Corporal punishment: should parents and schools be legally able to punish children physically?

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1 What they said. 2 The issue at a glance. 3 Background. 4 Internet information links. 5 and 6 Arguments for / against. 7 Further implications on this issue. 8 Newspaper items used in the compilation of the outline.

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Outline 2002 / 13: Corporal punishment: should parents and schools be legally able to punish children physically?

What they said ...
'Children shall be brought up in the spirit of understanding, security and love. They shall not be subdued, corporally punished or otherwise humiliated. Their growth towards independence, responsibility and adulthood shall be encouraged, supported and assisted'
Finland's Child Custody and Right of Access Act, 1983

'For years, millions of parents have lovingly and intentionally administered mild corporal punishment out of a true desire to raise happy, secure children - and have been successful'
Dr. Bill Maier, Vice President and Psychologist in Residence for Focus on the Family

The issue at a glance
On July 4 2002 Family Court Chief Justice Alastair Nicholson called for new laws to treat smacking as assault. The Chief Justice made the remark during a speech he gave at a lunch held for children's charity Berry Street Victoria. Chief Justice Nicholson's opinion was not supported by the large majority of those who responded to a Herald Sun poll held on the question some days later. A number of child welfare groups supported the Chief Justice's proposal.
Seven months before Labor backbencher and former education spokesperson Mark Latham had made a directly contrary proposal. He called for the reintroduction of corporal punishment within schools. This proposal was criticised by a number of those involved in education, including an education union spokesperson.
The issue of using corporal punishment on children is clearly a much-disputed one.

Background
Corporal punishment was outlawed in Victorian schools in 1983. It was outlawed in New South Wales 12 years later, at the end of 1995. Corporal punishment in New South Wales was prohibited under the Education Reform Amendment (School Discipline) Act. Under the Act all government schools in New South Wales were to cease any form of corporal punishment from the start of 1996. All non-government schools were to cease using corporal punishment from the start of 1997.The prohibition of corporal punishment in New South Wales has been strongly resisted by a group of religious schools calling themselves the Christian Community Schools.The American Society for Adolescent Medicine has defined corporal punishment as the 'intentional application of physical pain as a method of changing behaviour. It includes a wide variety of methods such as hitting, slapping, punching, kicking, pinching, shaking, choking [and] use of various objects (wooden paddles, belts...)' In Australia the term tends to refer to the use of smacking with the hand or other object, including, especially in New South Wales, smacking with a wooden paddle. This practice is referred to as paddling.Corporal punishment in schools is currently illegal in all European nations except Britain. It is also illegal in Israel and Japan. In The United States, New Jersey was the first state to ban corporal punishment in schools, doing so as early as 1867. The use of violence against students in American public schools dropped from 1.4 million students in 1981 to 500,000 in 1991. As of August 1999, 27 states, the District of Columbia and Puerto Rico currently ban corporal punishment in their school systems. It is mainly the southern states that still legalise corporal punishment in the United States.
Surveys conducted in the United States in the 1930s showed that over 90% of parents spanked their children. A recent survey of American parents shows a drop in the use of spanking as the main disciplinary method from 59% in 1962 to 19% in 1993. Parents now prefer using time-outs (38%) and lecturing (24%).
In 1979, Sweden became the first European nation to prohibit corporal punishment of children by parents. A number of other European nations now have similar laws. Corporal punishment in the home and school are banned in at least nine European countries: Austria, Croatia, Cyprus, Denmark, Finland, Italy, Latvia, Norway and Sweden. The Governments of Germany, Ireland, Poland, New Zealand, Spain, and Switzerland are currently debating bans.
In 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 before by a British boy claiming that his stepfather 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 can no longer use 'reasonable chastisement' as a defence if the case is taken before the European Court of Human Rights.
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.

Internet information
Ontario Consultants on Religious Tolerance is a non-affiliated group of four researchers who supply detailed background information and an overview of arguments on many controversial issues. Based in Canada, their emphasis is frequently American or European.
The site's treatment of 'Corporal punishment of children - spanking' can be found at http://www.religioustolerance.org/spanking.htm
This is a very good place to start. It gives an excellent, factually based introduction to the issue and then a detailed account of the arguments presented by those who support corporal punishment for children and those who oppose it.

In February 2000, the Scottish Executive Justice Department produced, 'The Physical Punishment of Children in Scotland: A Consultation'
As part of its introduction and overview the consultation states, 'The law recognises that there may be occasions when moderate and reasonable physical punishment of a child by a parent may be appropriate.
Currently, where a parent - or somebody acting on their behalf - physically punishes a child and is charged with assault, they may claim that it was 'reasonable chastisement'. Unless the prosecution proves that the punishment went beyond reasonable chastisement, then the accused person cannot be convicted of the assault.'
The introduction continues, 'The concept of 'reasonable chastisement' has its origins in Victorian times. An English case taken to the European Court of Human Rights has highlighted that the law there needs modernising to make sure that children are protected from harsh physical punishment. The European Court ruled that, because of the way in which the concept of 'reasonable chastisement' was applied, the law in the UK had failed to protect a boy from 'inhuman or degrading treatment' in the form of severe beatings, in contravention of the European Convention on Human Rights. As a result of this ruling, we in Scotland must also consider the need to clarify or change Scots law in a way that takes account of the Court's judgment.'
What makes this document of particular interest to Australian readers is that the English common law, the adequacy of which the Scottish Executive is investigating, is the same as applies in Australia.
A full table of contents from which all sections of the consultation can be accessed can be found at http://www.scotland.gov.uk/library2/doc11/ppcs-00.asp

ProSpank.com is a United States based site. It is a Christian based parenting website 'devoted to the proper raising of children through Biblical teachings.' It argues that 'it is a Christian parent's responsibility to bring up their children in the ways of the Lord. As such, [it] support[s] such things as Biblical discipline (understood to mean the proper use of corporal punishment, that is, spanking) when it is needed to correct acts of wilful disobedience and misbehaviour.'
ProSpank.com's homepage gives an overview of its position and a brief overview of what the site's writers believe has been the history of child discipline in the United States through the 20th century. This can be found at http://www.prospank.com/publisher.html
ProSpank.com has an extensive directory of Internet articles and comment supporting its pro-spanking position. This can be found at http://www.prospank.com/articles.html

Project NoSpank is the Internet site of Parents and Teachers Against Violence in Education (PTAVE). PTAVE is a non-profit organization based in Alamo, California. The aim of the site is to educate parents, teachers and legislators so that corporal punishment is no longer used on children in either the home or at school.
An introduction to the website, outlining its aims can be found at http://www.nospank.net/intro.htm
The site is searchable from http://www.nospank.net/srch.htm
The site is extensive and repays careful exploration. Its table of contents gives readers access to current developments re corporal punishment in the United States and elsewhere, together with a wide range of expert opinion and media comment on the issue.
The table of contents can be found at http://www.nospank.net/toc.htm

Arguments in favour of schools and parents being legally able to punish children physically
1. Parents should be able to judge appropriate forms of punishment for their children
It has been suggested that parents should be permitted to select the form of behaviour control that they consider appropriate for their children. Relatedly it has been claimed that it is inappropriate for outside bodies or authorities to try to dictate to parents how they should manage their children's behaviour. Paul Gray, a commentator writing for The Herald Sun, has stated, 'Parents must decide whether it is OK to smack their kids - not judges.'
It has further been argued that where parents consider physical punishment appropriate then schools should be able to employ physical punishment. Supporters of this position such as Mr Phil Williamson, the head teacher of the Christian Fellowship School in Liverpool, have cited a recent European Court of Human Rights' ruling in support of their point of view.
Mr Williamson has referred to the European Court of Human Rights ruling in Strasburg a couple of years ago which found there was nothing to prevent schools from smacking children with the approval of their parents.
It has also been noted that some parents hold religious beliefs that sanction the use of physical punishment on children. Mr Williamson has referred to the Old Testament's Book of Proverbs 23:13, which reads, 'The rod of correction imparts wisdom, but a child left to itself disgraces its mother.'

2. Some children will only respond to physical punishment
It has been suggested that some children with entrenched behaviour problems will only respond to physical punishment or the threat of physical punishment. This appears to be the position of federal Labor backbencher Mark Latham who has claimed that for troubled boys, in particular, he wants 'tough but fair policies'.
Mr Latham has called for a policy that 'restores discipline in our high schools - bringing back the cane as a deterrent.'
It has further been suggested that such policies are needed in the interests of the majority of students whose learning opportunities are interrupted by a minority of students whose misbehaviour will not respond to the current control methods employed in schools.
Mr Latham has expressed concern about troublemakers disrupting others. 'I have absolutely no doubt from schools in my electorate that standards of discipline and behaviour were far, far better 15 or 20 years ago.'
Mr Phil Williamson, head teacher of the Christian Fellowship School in Liverpool, made a similar point. Mr Williamson has stated, 'Since 1987, when corporal discipline was removed from state schools [in England], standards have plummeted and it is reflected in the violence in our classrooms.'

3. There are circumstances where physical punishment is the only or most appropriate form of control
It has been suggested that some forms of child misbehaviour can only be dealt with via physical punishment. According to this line of argument young children, for example, may simply not understand or respond to logical argument or the withdrawal of privileges. In this situation the best alternative may be a smack. It has also been suggested that in circumstances where the child's safety is at issue it may not be appropriate to rely on an explanation of the appropriate behaviour. The child's safety may require a simple, immediate, physical punishment as a deterrent. This point was made by The Herald Sun in an editorial published on July 6, 2002. The editorial states, 'Some loving parents reluctantly find a smack can sometimes be the only effective option, as a last resort.'

4. Moderate punishment intended for a child's benefit is not assault
Supporters of corporal punishment by parents and within schools argue that they are not promoting extreme forms of physical punishment that could be termed assault or abuse. What they support is a moderate form of punishment appropriate to the child's age and the form of misbehaviour that has occurred. Mr Phil Williamson, head teacher of the Christian Fellowship School in Liverpool, has made this point. Mr Williamson has stated, 'For younger pupils, we would smack them on the hand or leg using the teacher's hand. With older pupils, girls would be strapped on the hand by a lady teacher, and boys would be smacked on the backside with something akin to a ruler, but wider.'
A similar point appears to be being made in The Herald Sun editorial of July 6, 2002. The editorial states, ' ... lightly smacking a naughty child is a world apart from battering a child.'
It is also noted that the intent of the parent or teacher is important. Unlike in an assault or cases of abuse, the aim of the parent or teacher is to benefit the child. It is therefore far less likely that the punishment will be inflicted in a way that is physically injurious to the child.

5. The law already prohibits excessive force being used against children
It has been claimed that there is no need to implement laws that would prohibit parents physically chastising their children. According to this line of argument, children are already well protected by current laws prohibiting assault and child abuse. They are the also protected by mandatory reporting requirements that oblige any responsible person to inform the authorities if they suspect a child id being abused.
The Herald Sun in its editorial of July 6, 2002, stated, 'We already have laws in Victoria compelling doctors, teachers and welfare workers to report suspected cases of child abuse, which any responsible adult should do as a community duty.'
The same point was made by Victorian Community Services spokesman, Tim Winkler. Mr Winkler has stated, 'We already have laws that make abuse and neglect illegal and mandatory reporting requirements for abuse and neglect.'

6. Parental punishment of children is not an area where law can be effectively applied
It has been noted that especially where the child being physically punished it quite young, it would be impossible to implement a law that sort to prohibit such punishment. What appears to implied here is that in situations where parents physically punish their children there is unlikely to be a complainant were this made an offence or a crime.
The Herald Sun has made this point in an editorial published on July 6, 2002. The editorial states, 'Scottish law stops a parent hitting a child aged under three. But it is hard to see how this can be effectively policed.'
The same point has been made by some of those formally opposed to the use of corporal punishment on children. This point was made by Mr Simon Bowyer, a physical education student at RMIT and Herald Sun letter writer. Mr Bowyer argued that though 'Outlawing corporal punishment in the home could help to change the attitude of some parents towards their kids ... it would be impossible to police.'
There are also those who argue that such a law would not be desirable even if it could be policed. Mr Bill Muehlenberg, the president of the Australian Family Association, has warned that such laws would turn most parents into criminals. Mr Meuhlenberg seems to be suggesting that it is inappropriate to make illegal an action that most in the community support. To do so only brings the law into disrepute.

Arguments against schools and parents being legally able to physically punish children
1. There are other means of controlling children's behaviour
Simon Bowyer, a physical education student at RMIT, has made this point. In a letter published in The Herald Sun on July 9, 2002, Mr Bowyer has stated, 'Each day of the school year a teacher punishes a child but results are achieved without physical contact ... Students learn quickly that they alone are responsible for the choices they make ... If a student in a school decides to draw on the walls, the teacher might react by finding something the student will regard as negative.
A simple punishment used in schools is for offending students to pick up rubbish around the playground ... something regarded by the majority as negative ... Teachers ... discipline kids successfully and without physical punishment.'
The Labor Party in its education policy announced prior to the last federal election acknowledged the need for giving additional help to teacher to deal with students whose behaviour was very demanding. The party did not, however, propose a return to corporal punishment. Instead it suggested that there should be specialist teachers and withdrawal provisions to deal with such students. This is a further example of the general principle that there are strategies other than corporal punishment to deal with challenging students.
It has further been argued that within the home the same principles should be applied as are practised within schools. It is claimed that within homes there is even greater opportunity than there is within schools to reason with children and to apply other forms of punishment such as the withdrawal of privileges.'
Ms Jan Matthews, a psychologist at the Victorian Parenting Centre, has stated, 'We wouldn't recommend smacking when there are better ways for dealing with various behaviour issues.'

2. Punishment of children, in particular by parents, is likely to escalate
This point has been made by Chief Justice Alistair Nicholson. Chief Justice Nicholson has stated, 'I think anyone associated with child protection would know that often a harmless smack is a lot more than that.
The fact that there is a mind set that enables parents to chastise children means that some parents take that much too far.'
According to this line of argument, if it is seen as legitimate for parents to physically punish their children, it can be extremely difficult for some parents to draw a line between moderate punishment and physical contact which actually causes injury to the child. It has been further suggested that physical punishment often takes place in a context where the parent is angry. Anger, it is claimed, can contribute to a loss of control and lead parents to hit the children more severely than they would normally wish to or than they initially intended.
Some opponents of parents employing corporal punishment argue that the only way to avoid this tendency for physical punishment to become abuse is to outlaw it entirely.

3. It is not legal to physically punish adults
Ms Liz Mulliner, the president of Advocates for Survivors of Child Abuse, has stated, 'You are not allowed to smack an adult, so why should you be allowed to smack a child.'
Chief Justice Alastair Nicholson has compared physically punishing children with physically punishing women. There was a time when the latter was considered acceptable, where now it is regarded as illegal.
The Chief Justice has stated, 'I am astonished that in this country in the 21st century it is still a defence to a charge of assaulting a child that you were engaged in reasonable chastisement. That was something that was removed in relation to women 100 years ago.'
Opponents of corporal punishment being applied to children argue that if it is regarded as illegal to strike adults then it should be equally inappropriate to strike children. The argument that the assault was committed with a view to assisting the child by correcting their behaviour could just as easily be used by a hudband attempting to justify his assault of his wife.

4. Having physical punishment declared illegal would encourage parents and teachers to develop other forms of control
Jan Matthews, a psychologist with the Victorian Parenting Centre, has said new laws would help promote alternative modes of discipline.
Ms Matthews has said, 'I think legal prohibition of smacking would be hard to enforce, but the existence of such legislation might encourage parents to seek out alternative methods of discipline.'
It has been suggested that while it is legal to use force to punish children, there is little incentive for parents to develop other strategies to regulate the behaviour of their children. Alternately, if it were not legal for parents to smack their children, this would indicate to many parents that such behaviour was frowned upon within the Australian community at large. They might therefore feel compelled to develop other means of dealing with their children's misbehaviour.

5. Physical punishment encourages violence among children
It has been argued that seeking to control children's behaviour by force teaches them an undesirable lesson. According to this line of argument, corporal punishment models violence as a solution to problems. Critics argue that this is a dangerous message to give children and one that has the capacity to develop antisocial and violent behaviour in them.
Mr Terry O'Gorman, the president of the Australian Council for Civil Liberties, has claimed that caning only encourages children to resolve conflict with violence. This comment was made in relation to federal backbencher, Mark Latham's, suggestion that corporal punishment be reintroduced into schools.
A similar point was made by Mr Denis Fitzgerald, the federal president of the Australian Education Union. Mr Fitzgerald has stated, 'To suggest ... young boys need violence in their lives and that violence should be an integral part of schooling shows how tragically misplaced Mr Latham's latest meanderings are.'

6. Any new legislation seeking to prevent parents smacking their children would not be unduly punitive
Mr Joe Tucci, chief executive of the Australians Against Child Abuse charity, has indicated that any anti-smacking legislation would not be about charging parents who smacked their children, but rather would focus on educating the community.
Mr Tucci has stated that, 'Such legislation would be an explicit commitment by the community to the safety of children.'
A similar point was made in an editorial published in the Herald Sun on July 6, 2002. the editorial states, '... a criminal law dictating how parents discipline their children in their own home would be too heavy handed.'

Further implications and author's comment
It seems highly unlikely that corporal punishment will be reintroduced into schools in Australia. There are very few active proponents of such a reform of current practice. When Labor federal MP Mark Latham made the suggestion in November 2001 his remarks excited little comment and were generally dismissed as being outside the scope and contrary to the intent of his party's education policy.
The only sustained argument for a return to corporal punishment within schools appears to have come from some private Christian schools that want to be able to use physical punishment because they believe it is sanctioned by the Bible and is in accord with the beliefs of the vast majority of parents who send their children to their schools. To date however, attempts to have exemptions granted that would allow such schools to use corporal punishment have been unsuccessful.
It is less easy to predict whether attempts are seriously likely to be made to legally prohibit parents using force to control the behaviour of their children. If the response to Chief Justice Nicholson's recent comments is any indication then Australia is a long way from enacting such laws. The suggestion was extremely unpopular with Herald Sun readers as indicated by a reader poll the newspaper conducted. Curiously, however, the only sustained comment on Chief Justice Nicholson's remarks (which came from The Herald Sun and The Australian) both seemed to avoid the central issue of whether laws should be enacted with the intention of preventing parents physically punishing their children. Both comments on the Chief Justice's remarks became attacks on the Family Court, over which Chief Justice Nicholson then presided. The commentators argued that as a judge Chief Justice Nicholson had no right to make remarks about what sorts of laws he would like to see enacted. A very curious response.
To return to the issue of parents being legally prohibited from physically punishing their children, this seems unlikely to happen in the immediate future. The question seems to be overhung with some of the difficulties that formerly made police reluctant to become involved in domestic violence committed by husbands against their wives. The home is a very difficult area to police - the ties of affection, loyalty, fear, dependence and habit that hold family members together can mean that even where an offence has clearly been committed by one family member against another, then the wounded party may be reluctant to press charges. This is probably even more likely to be the case where the injured party is a child. Given young children's ignorance of their rights and their level of dependence on their parents there may never be an initial complaint. The home is also an area where many people still believe outside authorities have no right to intrude.
It is probably for these reasons that numbers of child welfare bodies that would clearly like to see an end to the physical chastisement of children argue that if this practice were to be legally prohibited the intention would not be to impose criminal sanctions on parents. It would not be a question of arrest, trial and potential fine or imprisonment. Instead, many opponents of the physical punishment of children propose that the educative function of the law be exploited. What this appears to mean is that the mere fact that physically punishing children had been made illegal might serve to discourage some parents from the practice, while those parents who did not refrain might find themselves undergoing a period of training or education to make them aware of other child management strategies. However, most countries, including Australia, seem a long way away from such legislation.

Sources
The Age
4/11/01 page 5 news item by Tania Branigan, 'Schools in bid to use rod'
4/11/01 page 6 news item by Erica Cervini, 'Blackboard jungle: help for teachers under attack'
4/11/01 page 6 news item by Erica Cervini, 'Mary's story'
7/11/01 page 9 news item by Sharon Labi, 'Latham advocates caning in schools'

The Australian
2/11/01 page 3 news item by Ashleigh Wilson, 'Teacher dies after attack in playground'
2/11/01 page 5 news item by Ebru Yaman, 'Help for class pests will allow teachers to teach'
2/11/01 page 5 comment by Ebru Yaman, 'Schools plan shows Beazley did his homework'
10/7/02 page 11 comment by Janet Albrechtsen, 'Justice's lunchtime views smack of bias'

The Herald Sun
5/7/02 page 9 news item by Leela de Kretser, 'Smacks seen as assault'
6/7/02 page 14 news item by Leela de Kretser, 'Parents want to keep smacking'
6/7/02 page 24 editorial, 'A heavy hand'
9/7/02 page 14 50/50 comment by T.M. Kirley, Lilydale
9/7/02 page 14 two letters to the editor under the heading, 'Let children choose their punishment'
9/7/02 page 17 comment by paul Gray, 'Judges must stick to judging'