It is a criminal offence in South Africa to assault a child – unless the assault is perpetrated by the parent of that child for disciplinary purposes and the assault is of a “moderate” nature (judged by considering the context). A government proposal to change the law to provide for criminal prosecution of parents who use “moderate” physical violence to punish their children has created a stir. What are the constitutional considerations at play in this debate?
A gathering of conservative religious leaders recently expressed grave concern about plans to outlaw the corporal punishment of children. Errol Naidoo, the leaders of the far right Family Policy Institute, recently warned that “feel-good legislation like this is usually driven by liberal ‘experts’, who often do not have children of their own”. He pointed out that the (Christian) Bible “warns parents not to withhold discipline from their children” and quoted from Proverbs 13:24 (the name of a chapter in the Christian Bible), which states: “He who spares his rod hates his son, but he who loves him disciplines him promptly”.
This view of corporal punishment of children is in conflict with well-established international law rules. South Africa has signed and ratified the Convention on the Rights of the Child (which creates international law obligations for our government). Article 19 of this Convention explicitly imposes a duty on States who have ratified this international treaty to “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence….”
In General Comment no. 8, the Committee on the Rights of the Child pointed out that this section of the Convention (read with other sections in the Convention) place a duty on each State who has ratified the Convention to pass legislation to outlaw assault on children – even “moderate” forms of assault by parents aimed at disciplining children. The Committee wrote:
“In addition, explicit prohibition of corporal punishment and other cruel or degrading forms of punishment, in their civil or criminal legislation, is required in order to make it absolutely clear that it is as unlawful to hit or “smack” or “spank” a child as to do so to an adult, and that the criminal law on assault does apply equally to such violence, regardless of whether it is termed “discipline” or “reasonable correction.”
But it is not only international law that places a duty on the South African government to outlaw assault of children by their parents. The common law rule that allows parents to use “moderate” physical violence on children infringes on the rights of the child – in particular the rights protected by sections 12 and 28 of the Bill of Rights.
In this regard section 12(1)(c) states that everyone has the right to freedom and security of the person, which includes the right “to be free from all forms of violence from either public or private sources”. Section 12(2)(b) also guarantees for everyone the right to bodily and psychological integrity which includes the right “to security in and control over their body”.
These sections must be interpreted with reference to South Africa’s international law obligations. This is so because section 39(1)(b) of the Constitution states that international law must be considered when interpreting the provisions of the Bill of Rights. Against this background there can be little doubt that the present legal regime infringes on the rights of children. Parliament therefore has a legal duty – based on its international law obligations and on its obligations to take steps to “respect, protect, promote and fulfil” all the rights in the Bill of Rights – to abolish corporal punishment of children.
The pivotal constitutional law question that will arise when Parliament passes legislation to provide for the criminal prosecution of parents who assault their children (also in cases where the violence used in the assault is “moderate” and aimed at disciplining a child), is whether such a law will infringe on other rights in the Constitution and if it does, whether the infringement will be justified in terms of the limitation clause. This question will arise if the new legislation fails to exempt from its ambit the actions of those parents whose cultural and religious beliefs and practices mandate corporal punishment of children.
It may well be argued that the legislation that imposes a criminal sanction on all forms of corporal punishment of children by their parents infringes on a cultural practice protected by section 31(1)(a) of the Constitution. But this argument won’t hold water as section 31(2) explicitly states that the rights in section 31(1) “may not be exercised in a manner inconsistent with any provision of the Bill of Rights”. This means that the rights protected in sections 12 and 28 trump the right to culture in section 31(1). The right to culture is therefore in many ways an illusory right as it is subservient to all other rights contained in the Bill of Rights.
The strongest argument against the constitutionality of legislation that places an absolute ban on the assault of children by their parents would be that this infringes on the right to freedom of religion protected in section 15 of the Constitution. As pointed out by Errol Naidoo, a literal interpretation of selected verses from the Christian Bible (for example) endorses corporal punishment of children by their parents. If legislation prohibits parents from punishing their children through the application of “moderate” forms of violence, this would infringe on the rights of parents to practice the tenets of their religion (as they understand these injunctions of their faith).
The Committee on the Rights of the Child has rejected this argument in as far as the Convention on the Rights of the Child is concerned, noting that:
“Freedom of religious belief is upheld for everyone in the International Covenant on Civil and Political Rights (art. 18), but practice of a religion or belief must be consistent with respect for others’ human dignity and physical integrity. Freedom to practise one’s religion or belief may be legitimately limited in order to protect the fundamental rights and freedoms of others.”
This principle is, I contend, clearly correct. This is so because in some cases the state can regulate the harmful religious practices of citizens. To use an extreme example, no South African court is going to find that a law criminalising the sacrificing of babies is unconstitutional because a religious group sacrifices babies to appease its gods and to prevent the gods from destroying the entire community.
The irony is that had the majority of South Africans believed in the religion that practiced baby sacrifice, the court may well have accepted that outlawing the practice unconstitutionally infringed on the rights of the members of (what would then have been) the dominant religion. This is so because the judges would have themselves more likely than not be infused with (what appears to us from the outside to be) an unfounded, harmful and destructive belief.
Because our attitude towards religion colours the way in which we see the world and play a large part in determining what we may consider to be harmful (and because dominant religious beliefs and practices also seep into the consciousness of wider society and often become part of what is considered “normal” or normative), the dominant religious beliefs and practices in society are seldom considered to be harmful at all – no matter what the evidence might suggest.
That is why many people would argue that cutting off part of a vulnerable baby’s penis shortly after birth does not constitute child abuse, and would view this practice as a harmless and valid form of circumcision. The same believers would probably argue that pulling out a baby’s fingernail would constitute child abuse – even though the fingernail (unlike the foreskin) will actually grow back.
That is also why many people who would otherwise support gender equality and would support the prohibition of discrimination on the basis of sex or gender, may condone discrimination against women if this discrimination is endorsed or required by the Catholic Church, the Orthodox Jewish tradition or some versions of Islam.
Because religion is such an emotional and intensely private issue (apart from also playing an important role in public life) and because so many people are so deeply committed to their religious beliefs, they may well ignore all the evidence regarding the harm suffered by children (or women, in the case of gender discrimination) and may argue that their own religious beliefs and practices should trump any rational concerns about the harm suffered by those on the receiving end of the specific religious practice or belief.
In fact, often some of those who are deeply religious suggest that it is impermissible for others to question their religious beliefs and practices. Perhaps because religious beliefs by their very nature do not easily conform to the demands of rationality and fact-based argument and because some religious believers live in a creative state of doubt about their beliefs, they can sometimes respond quite vehemently, even violently, to those who point out the possible logical flaws in their beliefs. (I never understood this: belief in a higher being is said to have value exactly because it is not based on evidence but on the beautiful mystery of faith – why then get upset if people point this out?)
The truth is, of course, that in a constitutional democracy religious beliefs are not protected from critique or questioning. Many religious believers themselves question aspects of the religious tradition they were brought up in or which they operate within. It is therefore not only permissible but, I would argue, in certain cases constitutionally required to ask whether certain religious beliefs and practices harm others and infringe on the rights of others. Is this not best done, not by invoking the unprovable beliefs under discussion, but rather by looking at proven or provable facts?
If this is correct, then the Constitutional Court will ultimately have to weigh up the various interests at stake here – based on as many facts that are presented to them. But this may appear impossible. On the one hand, the Court will have to look at the effects of the widespread culture of violence on children and the manner in which corporal punishment might help to perpetuate this culture. Given these insights it will have to answer the question of whether, and to what extent, the assault of children by their parents damage children and infringe on the rights of those children. On the other hand, the Court will have to ask whether the the infringement on religious beliefs is severe when adherents of a certain belief system are prohibited from assaulting their own children purportedly to give effect to the injunctions of their authoritatively regarded text.
Put differently, the Court will have the unenviably task of balancing the interest of children to be free from violence, against the immeasurable interests of parents to continue practicing their religious beliefs. Rational considerations will have to be weighed up against the authority and importance of the essentially non-rational beliefs of believers.
And which judge will be able to make the best call: one who is imbued with the same non-rational beliefs, or a judge who stands outside these beliefs but has a firm appreciation of international law? DM
Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.