Opinionista Stefanie Röhrs 16 February 2016

Corporal punishment: Sparing the rod is constitutional

Last month the South African Human Rights Commission (SAHRC) took a strong stand against the common practice of physical punishment. It’s a position that could have far-reaching consequences for children’s rights. What started as a dispute about a church’s promotion of physical punishment will lead to a legal ban on all forms of corporal punishment in the home – that is, if Cabinet follows the SAHRC’s recommendations and initiates a law reform process that stops parents and caregivers from smacking their children.

The Commission has requested that, within the next 12 months, legislation be enacted that prohibits corporal punishment of children (i.e., the physical disciplining of children, such as slapping, smacking, etc.) in the home. This echoes calls by the African Union, which has repeatedly asked the South African government to enact legislation that bans corporal punishment in all settings including in the home.

While the SAHRC can be criticised for taking over three years to finalise its response to the case involving the Joshua Generation Church, a reading of their report shows that they did not take its decision lightly. It examined international and regional law and scrutinised South African jurisprudence and constitutional law. The legal arguments raised by the SAHRC are sound: corporal punishment, however light, violates the ‘best interest of the child’ principle contained in our Constitution. It also violates a range of other rights: their right to be free from maltreatment, neglect, abuse and degradation, their right to freedom and security of the person and their right to dignity, all of which are protected under our Constitution.

At present, parents can raise the defence of ‘reasonable chastisement’ if they are charged with assault for using physical violence when disciplining their child. Such a defence is not available if physical violence is used on adults. The common law thus provides less protection for children than for adults. The SAHRC pointed out that the defence is a “remnant of a legal system that was not centred on respect for fundamental rights and human dignity.”It is also a remnant of a value system that is based on “societal norms and patriarchal systems that regard children as having a lesser standing than adults.” Such a defence cannot hold up against the values of human dignity, equality, and the advancement of human rights and freedoms which are the building blocks of our Constitution. These constitutional principles and values must be upheld and safeguarded, especially for vulnerable members of society such as children.

So the law is clear: corporal punishment, no matter who applies it, no matter how light, violates children’s rights. But in addition to the law, we need to understand the societal costs and unintended consequences of corporal punishment. Numerous local and international studies have shown the detrimental effects of physical punishment. Physical consequences such as external and internal injuries are obvious. Corporal punishment can also lead to negative mental health consequences such as depression and anxiety and these conditions may persist into adulthood.

Many studies have also shown that corporal punishment increases child aggression and, this behaviour may continue into adulthood. Thompson-Gershoff, a US-based specialist researcher on corporal punishment says “When parents use physical means of controlling and punishing their children, they communicate to their children that aggression is normative, acceptable and effective – beliefs that promote social learning of aggression.” It is therefore not surprising that South African research shows that boys who have been physically abused in childhood are likely to become perpetrators of violence as adults.

A study in the Western Cape has also shown that children who are physically abused or fear being hurt have worse educational outcomes and are more likely to drop out of school. The Joshua Generation Church and other proponents of corporal punishment will argue that physical discipline is different from physical abuse. The SAHRC was right not to accept this argument because evidence from the USA and Canada clearly demonstrates the link between corporal punishment and child abuse.

In many instances child abuse starts as, or occurs during, corporal punishment. Studies in Canada showed that 75% of physical abuse of children occurred during episodes of discipline using corporal punishment and that children who were spanked by their parents were seven times more likely to be severely assaulted by their parents. In South Africa around 500 children die annually as a result of child abuse and neglect. We should stop questioning the link that has already been proven and start becoming pro-active in teaching parents alternative forms of discipline.

In addition to the negative health and developmental effects, corporal punishment is ineffective. Most parents have two goals when disciplining their children: (1) stopping the unwanted behaviour in the short term and (2) reducing the undesirable behaviour long term. While corporal punishment usually leads to immediate compliance (as in stopping the behaviour), it decreases children’s long-term compliance. In other words: children do not learn from being hit or slapped.

Of course, a law that prohibits corporal punishment in the home will in and of itself not end corporal punishment. It will not change people’s mind-set, and it will not prevent violence against children as long as we do not address the drivers of physical violence such as poverty, alcohol and drug abuse, caregiver stress and family violence. But a legal prohibition of corporal punishment is a necessary first step in becoming a society that respects and protects children’s rights. DM

Stefanie Röhrs is a senior researcher at the Children’s Institute, University of Cape Town. This article first appeared in the M&G.


In other news...

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