Wednesday, 6 January 2016

SPANKING: Is it really necessary?

I grew up in an era where spanking was the way our parents disciplined us. School teachers didn’t spank us. They used the strap which was applied to our hands. There was an exception in private schools. I remember being told that I could choose which of two canes I was to have applied to my buttocks. One was a thick one, the other was thin. I chose the thin one. I was later told that no matter which one I chose, they both hurt.                    

When I and my brother spent a summer at a farm in 1941, (I was six and he was three) when it was time to leave at the end of the summer, my grandfather got the owner of the farm to give him a narrow leather strap. Our mother used it on my brother and me quite often. For the most part, she used it on our hands.

My uncle was the principal of our elementary school in the 1940s and one day he lined up me and five other boys for throwing snowballs at the girls. He strapped the other boys and when it was my turn, I said to him, “Uncle. I didn’t throw any snowballs at the girls or anyone else. If you strap me for something I didn’t do, these are the last words you will ever hear from me talking to you.” He didn’t strap me. Hey! I really didn’t throw any snowballs.

When Vancouver Children’s Aid sent me to Lulu Island (Richmond) to live on a farm with four other boys, the mother of the owner who looked after us would put a strap in the sink overnight so that it would be heavier when she brought it down on our hands the following morning

My wife and I have two daughters. When my oldest daughter was three and my youngest daughter was six months old, our oldest daughter pinched her sister several times despite being told not to do it. For three nights before she went to bed, I spanked my oldest daughter without telling her why. On the third night I asked her if she knew why I was spanking her. She said she didn’t know why. I told her that her sister also didn’t know why she was being pinched. My oldest daughter got the message. She never pinched her sister again and I never spanked her again.         

When I was in grade five, if I was late arriving in school, my teacher would strap me. When I realized then that I would be strapped if I was late, I picked flowers on the way to school and gave them to the teacher. You guessed right, No teacher is going to strap a child who was late because he or she was picking flowers for their teacher.                

Many years ago, the Justice Branch of the Ontario Legislature held hearings to determine as to whether school teachers should be able to use corporal punishment. I addressed the hearing and told the members about my own experience. I told them how I was the director of programing in a young offender’s facility in the 1950s and corporal punishment was used against the young inmates if they behaved badly. It consisted of five strappings on their bare butt of these young offenders if they were really bad. However it wasn’t used that often.

When I was the senior supervisor of boys in three Indian residential schools in Saskatchewan, Manitoba and Ontario in the 1950s, and I never strapped any of the boys.

The long historical debate over the physical discipline and punishment of children arose from different perspectives on appropriate forms of child rearing and pedagogy. At one end of the spectrum there were adults and educators who believed that social order, good behaviour, and moral development required the regular use of disciplinary instruments such as the rod and the strap. The various justifications for the bodily castigation of children echo throughout history. Governments, religious leaders, educators, and parents commonly believed that corporal punishment was righteous and efficient. Used appropriately, it would secure or restore order, discipline the body and motivate the mind, imbue religious and moral lessons, and both punish and prevent aberrant behaviour.

There is no doubt in my mind that some children were deterred from continuing to do activities they were spanked for but spanking didn’t always work as a deterrent. If anything, it made bullies out of some of the recipients of the spankings because some of the children realized that as bullies, their threats of punishment would make other children cower to the them just as recipients of punishment made them cower to their parents and/or teachers.

Sweden outlawed spanking in 1979 in the hopes that a decline in violence would follow. As of 2012, there was an increase of violence in sexual assaults by as much as fivefold. Common assault and aggravated assaults have tripled and shoplifting, vandalism and drunkenness has also increased considerably. Assaults of children on other children as increased as much as 480 percent making Sweden more criminal per capita than the United States.  This raises an interesting question. Would these figures still be current if spanking continued through those years? I don’t have an answer for that question.

Theological doctrine offered a powerful validation for the physical discipline of children and youth at home and in school. The Old Testament notably warned adults not to “spare the rod,” and according to the doctrine of original sin, flogging the essentially “depraved” child contributed to the expulsion of the devil. Of course, modern society for the most part doesn’t accept that kind of nonsense anymore.

Section 43 of the Canadian Criminal Code states the following;

 Every 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.

The defence of reasonable correction appeared in Canada’s first Criminal Code in 1892.  The content has remained virtually unchanged since that time, with the exception of the removal of masters and apprentices from among the relationships covered by the defence.

On 30 January 2004, the Supreme Court of Canada released its decision in the case of Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General).)  The issue was whether s. 43 is unconstitutional.  Six of nine justices concluded that the provision does not violate the Canadian Charter of Rights and Freedoms, as it does not infringe a child’s rights to security of the person or a child’s right to equality, and it does not constitute cruel and unusual treatment or punishment.  Three justices dissented in three different respects.

The majority of justices in Canadian Foundation for Children, Youth and the Law upheld section 43 on the basis that it protects only parents, schoolteachers and persons who have assumed all of the obligations of parenthood.  Further, it maintains a risk of criminal sanction if force is used for non-educative or non-corrective purposes, and limits the type and degree of force that may be used.  The words “by way of correction” in section 43 mean that the use of force must be sober and reasoned, address actual behaviour, and be intended to restrain, control, or express symbolic disapproval.  The child must have the capacity to understand and benefit from the correction, so that section 43 does not justify force against children under two or those with particular disabilities. Obviously spanking a small baby would be wrong since a small baby wouldn’t really understand why it is being spanked.

The words “reasonable under the circumstances” in sectiom 43 mean that the force must be transitory and trifling, must not harm or degrade the child, and must not be based on the gravity of the wrongdoing.  Reasonableness further implies that force may not be administered to teenagers, as it can induce aggressive or antisocial behaviour, may not involve objects such as rulers or belts, and may not be applied to the head.  While corporal punishment itself is not reasonable in the school context, a majority of the Supreme Court concluded that teachers may use force to remove children from classrooms or secure compliance with instructions.

In the first dissenting opinion, Justice Binnie. concluded that section 43 violates children’s equality under section 15 of the Charter.  However, the infringement is justified under section 1 as reasonable in a free and democratic society, although only with respect to parents and persons standing in their place.  Because the justification rests on respecting the family environment where only limited corrective force is used to carry out important parental responsibilities, Binnie J. concluded that the defence in section 43 should not be available to teachers.

Justice Arbour also dissenting, found section 43 unconstitutionally vague and therefore a violation of children’s security that is not in accordance with fundamental principles of justice under section 7 of the Charter.  Citing a lack of judicial consensus on what constitutes force that is “reasonable under the circumstances,” she found section 43 to be incapable of providing clear guidance to parents, teachers and law enforcers.

In the third dissenting opinion, Justice Deschamps. determined that section 43 violates section 15 of the Charter because it “encourages a view of children as less worthy of protection and respect for their bodily integrity based on outdated notions of their inferior personhood.” Although reasonable flexibility in child-rearing is a valid objective, a law that permits more than only very minor applications of force unjustifiably impairs the rights of children.  Justice Deschamps would therefore have struck down section  43 for both parents and teachers.

In 1984, the Law Reform Commission of Canada recommended the repeal of section 43 as a defence for teachers. A majority of the Commission suggested that section 43 be maintained for parents, primarily out of concern that the criminal law would otherwise unduly encroach on family life for every trivial slap or spanking.

There have been several legislative attempts to abolish corporal punishment over the past decades all in the form of private members’ bills introduced in the Senate or House of Commons. One was introduced in the Senate in October 2007 and received third reading in June 2008.  The bill received first reading in the House of Commons on 20 June 2008.

If section 43 were repealed, the general assault provisions of the Criminal Code would apply to a parent, teacher or guardian who uses force against a child without the latter’s consent.  A statutory defence based on “reasonable correction” would no longer be available.  Because section 265 of the Criminal Code prohibits the non-consensual application of force and section 279 prohibits forcible confinement of another person without lawful authority, there is concern that the abolition of the defence in section 43 would criminalize parental conduct short of what is usually considered corporal punishment, such as restraining an uncooperative child in a car seat or physically putting a child to bed.

If the defence of reasonable correction in section 43 were repealed, common law defences would remain.  The common law defence of necessity precludes criminal responsibility in emergency situations for involuntary conduct aimed at protecting oneself or others.  As it is based on true involuntariness of an action, the defence has been interpreted narrowly.  Three elements must be present:  imminent peril or danger, the absence of a reasonable legal alternative, and proportionality between the harm inflicted and the harm avoided.  While the defence might be available, for example, to a parent preventing a child from running into the street, it would not be available to a parent who, with or without thinking, strikes a child who is misbehaving.

The defence of de minimums (offence so trifle, it will be ignored by the court) is an alternative common law defence that precludes punishment for a trivial or technical violation of the law.  Compared to that of necessity, this defence is more likely to relieve parents and guardians of criminal convictions resulting from minor forms of physical punishment.  However, it may not be as available to teachers, given society’s growing lack of acceptance of the use of corporal punishment in schools.  The de minimus defence depends on whether the offence may be viewed as not serious, and the offender not deserving of criminal sanction.

Early in 2015, a father in Canada was seen spanking his small child outside his car because his child was continuously undoing his seat belt. The court ruled that because the spanking was not excessive and was justified, he was acquitted. 

Unfortunately there have been parents who had beaten their children to death but that is rare. I remember reading years ago about a man in the United States who strung his naked son from beam in the house and whipped the boy to death. Before the boy died, he complained that he was cold. He was cold because his body was shutting down. The father was sentenced to life in prison.

The recently elected Federal Liberal government in Canada plans to repeal section 43 of the Criminal Code that protects parents and teachers who use spanking and other ‘reasonable’ force against children.

The issue of whether parents should be permitted to use physical punishment on their children is divisive in Canada.  A national survey in 2003 indicated that a large majority (69%) of Canadians were in favour of repealing section 43 of the Criminal Code with respect to teachers.  However, this majority was less supportive (51%) with respect to ending the provision for parents.  The same survey found that respondents were more inclined to support the removal of section 43 if guidelines were developed to prevent prosecutions of minor slaps or spanks (60%), research demonstrated that physical punishment is ineffective and potentially harmful (61%), or research showed that ending section 43 would decrease abuse (71%).

Over 100 organizations and individuals in Canada endorsed a position stating that physical punishment of children and youth plays no useful role in their upbringing, and calling for the same protection from assault as that given to Canadian adults. Other groups, conversely, support the parental protection offered by section 43 and argue that parents should be free to decide how to discipline their children, provided that it is fair, reasonable and never abusive.

There is a growing body of research indicating that corporal punishment has detrimental effects on children.  It places children at risk of physical injury, physical abuse, impaired mental health, a poor parent/child relationship, and increased childhood and adolescent aggression and antisocial behaviour.  However, other researchers dispute these findings. The two main criticisms are that research on the negative effects of corporal punishment does not adequately distinguish between physical punishment and physical abuse, and research cannot determine whether the negative outcomes attributed to physical punishment are actually caused by the punishment.

In 1991, Canada ratified the United Nations Convention on the Rights of the Child, article 19 of which mandates the protection of children from all forms of physical or mental violence, injury or abuse.  In response to reports from Canada regarding the action it has taken to meet the requirements of the Convention, the United Nations Committee on the Rights of the Child recommended that physical punishment of children in schools and families be prohibited and that section 43 be removed. At the same time, international covenants recognize the integrity of the family unit and indicate that parents have the primary responsibility for the upbringing and development of the child. Further, in Canadian Foundation for Children, Youth and the Law, a majority of the Supreme Court of Canada considered the Convention on the Rights of the Child and concluded that it did not explicitly require state parties to ban all corporal punishment of children.

At least 19 countries have legislated bans on corporal punishment in both the home and school. Other countries, or jurisdictions within them, have passed laws prohibiting force of certain types or in certain contexts. Although many countries have legislated against corporal punishment, most of the 193 parties to the Convention on the Rights of the Child have not. Further, those that have, including Sweden, Finland, Denmark, Norway and Austria, have apparently instituted non-criminal measures and reserve assault only for more serious conduct. Because the definition of assault in Canada’s Criminal Code is based on the non-consensual nature of the contact, there may be greater risk in Canada in extending the criminal law.  It may be important to ensure that other defences are available so that parents are not criminally convicted for minor forms of physical punishment.

In general, nobody disagrees with the proposition that children should be free from physical abuse and injury, and this is clearly not what the debate surrounding section 43 of the Criminal Code is about.  Rather, the debate is about the effects of minor forms of physical punishment and the appropriateness of using the criminal law to enforce a particular view of what constitutes proper parenting.  Some are confident that prosecutorial discretion and existing common law defences will continue to prevent individuals from being charged or convicted for trivial slaps and spanks.  Others fear that parents may face intervention from neighbours or passersby, investigations by police and even imprisonment for limited punishment of their children, or for a momentary but arguably human lapse of judgment.

Child welfare and protection laws go some distance in the prevention and detection of child abuse, and public education campaigns exist to encourage parents not to use even minor forms of physical punishment on their children.  Given these developments, advocates for the repeal of section 43 say that the provision sends the mixed message that it may be acceptable to strike a child.  But those against the removal of section 43 from the Criminal Code worry about an inverse message if the provision is repealed:  criminal prosecution and conviction may result from any physical contact or restraint that is used against a child.  As with most social issues, it is clear that there is no Canadian consensus, which is all the more understandable, given that even the Supreme Court of Canada and the United Nations Committee on the Rights of the Child have expressed divergent views on the acceptability of section 43.

The federal Liberal government in Canada is set to revoke the law that allows parents to use physical force, including spanking of a child, after the government agreed to meet all recommendations of the Truth and Reconciliation Commission.  

That Commission dealt solely with the Indian residential schools in Canada where aboriginal children were taken from their homes and forced to attend those schools. I was a senior supervisor of boys in three of those schools and while I was in those schools, I never saw any children spanked. That doesn’t mean they weren’t spanked but if they were, I wasn’t aware of them being spanked when I was in those schools. I know the boys weren’t spanked.   

In its final report, the Commission said "corporal punishment is a relic of a discredited past and has no place in Canadian schools or homes."               

If the government repeals the law, it would mean that a parent, guardian or teacher who uses force against a child as a means of punishment, would see Criminal Code provisions involving assaults applying to them.                             

What is reasonable force? 

The current law allows for corrective force that is “transitory and trifling”, which means minor corrective force or the mildest forms of assault. Parents or a person in the place of a parent cannot:

·        use force on a child under 2 years old or on a teenager,
·        use force that causes harm or might cause bodily harm,
·        use force because they are angry, frustrated, have lost their temper or because they have an “abusive personality”,
·        use any object – like a belt or ruler or hairbrush,
·        hit a child on the head,
·        do anything degrading, inhumane or harmful (this might include taking clothes off or spanking in public), or
·        use force on children who have disabilities which make it hard for them to learn.

The police in Canada must use this definition as a guide in deciding whether to charge a parent with assault. If a parent or person in the place of a parent does something that is on this list, that person can be charged with assault.

In September 2014, in the United States, Adrian Peterson was arrested on child abuse charges because he hit his child too hard. He crossed the line when he whipped his four-year-old son with a switch and left cuts and welts on the boy’s legs. However, the line for what constitutes illegal behavior when it comes to parents striking their children is subject to different laws throughout the United States.

Peterson seemed to have had genuinely belief at the time that he was not abusing his son. After all, it is legal to hit a child in all fifty U.S. states and the District of Columbia. However, States differ widely about what precisely is allowed. In Delaware, for example, state law forbids a parent from hitting a child with a closed fist. But in Oklahoma, no such explicit prohibition exists. There, the law permits a parent to hit a child with a switch provided that the parent only uses “ordinary force.” In Texas, corporal punishment becomes child abuse when it “results in substantial harm to a child.” As a practical matter in Texas, that means a physical injury that leaves a mark, like bleeding and bruising, as Peterson apparently did.

The law in that state is clearer than some others about when a spanking becomes child abuse. That standard—when a swat leaves a mark—is common among many states but what exactly a “mark” is doesn’t always mean the same thing. In Maine, for instance, corporal punishment is lawful if it results “in no more than transient discomfort or minor temporary marks.” Georgia simply forbids any “physical injury,” but here again, what that means is largely at the discretion of judges and prosecutors.

Any such national ban in the United States would go against the grain of public opinion today: four out of five Americans believe spanking children is sometimes appropriate, according to a 2013 poll from the Nielsen-owned market research firm Harris Interactive. Barring a major shift in public opinion or judicial interpretation, on corporal punishment of children, Americans will be grappling with the devil in the details for some time yet.     

Social acceptance of corporal punishment is high in countries where it remains lawful, particularly among some religious groups. In many cultures, parents have historically been regarded as having the right, if not the duty, to physically punish misbehaving children in order to teach appropriate conduct.

Corporal punishment typically has the opposite effect, leading to more aggressive behaviour in children and less long-term obedience. Other adverse effects, such as depression, anxiety, antisocial behaviour and increased risk of physical abuse, have also been linked to the use of corporal punishment by parents. Further, children who have been subjected to corporal punishment for the most part, tend to afflict their own children with the same form of punishment.

Evidence shows that spanking and other physical punishments, while nominally for the purpose of discipline, are inconsistently applied, often being used when parents are angry or under stress.

International human-rights and treaty bodies such as the Committee on the Rights of the Child, the Council of Europe, and the Inter-American Commission on Human Rights have advocated an end to all forms of corporal punishment, arguing that it violates children's dignity and right to physical integrity.

Canada stopped whipping and strapping prisoners decades ago. It is time to stop doing the same to children. 

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