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Scholarly Submission

University Paper - Scholarly submission to the Canadian Children's Rights Council

The Issue of Corporal Punishment

By Stacey McDonald, student, Cape Breton University, November 25th, 2005

The purpose of this paper is to examine the question of whether the practice of corporal punishment in law should be made illegal in Canada. The question is this: in light of the UN Convention on the Rights of the Child, should Canada take steps to make the physical punishment of children even light spanking against the law. Corporal punishment is described in Katherine Covell & R. Brian Howes book, The Challenge of Childrens Rights for Canada as any form of physical behavior used to discipline a child that is not severe enough to be classified as abuse(70). Corporal punishment, or spanking, is problematic because people have different versions of light spanking; there is no universal code or form of light spanking. What one considers light spanking, another may consider extremely harsh.

In an attempt to address the issue of corporal punishment, the United Nations Committee on the Rights of the Child (the committee responsible for monitoring compliance with the Convention) has urged Canada to ban the use of it.  The Convention outlines four articles in relation to corporal punishment. Article 19 directs Canada to protect children from all forms of physical or mental violence, abuse, neglect, and exploitation by parents or others in authority. It also demands that Canada has the responsibility to provide for programs that will help support, prevent, and treat violence and maltreatment of children. Corporal punishment or spanking is a form of both physical and mental violence as well as parents exploiting their power over children.

Article 28 urges the discipline in Canadian schools to respect the childs human dignity. Respect of human dignity is a right of all humans. In accordance with this article, most provinces and territories in Canada, excluding Alberta, Manitoba, and Ontario, have banned corporal punishment in the classroom. Thus teachers, principals, aids, or any other person of authority cannot employ physical force to punish a child.  However, many schools within these provinces have banned corporal punishment as part of their own policies. Those schools that allow corporal punishment often attempt to regulate it by outlining guidelines.

Unfortunately, corporal punishment is not banned in families.  There are, however, a set of rules parents must follow when employing corporal punishment.  One rule is that the punishment must be only for educational purposes that correct the child; they must have the ability to learn the desired lesson.  Another rule states that the punishment must be reasonable in terms of the specific method of correction, the degree of force used, the behavior of the adult seeking to correct, and the childs age and mental and physical capacities (Covell & Howe, 71).

A third article that relates to the issue of spanking is article 37. It states that children should not be subjected to any form of degrading treatment.  Spanking is considered a degrading treatment and thus is in violation of article 37.  Is it not degrading to single out a child and spank him in public or in class while his friends and peers look on?

Finally, article 3 demands that the best interests of the child must prevail in all legal and administrative decisions.  Thus, a legal system that allows for the assault on the physical well-being and dignity of children would be in clear violation of the principle of the best interests of the child (Covell & Howe 69-70).

However, section 43 of the Criminal Code does not fully support the best interests of the child.  Section 43 clearly states 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 was under his care, if the force does not exceed what is reasonable under the circumstances.  The main problem with this statement is the use of the term reasonable.  What is reasonable is not defined.  Just what exactly is reasonable force and who decides whether or not the force was reasonable or justified?

When a case goes to court this decision is made by the judge hearing the case. There was an incident in New Brunswick where a judge thought it was reasonable for a teacher to spank a thirteen year old in front of the class to correct his misbehavior.  Also in New Brunswick, a judge thought it was reasonable for a physical science teacher to use his black belt in karate as a means of punishment for the childs misbehavior.  This is not a good way of determining reasonable force because different judges have different opinions and beliefs; it is much too relative.  Another judge in the same circumstances may have deemed it unreasonable.

In even more extreme cases, according to the course text, a judge deemed it reasonable punishment for a teenage girl to be stripped to her underwear and tied to a clothesline while being strapped on her buttocks.  As well, it was deemed reasonable punishment for an eight- year old child to be kicked across a room, and also for a child to be slapped in the face with enough force to chip a tooth.  Is this force and treatment really reasonable?  Such cases seem to suggest that the parent may discipline their child in any way they see fit.

Consequently, the Canadian Foundation for Children, Youth, and the Law and the Ontario Association of Childrens Aid Societies challenged the legality of section 43.  They wanted it to be struck down as unconstitutional and illegal.  They argued that it is unreasonable and teaches children that aggression and violence are ways to solve problems.  It goes against sections 7, 12, and 15 of the Charter of Rights.  It goes against section 7 by leaving children vulnerable because teachers and parents can always assault them.  It goes against section 12 because it allows for cruelty.  Finally, it does not comply with section 15, which is the right to equality without age discrimination; if a parent hits a parent it is assault but if a parent hits a child it is justified.

The federal government argued the need of a protected sphere which is immune from criminal liability in order to raise their children and free of state regulation.  They felt the law should stand as is and that corporal punishment is sometimes necessary in the best interests of the child.

The Supreme Court ruled that section 43 is justified; parents have a right to use corrective force.  However they did state that the law should be reviewed by tightening up the definition of reasonable force and setting up some guidelines or limitations on the use of physical punishment.  These limitations state that it must be used for correction only, for children aged 2-12 years, not for children with disabilities, not on the head, with no objects, must not be degrading or harmful, must be transitory and trifling, and not from caregiver frustration, temper, or abusive personality.

The Repeal 43 Committee is made up of lawyers, pediatricians, social workers, and educators.  They continue to advocate for the removal of section 43 of the Criminal Code.

Another area of Canadian law where it is also permitted to practice corporal punishment is the provincial child protection legislation and its interpretation by many child protection agencies. They make a distinction between physical abuse and spanking. Physical abuse, it is said, is the use of excessive physical force while spanking, or corporal punishment, is the application of reasonable force for the purpose of discipline. (Covell & Howe, 70) Under the child protection legislation parents are free to discipline their children as long as it is reasonable and no harm is done to the child.

However the world is changing at a faster pace and thus the legislation must accommodate such changes.  Children today are exposed to a lot Read More ..imulus.  All too often this stimulus can have a negative impact on the development of children.  Movies, music/videos, and the internet convey messages that are not always in line with the values of parents or the community.  Children, by definition, do not have the maturity to fully evaluate the messages or values and there is an increased responsibility placed upon parents.  Children need discipline that provides a framework for children to learn.  Unfortunately, there are many demands placed upon parents and the skills we hope all parents possess are not often practiced.  Restricted by time, travel, single- family situations, the need for dual employment, and personal circumstance, parents are not always around or able to provide the disciplinary guidelines their children need.  When crunched for time, or pressured by circumstance, parents tend to be reactive.  They opt for the easiest choice that is some form of punishment, which could include spanking.

The opening quote states that there is a need for discipline and this is a very true fact. Values and behaviors need to be molded and developed in children; they need to be taught right from wrong but parents must be cautious not to confuse discipline with punishment.  Discipline refers to the teaching of appropriate behaviors and there are many models and theories to do so.  Perhaps the method which is most supported by the literature is modeling.  Modeling is not a quick fix for a problem rather it is a long- term approach to child development.  It requires family members to model or demonstrate which is acceptable behavior.  It also includes issues such as self-respect, trust, free choice, age appropriateness, and consequences. The modeling method is designed to gradually develop the appropriate behaviors and it is based on the principle that children will learn to emulate appropriate behaviors when they are constantly exposed to them. Tragically, it must be mentioned, that the literature also supports the converse. Children who are repeatedly exposed to poor role models are more likely to develop negative behaviors.

Punishment, such as spanking, should not be confused with discipline.  Discipline, as described, above is a long- range effort to child development; punishment is a short term means to put a stop to a behavior without any concerns such as the effects it will have upon children. Spanking as a form of punishment is considered by the vast majority of literature to be a negative way of correcting a problem.  In extreme cases, some parent groups advocate for spanking.  They argue that in emergency situations there is a need for an instant, forceful deterrent and spanking would be appropriate.  In the real world, this approach may be necessary to protect a child from danger but there are just as many concerns raised when this course of action is followed.

Spanking, especially if it is repeated, teaches children that it is appropriate to hit others when they do something that they do not like.  In fact aggressive and anti-social behaviors are one of the proven risks of corporal punishment.  Children lean to bully the weak.  This has very serious consequences when a child enters situations or schools where he/she is exposed to larger groups who have very different views and values.  Sharing, taking turns, and fair play are skills which are much more valued than spanking or hitting someone who irritates you.

A number of studies support this view that there is a connection between spanking and bullying. In the article Growing Up in Harms Way: Child victimization develops into a scientific challenge Bruce Bower discusses sociologist Murray A. Straus study of this connection. Straus and his coworkers used data from a national sample of 3780 mothers who were interviewed once in 1986 and then again in 1988. Children ranged from ages 3-10 at the first interview. Straus also statistically controlled for antisocial behavior, family income, sex of the child, and the mental stimulation and emotional connection at home. A majority of the mothers regularly used spanking or some other form of physical punishment.

Straus concluded that, preschoolers and older children subjected to regular corporal punishment engage in substantially more aggressive and hostile behavior over time. (Straus, 1988) He also found that the mothers who used corporal punishment regularly reported significant increases in their childrens antisocial behavior at the second interview (Bower, 1996) when compared to those who did not use regular corporal punishment.

Children who are spanked learn that it is okay when a larger, bigger, older person uses force to intimidate others. The increase in bullying in school has caused many researchers to study the long term effects forms of punishment have on child development and some studies suggest that there is sufficient data to support the link between the two. This is not to say that there would be a dramatic change in the antisocial behavior of children if all parents stopped spanking. However, these results indicate that such a course of action would be a step toward a better direction.

Another proven risk of corporal punishment is that spanking may also generate fear and dislike toward the person who hits a child. Researchers contend that children who have constantly been punished do not have trust in adults. What develops is a poor parent-child relationship; the bond is destroyed.  Seldom do they disclose misdeeds or ask for parental advice because they fear that they will be punished. The trust between a child and a parent is critical to development and all children should be encouraged to seek advice and guidance from their parents. This relationship could be severely fractured if a child does not feel safe to openly confide in a parent.

Ultimately, if children behave because they are afraid you will spank or punish them, they will comply when you are present but they will do exactly what you dont want the minute you are not watching. (Hazen, B.S., 1981) Therefore, it seems as though spanking is simply a temporary band-aid that does not solve the problem and perhaps makes it worse.

Most adults received some type of physical punishment when they were children and it would not be uncommon for an adult to say, Well it didnt hurt meI turned out okay.  For most this is a true statement.  However, there are other concerns that must be addressed.  The severity and frequency of physical punishment must be factored into any assessment.  When adults say, I turned out okay, they often forget the circumstance of the punishment.  It is a fact that long-term punishment does not help an adult turn out okay. Numerous studies dealing with abused children or adults document the negative effects of both verbal and physical punishment.  Three other proven risks of corporal punishment are poor mental health, poor moral development, and poor physical abuse.

Debating the pros and cons of spanking is futile. The vast majority of research says that spanking and similar punishment is wrong. A better discussion would involve the exploration of alternate forms of positive discipline. There are many guides that outline better models of discipline.  Such models may include giving praise and attention, use of time outs, allowing time for options, giving choices, ignoring irritating behavior, being a good role model, creating situations for successful behavior, repeating rules, outlining consequences, being consistent, use of positive reinforcement, behavior modification strategies, and developing decision making skills.

All the examples cited above require time, patience, and commitment to achieve the behavioral outcomes.  In the real world we live in the pressures of our daily lives often tempt us to take less thoughtful solutions.  A spanking may stop the behavior but consider the old proverb that asks Is it better to feed <spank> a person or teach him how to grow his own food?  Spanking, in the same way, does not teach the child, it merely stops an immediate behavior and at best it is only a momentary solution.  Long range, it causes much more damage and is an ineffective method to develop desired behaviors. You can teach your kids to behave the way you want without spanking, screaming, nagging, or spoiling (Fernandez, E., 1987).

According to the Canadian Coalition for the Rights of Children, Canada does meet most standards in regards to the UN Convention on the Rights of the Child.  However, there are a number of areas in which Canada needs to take further measures to better serve the best interests of the child and protect them from violence, particularly section 43.

There is no argument with the quotes reference to the obligation of parental discipline.  However, it is quite obvious that so called light spanking is detrimental to the best interests of the child.  A legal system that provides punishment for kicking a dog but not for hitting a child is unjust.  The examples for alternatives to corporal punishment cited throughout the paper require time, patience, and commitment to achieve the behavioral outcomes.  In the real world we live in the pressures of our daily lives often tempt us to take less thoughtful solutions.  A spanking may stop the behavior but consider the old proverb that asks Is it better to feed <spank> a person or teach him how to grow his own food?  Spanking, in the same way, does not teach the child, it merely stops an immediate behavior and at best it is only a momentary solution.  Long range, it causes much more damage and is an ineffective method to develop desired behaviors. You can teach your kids to behave the way you want without spanking, screaming, nagging, or spoiling (Fernandez, E., 1987).

Sources

Bower, Bruce.  Growing Up in Harms Way: Child Victimization Develops into a Scientific Challenge, Science News 149, 21 (1996).

Canadian Coalition for the Rights of Children, How Does Canada Measure Up?

Katherine Covell and R. Brian Howe.  The Challenge of Childrens Rights for Canada. Waterloo, Ontario: Wilfred Laurier University Press, 2001.

Durrant, Joan E.  Culture, Corporal Punishment, and Child Abuse.  Course pack.

Fernandez, E.  (1987)  A Difficult Day.  Toronto, Ontario: Kails Canada Press.

Hazen, B.S.  (1981)  Even If I Did Something Awful.  Toronto, Ontario: McClelland & Stewart Ltd.

Howatt, William.  Survival Guide for the 21st Century.  Athens, Ontario: Hindle & Associates Publishing.


To read Read More ..out the repeal of section 43 of the Criminal Code of Canada which allows corporal punishment of children, visit the website of the Committee to Repeal Section 43 of the Criminal Code of Canada Opens in a new window

Repeal 43 logo

Committee to Repeal Section 43 of the Criminal Code of Canada Which Allows Hitting Children to "Correct" Them

The Repeal 43 Committee is a national, voluntary committee of lawyers, paediatricians, social workers and educators formed in 1994 to advocate repeal of section 43 of the Criminal Code of Canada.

It is an offence under our Criminal Code to use force against anyone without their consent. This right to personal security is the most fundamental of all human rights. It is a protection against assault that all adults take for granted.

Children do not have the full benefit of this protection because section 43 of the Criminal Code justifies hitting children for disciplinary or "correction" reasons. This violates a child's right to the equal protection and benefit of the law guaranteed by our Canadian Charter of Rights and Freedoms.

It contravenes the United Nations Convention on the Rights of the Child. It violates a child's dignity and shows a lack of respect. It can lead to serious physical and emotional harm.

Over 400 organizations from across Canada that deal with children are against corporal punishment  www.Repeal43.org