CRINmail 81
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Corporal punishment in Latin America
The number of States to have banned corporal punishment of children in all settings, including in the home, is on the rise. So far in 2014, six States have enacted prohibition - the highest number to do so in a single year since 2007 when lawmakers in seven States did the same. This year in particular heralds a promising trend towards global prohibition, as it marks a considerable increase from three bans in 2013, none in 2012, and only one in 2011. While Europe is often lauded as the most progressive region when it comes to recognising children’s right to protection from this form of violence - indeed, three European countries are among those to have enacted bans in 2014 - Latin America has also made important progress, including with three States - Argentina, Bolivia and Brazil - enacting bans in the past seven months alone. Meanwhile six other countries in the region have publicly committed to enacting bans, raising the question of whether Latin America is headed towards becoming the first region in the world to be corporal punishment-free?
In light of this countdown towards global prohibition, we begin this month’s Violence against Children CRINmail by looking at progress made across Latin America towards banning corporal punishment against children. In this edition, we welcome our guest editor Elinor Milne, the Advocacy and Communications Coordinator at the Global Initiative to End All Corporal Punishment of Children. Later, and as usual, we provide a round-up of the latest news and reports and upcoming events on violence against children.
Why corporal punishment?
While many forms of violence against children are recognised precisely as violence, corporal punishment is often not. Exceptions are sometimes even made in law which authorise physical punishment against children, illustrating how violence against children is often ingrained in societies and accepted as the norm. This is in spite of the instinctive awareness that any form of violence affects the development, wellbeing and survival of any person - let alone of society’s most vulnerable citizens: children. This oversight becomes evident by simply looking at the figures: less than a quarter of States worldwide (43) have banned corporal punishment of children, meaning that it is still legal for adults to physically assault children in more than 150 countries in schools, day care, alternative care settings, penal institutions, the home, or as a criminal sentence.
In some States, the law even explicitly allows parents and others to physically punish children (for example, through provisions that allow "reasonable punishment" or "moderate correction", which typically provide adults with a legal defence for assaulting children). In others, the law does not address corporal punishment – and inevitably, its traditional social acceptance means that laws against violence and assault are not interpreted as prohibiting it.
For this reason, any policy discussions or proposed child protection legislation should explicitly identify corporal punishment as a form of violence. This was among the achievements of the UN Study on Violence against Children, which placed corporal punishment alongside other more widely recognised forms of violence, such as trafficking, hazardous work, and torture. The Committee on the Rights of the Child and other international and regional human rights bodies have repeatedly made it clear that international law requires States to prohibit all corporal punishment of children, including in the family home.
Progress towards prohibition in Latin America
With nearly half of the children across Latin America now protected by law from all corporal punishment in all settings – more than in any other part in the world – it could well become the first region to achieve full prohibition. The most recent Latin American State to prohibit was Argentina, where the new Civil and Commercial Code, which explicitly prohibits all corporal punishment, was promulgated in October. In Bolivia, prohibition is included in the new Children and Adolescents Code, signed into law by the President in July. Less than a month earlier, Brazil’s president had signed into law amendments to the Code on Children and Adolescents which explicitly prohibit all physical punishment and other cruel or degrading treatment of children. With a child population of nearly 60 million, Brazil is the world’s largest country yet to prohibit all corporal punishment.
In September 2013 Honduras repealed legal provisions which allowed parents to “moderately correct their children” and explicitly prohibited all corporal punishment. In Costa Rica, law reform in 2008 stated that parental authority did not authorise the use of corporal punishment, confirming in legislation a 2005 Court of Cassation judgment that parents have no right to hurt their children. The stated purpose of the prohibition enacted in Venezuela in December 2007 was to introduce “a new human right – the right to be treated well – … to reinforce children and young people’s status as rights-holders, and to ensure the full recognition of their dignity and personal integrity.” Meanwhile Uruguay spearheaded prohibition in the region by becoming the first Latin American State to ban all corporal punishment in November 2007.
Further progress in sight
While full prohibition in Latin America extends to seven States so far, other States in the region are showing promising signs of progress. In Nicaragua, the new Family Code, which is awaiting promulgation includes explicit prohibition of corporal punishment. If enacted, Mexico’s draft Law on Protection of Children and Adolescents, Chile’s Civil Code Amendment Bill, and Paraguay’s draft Law on Good Treatment of Children and Adolescents would also prohibit corporal punishment outright. In Peru, a bill which would amend the Code on Children and Adolescents to prohibit all corporal punishment is currently under discussion.
Meanwhile in other States, governments have made commitments or statements in favour of prohibition, which now need to be fulfilled. In 2011, the Government of Cuba said that the new draft Family Code would remove the provision of “adequate and moderate correction”, which allows parents to use corporal punishment, but as at March 2014, this defence was still on the statute books. During its 2014 Universal Periodic Review (UPR), the Dominican Republic reported that it was working on “a provision to combat child abuse that covers corporal or physical punishment”; a public draft is not yet available. In El Salvador, the government has acknowledged the need for law reform related to child protection, and in Guatemala the government accepted recommendations to prohibit corporal punishment in its 2008 and 2012 UPRs, but there appears to have been no progress towards drafting prohibiting legislation in either State.
Governments must also ensure they do not miss opportunities for prohibition. In Ecuador, although the government clearly indicated its commitment to law reform during its UPR in 2012, reforms to the Penal Code in 2014 which addressed violence against women and children in the family did not prohibit all corporal punishment. Panama accepted recommendations to prohibit all corporal punishment made during its 2012 UPR; yet while a draft law on the promotion and integral protection of the family is under discussion, no information about whether prohibition is included is available. In Colombia, a 1994 Constitutional Court judgment ruled against violence in child rearing, but prohibition of all corporal punishment has not yet been confirmed in legislation.
To assist further progress, the Global Initiative has produced a new briefing on Latin America (available in English/Spanish) which aims to inform advocacy and promote action for prohibition across the region. Among its content, the briefing highlights the many immediate opportunities for prohibiting corporal punishment across the region and outlines the action required to achieve full prohibition in each State.
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NEWS AND REPORT ROUND-UP
Corporal punishment
Physical abuse
Torture and cruel, inhuman or degrading treatment
State violence
Harmful traditional practices
Exploitation
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UPCOMING EVENTS
Juvenile justice: World Congress on Juvenile Justice - Towards restorative justice
Organisation: Terre des hommes et al.
Date: 26-30 January 2015
Location: Geneva, Switzerland
Online safety: Protecting children on the internet
Organisation: Policy Knowledge
Date: 4 March 2014
Location: London, United Kingdom
Street children: International Conference on the Legal Needs of Street Youth
Organisation: American Bar Association et al.
Location: London, United Kingdom
Date: 16-17 June 2015
Child labour: The Nairobi Global Conference on Child Labour
Organisation: African Network for the Prevention and Protection against Child Abuse and Neglect
Date: 23-25 August 2015
Location: Nairobi, Kenya
Child abuse: 14th ISPCAN European Regional Conference on Child Abuse and Neglect
Organisation: International Society for the Prevention of Child Abuse & Neglect
Date: 27 September 2015
Location: Bucharest, Romania
THE LAST WORD
“Despite the recent progress made in some countries of the region regarding the express prohibition of corporal punishment of children and adolescents, flawed legislation on the subject remains on the books in most Member States, a problem compounded by the fact that the practice is legitimised by society’s tolerance and acceptance of it. It is vital that the States, in furtherance of their international obligations, explicitly prohibit corporal punishment in their laws…”
-- Inter-American Commission on Human Rights, Report on Corporal Punishment and Human Rights of Children and Adolescents, 2009
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