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Corporal punishment: Should further legal restrictions be placed on how parents should punish their children?




Echo Issue Outline 1998 / 41: copyright © Echo Education Services
First published in The Echo news digest and newspaper sources index.
Issue outline by J M McInerney

What they said ...

`There can be few more vulnerable groups than children whose physical integrity is violated by the people on whom they should most be able to rely: their parents'
Ryszard Piotrowicz, professor of law at the University of Tasmania

`A wooden spoon is no more than a symbol of discipline. It doesn't harm anyone ...'
Mrs Mary Helen Woods, the national vice president of the Australian Family Association

Corporal punishment: should further legal restrictions be placed on how parents physically punish their children?
In the last week of September, 1998, the European Court of Human Rights ruled that disciplining a child with a stick or cane violated that child's rights.
The ruling came in response to a case lodged with the court two years ago by a British boy claiming that his step-father had beaten him with a garden cane.
The ruling means that parents in the United Kingdom who are charged with using implements to punish their children will no longer be able to use `reasonable chastisement' as a defence.
In Australia, in October, 1998, the Model Criminal Code Council recommended to the federal and states attorneys-general that smacking with an `open hand' should be the only acceptable form of physical discipline for children.
If this proposal is accepted, using any other implement, including `stick, belt or other object', would be an offence.
It would also be an offence to `cause or threaten to cause harm to a child that lasts for more than a short period'.
It has not yet been determined if any of the Australian states or territories will act on these recommendations. They have, however, been criticised by a number of special interest groups, including the Australian Family Association.

Background
In 1979 Sweden became the first European nation to ban all corporal punishment of children, either with a hand or other implement.
Among the other European nations that have since imposed similar bans are Norway, Finland, Denmark, Austria, Cyprus, Croatia, Latvia and Italy.
The recent ruling of the European Court of Human Rights appears to indicate Great Britain is about to join this group, at least to the extent that punishing children with an implement is likely to be prohibited.
In Australia children are protected under common law from assault and abuse. Parents are, however, given the right to use force to affect `reasonable chastisement'.
There is currently no clear, agreed consensus on what `reasonable' might mean.
The October 1998 recommendation of the Model Criminal Code Council would supply a definition of `reasonable' punishment which would exclude the use of implements or any punishment which caused other than very brief harm.
Parents considered to have used excessive force in the punishment of their children could face a prison term ranging from seven to 25 years.
These recommendations appear to be modelled on the laws currently operating in Scotland.
Recently, in Western Australia, a father was found to have assaulted his son when he beat him with a stick for cutting up a bean bag.
The judge instructed the jury that the crucial issue was whether the force had been `reasonable'. In this case the issue was not that the boy had been hit with a stick, but the manner in which he had been hit.


There are a number of web sites with useful information on this issue.

A May 1997 report in the Arkansas Democrat-Gazette gives details on Denmark's decision to prohibit parents using any form of corporal punishment on their children. The article is titled, `Denmark law bans parents spanking kids'
This can be found at http://www.cei.net/~rcox/denmark.html

Of more general interest is the Project No Spank site. This is an extensive United States based site established by an education and pressure group titled Parents and Teachers Against Violence in Education (PTAVE). The group's aim is to eliminate all forms of corporal punishment.
The index to their site can be found at http://silcon.com/~ptave/toc.htm This lists an enormous amount of information. Just the index covers 19 pages.
The site gives comment and selected newspaper articles from the United States and all over the world. All material is intended to encourage the abolition of corporal punishment for children.
One of the items that can be accessed from the Newsroom section of this site is an article detailing the European Court of Human Rights recent ruling that a 14-year-old British boy whose step-father had beaten him with a garden cane had had his human rights violated.
The article was originally published in The Guardian on September 23, 1998. It is titled `European Court ruling bans corporal punishment of UK children'. It can be found at http://silcon.com/~ptave/n-d31.htm

An interesting site promoting the claimed `right' of parents to physically punish their children is ParentWise.
This British site was established in September 1998, specifically in response to the European Court of Human Rights ruling re the boy beaten by his step-father.
The aim of the site is to defend British parents' right to use corporal punishment and to lobby the Government to prevent the introduction of laws which would prohibit the physical punishment of children.
The site can be found at http://www.rainbowplay.demon.co.uk/parentwise/index.htm
It offers a small number of comment and advice items, however, it is very recently established and is likely to grow.
It has advice on using and enforcing `time out' and on a controlled escalation method of using corporal punishment. Interestingly, it also offers advice on how to prevent smacking becoming abuse.


Arguments in favour of further restrictions being placed on how parents physically punish their children
The first argument offered against relying on fairly severe physical punishment, such as that which can be inflicted by a belt or other implement, is that it is potentially harmful to the child.
According to this line of argument, a significant percentage of parents who punish their children physically do so in anger. Opponents of physical punishment and, in particular, punishment involving implements, are generally concerned that punishment given in anger can be excessive and lead to a child being physically injured.
This general point has been made by Queensland psychologist, Michael Farr, in a letter published in The Australia.
Mr Farr has written, `I have noted that parents who hit their children tend to do so in frustration and anger. It is generally not a corrective "whack", but an uncontrolled strike.
The strike is usually preceded by anger and screaming and a general escalation of familial distress.'
It would appear, that for those with this concern, there is less scope for excessive punishment if a parent is restricted to the use of an open hand.
Relatedly, those who oppose physical punishment, especially with an implement, appear concerned that there is the likelihood that the severity of such punishment will increase.
According to this line of argument, if a parent punishes a child physically and does not get compliance, there is a tendency for the parent to then seek obedience by increasing the force or the number of the blows given.
This position has been put by Sally Morris, in a comment published in The Australian on October 2, 1998. Ms Morris asks, `And what happens if you smack your children and they persist in the offending behaviour? If you believe physical violence is the answer, do you smack harder until they stop?'
The second argument offered against parents physically disciplining their children, especially with implements, is that such punishment teaches the wrong lesson.
According to this line of argument, a child whose parent imposes his or her will by the use of physical force, especially potentially severe physical force, is taught that this is a way to solve problems.
Critics maintain that the use of force, coupled with a `might is right' attitude, encourages violent and anti-social behaviour in young people and that this behaviour may carry over into adulthood.
The director of Melbourne University's Centre for Community Child Health, Professor Frank Oberklaid, has claimed, `In a society where we are already terribly concerned about the mixed messages kids get about aggression and violence ... to smack children gives them the message that physical aggression is an OK way to get rid of frustration and to discipline others.
It's likely then to be reflected in the way that a child approaches peer relationships and so on.'
At the very least, critics maintain, parents who use force to punish their children are increasing the likelihood that those children, when they become parents, will use the same methods to punish the next generation of children.
Clinical psychologist, Dr Janet Hall, has claimed, `We are conditioned ... to smack because we were smacked.'
The third argument offered against the use of physical force to punish children is that it is a violation of their rights.
According to this line of argument, children are the only group within our society, against whom it is possible to use force or violence with a fair degree of legal immunity.
Those who make this point claim that it is no longer socially acceptable or legal for partners in a marriage to use physical force against each other.
They also maintain that physical force is unacceptable and illegal when directed against any other member of the society, except in self defence. Such legal protection even applies, it has been claimed, to those in prison, who have forfeited many of their other rights.
This general point has made by associate professor Chris Goddard, of Monash University, who has made a study of child abuse.
Mr Goddard has claimed, `It has always appeared strange to me that we allow people to hit children with objects.
It used to be acceptable for men to beat their wives until society said very clearly that's not on - and it shouldn't be on that children are beaten with implements either.'
It is therefore claimed that physical punishment is a violation of the personal safety and physical integrity rights of children.
Ryszard Piotrowicz, professor of law at the University of Tasmania, has argued, `There can be few more vulnerable groups than children whose physical integrity is violated by the people on whom they should most be able to rely: their parents.'
Some critics have further maintained that those who support the physical punishment of children do so because they deny the full existence of the child, seeing him or her as the property of their parents.
The fourth argument in favour of further restrictions being placed on how parents physically discipline their children is that physical discipline is generally unnecessary.
According to this point of view, there are a range of other strategies that parents are able to use, including, for example, `time out' (where the child is sent to a quiet, safe area away from the family for a short time) and the temporary removal of a favourite activity.
The fifth argument offered in favour of placing further restrictions on how parents physically discipline their children is that the main aim of any law enforcing these restrictions would be to educate parents about what constitutes acceptable punishment.
According to this line of argument, a law clearly indicating in what manner parents are permitted to chastise their children would primarily serve to inform and warn parents. It would only be likely to result in parents being prosecuted when injury resulted to the child.
Ms Moira Rayner, chairperson of the National Children's and Youth Law Centre, has stated, `If you do not do any harm to a child when you smack, then it's not an offence.'
Those who hold this view stress the educative value of the law as a means of embodying standards of acceptable behaviour and making citizens aware of those standards.
Ms Rayner has stated, `This is not an anti-smacking law; it's an anti-child abuse law.
The proposed model is spelling out what the courts have been saying for the past 15 years.'
Finally, it has been claimed, the laws which currently exist across Australia to give children protection against `unreasonable' parental punishment are imprecise and confusing.
Ann Gethin, writing in The Australian, on October 2, 1998, maintained, `The situation in Australia is confused, with a mire of precedents, laws, policies and regulations governing the physical punishment of children.'
It has been claimed that a new, straight forward law that applied across Australia would be to everyone's advantage.

Arguments against further restrictions being placed on how parents physically discipline their children
The first argument offered against placing further restrictions on how parents physically discipline their children is that the law already offers children sufficient protection from physical abuse.
According to those who hold this point of view, laws against assault, and more specifically child abuse, give children sufficient legal protection against parental physical punishment which may become too severe.
It has been claimed, for example, that children are currently protected under common law which gives parents the right only to exercise `reasonable chastisement'.
The second argument offered against further legal regulation of the manner in which parents punish their children is that the proposed ban on the use of an implement such as a wood spoon is excessive.
According to this line of argument, there is no necessary connection between the use of an implement and the severity of the chastisement.
Mrs Mary Helen Woods, the national vice president of the Australian Family Association, has claimed, `A wooden spoon is no more than a symbol of discipline. It doesn't harm anyone ... An open hand wielded by a burly bloke could do very severe damage to a child compared to a wooden spoon wielded by a little old lady.'
Relatedly, it is claimed, it is the total atmosphere in which a punishment is given that determines its effect.
According to this line of argument, if physical punishment, including punishment with an implement, is moderate, appropriate and delivered in a loving atmosphere, it will achieve the desired aim and cause no harm to the child.
The third argument offered against any change in legislation, is that an implement is often the most appropriate tool to use when disciplining a child.
Those who maintain this point of view note that it is better that the child associate his or her parent's hand with love and gentleness.
Therefore, it is argued, if the punishment is given with an implement this helps to distance the parent from the act and so reduces any possible negative impact the punishment might have on the child's relationship with the parent.
This point has been made by Bill Muehlenberg, in a letter published in the Herald Sun on October 19, 1998.
Mr Muehlenberg writes, `... there is wisdom in using an object, for example, a wooden dowel ... it disassociates the punishment from the parent. Otherwise the parent's hand might become an object of fear, instead of love and affection.'
It has also been claimed that the period of time needed to fetch an implement allows a parent who is about to punish a child in anger an opportunity to "cool down".
According to this line of argument, punishment given with an implement, because more deliberate and considered, may well be less severe than punishment delivered with the hand.
The fourth argument offered against the proposed legislation is that it would undermine discipline within the family.
It is suggested, for example, that such legislation might encourage children to rebel against their parents and threaten to report them for possible breaches of the law, rather than respond positively to the punishment given them.
Valerie Riches, in a comment published in The Australian on October 2, 1998, has used an instance from her own family to suggest that a change in the law would make it difficult for parents to discipline their children.
Mrs Riches relates, `My three grandchildren ... were in the car with their mother. They were being disruptive, and their mother, having warned them twice, reached back and slapped them over the knees, at which point ...[one] child ... said, "That's unlaw."'
Mrs Riches believes that this example `shows how inhibited parents will be in the way they handle their children and how children will become undisciplined and defiant.'
The same point was made in a Herald Sun editorial published on October 14, 1998, which stated, `... the last thing we want is a law that could divide the family by encouraging children to bring charges against their parents.'
Fifthly, it has been claimed that such a law could serve to have parents who do no more than physically chastise their children treated as though they were criminals.
It has been argued that this would be unjust and would also divert official attention from those who criminally assault or abuse children.
Ann Gethin has suggested that this criticism has been made of the law in Sweden which prohibits the smacking of children.
Ms Gethin has noted, `Critics of the Swedish law say that it has the effect of lumping parents who occasionally smack their children with hardened abusers and that social services harass parents suspected of smacking.'
It has also been argued that the sentences that could be applied for breaches of the suggested new law are excessive and disproportionate with sentences given for serious crimes.
One Herald Sun reader from Laverton, in a letter published in that newspaper on October 16, 1998, wrote, `I am bemused to read that parents using a wooden spoon to discipline children could get seven to 25 years' jail under proposals by the social engineers, but bashing a brickie with a piece of wood is only worth $500 without a conviction.
Further, kicking and biting an ex-girlfriend is an eight-month good behaviour bond.'
Sixthly it has been argued that such a law would be intrusive and would simply place parents under greater strain, rather than assist them in the effective rearing of their children.
This point has been made by Mrs Mary Helen Woods, the national vice president of the Australian Family Association.
Mrs Woods has claimed, `Most families make sensible decisions and only a tiny minority don't. This is not the way to fix the problem of families under stress - look at ways to ease the stress but don't impose this.'
Finally, it has been claimed that it is inappropriate for the state to try to interfere with the manner in which parents discipline their children and then to hold parents legally accountable for any criminal action their children commit.
According to this line of argument, as parents are legally responsible for their children's actions, they should have reasonable latitude in how they go about regulating their children's behaviour.
Antonia Feitz, in a comment published in The Australian on October 21, 1998, claimed, `Parents are the best placed to raise their children in love and the discipline they see fit.
Governments ought to butt out.'

Further implications
It is difficult to predict at this point how the different state and territory governments are likely to respond to the Model Criminal Code Council's recommendations re corporal punishment and the use of implements.
Shortly after the Council's recommendations were released a spokesperson for the Victorian Attorney-General, Mrs Jan Wade, indicated that the Council's report had been considered but that the Attorney-General had not yet decided whether to amend any state laws.
At the same time a spokesperson for the federal Attorney-General, Mr Daryl Williams, claimed the report had not been considered by the standing committee of attorneys-general and therefore Mr Williams did not want to comment on its proposals.
The Council's recommendations appear to be a compromise proposal in that they clarify and reduce parental authorisation to physically punish children, yet fall well short of prohibition.
Even in this compromise form, however, they are not likely to be politically attractive. All recent surveys appear to indicate that a majority of Australian parents supports corporal punishment of children both within the home and at school. Anecdotal evidence also seems to suggest that many parents find government regulation in this area intrusive.
Introducing the proposed legislation would be an act of some political courage.
Interestingly, in the longer term it is possible such measures, once introduced, would win popular support. Apparently, in Sweden, in 1965, some 53 per cent of parents responding to a survey on the question believed that parents needed to be able to physically punish their children.
By 1995, sixteen years after the introduction of laws total banning corporal punishment for children, that figure had fallen to 11 per cent.

Sources
The Age
14/10/98 page 6 news item by Carolyn Webb, `Mothers agree on the smack'
14/10/98 page 6 news item by Caroline Milburn, `Family association warns against ban on a hiding'
16/10/98 page 18 analysis by Belinda Parsons, `Spare the rod'
17/10/98 page 10 letter from Stephen Andrew, `When smacking is never "reasonable"'

The Australian
2/10/98 page 13 analysis by Ann Gethin, `Spare the rod'
2/10/98 page 13 comment by Sally Morris, `Why I don't smack'
2/10/98 page 13 comment by Valerie Riches, `When a smack can help'
13/10/98 page 1 news item by Natasha Bita, `Spare the rod... or serve the time'
15/10/98 page 14 four letters under the heading, `Parents do not need guidelines on child discipline'
19/10/98 page 12 letter from Elizabeth Moser, `Right message'
21/10/98 page 13 comment by Antonia Feitz, `Parental role is under assault'
21/10/98 page 13 comment by Ryszard Piotrowicz, `Children have rights that must be upheld'
22/10/98 page 12 letter from Michael Farr, `Hitting kids in anger'
23/10/97 page 18 seven letters under the heading, `Corporal punishment at home'

The Herald Sun
14/10/98 page 12 news item by Michelle Pountney, `Punishment ban praised'
14/10/98 page 18 editorial, `Social engineers and parents'
16/10/98 page 22 two letters under the heading, `Jail for a smack is loony'
17/10/98 page 30 letter from Peter Stokes, `Social engineers cope a caning'
19/10/98 page 20 letter from Bill Muehlenberg, `Children need discipline'
30/10/98 page 22 letter from Andre P F van der Linden, `A smack isn't child abuse'