If your adult neighbor engaged in annoying or objectionable behavior, would you hit him? Probably not. What if that neighbor had less than average adult physical or mental abilities? Given his relative vulnerability, you would probably be even less likely to "knock" some sense into him. And, if you loved that neighbor as if he were a family member, hitting him would seem a downright bizarre way of dealing with the situation.
Now, imagine that the offender is your child-typically a person of less than average adult abilities and a person whom you love as a family member. Would you hit him? Many American parents would do so with the conviction that responsible child rearing requires no less.
It is assumed in our society that parents and, in some jurisdictions, teachers should be able to spank children as a corrective or educational measure. This assumption owes much of its vitality to the role of law: 49 states permit parents to use "reasonable" corporal punishment on their offspring, and approximately half of the states permit educators to do the same to students. Indeed, in Ingraham v. Wright, 430 U.S. 651 (1977), the Supreme Court ruled that the Eighth Amendment's prohibition against cruel and unusual punishments does not apply to the paddling of students by school personnel.
Does this normative and legal context mean that you should answer my hypothetical question in the affirmative? If all of our assumptions were valid and all of our laws were eternal, we would need neither to think nor to change. We could just follow the dictates of our forebears. But, history has repeatedly shown that assumptions and laws, no matter how longstanding and widespread, can be woefully wrong-headed. Consider that at one time slavery was legal and physical chastisement of wives was thought to be every husband's prerogative. With respect to each situation, we as a society clashed over the status quo and ultimately repudiated it with social change and legal reform.
In my recent article, "Spare the Rod, Embrace Our Humanity: Toward a New Legal Regime Prohibiting Corporal Punishment of Children," which appeared in the University of Michigan Journal of Law Reform,1 I make what may strike many of you as a novel and even radical proposal: legislation should be enacted to prohibit all corporal punishment of children- even when the punishment does not rise to the level of child abuse as traditionally conceived. I will take this opportunity to condense the research and analyses of that article into a briefer and hopefully more accessible examination of why such a legal measure is warranted, both as a policy and legal matter.
Accumulating scientific data indicate that spanking jeopardizes children while they are children and that such childhood punishment has persistent deleterious effects on adults. Child development experts have found that physical chastisement may cause the following conditions during childhood: increased physical aggressiveness, decreased empathy, depression, withdrawal, anxiety, tension, and, in older children, substance abuse, interference with school work, and precocious sexual behavior. Corporal punishment also is often the prelude to more severe child abuse with attendant physiological injuries.
The ill effects of corporal punishment on children's lives are reason enough to consider prohibition. However, as worrisome as the child's plight may be, some of the most ominous ramifications of corporal punishment of children are those that are manifested when children who have felt the rod reach adult-hood. Studies reveal that corporal punishment is all too likely to produce an adult with lasting psychic suffering and maiming. The root cause of the ensuing adult disorders is that children are not generally permitted to vent the rage and humiliation they feel upon being struck. They may not express these feelings for a variety of reasons. Looked at from the child's point of view, it is dangerous to react hostilely toward the very people upon whom one is dependent and with whom one probably identifies-especially if an outbreak of hostility is apt to be met with more intimidation and pain. It may also be inconceivable, particularly to younger children, that the parent's punitiveness could be wrong.
Despite its function as a natural defense mechanism, this quiescence does nothing to assuage the child's hurt and anger; to the contrary, such feelings must go somewhere and many children have no alternative but to repress them. After years of smoldering intrapsychically, the accumulated ire can emerge in some adults in the guise of personality disorders characterized by destructiveness either toward the self or toward others. A correlation has been drawn, for instance, linking repressed childhood anger with such inward-directed adult conditions as depression, obsessive-compulsive behavior, dissociation, and paranoia. Repressed childhood anger is also thought to contribute to adult aggressiveness, authoritarianism, and lack of empathy, conditions in which simmering anger is acted out at the expense of others.
That corporal punishment of children is a widespread practice in the United States means personal suffering for the individuals who have been subjected to such punishment. This, of course, is bad in itself, but the tragedy does not end there. The fact is that corporal punishment may have played a decisive role in promoting man's inhumanity to man on a societal scale. Experts have discovered that criminals are typically people who underwent corporal punishment in childhood. Crime, of course, is a nationwide problem of major concern in the United States. Regrettably, it is not hard to think of instances of more massive brutality than that perpetrated by the common criminal; the historical evidence comes all too readily to mind. Without even considering the wars and inquisitions of earlier eras, modern history provides a panorama of appalling carnage: Nazi torture and extermination of Jews, Gypsies, and others; Stalin's persecution of kulaks and other dissidents in the former Soviet Union; and the Khmer Rouge's butchery of more than one million Cambodians. As we all know, the list could go on and on. Yet, even these few selected examples raise perplexing questions. How do people come to such a pass that they can commit genocide and other atrocities against each other? Where, one wonders, has their empathy and kindness gone? Why is there apparently an impulse to aggress in such monstrous ways and in such monstrous proportions? And, why is this aggression such a pervasive feature of the human condition historically and geographically?
Given the complexity of societal evolution, it would be simplistic to suggest that any one factor is totally responsible for all historical events involving mass cruelty. Nevertheless, it is interesting indeed that corporal punishment has been a traditional child rearing practice in most parts of the globe-a shared experience across time, cultural barriers, and national borders. Moreover, corporal punishment of children can give rise to the very symptomology of aggressiveness, authoritarianism, and lack of empathy that characterizes societal acts of inhumanity. The commonality of childhood corporal punishment and its adverse effects on adult personality closely parallel the ingredients needed for inhumanity on a grand scale.
However, for those who are not persuaded by scientifically based reasons for prohibiting corporal punishment of children, there are philosophical considerations leading to this conclusion as well. Every state has criminal assault and battery laws, representing a broad consensus that hitting, at least as between adults, is wrong. Why should that moral judgment change simply because the person on the receiving end is the punisher's own child or a student? Corporal punishment of a child is just as much a coercive physical attack on the body as an assault and battery perpetrated on an adult. That the victim is smaller and that the coercion is inflicted by a caregiver does not alter the pain and the affront to human dignity. Allowing corporal punishment of children, when hitting adults is subject to criminal sanctions, seems arbitrary and unjust. Like slavery and wife beating, corporal punishment of children displays a lack of regard for our fellow human beings and the degradation of children to an anachronistic sub-human status. This is especially true in light of overwhelming evidence showing that corporal punishment is counterproductive as a child rearing technique and that there are alternative ways of guiding and controlling children. Spanking does nothing to further the main disciplinary goals of developing the child's conscience and preference for peaceful conflict resolution; in contrast, reasoning with the child and nonviolent punishments such as deprivation of privileges are regarded as much more effective for these purposes.
So, corporal punishment is objectionable on scientific and ethical grounds. Is there anything we can do about it or does its persistence defy our will and ingenuity? Nine countries and one of our own states have decided upon legal intervention. Sweden, Finland, Norway, Denmark, Austria, Cyprus, Latvia, and Croatia have enacted statutes prohibiting all corporal punishment of children-as has Minnesota; Italy achieved the same end by judicial decision of the Supreme Court of Cassation. The foreign statutes follow the identical pattern of expressly outlawing corporal punishment of children without qualification. For example, Sweden's law, which has been on the books for 20 years, is typical and provides that: "Children are entitled to care, security and a good upbringing. They shall be treated with respect for their person and their distinctive character and may not be subject to corporal punishment or any other humiliating treatment."2 This law, like the other foreign statutory bans (except that of Cyprus), does not, on its face, provide for any legal sanctions in the event of a violation. The Swedish Parliament enacted the law without express reference to sanctions because the lawmakers conceived of the prohibition as having its primary effect by gradually influencing societal attitudes rather than by deterring caregivers with the immediate threat of penalties. Be that as it may, in Sweden, as in the other countries that have adopted legal prohibitions of corporal punishment of children, violators may be prosecuted under statutes criminalizing assault and battery. That is the law; but, prosecutorial restraint has been the policy. These nations have preferred to rely on the pedagogic effect of their laws in enhancing public awareness and in shaping parental behavior over time.
Lest legal developments in the above-mentioned countries appear exotic or un-American, it should be noted that Minnesota also has banned all corporal punishment of children. This fact is not widely known because Minnesota does not have one statute specifically setting forth a ban. Instead, the prohibition must be teased out of a series of statutes which, when read together, reveal that corporal punishment of children is an assault rather than a defense to assault charges as in other American jurisdictions. Like its European counterparts, Minnesota has exercised prosecutorial restraint: to date, there are no reported cases of parents having been convicted of assault for administering "mild" physical chastisement to their children.
The nine European countries and Minnesota can hardly be classified as mavericks. International human rights law reflects a global acknowledgment that corporal punishment of children is a human rights violation. The U.N. Convention on the Rights of the Child contains at least eight specific provisions that are inconsistent with corporal punishment. For example, article 19, paragraph 1 states, in part, that nations must take "all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence...while in the care of parent(s),...or any other person who has the care of the child."3 The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the American Convention on Human Rights have also been construed to ban corporal punishment of children. Analysts have found the ban to exist implicitly in provisions of these instruments protecting human dignity, personal security and privacy, and in provisions forbidding torture and cruel, inhuman, or degrading punishment.
In view of the psychological, sociological, and philosophical difficulties caused by corporal punishment of children, perhaps it is time for Americans in the other 49 states to rethink this issue and take a cue from Minnesota, Sweden, et al. and international human rights law. In my article, I propose enacting a statute that would make all corporal punishment of children prosecutable as a battery. I have opted for criminal rather than tort liability inasmuch as the latter would convey the idea that physically attacking children is not as heinous as physically attacking adults-the opposite of the law's intended pedagogical purpose. Then, too, civil liability is problematic in that it places the child-victim in a more directly initiating and adversarial role with the offending adult, a posture that may not be emotionally or practically viable for the child. I further suggest combining the anti-spanking ban with a description of the penalties for violating the ban, as a format that is more unequivocating and more familiar to Americans than the Swedish model. However, as in the jurisdictions which have adopted anti-spanking laws, prosecutorial restraint would be essential-just as prosecutors already invariably show similar restraint vis-ā-vis minor assaults and batteries committed against adults.
Of course, law reform along these lines would only be feasible if it could pass muster under the U.S. Constitution. The federal Constitution is supreme such that no other laws may contravene its provisions and survive judicial challenge. The Constitution is silent on corporal punishment of children. Although the U.S. Supreme Court has held that parents have a substantive due process right to raise their children as they see fit, the Court has never characterized corporal punishment as within that right. Indeed, the Court's reasoning supports the opposite conclusion. For, the Court has ruled in Free Speech Clause cases that physical assaults and violence are not "by any stretch of the imagination expressive conduct protected by the First Amendment."4 The free speech cases arose in extrafamilial factual situations, but the basic principle should not change simply because the violence occurs at the hands of adults within the family. If it were otherwise, the law of domestic relations would probably not have evolved to prohibit husbands from physically chastising their wives or to prohibit parents from committing child abuse. Yet, no one would think of proposing in this day and age that husbands and parents should be entitled to engage in this type of aggression by operation of the Free Speech Clause, the Due Process Clause, the Free Exercise Clause or, for that matter, any other provision of the Constitution. Like wife beating and child abuse, corporal punishment of children is so egregious in its effects and so morally distasteful that it should be outside the definitional parameters of child rearing or any other constitutional rights.
The U.S. Supreme Court has, in fact, long recognized that government has the power to intervene in the family in order to protect the physical and psychological well-being of the child. States routinely do this by requiring childhood vaccinations and state-approved education, and by regulating when children may vote, drive, drink, contract, or marry. In sum, not only is spanking children not a federal constitutional right, but the practice may be criminalized without running afoul of the Constitution. Prohibiting corporal punishment of children would actually strengthen our Constitution: child rearing that produces less aggressive and more empathetic adults thereby produces citizens who are capable of the rational reflection and identification with the common good that is essential to democratic governance. More intriguing still, a legal prohibition of corporal punishment of children might eventually help create a human psyche that shuns the violence and brutality presently taken for granted as an unavoidable part of life.
1. "Spare the Rod, Embrace Our humanity: Toward a New Legal Regime Prohibiting Corporal Punishment for Children," 31; UNIVERSITY OF MICHIGAN JOURNAL OF LAW REFORM 353 (1998).
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