Dr. Bitensky is a professor of law at Detroit College of Law at Michigan State University. This essay first appeared in the Chicago Tribune, July 25, 1996.
If your adult neighbor engaged in offensive or irritating 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 repellent 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 you love as a family member. Would you hit him? Many parents would do so, not out or meanness, but out of the conviction that loving child rearing requires no less.
It is assumed in our society that parents should be able to spank or otherwise corporally punish their children as a corrective or educational measure, i.e., as a means of teaching children how to behave. This assumption is so ingrained and longstanding that it is almost never questioned. Its vitality owes much to the role of law: on the one hand, parents have a federal constitutional right to rear their children in accordance with their own beliefs; on the other hand, there is no legal prohibition in the United States against parents spanking their children. In fact, state laws generally permit parents to use "reasonable" corporal punishment on their offspring.
Nevertheless, some would have the law play an even stronger rule in this regard. A bill is pending in Congress--the Parental Rights and Responsibilities Act--which expressly provides for a federal parental right to use "reasonable corporal discipline" in raising children. In addition, over the last two years a movement has been underway to convince states to add a Parental Rights Amendment to their constitutions. The proposed amendment declares that the right of parents to direct the upbringing of their children must not he infringed. While it does not deal directly with corporal punishment, the amendment would further support the assumption that the parental right to spank as a means of upbringing is sacrosanct.
If all of our assumptions were always valid, we would need neither to think nor to change. We could just follow the practices of our forebears. History has shown, however, that assumptions, no matter how old or widespread, can he woefully wrongheaded. At one time slavery was assumed to be legitimate, and physical chastisement of wives was assumed to be every husband's prerogative. We as a society thought through these assumptions and ultimately repudiated them. Perhaps now the time has come to think anew about the assumption that parents should have the right to hit their children. It might turn out to be a well-founded assumption; it also might not.
Our consideration should, of course, be as informed as possible. We should look to psychologists, pediatricians, teachers and other experts on child development. We should also not be afraid to take a look, for informational purposes, at how people in other countries have responded to this issue.
Like us, most or the world does allow parents to administer corporal punishment to their children. But it is a little publicized fact that some of the world does not allow such punishment. Sweden has had a statute on the books since l979 banning parental corporal punishment of children. In recent years, Norway, Finland, Austria, Denmark and Cyprus have enacted similar statutes. Now Italy has joined the club. On May 16. Italy's highest court issued a decision prohibiting parental use of corporal punishment on children.
Judge Francesco Ippolito, who wrote the opinion for the Italian Supreme Court of Cassation, has been willing to share his insights into the court's intentions and meaning beyond the reported decision. In an interview with me in Rome, Ippolito explained that he was speaking out because the judges regard the message in their decision as extremely important to children's well-being.
The case arose when Natalino Cambria took to repeatedly subjecting his 10-year-old daughter to heavy beatings, purportedly to correct her behavior. He would hit or kick the girl for lying, for getting bad grades or for almost any failure to live up to her father's standards. Cambria was prosecuted and convicted or mistreatment. On appeal to the Italian Supreme Court the father argued, among other things, that he should not have been convicted because he had lacked the requisite intent to mistreat a child; he contended that his intent in beating Danila had been merely to correct her wayward behavior. The court rejected this defense and ruled that Cambria had violated the statutory provision making mistreatment of children a crime.
The Cambria case involved the systematic use of serious violence against a child. However, the court's ruling was by no means confined to those facts. According to Ippolito, the court considered the case as an opportunity to establish the legal principle that parents in Italy are absolutely forbidden from using any violence or corporal punishment to correct their children's conduct. That is why, in addition to upholding Cambria's conviction for mistreatment, the court declared without the least equivocation that "the use of violence for educational purposes can no longer be considered lawful."
What considerations prompted the court to take this dramatic step? Judge Ippolito explained that the court drew upon the ideas and values of modern Italian society--Italian family values, if you will--as reflected in current Italian law. The court emphasized three values in particular. First, the Italian Constitution and family laws express an overriding concern with the dignity of the individual. These laws conceive that minors are entitled to be treated will a dignity equal to that accorded adults. Second, the Italian Constitution manifests a societal repudiation of violence as a way of resolving problems, either amongst nations or individuals. Third, Italy as a party to the UN Convention on the Rights of the Child has embraced that treaty's tenets that children have a right to the harmonious development of their personality and that children should be raised in the spirit of peace and tolerance.The Supreme Court reasoned that parental use of violence in the name of child rearing would be inconsistent with each of these values. Indeed, Judge Ippolito stressed that the new legal principle is directed at undoing the very "basis of the whole problem of violence against children."
It is true that many of our laws are different than Italian laws. Not all American family values are or should be the same as Italian family values. But surely we share with Italian parents love for our children and a desire for their healthy development. Surely, as civilized human beings, we share a regard for human dignity and a repugnance to violence. This common ground is reason enough to make us more circumspect about the assumption that parents should have the right to spank their children for educational purposes. It may turn out that the Italians are on to something--that there are better ways of disciplining and guiding our children. Upon further reflection, we may find that the age-old admonition to "do unto others as you would have them do unto you" should apply to doing unto our children as well as unto our neighbors.
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