Finally, a court has found that the common law defence of “moderate and reasonable chastisement” is inconsistent with our Constitution. This is a step to creating safe and enabling homes and communities for future generations. By STEFANIE RöHRS and SHANAAZ MATHEWS.
On 19 October 2017 the Southern Gauteng High Court ruled that the common law defence of “moderate and reasonable chastisement” is unconstitutional. This legal defence allowed parents to use physical force to discipline their children as long as the force was “moderate” and “reasonable”. In practice the common law rule, which dates back to 1913, allowed “mild” forms of physical punishment such as spanking, smacking, beating and pushing of children as well as other forms of physical chastisement in the home.
Finally, a court found that the common law defence of moderate and reasonable chastisement is inconsistent with our Constitution. Physical punishment violates children’s right to dignity, the right to bodily and psychological integrity, the right to be protected from maltreatment and abuse and the best interest of the child principle. This legal defence also violated children’s right to equality because the law afforded children less protection than adults (there was no legal defence to smack adults). Abandoning the legal defence is also important to protect children’s health and development. Research indicates that even “mild”forms of physical punishment can negatively affect children’s physical and mental health and that this type of “discipline” leads to more, rather than less child aggression. Studies further show that parents who spank their children are more likely to also physically abuse their children – abuse referring to maltreatment resulting in injury and psychological harm – thus questioning the divide that some people draw between mild and severe forms of physical punishment.
Changing the law is, of course, only the first step in protecting children from physical violence in the home. The real work begins now. South Africa needs to implement interventions at national level to change attitudes and behaviours that perpetuate the use of harsh and violent ways of discipline against children. We need programmes that have shown to be effective in changing both individual attitudes and societal norms around child discipline and we need to teach care givers about alternative, non-violent forms of discipline that can replace smacking and spanking as well as other forms of harsh parenting such as emotional violence and other forms of abuse. These programmes need to be scalable because the use of physical punishment is common in South Africa, as elsewhere. Identifying and implementing suitable programmes is no easy task as it will also require substantial financial investment from the state and funding agencies to ensure sustained outcomes.
However, the gains of reducing physical punishment will be immense. First, reductions in physical punishment are likely to reduce more severe forms of child abuse. This is because “mild” forms of physical punishment and child abuse are linked. Research shows that the majority of physical child abuse takes place in the context of parents disciplining their child. While South Africa is lacking representative data on corporal punishment specifically, we do have data on physical child abuse. Physical child abuse is widespread in South Africa with between 34% and 56% of children reporting experiences of physical abuse, mostly at the hands of their care givers. Due to the links between physical punishment and abuse, reducing physical punishment is crucial for preventing more severe forms of physical abuse and promoting child health and well being.
Second, reducing the use of physical punishment will contribute to reducing our staggering levels of violence against women estimated to affect more than one third (38%) of women. The intersections between violence against children and violence against women have long been overlooked, but emerging research illustrates the links between the two. Violence against children and violence against women often co-occur within the same household and they share certain risk factors, such as domestic conflict, family disintegration, economic stress, alcohol abuse and drug use. Furthermore, both witnessing violence in the home and experiencing violence during childhood fuel the perpetration and experience of violence during adulthood. Men who experienced emotional, physical or sexual abuse during childhood are at an increased risk of perpetrating intimate partner violence in adulthood. They are also more likely to abuse their own children. Of concern, women who experience violence at the hands of their intimate partner, are at increased risk to use harsh forms of parenting. Physical punishment thus “feeds” into violence against women and the intergenerational cycle of violence.
We therefore cannot afford to wait – we need to disrupt these pathways of violence to ensure that we create safe and enabling homes and communities for future generations. DM
Stefanie Röhrs and Shanaaz Mathews represent the Children’s Institute, University of Cape Town.
Photo: Celine Preher/(Unsplash).
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