Canada: corporal punishment for kids okay?

I'm not a huge fan of slate, but the phrase 'children as property' caught my 
eye.

There have been incidents in the past few years of mothers and fathers jailed 
for spanking their children in public places. Some advocates claim no physical 
abuse is tolerable; others argue physical discipline has its place in the 
rearing of a child.

Children do have to be protected and taught proper manners and behavior. Most 
children do not have the awareness and reasoning capacity to make good choices, 
and keep themselves safe.  However, disciplinary action against a child is 
often about anger, and not reasoned thinking.

I am not an advocate for spanking.  I spent a good deal of my later childhood 
avoiding that punishment. It did little to deter me from bad behavior.  Having 
said that, I'm also not an advocate for the treating children like little 
adults, deferring to their every wish.  One shouldn't lie to children, or treat 
them as property, but parents should be allowed to exercise some control over 
children's behavior.  

Violence against a child (or violence in the home) teaches him/her that 
violence is an acceptable way to solve problems.  

-x

Spare Us the "Spare the Rod"
Canada tries to sort out the good spankings from the bad.
By Dahlia Lithwick
Posted Friday, Jan. 30, 2004, at 4:04 PM PT 


 
The Supreme Court of Canada just handed down a decision permitting parents and 
teachers to spank children but setting new legal limitations on what 
constitutes a reasonable paddling versus an unreasonable one. In a 6-3 
decision, the high court upheld Section 43 of Canada's Criminal Code, which 
provides that: "Every schoolteacher, parent or person standing in the place of 
a parent is justified in using force by way of correction toward a pupil or 
child  … if the force does not exceed what is reasonable under the 
circumstances." 

Needless to say, Canadian judges have devoted a good deal of their dockets to 
deciding what "reasonable under the circumstances" means. The joke is that they 
will spend even more time doing so in the future. In the United States, where 
the law on corporal punishment is up to the various states, spanking 
as "reasonable discipline" is similarly legal in every state but Minnesota. In 
the United States, as in Canada, this only leads to bizarre outcomes in which 
different courts have vastly divergent ideas of what's reasonable smacking. In 
general, "reasonableness" in beatings turns on the resulting injuries, the 
justifications, or whether the judge herself was spanked as a child. It's a 
myth that this is a debate about parental autonomy versus kids' rights. This is 
a debate about certainty in the law versus continued ambiguity.

Here's California's utterly unhelpful rule on reasonable spanking: "Child abuse 
is a physical injury which is inflicted by other than accidental means on a 
child by another person. ... It does not include spanking that is reasonable 
and age appropriate and does not expose the child to risk of serious injury." 
Which leads to another legal oddity: Many states draw the line between abuse 
and "benign" spankings as the difference between beatings that leave welts and 
bruises and those that don't. It's legal to spank but illegal to have spanked 
in such a way that caused bruising, bleeding, or fractures. Which means child 
abuse depends more on the child's propensity for bruising—or how often she's 
been beaten in the past—than a parent's level of force. 

Section 43 of Canada's Criminal Code, the so-called "spanking law" in question, 
was enacted in the late 19th century. It essentially immunizes caregivers who 
spank from traditional assault laws if they are within these squishy bounds 
of "reasonableness." (Only ship commanders who are using force against sailors 
to maintain discipline are still similarly off the hook for assault.) The 
challenge to Section 43 was mounted by a children's advocacy group, the 
Canadian Foundation for Children, Youth and the Law, which argued, among other 
things, that the law discriminates against children as a class to exempt them 
from assault laws. Why, the group argued, is it a crime for a man to lift a 
finger against his wife, yet acceptable when he whacks his child?

Chief Justice Beverley McLachlin, writing for the majority, held that corporal 
punishment may from now on involve only "minor corrective force of a transitory 
and trifling nature'' (i.e., it's only spanking if it's a tap or a cuddle) and 
that it's legally impermissible to spank a child younger than 2 or older than 
13; to use belts, rulers, and other objects; or to strike a child in the head 
or face. Children under 2 can't learn from a spanking, she argued, although 
it's not at all clear what 3-year-olds learn other than the efficacy of 
violence as a teaching method. McLachlin disagreed with the dissenters that 
the "reasonableness" requirement under the statute was too vague, arguing that 
it's a standard used in many legal doctrines and that she was "satisfied that 
[there is] substantial social consensus on what is reasonable correction." 

If there was substantial social consensus, of course, there wouldn't be 
divergent and irreconcilable results all across Canada and the United States, 
where some parents are convicted for slapping a child and others are acquitted 
for pummeling and kicking.

What's unclear after today is whether these new rules—that it's OK to hit a 
toddler but not an infant; that it's all right to kick a 9-year-old but not a 
teenager (we wouldn't want to smack someone who isn't small and impressionable, 
after all …)—clarify some standard of "reasonableness" or just impose 
artificial and arbitrary limits on what is still vague and subjective. The 
court didn't hold—as some spanking advocates would wish—that family discipline 
is a private matter, and parents deserve broad leeway in disciplining their 
kids. The court simply held that courts would retain broad leeway in 
disciplining parents who unknowingly cross a blurry line.

The government in Canada had taken a pragmatic position in this case. Since 
they couldn't be for paddling, they argued that physical discipline is always 
bad parenting, but they contended the courts should not interfere with every 
parental attempt to restrain or correct a child. That argument is echoed by the 
many conservative Christian groups in the United States, who insist that 
parents can do virtually anything they wish to a child—citing biblical and 
common law precedents for the principle that children are a parent's property 
and it's not the state's business to meddle. 

Twelve countries—including Sweden, Denmark, and Italy—prohibit corporal 
punishment altogether. The U.N. Convention on the Rights of the Child condemns 
most forms of corporal punishment and provides that the "best interests of a 
child" should always be paramount. Canada had been censured by the commission 
for permitting spanking. The United States isn't a signatory to the convention—
to the delight of conservative groups—many of whom cite Proverbs 13:24 for the 
proposition that it's a very good idea to hit your kid with a stick. 

The notion that "the best interests of the child" should be paramount in any 
legal dispute alarmed Canada's Supreme Court, just as it alarms parents' rights 
groups who believe that their own rights should trump their children's. Under 
American law, the best interests of the child analysis only kicks in when 
parental systems break down—if there is a divorce or abuse—otherwise, parents 
are assumed to know best. But that is, of course, the sleight of hand that went 
unrecognized today by the Canadian Supreme Court and that goes unrecognized by 
the folks in this country who'd like to keep smacking their young: Parents 
don't have an unfettered right to discipline their kids. The only right they 
have is to hit their kids just up to some moving target of "reasonableness."

You are either for or against spanking. In my experience, the most vocal 
proponents of spanking seem to be those who claim that "I was whipped with a 
belt/switch/open palm regularly, and look how great I turned out." That could 
be an argument for dressing kids up in caps, knickers, and knee socks too. The 
important legal point is that whether or not you consider your kids to be your 
property, the courts will step in when you've crossed a line. And that line is 
decided by courts and legislatures, not by you. Those of you who want the state 
out of your lives might not like the idea of a broad no-spanking rule. But you 
should recognize that predictability and certainty in the law are the best ways 
to hold the state at bay. 




_______________________________________________
heads mailing list
[email protected]
http://ballistichelmet.org/mailman/listinfo/heads/
http://ballistichelmet.org/donate/