12 February 2011

The other DV

Two snippets provoked by a student's comment on parental disciplining of children, ie the traditional defence of reasonable chastisement in relation to assault.

The Tasmanian Commissioner for Children, in the September 2010 Position Statement - Physical Punishment of Children in the Home [PDF], notes that -
In Bresnehan v R (1992) 1 TasR 234 only one of the following chastisements was held to be "unreasonable": whipped for smoking and forced to smoke and eat cigars; horsewhipping on the hand; forced to hold face over open mug of gunpowder while it was ignited; electric cattle-prod; chained in dog shed and belted for not feeding dog; hitting with dog lead, stick whip, hearth brush, shearing belt, piece of wood, fibreglass stake; forced to ingest pepper.
'Parental rights to reasonable chastisement and the European court of human rights' by Ghandhi & James in 3(3) International Journal of Human Rights (1999) 97-119 notes R v Hopley (1860) 2 F. & F. 202. The accused, a schoolmaster, had beaten a young teenage pupil with a thick stick and skipping rope for two and a half hours. At the end, the boy died of exhaustion. Hopley was convicted of manslaughter.

Cockburn CJ directed the jury in Hopley that -
by the law of England, a parent or a schoolmaster (who for the
purpose represents the parent and has the parental authority delegated to him), may for the purpose of correcting what is evil in the child inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable. If it be administered for the gratification of passion or of rage, or if it be immoderate or excessive in its nature or degree, or if it be protracted beyond the child's powers of endurance, or with an instrument unfitted for the purpose and calculated to produce danger to life or limb; in all such cases the punishment is excessive, the violence is unlawful, and if evil consequences to life or limb ensue, then the person inflicting it is answerable to the law and if death ensues it will be manslaughter.
The Tasmanian Law Reform Commission, in a 2003 report on Physical Punishment of Children, commented on arguments about proposals for the abolition of physical punishment in terms of six questions -
1. Is physical punishment morally acceptable?

It is argued that physical punishment is not morally acceptable because first, it denies children the same right to physical integrity that adults enjoy, and secondly, because it violates anti-discrimination laws. And thirdly, it violates international human rights laws. On the other hand, the wide use of physical punishment indicates it is morally acceptable to the majority of Australians. There are also cultural and religious beliefs in a moral duty to use corporal punishment (when necessary) in order to properly raise children.

2. Is physical punishment effective?

It is argued that physical punishment is an ineffective discipline technique because it achieves only short-term compliance (sometimes) and does not help internalise moral values. On the other hand physical punishment is seen by many as effective and in some situations invaluable.

3. Is physical punishment necessary?

Physical punishment is said to be necessary to discipline children effectively in situations where other discipline techniques are less or not effective or are too difficult to apply. The contrary view is that discipline can be firm and effective without the use of physical punishment. This is achieved on a daily basis by teachers, foster parents, child-carers and many parents.

4. Is physical punishment harmful?

Against the use of physical punishment it is argued that its use makes a wide range of negative effects more likely at both an individual and societal level such as physical injuries and abuse, anti-social behaviour, aggressive behaviour and involvement with crime. On the other hand it is argued that there is no compelling evidence to support these assertions, and that common experience refutes them.

5. Would prohibiting physical punishment be an unjustified intrusion into the privacy of the family and parental rights?

It is argued that banning physical punishment would prevent parents and families from managing their own affairs as they see fit and that parents have the right to raise their children in the way that they think is best. On the other hand it is pointed out that the physical punishment of children is already regulated (it must be 'reasonable') and that while parents need to be able to raise and discipline their children the way they think best, they do not have and should not have an absolute legal right to do this.

6. Would prohibiting physical punishment be effective?

It is argued that banning physical punishment would not be effective due to a lack of public support and difficulty in enforcing the law. However, public support may be higher than asserted, particularly if people are assured that trivial smacks will not be prosecuted, and that education rather than enforcement would be the aim of a change in the law.