‘How can it be that hard to make a law that parents cannot hit their kids?
By Johanna von Bahr
This question comes from Julia, 13 years, whom I met during a workshop on children’s rights in Stockholm, Sweden. She lives in the country that was the first in the world to prohibit all corporal punishment of children, in the year 1979. Julia’s question is very interesting as it seeks an explanation to why most of the world’s children still have less legal protection from deliberate assaults than adults.
The most common form of violence against children
Globally, corporal punishment is the most prevalent form of violence against children. A UNICEF study on 62 countries revealed that about four in five children, 2-14 years, have experienced violent disciplinary practices in the home, with country rates ranging between 45 and 95 percent. Violent forms of discipline are thus still very common.
International law is clear
Corporal punishment is not lawful according to the Convention on the Rights of the Child (CRC). Its Article 19 states: States Parties shall take all appropriate legislative, administrative, social and educational measures to protect children 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.
The Committee on the Rights of the Child and other UN human rights treaty bodies, such as the Committee against Torture, systematically address states’ legal obligations to prohibit all corporal punishment of children. At the regional level, the European Court of Human Rights has condemned corporal punishment and handled its first case on physical punishment in the home in 1982. In 2009, the Inter-American Court of Human Rights confirmed the human rights obligations of member states of the Organization of American States to prohibit and eliminate all corporal punishment of children.
National law still highly varied
For a long time, Sweden’s ban was seen as a strange exception. More recent years have witnessed a trend to prohibit all corporal punishment, including in the home. In the beginning of 2018, 53 countries had complete bans. Most of these countries are European or Latin American, but not all. Turkmenistan achieved full prohibition already in 2002 and more recently six African states have done the same. Despite this trend, the vast majority of the world’s children still live in a country where corporal punishment in the family is lawful. In 69 countries it is allowed at school. 59 countries have not prohibited corporal punishment of children in detention and prisons, and 34 states allow corporal punishment as a sentence for crimes committed by children.
The paradoxes of only protecting certain children in certain settings
In many countries, children are fully legally protected against physical disciplining in detention and prisons and at school, partly protected in alternative care or day care, but not at all in their homes. While this inconsistency is in part a consequence of the different logics and perspectives in public and family law, it has several paradoxical consequences.
First, the idea of the home as a “safe haven” does not match the legal situation regarding corporal punishment as in fact children in these countries are more protected in public settings than at home. Another result is that children in conflict with the law have legal protection that other children lack. Finally, the youngest children have the least protection as they are likely to spend all their time in places where corporal punishment is lawful. This is remarkable considering the specific vulnerabilities and care needs of the young child. It also goes against the rationale behind conventional, evidence-based child health policy that prioritizes the first years of a child’s life in order to meet the specific needs and lay the foundations for a healthy life.
Why is there resistance?
Why do so many countries oppose a ban of corporal punishment in the home? The explanations for this are a mixture of institutional, social and individual factors. I will briefly bring up three such factors.
My own statistical research reveals that gender (in)equality matters for protection against corporal punishment of children. States where few women participate in political and social life are less likely to ban corporal punishment of children in the home. This link is very interesting since previous research has found similar results for policy making on gender-based violence. The findings add to the literature on how women’s political and social participation play a role in legislation and policies concerning the family sphere. They also provide support to ongoing global efforts to link policies on violence against children and gender equality (unpublished paper by the author available on request).
Numerous case studies and policy initiatives emphasize the importance of changing the deeply rooted social normsaround corporal punishment. In societies where spanking or smacking your child is socially accepted, a ban would be unpopular. Going back to the Swedish case, public support for corporal punishment had started to decline before the ban, which made it easier for policy makers to achieve the legal amendments.
UNICEF data from 59 countries shows that around three in ten adults believe that physical punishment is necessary to properly raise or educate a child. This is low bearing in mind the widespread use of corporal punishment in the home.
To consider a practice as “not necessary” is of course not the same as deeming it morally wrong or supporting the idea that it should be unlawful. Several existing national regulations distinguish forms of “light” corporal punishment from severe child abuse. Despite the human rights arguments of the CRC and the growth in evidence on the harmful consequences of any type of physical disciplining, some defend such laws by the argument that not all corporal punishment is violence.
During my research on this topic, I have come to think about another potential reason for the persisting opposition to a corporal punishment ban, which exists also in countries where this practice is on decline. This reason is individual-psychological, rather than social. Many of the adults of today were physically disciplined as children. It may be very hard to accept that actions made by someone you love and honor are not justifiable or moral. The thought that the person in whose hands you once were completely helpless, was violent and caused you harm, can simply be too painful to live with.
So, Julia, I hope this answer has clarified some of the difficulties in banning corporal punishment. Your question can also be interpreted as rhetorical, as a call on all states to provide children legal protection from deliberate assaults –“Hey, how can it be that hard?!”
Johanna von Bahr is a political scientist at Stockholm University, Sweden and was a visiting fellow at Harvard FXB during fall 2017. Her PhD dissertation explains implementation of the Convention on the Rights of the Child, as regards violence against children. Read more here