) Cambria, Cass., Sez. VI, 18 marzo 1996 [Supreme Court of Cassation, 6th Penal Section, Mar. 18, 1996], Foro It. II 1996, 407 Campbell & Cosans v. United Kingdom, 1982 Y.B. Eur. Cony. on H.R. 3 (Eur. Ct. ofH.R.) Canadian Foundation for Children, Youth and the Law v. Attorney General in Right of Canada, [2004] S.C.R. 257 Casso Civ., Sez. I, 19-04-2002, n. 5714 [Italian Court of Cassation, Civil Section I, Apr. 19, 2002, No. 5714] Casso Pen., Sez. VI, 19-01-1996, Carbone, Rivista Cassazione Penale, Vol. 9, 1997 [Italian Supreme Court of Cassation, Penal Section VI, Jan. 16, 1996, Carbone, Journal of Penal Cassation, Vol. 9, 1997] Case 10.506, Inter-Am. C.H.R. 50, OEA/ser.L/V/II.95, doc. 7 rev. (1996) Case 10.970 Inter-Am. C.H.R. 157, OEA/ser.L/V/II.91, doc. 7 rev. (1996) Case 11.491, Inter-Am. C.H.R. 573, OEA/ser.L/V/II.I02, doc. 6 rev. (1999) 383

384 • Corporal Punishment of Children: A Human Rights Violation

Case 11.610, Inter-Am. C.H.R. 724, OEA/ser.L/V/II.102, doc. 6 rev. (1999) Case 9853, Inter-Am. C.H.R. 400, OEA/ser.L/V/II.98, doc. 7 rev (1998) Charalambos Charalambous v. Athanasia Dafiotou-Charalambous, from Greece, Natural Mother of Minors Nikos, Markos and Andreas (Appeal 69, June 13, 1997) City of Shaker Heights v. Wright, No. 69517, 1996 WL 355309 (Ohio Ct. App. June 27, 1996) In re C.M.I, 915 P.2d 62 (Kan. 1996) Commonwealth v. Douglass, 588 A.2d 53 (Pa. Super. Ct. 1991) Costello-Roberts v. United Kingdom, 247 Eur. Ct. H.R. 47 (1993) Costello-Roberts v. United Kingdom (Annex), 247 Eur. Ct. H.R. 66 (1991) (Commission report) Cyprus v. Turkey, App. No. 25781/94 (Eur. Ct. of H.R. 2001), at http: 1Ihudoc.echr.coe.int/Hudoc2doc2/HEJUD/200 1051cyprus%20v.%20tur key%20-%20-%2025781jv.gc%2010052001e.doc DeShaney v. Winnebago County Dep't of Soc. Serv., 489 U.S. 189 (1989) D. P. & I C. v. United Kingdom, App. No. 38719/97 (Eur. Ct. ofH.R.) (2003), at http://hudoc.echr.coe.int/Hudoc 1doc2/HEJUD/2003021 dp% 20&%20jc%20v. %20uk%20%203 8719jv%20chbl%2010102002e.doc Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856) East African Asians v. United Kingdom, Apps. Nos. 4403/70-4419/70, 4422/70, 4434/70, 4443/70, 4476/70-4486/70, 4501/70 and 4526/704530/70, 78-A Eur. Comm'n H.R. Dec. & Rep. 5 (1973) Estelle v. Gamble, 429 U.S. 97 (1976) Garcia v. Miera, 817 F.2d 650 (10th Cir. 1987) Gerety v. Gerety, 306 A.2d 693 (Vt. 1973) Gottlieb v. Laurel Highlands Sch. Dist., 272 F.3d 168 (3d Cir. 2001) Hack v. Hack, 695 S.W2d 498 (Mo. Ct. App. 1985) Hall v. Tawney, 621 F.2d 607 (4th Cir. 1980) Handyside v. United Kingdom, 1 Eur. H.R. Rep. 737, Series A No. 24 (1976) Harbaugh v. Commonwealth, 167 S.E.2d 329 (Va. 1969) Hope v. Pelzer, 536 U.S. 730 (2002) Hudson v. McMillian, 503 U.S. 1 (1992) Ingraham v. Wright, 430 U.S. 651 (1977) Jacobson v. Massachusetts, 197 U.S. 11 (1905) I B. v. Dep't of Pub. Welfare, 824 A.2d 342 (Pa. Commonw. Ct. 2003) In re I B. B., No. CO-00-1606, 2001 WL 243221 (Minn. App. Mar. 13, 2001) (unpublished)

Cases • 385

In re 1. P., 692 N.E.2d 338 (Ill. App. Ct. 1998) Juridical Status and Human Rights of the Child, Advisory Opinion OC17/02, Aug. 28, 2002, Inter-Am. Ct. H.R. (ser.A) No. 17, at http://wwwl.umn.edu/humanrts/iachr/series_A_OC-17 .html In re K.B., No. 21365, 2003 WL 21658319 (Ohio Ct. App. July 16,2003) Kivler v. Olczak, 692 N.Y.S.2d 549 (N.Y. App. Div. 1999) Kurt v. Turkey, 74 Eur. Ct. H.R. 1152 (1998-111) Law v. Law, 676 N.E.2d 771 (Ind. Ct. App.1977) LG-2000-02503 [Norwegian Gulating Court of Appeal] Lillard v. Shelby County Bd. ofEduc., 76 F.3d 716 (6th Cir. 1996) Marshall v. Marshall, No. 1-99-81,2000 WL 177969 (Ohio Ct. App. Feb. 16,2000) In re Miles, No. 01CA0054, 2002 WL 1065704 (Ohio Ct. App. May 22, 2002) Moore v. Willis Indep. Sch. Dist., 233 F.3d 871 (5th Cir. 2000) Mrs. X & Ms. X v. United Kingdom, App. No. 9471/81,7 Eur. H.R. Rep. 450 (1985) Natural Mother v. Hinds County Welfare Dep't, 579 So. 2d 1269 (Miss. 1991) Neal v. Fulton County Bd. of Educ., 229 F.3d 1069 (11th Cir. 2000) Newby v. United States, 797 A.2d 1233 (D.C. 2002) Oberster Gerichtshof 6/24/1992, lOb 573192 [Austrian Supreme Court] Ocalan v. Turkey, App. No. 46221/99 (Eur. Ct. of H.R. 2003), at http: 1Ihudoc.echr.coe.int/Hudoc 1doc2/HEJUD/2003 071ocalan%20%2046221jv. chb1 %2011032003e.doc Cass., Pen., Sez. VI, 07-11-1997, Paglia, n. 3789, pagina 33, Rivista Codice Penale, Volume 8, N. 7, 1999 [Italian Supreme Court of Cassation, Penal Section VI, Nov. 7, 1997, Paglia, No. 3789, p. 33, Journal of Penal Code Vol. 8, N.7 1999] P.B. v. Koch, 96 F.3d 1298 (9th Cir. 1996) People v. Ball, 317 N.E.2d 54 (Ill. 1974) People v. DeCaro, 308 N.E.2d 196 (Ill. App. Ct. 1974) People v. Thomas, 65 Cal. App. 3d 854 (Cal. Ct. App. 1976) People v. Wehmeyer, 509 N.E.2d 605 (Ill. App. Ct. 1987) People ex rel. E. S., 49 ~3d 1221 (Colo. Ct. App. 2002) Pinder v. United Kingdom, App. No. 10096/82,7 Eur. H.R. Rep. 464 (1984) (Commission report) F.C. 95830/98, Plonim v. Ploni (2000) (unpublished) (Israeli Family Court) Pretty v. United Kingdom, App. No. 2346102 (Eur. Ct. of H.R. 2002), at

386 • Corporal Punishment of Children: A Human Rights Violation

http://hudoc.echr.coe.int/Hudoc 1doc2/HEJUD/20021 0/pretty%20%202346jnv.chb4%2029042002e.doc Puett v. Miller, 23 ~3d 979 (Okla. Civ. App. 2001) Raford v. State, 828 So. 2d 1012 (Fla. 2002) Rial v. Rial, No. M2002-01750-COA-R3-C~ 2003 WL 21805303 (Tenn. Ct. App. Aug. 7,2003) R. M. v. S. G., 13 P.3d 747 (Alaska 2000) In re Rodney C., 398 N.Y.S. 2d 511 (N.Y. Fam. Ct. 1977) Ronningen v. C.W, 290 N.W2d 675 (N.D. 1980) Roper v. Simmons, 125 S. Ct. 1183 (2005) R.S.M. v. Dep't of Health and Rehabilitative Serv., 640 So. 2d 1126 (Fla. Dist. Ct. App. 1994) Rt-1990-1155 (388-90) [Norwegian Supreme Court] Saylor v. Bd. ofEduc., 118 F.3d 507 (1997) Selcuk and Asker v. Turkey, Apps. Nos. 23184/94 and 23185/94, 71 Eur. Ct. H.R. 922 (1996) Selcuk and Asker v. Turkey, 71 Eur. Ct. H.R. 891 (1998-11) Sepesi v. Goris, No. WD-02-028, 2003 WL 1702505 (Ohio Ct. App. Mar. 31,2003) 7 Individuals v. Sweden, 29 Eur. Comm'n H.R. Dec. & Rep. 104 (1982) 78 Ops. Cal. Att'y Gen. 197 (1995), 1995 WL 413858 Simmons v. Simmons, 554 So. 2d 238 (La. Ct. App. 1989) State v. Arnold, 534 N.W2d 600 (Iowa 1996) State v. Bridges, No. C9-01-1842, 2002 WL 31368016 (Minn. App. Oct. 22, 2002) (unpublished) State v. Figarola, 788 So. 2d 1109 (Fla. Dist. Ct. App. 2001) State v. Howard, No. 98-L-265, 1999 WL 1313691 (Ohio Ct. App. Dec. 3, 1999) State v. Hunt, 406 ~2d 208 (Ariz. Ct. App. 1988) State v. McDonald, 785 So. 2d 640 (Fla. Dist. Ct. App. 2001) State v. McNichols, 2002 WL 31538788 (Ohio App. 4 Dist. Nov. 12, 2002) State v. Singleton, 705 ~2d 825 (Wash. Ct. App. 1985) State v. Spencer, 486 So. 2d 870 (La. Ct. App. 1986) State v. Straight, 347 ~2d 482 (Mont. 1959) State v. Thorpe, 429 A.2d 785 (R.I. 1981) Cr. 40297/00, State of Israel v. Nagar (unpublished) (Israeli lower court) Cr. App. 4596/98, State of Israel v. Plonit, 54 ~D. 145 (Israeli Supreme Court)

Cases • 387

App. Pub. Servo 3362/02, State of Israel v. Salam Abu Asbah (2002) (unpublished) (Israeli Supreme Court) Cr. App. 5224/97, State of Israel v. Sede-Orr, ~D. 52(3) (Israeli Supreme Court) Steber v. Norris, 205 N.W 173 (Wis. 1925) Straffedom av Halogaland lagmannsrett 1995-11-29 (LH-1995-00497) [Norwegian Halogaland Court of Appeal] Ex parte T. D.T., 745 So. 2d 899 (Ala. 1999) Thompson v. Koontz, 2000 WL 1739291 (Ohio Ct. App. Nov. 22,2000) Three Members of the A. Family v. United Kingdom, 52 Eur. Comm'n H.R. Dec. & Rep. 149 (1987) Trop v. Dulles, 356 U.S. 86 (1958) Tsavachidis v. Greece, App. No. 28802/95,23 Eur. H.R. Rep. CD 135 (1997) Tyrer v. United Kingdom, 26 Eur. Ct. H.R. (ser. A) (1978) Urena v. Wing, 687 N.Y.S.2d 365 (N.Y. App. Div. 1999) App. Pub. Servo 1682/02, Vhab v. State of Israel (2002) (unpublished) (Israeli Supreme Court) Wallace v. Batavia Sch. Dist. 101, 68 F.3d 1010 (7th Cir. 1995) Warwick v. United Kingdom, App. No. 9471/81, 60 Eur. Comm'n H.R. Dec. & Rep. 5 (1986) Weems v. United States, 217 U.S. 349 (1910) Williams v. McKeithen, 121 F. Supp. 2d 943 (M.D. La. 2000) Wolfe v. State, 743 So. 2d 380 (Miss. 1999) Y v. United Kingdom, App. No. 14229/88, 17 Eur. H.R. Rep. (ser. A) (1991 ) (Commission report) Y v. United Kingdom, 1992 Y.B. Eur. Cony. on H.R. 196 (Eur. Ct. H.R.) Y. F. v. Turkey, App. No. 24209/94 (Eur. Ct. of H.R.) (2003), at http:// hudoc.echr.coe.int/Hudoc 1doc2/HEJUD/200307/y.f.%20v.%2 oturkey %20-%2024209jv.chb4%2022072003e.doc Zilli and Bonardo v. Italy, App. No. 40143/98 (Eur. Ct. ofH.R. 2002), at http://hudoc.echr. coe.int/Hudoc2doc2/HEDEC/200205/40143_dap_par tialdecision18_4_02.doc

TREATIES AND INTERNATIONAL DECLARATIONS

African Charter on Human and Peoples' Rights, June 24-27, 1981,21 LL.M. 59 (1982) American Convention on Human Rights, done on Nov. 22, 1969, OEA /ser. L.V/IL82, doc. 6 rev. 1, at 25 American Declaration of the Rights and Duties of Man, O.A.S. Res. XXX, adopted by the Ninth International Conference of American States, Bogata, Mar. 30-May 2, 1948 Antarctic Treaty, signed Dec. 1, 1959, 12 U.S.T. 794, T.LA.S. 4780 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51 Convention on the Rights of the Child, Nov. 20, 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49 (A/44/49), at 166, U.N. Doc. A/RES/44/25 European Convention for the Protection of Human Rights and Fundamental Freedoms, done on Nov. 4, 1950,213 U.N.T.S. 221 European Social Charter, Oct.18, 1961,519 U.N.T.S. 89 European Social Charter (Revised), May 3,1996,36 LL.M. 31 Inter-American Convention to Prevent and Punish Torture, adopted Dec. 9, 1985, at 83, OEA/ser. L.V/11.82, doc. 6 rev. 1 International Covenant on Civil and Political Rights, openedfor signature Dec. 19, 1966, G.A. Res. 2200A (XXI), Annex, U.N. GAOR, 21st Sess., Supp. No. 16, at 49, U.N. Doc. A/6316 International Covenant on Economic, Social and Cultural Rights, opened for signature Dec. 16, 1966, G.A. Res. 2200A (XXI), Annex, U.N. GAOR, 21st Sess., Supp. No. 16, at 49, U.N. Doc. A/6316 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, May 25, 2000, G.A. Res. 54.263, Annex I, U.N. GAOR, 54th Sess., Supp. No. 49 (A/54/49), at 6, U.N. Doc. A/RES/54/263 Nuclear Nonproliferation Treaty, opened for signature July 1, 1968, T.LA.S. 6839, 21 U.S.T. 483 389

390 • Corporal Punishment of Children: A Human Rights Violation

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, openedfor signature Jan. 27, 1967, 18 U.S.T. 2411, 610 U.N.T.S. 205 Reg. No. 8843 U.N. Declaration on the Elimination of Violence Against Women, G.A. Res. 48/104, U.N. GAOR, 48th Sess., Supp. No. 49, at 217, U.N. Doc. A/48/49 (1993) Universal Declaration of Human Rights, G.A. Res. 217 A(III), U.N. GAOR, 3d Sess., pte 1, U.N. Doc. A/810, at 71 (1948) Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331

INDEX

Adulthood Effect of corporate punishment on children when they reach, 24-28 World's ills may be attributed to conduct toward children, 24-28 African American exception, 12, 38, 70 Aggressiveness, 26 Long term affects of corporal punishment and, 11-12 American napalming of villages in Vietnam, 24 Austria, 171-174 Ban on corporal punishment in 1989, 171 Civil suits, 173 Criminal code on corporal punishment, 172-1 73 Bodily injury component, 172 Custody issues, 173 Statistical survey on parental attitudes, 174 Best interest of the child, 214, 294 Children's Convention and, 71-72 Black children, 12-14,38,70 Disproportionate amount in school, 13 Bulgaria, 197-200 Civil actions, 199 Humanism in family relationship, 197 Institutional settings, 198

Punishment, 198-199 Bullying, 160 Ban on corporal punishment in 2000, 197 Canada, 261,291-302 Canadian Foundations case, 291 et seq. Case brought to question corporal punishment laws, 291 et seq. Critique of case, 301-302 Dissent, 296 et seq. Review of opinion, 293 et seq. Dignity and freedom issue, 298 Spanking, 292 et seq. Child and Adolescent Psychiatric Assessment (CAPA), 22 Civil law and common law, 255 Civil rights Act of 1871, 33 Civil suits See as subhead to other topics and countries Convention on the Rights of the Child (Children's Convention), xxv, 49, 50-75,85 et seq., 107, 117 et seq., 250, 335 et seq. Adult guidance of children, 72-74 Evolving capacities of the child, 73 Matters affecting their lives, 72-74 Best interest of the child, 71-72 Binding nature of, 52 391

392 • Corporal Punishment of Children: A Human Rights Violation

Convention on the Rights of the Child (continued) Children's Convention as a whole, 53 Committee on the Rights of the Child (Children's Committee), 51 et seq., 85 Establishment of, 51 Guidelines, 52 Reports of, 51-52 Selection of members, 51 Corporal punishment, view of 53 Customary international law and, 50-51 Discrimination, general principle against, 67-71 Optional Protocol, 123 Provisions prohibiting torture, etc., 59-63 Provision protecting against violence, 53-56 Provisions protective of dignity, 63-67 Provisions regarding school discipline, 56-59 Article 29, paragraph 1 and, 58-59 Provisions regarding traditional practices prejudicial to health, 67-69 Soft law and, 52 Survival and development, 74-75 Travaux preparatoires, 66 et seq. United States and Somalia not parties to, 50 Corporal punishment See also specific topics Afterward, 355-356 Categories of, xix Definition of, xix, 2-5 Dirty secret of, xiii et seq.

Family friendly-society friendly, 355 Generalities about Cannot conclude that it is the cause of all ills, 26 et seq. Psychological reactions of child to, xvi et seq. Public support for, xxiv Statistics as to, xxiv Role of law in minimizing, xviii, 335-354 Downsides in using law to abolish corporal punishment, 336-342 Educational role of laws, 337 Enlightened witness Assist children in avoiding repression of anger, 342-345 Governments routinely interfere in family matters, 341 Law impinging on family relations, 339 Meta-analyses, 340 Nonenforcement argument, 338-339 Nonlitigious strategy, 338 Tort actions and, 336, 338 Ultimately eliminating, 335-354 Value of humane treatment of children, 345-346 Statistics Banned in fifteen countries, 34 Used in three-quarters of the world's societies, 34 Studies that favor, 14-1 7 Criminal law See as subhead to countries and other topics Croatia, 184-187

Index • 393

Ban on corporal punishment in 1998, 184 Custody, 187 Damages, 186 Educators, 187 Parents Assault charges for corporal punishment, 184-185 Punishment, 185-186 Customary international law and, 50-51 Cyprus, 174-180 Ban on corporal punishment in 1994 Reiterated in 2000, 174 et seq. Custody and, 178 Dignity issue, 176 Domestic violence, 175 Educating public about violence, 179 Private shelters and, 177 Punishment for inflicting harm, 178 Spankings, 179 Survey, 179-180 Violence issue, 174 et seq. Damages See as subhead to other topics Denmark, 180-184 Abolition of corporal punishment in public schools, 180-181 Ban against corporal punishment in 1985, 180 Amended law in 1997 to complete ban, 180 Custody, 183 Damages, 183 Day care centers, 181 Penal code and, 182 Residential institutions, 181

Diagnostic and Statistical Manuals (DSM),22 Dignity, 176 Children's Convention on, 63-67 Definition, 63 International human rights instruments Provisions protective of, 77-79 Kant's conception of, 63-64 Discrimination Children's Convention and, 69-71 Definition, 69 Dissociation, 41 Domestic laws Countries absolutely prohibiting all corporal punishment of children, 153-245 See also specific countries Domestic laws permitting some corporal punishment, 261-334 See Canada, United States Domestic violence, 175 See also, in general, other topics Economic achievement Corporal punishment and, 23 Enlightened witness, 342-345 Repetition compulsion, 343 Repression, 343 Teach children about corporal punishment, 344-345 Finland, 160-165 Ban on corporal punishment in 1983, 161 Child custody issues, 164 Criminal Procedure Act, 163

394 • Corporal Punishment of Children: A Human Rights Violation

Finland (continued) Damages for infliction of punishment on children, 163-164 Family violence statistics, 164-165 Penal Code and corporal punishment, 162 et seq. Food and Drug Administration Baycol,9 Phenylpropanolamine (PPA), 9-10 Germany, 189-197 Ban on corporal punishment in 200, 189-190 Civil actions, 193-194 Educational materials, 195 Germany's federal states and, 190 Parental right of punishment, 191 Prosecution, 191 Review of the effect of the ban, 196 Social services, role of, 193 Youth Welfare Department, 195 Gratuitous nature of corporal punishment, 2-5 Modify behavior by pain, 2-5 Gypsies, 24 Health Children's Convention and, 67-69 Helplessness of children undergoing corporal punishment, 5-8 Hitler, Adolf, 41 Hyperarousal response, 20-21 Iceland, 200-205 Ban on corporal punishment in 2003,200

Civil suits, 203-204 Custody, 204-205 Educational system and, 201-202 Punishment, 202-203 Intellectual achievement Corporal punishment and 12 International human rights laws, 75-115 See also United Nations Convention on the Rights of the Child See also "Treaties and International Declarations" Corporal punishment is a violation of, 47-151 Corporal punishment not defined in, 47-48 Cruel, inhuman, or degrading treatment or punishment Provisions against, 80-98 Horizontal effects terminology, 49 et seq. Personal security, provisions regarding, 98-101 Physical and mental health, 112-115 Privacy, provisions protective of, 102-109 Provisions protective of dignity, 77-79 Social and economic protection, right to, 110-112 Torture Provisions against, 80-98 Interspecies violence, xv Israel, 153, 205-211 Cultural relativism argument, 208-209 Custody, 207-208 Defenses to corporal punishment cases, 206-207

Index • 395

Judicial decisions, 205-211 Pupil's Rights Law, 207 Teachers Report on the limits of their discipline, 210-211 Italy, 153,247-259 Authoritarian and hierarchical structure of Italian family, 250 Cambria decision Abuse by means of correction, 249 et seq. Compulsory only to parties, 247 et seq. Parental abuse continues despite decision, 251 et seq. Precedential value of 248 et seq. Violence for educational purposes banned, 247 et seq. Carbone case, 253 et seq. Beating of inmates, 254 Betrayal of Cambria case, 254 Penal Code, Article 571, 251 et seq. Role of UN Convention on the Rights of the Child, 250 et seq. Jews, 24 Khmer Rouge, 24 Ku Klux Clan, 6-7, 32 Beating of slaves, 7 Corporal punishment of blacks, 32 Latvia, 187-189 Ban on corporal punishment in 1998, 187 Civil action, 188 Custody, 189

Punishment, 188 Levi, Primo, 25-26 Literature Children and, xiii Loco parentis, 107 Longitudinal study, 35 Meta-analyses, 15-16, 340 Model Penal Code, 6, 31 Moral objections to, 1-46 Nazis, 24, 25 Non-corporal penalties Suspensions, etc., 3 Norway, 165-170 Ban on corporal punishment in 1987, 166 Criminal prosecutions for corporal punishment, 167 Spankings and hair-pulling, 170 Use of force in institutional setting, 168-169 Pain Children and, xx Paranoia, 41 Peaceful coexistence Evolution of from caveman days, xiv et seq. Personal security International human rights instruments and, 98-101 Physical and mental health International human rights provisions as to, 112-115 Physiological damage, 12 Pinochet, 24 Portugal Corporal punishment repudiated between parties, 248

396 • Corporal Punishment of Children: A Human Rights Violation

Postraumatic stress syndrome (PTSD), 19-22 Privacy Article 8 of the European Convention and, 102 et seq. International human rights instruments Provisions protective of, 102-109 Specific references to sections relating to privacy, 107-108 School disciplinary sanctions and corporal punishment, 103 et seq. Swedish penal code and, 106 et seq. Vaginal examinations enforced, 108-109 Psychological damages caused by corporal punishment Adulthood and, 18 Correlational studies, 10-11, 34 Immediately and forever, 8-23 Punishment See as subhead to countries Reconstruction Act of 1867, 33 Repressed childhood fury, 19 Repression, 342-345 Restatement (Second) of Torts, 269 Roosevelt, Eleanor, 100-101 Rwanda, 24 School discipline Children's convention on, 56-59 Security of person, 145 Sexuality Corporal punishment and, 22-23 Smacking children Bullies and, 36

Social and economic protection International human rights and, 110-112 Soft law and, 52 Soul murder, xiv Spanking, xiv, xix, 58 See also as subhead to other topics Human rights law and, 47 et seq. Torture and, 83 Traditional practice, 67 Stalin, 24 Survival and development Children's Convention and, 74-75 Sweden, 153, 154-160 Bullying, 160 Child development experts on the ban, 157 et seq. Commission on Children's Rights, 155 Complete ban on corporal punishment, 154-160 Criminalizing physical assaults on children, 155 et seq. Swedish Committee on child Abuse, 159 Tort actions and, 336, 338 See also as subhead to other topics Torture Children's Convention and, 59-63 Definition, 81 Domestic violence context, 85-86 International human rights instruments Provisions against torture, 80-98

Index • 397

Toxic emotional reactions, 12 Trauma Definition as applied to children, 21 United Nations See "Treaties and International Declarations" United States, 262-291 Bruise marks as indicia of abuse, 268 Capital punishment, 289 Court's role where legislation lags, 267 et seq. Critique of U.S. opinions on corporal punishment, 290-291 Precedent of other countries, 282 Custody decisions, 276-277 DeShaney v. Winnebago case, 262 et seq. Critique of decision, 262 et seq. Due Process case brought to U.S.Supreme Court, 264 et seq. No constitutional duty to protect individuals from abuse, 264 et seq. Eighth Amendment issue, 279 Federal Court cases, 285 et seq. Foster care providers and corporal punishment, 283, 288,290 Fourteenth Amendment Due process clause, 284-285 Student ordered to do 100; squat thrusts (Moore case),285 Fourth Amendment case, 286-287 Head Start

Corporal punishment prohibited, 283 Hudson v. McMillan, 281 et seq. Critique of U.S. Supreme Court opinion, 281 et seq. Cruel and inhuman punishment (8th Amendment) case, 281 et seq. Prison inmate beaten by guards, 281 Ingraham v. Wright (Florida case), 278 et seq. Critique of U.S. Supreme Court case, 278 et seq. Majority opinion rationale, 280 et seq. Cruel and inhuman punishment (8th Amendment) case, 278 et seq. Notice requirement before paddling, 278 et seq. Paddling on buttocks for school infraction, 278 et seq. Minnesota, 270 et seq. Complexity as to whether a ban exists, 270-275 Ohio Biting child in the face not abuse, 267-268 Case law in, 267-268 Parental corporal punishment prevails in states, 265 Parental tort liability, 268-269 Residential facilities, 288-289 Shocks the conscience standard by Federal Courts, 287-288 Sixteenth Amendment, 351 States that limit public school corporal punishment, 284,289

398 • Corporal Punishment of Children: A Human Rights Violation

United States (continued) States that prohibit public school corporal punishment, 283 Limitations, 283 School corporal punishment, 278 Due Process clause and, 278-279 National organizations opposed to, 316 Spanking, 270 States have their own criteria as to what is reasonable, 265 et seq. Subabuse, 265, 277-278 Victimization of others on reaching adulthood, 24-28

Vienna Convention on the Law of Treaties (Treaty on Treaties), 47,65,68, 100, 117, 119 et seq. Violence Corporal punishment as, 55-56 Definition of, 54 War, 345 Whipping, 32 Wives Physical chastisement by husbands, 7 Women Violence against and torture, 86