A psychologist’s opinion on the Crimes Amendment
Child Protection-Excessive Punishment Bill 2000.
By E.R. Lyons
© February 2001

From Child Advocacy Petition

Imagine for a moment that your world is controlled by a species whose knowledge and skill is vastly superior to your own. You have known no other world, and your individual survival is totally dependent on their goodwill towards you. While often benevolent, these creatures deliberately inflict pain upon you whenever you have sufficiently transgressed their complex social rules. They attempt to control your behaviour through the fear of various painful and humiliating physical punishments because they (wrongly) believe this to be the most efficient method to help you learn the rules and conform to their ways. Now imagine that these beings are also much larger than you, - say about four times your own body weight and height.

Currently in NSW, parents may “lawfully correct” their children by the use of "reasonable force". This provision remains entrenched as a legacy from past centuries of English common law that formerly also sanctioned the corporal punishment of wives, servants, apprentices, soldiers and prisoners. "Reasonable force" is described simply as force that was reasonable in the circumstances, and has never been legally defined in terms of the type of physical force and the nature of the harm inflicted upon the child. Given such lack of clarity, "reasonable force" has sometimes been interpreted even by our judiciary to have lawfully encompassed shaking, beating, punching, kicking or hitting with objects such as belts, wooden spoons, chains or cricket bats. "Reasonable force" used with the intention of “lawful correction” has caused children and infants to suffer all types of injuries including bruises, welts, haematomas, head injuries, broken bones, and death. Even without extremes of abuse, the evidence has been mounting that all corporal punishment inevitably causes psychological harm as well as posing a physical risk to children[1]

Corporal punishment is the intentional infliction of pain through physical violence against a child's body in order to exert coercion through fear or humiliation. Some act of violence by an adult responsible for the child, and the intention to inflict pain are both integral to the very concept of corporal punishment. The term "physical discipline", which is used exclusively in reference to children, still carries connotations of respectability while being too often a euphemism for physical assault and battery. By pairing the two words, "physical" and "discipline," the meaning of the latter serves to lend virtue to the former, obscuring the true description of the adult's behaviour towards the child. (We do not hear the self-respecting parent demanding of his or her screaming child in the supermarket: "Do you want a good physical assault?") It is crucial that our society comes to understand that physical violence towards children is not discipline.

If corporal punishment is essentially an exploitation of the power to inflict pain, fear and humiliation, then why is it not more generally recognised as unreasonable under any circumstances? How can this be reconciled with the fact that the overwhelming majority of parents who occasionally “smack” their kids are well-intentioned responsible citizens, highly valuing their children’s welfare and actively protecting them from others’ behaviour which could cause them harm? Unfortunately (for both children and parents) we have inherited a vast historic legacy of confusion, ignorance and hypocrisy concerning corporal punishment that has contributed to a kind of cultural stupor around the whole issue. Legislation not only reflects but also often perpetuates the societal attitudes of the time, and society can be slow to question what has been historically entrenched in law. Only in relatively recent times have laws been enacted which prevent those in positions of power from using physical violence in order to "manage" or "control" those with lesser power. The "rights" of masters to beat their servants and of men to corporally punish their wives was constitutionally protected until the previous century, and corporal punishment was still being administered as part of the Australian judicial system as recently as the 1950's. [2] It is noteworthy though, that the growing number of countries which have now outlawed the corporal punishment of children have retrospectively attained overwhelming public support for this pro-active legislation which has proven effective in altering societal attitudes toward the use of physical force in childrearing.[3]

Many readers will be aware that legislation has again been tabled before the NSW upper house which, if passed, will rule that it is unlawful for children to be hit around the head or to be hit with objects. [4] Perhaps, in terms of social progress, this proposed “excessive punishment” amendment should be welcomed as a definite improvement on the current legislative situation in NSW. There has been an inevitable reactionary backlash from fundamentalist religious forces, who may sincerely misunderstand the context of King Solomon’s advice concerning sparing the rod and spoiling the child [5] Despite the controversy, most professional organisations are in agreement regarding the urgent need to provide clearer child protection legislation, and discernible attitudinal shifts in our society as a whole have been reflected by a high level of public support for the Corbett Bill.

However still retained by Alan Corbett's proposed amendment is the legally sanctioned parental right to hit children and even to cause them “harm”. I predict that in years to come, similar legislation will come to be considered barbaric, because it accords the status of legal sanction to the perpetuation of violent behaviour towards children and thereby fails to protect the moral right of children to develop in an environment free from violence. [6] With ironic inconsistency, this right is legally protected for all children while they are at school but is not yet protected in their own homes. (Corporal punishment is banned in all NSW schools.) It also seems anomalous, that we legally enforce parents use of seat belts to help protect their children from physical harm, and yet the majority of politicians have been unwilling to legislate that parents refrain from directly harming their children by hitting them, being swayed by the vocal minority who claim that this would be an infringement of their parental rights. In my opinion, it would be logically and morally indefensible for me to expect a parental right to do to my child what is, by definition, a violation of human rights and a criminal assault when done to other adults, and a prosecutable offense which is legally recognised as cruelty when inflicted upon animals. As such, I am one of many who find myself unable to support any legislation that maintains the principle that hitting a child is legal as long as you don't hit on the head etc. I am deeply concerned that such legislation simply reinforces the idea that children are hittable, and if passed in the form of the Corbett Bill could serve to relieve the pressure for true social and legislative reform for many years to come.

Concerning the question of corporal punishment I am undoubtedly as biassed as the best. As a child psychologist I am familiar with the accumulation of evidence from recent neuropsychological research, indicating the previously underestimated harm corporal punishment is causing both to individual children and to the future society they are then likely to re-create as adults. [1] However, the strength of my conviction regarding the need to completely abolish corporal punishment comes primarily from my own experience. Sixteen years ago as a parent of a young child I was one of the majority who never questioned the assumption that “smacking” was a necessary (though minor) part of the parental repertoire that helps a child learn right from wrong. Today I remain perfectly well able to understand the perspective of the “average parent” who likewise has never questioned this assumption, while at the same time maintaining that we need to adopt a policy of “zero tolerance for violence against children ” within our legislative guidelines for parents. Having worked for over fifteen years with too many children who had been profoundly traumatised by "reasonable punishment" or "physical discipline" I now have little tolerance for compromise legislation that attempts to define the ways in which it is still right and reasonable to hit children.

There is a high proportion of children who have never been hit around the head or with objects, but who have nevertheless been severely traumatised by having been frequently slapped, beaten, shaken etc, by those entrusted with their care. The "excessive punishment" amendment would have done little to help these kids, and may if passed, actually help entrench the ignorance behind this behaviour until well into the future. The Corbett Bill attempts to differentiate "reasonable force" from physical abuse by specifying that to be reasonable the harm caused to the child must last for no more than a "short period" but the subjective interpretation of this would obviously prove highly problematic. How long is short and how do we assess the duration of harm? Much of the harm caused by corporal punishment is not immediately obvious or measurable. [1] It is readily apparent that the extent of the harm inflicted upon the child is likely to be related to the frequency, duration and severity of the violence and to the degree of pain, stress and fear involved for that child as an individual. Contrary to the assumptions which seem to be reflected in the Corbett bill however, I can find no evidence that the extent of the harm suffered by the child is primarily determined by whether an object is used, as most young children who are injured or killed by their caretakers seem to be injured or killed by hand. [7] So what kinds of force would still remain “reasonable”? Would shaking, slapping, hair pulling, ear pulling, pinching and beating (repeated slapping) all remain possibly reasonable for “lawful correction”? And what type of harm would still be permissible to cause to children? ; - nightmares? soiling? external bruising? internal bruising? Ask five different parents to answer these questions according to their interpretation of the Corbett amendment and we would be likely to get five different interpretations.

While I fully acknowledge an obvious continuum of harm, I choose not to argue for the abolition of corporal punishment in terms of the generally acknowledged danger that a “smack” may escalate into “abuse”. This seems analogous to arguing that feeding children a little bit of arsenic each day is not a good idea because one day they may accidentally receive too much. If it is completely unnecessary to administer a harmful substance in the first place then any amount is too much.. [8] It seems to me that the most compelling argument against all corporal punishment of children is actually disarmingly simple:

A) Our laws rightly protect adult persons from being hit by other adult persons. B) This is because hitting another person would be wrong. It would be harmful, hurtful, disrespectful and humiliating to them. C) Children are persons too.
The first point is beyond dispute, and the second rarely contested. Therefore it would seem that it is primarily the question of the child’s status as a person that is at issue. We would appear to be a nation divided concerning children’s fundamental human rights and their need for equal protection under the law as guaranteed by the United Nations Convention on the Rights of the Child (to which Australia is a signatory). [9] History teaches that the perception of human violence has more to do with the status of the victim than with the nature of the act. [10] Our laws are unambiguous concerning adults who physically attack or threaten other adults but it is not until children reach their eighteenth birthday (their legal personhood) that they are then automatically entitled to the same protection. Domestic violence is no longer protected by law in our society unless that violence is inflicted upon children. [11] Moreover we have enacted progressive legislation to actively protect partners from spousal violence but have yet to grant children the same rights to protection from physical violence while at home. Perhaps the most fundamental reason to enact legislation which reflects zero tolerance for violence against children, is simply that children have no ability to promote this legislation on their own behalf, and so are dependent upon child advocates to lobby for legislative change. His Excellency the Honourable Sir William Deane, Governor-General of the Commonwealth of Australia maintains that the true test of a society is how well they treat their most vulnerable citizens. Who are our most vulnerable citizens, if not our children?


(2) Corporal Punishment Archive - 1648 to 1975

(3) Global Progress - Sweden

(4) Details of the proposed legislation--

(5) The Bible and the Rod

(6) Social Change and Trends in Approval of Corporal Punishment by Parents from 1968 to 1994

(7) Child Abuse and Neglect: Incidence and Prevention

Child Abuse Homicides in Australia: Incidence, Circumstances, Prevention and Control

Current Trends In Child Abuse Reporting And Fatalities (US)

(8) Why People Hit Children: Answering Common Arguments

(9) The United Nations Convention on the Rights of the Child

(10) Not for light reading- The History of Child Abuse

(11) Suggestion...

E. R. Lyons
© February 2001

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