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Ruling banning the spanking of children is both legally and morally sound


Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

The Constitutional Court judgment on corporal punishment of children means that the common-law defence of reasonable and moderate parental chastisement is constitutionally indefensible. This judgment has nudged South Africa closer to fulfilling its international obligations to protect children.

What would you do should you find your 11-year-old child watching pornographic material on his/her/your laptop; or if you find the 11-year-old playing with the vibrator left inside the bedside drawer? Do you apologise to the child for not keeping safe the adult material or do you yank your leather belt to beat up the child and kick him or her on the buttocks for being naughty? Do you follow the prescript of Psalm 137:9?

Those advocating for the so-called parental right of chastisement would have wished that the Constitutional Court decision in Freedom of Religion South Africa v Minister of Justice & Constitutional Development 2019 ZACC 34] had been decided by the Supreme Court of Canada.

In 2004, that court [in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) [2004] 1 S.C.R. 76, 2004 SCC 4], addressing the constitutionality of section 43 of the Criminal Code on “reasonable punishment” defence to the physical punishment of children with the Canadian Charter of Rights and Freedoms provided guidelines that allowed the continued use of chastisement.

The Canadian guidelines allow spanking under a number of conditions including corrective force (or physical punishment) that is minor or “transitory and trifling” in nature; no physical punishment on children younger than two or older than 12; not using physical punishment on a child in anger or in retaliation for something a child did; no use of objects such as belts or rulers; no hitting or slapping on the face or head; and no physical punishment on a child who is incapable of learning from the situation because of a disability or some other factor. This judgment, much to the dissent of Arbour J, provides too much discretion and may lead to arbitrary application.

One of the most captivating headlines on media opinions following the Constitutional Court judgment [Freedom of Religion South Africa v Minister of Justice & Constitutional Development 2019 ZACC 34] on corporal chastisement in the home was that on Daily Maverick article by Lauren Kohn titledSpare the rod… and spare the child: Landmark ConCourt ruling overturns Psalm 137:9.”

Spanking, slapping, shoving, yanking, kicking, beating (leaving a mark), hitting (not leaving a mark) ear twisting, violent shaking, pinching, paddling (striking the buttocks with a wooden paddle) and many others are what South African children have been exposed to and are expected to endure in the safety of their homes as part of their parents’ and care-givers’ corrective punishment administration.

Christian organisation Freedom of Religion South Africa (FOR SA), among others, has criticised the Constitutional Court ruling that spanking children is unconstitutional.

In this case, the so-called punishment of the 13-year-old son took in part the form of kicking and punching. Whether you want to call it a violation of God-given parental responsibility with gross interference by the State; State overreach in private affairs of citizens, particularly how they raise their children; or as the beginning of ending violence against children under the guise of discipline as opined by Save the Children South Africa (SCSA), it is clear that the Constitutional Court judgment on corporal punishment at home is a decision that has the country on tenterhooks and in heated conversation.

Not everybody agrees that corporal chastisement in the home is inherently wrong and evil — even the Constitutional Court in part expressed itself in a manner suggesting that there can be loving corporal punishment.

The import of this judgment is not criminalisation of spanking by the Bench, but it, in essence, means that the common-law defence of reasonable and moderate parental chastisement is constitutionally indefensible. The necessary legislative interventions must now kick in.

As put by Chief Justice Mogoeng Mogoeng in delivering the judgment, “the right to be free from all forms of violence or to be treated with dignity, coupled with what chastisement does in reality entail, as well as the availability of less restrictive means, speak quite forcefully against the preservation of the common-law defence of reasonable and moderate parental chastisement.”

According to the Chief Justice, there is no justification for the application of parental chastisement.

This judgment has nudged South Africa closer to fulfilling its international obligations on protecting children. In terms of Article 19 of the United Nations Convention on the Rights of the Child (UNCRC), General Comment 13:

States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.”

In 2006 the Committee on the Rights of the Child, which is responsible for the monitoring compliance with the UNCRC, found that article 19 “does not leave room for any level of legalised violence against children”. South Africa can now also be added to at least 54 states worldwide that have reformed their laws to clearly prohibit all corporal punishment of children.

An interesting reaction to this judgment is the indication that some parents, particularly those who believe that the judgment tramples on their religious rights and entitlements to raise their children according to scriptures, may elect to enter into civil disobedience of the judgement.

According to FOR SA attorney Daniela Ellerbeck, “for many, they will have no choice but to obey God rather than the law. As a result, good parents of faith who only want what is best for their children will potentially see their families torn apart, as is happening in other countries where physical correction has been banned”.

Indeed, religious texts, including the bible, have provided justification for corporal punishment. If this were 1925, Ellerbeck would have found solace in the American State of Oregon case of Pierce v. Society of Sisters [268 U.S. 510 (1925)] where the Court held that the law “unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control… The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognise and prepare him for additional obligations”.

Reading the Constitutional Court judgment chronologically from one page to the next, those who are advocating for parental chastisement might have formed an early excitement that the Chief Justice would rule in their favour:

Properly managed reasonable and moderate chastisement could arguably yield positive results and accommodate the love-inspired consequence management contended for by Freedom of Religion”, said Chief Justice Mogoeng (Par 54).

Corporal punishment is explained as “a practice to correct children’s behaviours by imposing physical force to cause pain, but not injure” [Straus, M. A., Donnelly, M. (2009). Beating the devil out of them: Corporal punishment in American families and its effects on children. Piscataway, NJ: Transaction Publishers].

This definition is immediately a red flag with its reference to causing pain to children. The spanking, or beating as it must be correctly referred to, creates a family environment devoid of love and care for children who ultimately may feel rejected. The so-called corrective punishment by parents in the form of spanking is another sophisticated term for harsh parenting, which is negative parenting behaviour that is also a precursor to child maltreatment.

The interpersonal acceptance-rejection theory teaches us that children value and need parental love, warmth and acceptance [Rohner, R. P., Khaleque, A. (Eds.), Handbook for the study of parental acceptance and rejection (4th ed., pp.1-35). Storrs, CT: Rohner Research Publications]. These are important to their psychological adjustment at both a young age and in adulthood.

In my view, and different to that held by the Chief Justice in the judgment, parents administering corporal chastisement do exhibit lack of affection; indifference to the feeling of children at the time of chastisement; and hostility and aggression to children. Show me one parent who administers chastisement with a warm smile and calm emotions then I will show you how to turn a glass bottle into a diamond. The long-term negative effects of chastisement are what builds a negative worldview in children.

The issue of families torn apart in countries that have outlawed “physical correction” is subject to a debate and we will need more empirical evidence to support such an assertion.

A study in 2018 on 153 paediatricians in Lebanon to determine their “knowledge of the physical and psychological effects of corporal punishment; their role in public education, prevention of corporal punishment by family education; their opinion about international, regional and national laws of corporal punishment; their suggestions about education, training, information, and legal changes, for better protection of children from corporal punishment” [Libyan Journal of Medicine, 2018 Dec; volume 13 Issue Number (1)] suggested that corporal punishment is an abusive form of discipline.

Here we are talking about a country in which corporal punishment is seen and used as socially and culturally acceptable with reference to concepts of reasonable punishment and legitimate corrections. Not only did the study point to the abuse inherent in corporal chastisement, it also pointed to the public and psychological health effects of corporal punishment of children, and the fact that it predisposes them “to aggression, delinquency and conjugal violence later in life”. The study also determined that childhood parental chastisement is associated with “lifetime prevalence of psychiatric disorders”.

Many studies show that corporal punishment has managed to achieve only short-term positive corrective effect and long-term negative effects on children.

As a society, we all have a role to play in helping usher in the new parenting without a chastisement dispensation. There is a need for family education on the different forms of non-violent discipline and behaviour correction.

Those in the position to do this with a wider reach and influence include religious leaders who should integrate discipline and parenting as part of their sermons without necessarily relying on antiquated scripture passages or selectively referring to scriptures to justify corporal punishment. School life skills orientation classes must have a bigger portion of content on behavioural studies and responsible childhood.

Moreover, it remains a legal obligation in terms of section 110(1) of the Children’s Act that an educator who on reasonable grounds concludes that a child is being abused must report this in the prescribed manner to a designated child-protection organisation, the provincial department of social development, or a police official. It will be a criminal offence for an educator not to report abusive parenting when noticed.

Professionals such as paediatricians also have a major role to play in family education and can easily discharge this role as part of their discussions with parents on child-rearing practices and alternative forms of discipline.

Accredited diversion programmes and diversion service providers in terms of section 56 (2) (c) (ii) of the Child Justice Act 75 of 2008 also have an invaluable role to play. Parents who fall foul of the law on corporal punishment may be diverted to these service providers to help them address humanely their children’s behavioural challenges and to correct and/or to teach them other methods of corrective parenting and responsible parenting.

The government itself must pull together and ensure all avenues that can assist parent-child relationships, and which can help inculcate responsible childhood are pooled into some form of state-funded parenting institute. The institute should as one of its priorities seek to help parents and caregivers to employ acceptable ways of raising healthy, productive and accountable children from birth to adulthood, enabling parents to meet their parental responsibilities and obligations without alienating the affection of their children and finding themselves abusing and neglecting their children.

Government has an urgent obligation to raise awareness that spanking is not allowed and that there are other effective and non-violent ways to manage a child’s behaviour. This entails a parenting education drive and positive skills development. The various family and parent support structures and institutions must be revitalised.

The UNICEF Sinovuyo Teen Parent Support Programme piloted in the Eastern Cape, South Africa, between November 2014 and September 2016 is one of the few that can act as our baseline to design programmes for family parenting support. Sinovuyo Teen aimed primarily to encourage positive parenting skills, consistent discipline and supervision, and a reduction in harsh or abusive parenting. Its secondary aims included a reduction in and helping correct teenage externalising behaviour such as substance use, physical aggression and disobeying rules.

The establishment of state resource centres to address not only how to act consistently with the law against corporal chastisement and cruel and inhumane treatment of children, but also to deal with parenting issues in general to decrease violence against children may be helpful.

The Society for the Prevention of Cruelty to Children was founded in New York in 1874 to protect children from abuse. Interestingly, the society was founded after a young girl named Mary Ellen was consistently and systematically abused by her adoptive parent, Mary Connolly, with complaints laid to the police who did not act because at the time there was no specific law to protect children.

Equally interesting is that it was Henry Bergh, the founder in 1866 of the American Society for the Prevention of Cruelty to Animals who intervened to rescue Mary Ellen at the request of a local resident, Etta Wheeler, and successfully petitioned the court using the habeas corpus rule (a legal principle ensuring that a prisoner can be released from unlawful detention — that is, detention lacking sufficient cause or evidence).

There are many Mary Ellens in South Africa who need our change of attitude and rescue from harmful parenting. The South African Constitution is the apex law that protects children from abuse and it was fitting that our apex court, the Constitutional Court, had to step in and protect children’s constitutional rights.

Not everybody agrees that the use of corporal chastisement in the home is wrong, therefore there is a contest against a blanket prohibition against spanking. The difficulty is that there is no common understanding and approach on how to proceed with spanking in the home without physically and emotionally harming the child.

Research has shown that “corporal punishment is the most common form of violence experienced by children. About 100 children die every year as victims of corporal punishment and many more suffer from disabilities” [Krug EG, Mercy JA, Dahlberg LL, et al. The world report on violence and health, The Lancet, 2002 Oct 5;360 (9339):1083–1088].

Moreover, negative experiences in childhood are associated with other adulthood difficulties including the children’s own household dysfunction [Felitti VJ, Anda RF, Nordenberg D, et al: Relationship of childhood abuse and household dysfunction to many of the leading causes of death in adults. The adverse childhood experiences (ACE) study in Am J Prev Med. 1998 May;14(4):245–258].

In America, for instance, it was found that between 2% and 7% of mental disorders were attributable to physical punishment of children (Afifi et al., 2012). As parents, we must get off our parenting high horses, stop digging our heels into abusive and harmful parenting practices in the name of discipline and open our eyes to other possible ways of behaviour corrections and modifications.

The following passage by Chief Justice Mogoeng Mogoeng, in my view, provides the clearest picture of what should happen:

To drive the point home quite conclusively, the Constitution extends the prohibition to violence from ‘either public or private sources’. It is necessary to emphasise that in terms of our law, the application of force, including a touch depending on its location and deductible meaning, or a threat thereof constitutes assault. And parental authority or entitlement to chastise children moderately and reasonably has been an escape route from prosecution or conviction. This means that the violence proscribed by section 12(1)(c) could still be committed with justification if that parental right is retained…

One would be hard-pressed to suggest that assault, which chastisement however moderate or reasonable is, does not fall within the catchment area of section 12(1)(c). ‘All forms of violence’ means moderate, reasonable and extreme forms of violence. Besides — ‘a culture of authority’ which legitimates the use of violence is inconsistent with the values for which the Constitution stands.”

The decision of the Constitutional court means that the common law principle of disciplinary chastisement is no longer a defence where parents and those acting in loco parentis (caregivers) are charged with assault of children. And it does not have to be assaults occasioning cruelty, actual or grievous bodily harm for it to be frowned upon.

The Constitutional Court predicted a flood of assault cases against parents. It put some faith in Parliament to find a way to deal with the situation and the consequence of its judgment, in a more embracing and consultative manner before it “pronounces finally on an appropriate regulatory framework” (Par 74). The reality is that there is not much room for legislative manoeuvring as not much wiggle room was left for the state compared to how the matter has been dealt with in Canada.

What undermines the justification for retaining chastisement, more revealingly, is the availability of less restrictive means to achieve discipline”, said Chief Justice Mogoeng (Par 68).

Let us now spoil the rod, and spare the child for the love of the child. Let us resign ourselves as parents to the perspective that this is not about parental rights to the punishment of children, but that it is about the right of children to be free from any violence on their bodies — including inhumane and degrading treatment. Nobody is kidding — spanking of children by parents and caregivers is unconstitutional. DM


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