Section 43 of the Criminal Code of Canada states: "Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child . . . who is under his care, if the force does not exceed what is reasonable under the circumstances."
The parents of seven-year-old Randal Dooley beat him with belts, punched and kicked him over a 10-month period until the night of Sept. 25, 1998; after a final episode of violence, he died of a brain injury. In a police interview three days later, Randal's father stated that he had "flogged" his son a month earlier for vomiting and soiling himself. Then he told Randal he loved him and explained that he had to teach him a lesson. "I was brought up believing that if you spare the rod, you spoil the child," he told police.
Did the father's belief in corporal punishment contribute to Randal's death, and does this belief contribute to about 26 similar deaths and over 42,000 reports of physical abuse in Canada each year? Let's consider this question in its social and legal context.
Section 43 is a special defence to assault that justifies corporal punishment of children. "Justified" in law means "rightful conduct." We inherited this defence from English common law when our criminal law was first codified in 1892. Recent acquittals under Section 43 show that it justifies not only severe "spankings" but also kicking and assaults with belts and sticks.
Like Canada, the parents' homeland, Jamaica, also inherited this 19th-century defence. Like Canada, Jamaica has a child-rearing culture that accepts corporal punishment. The belief in this method of "correction" set the scene for the beatings that took place at the hands of both parents. Evidence at trial indicated that some relatives knew what was happening. They disapproved but did not notify police or Children's Aid. After all, most parents who believe in corporal punishment don't end up killing their children. The relatives no doubt assumed that things would settle down and Randal would survive.
Whether people in the area noticed his condition is not clear, and whether if they did, they would have reported it, is far from certain. Our society has many voices quick to denounce "state interference in the family" and to proclaim that using belts and sticks to "spank" children is an important part of Christian family values. As for Randal, he was described as stoic and uncomplaining. Perhaps he and his brother saw these beatings as an inevitable part of childhood.
If the brothers had doubted their parents' right to physically punish them, might they have sought help themselves? Had they been aware that governments are supposed to protect children from all forms of violence, perhaps they would have. The United Nations Convention on the Rights of the Child requires governments to make children's rights "widely known to adults and children alike." But could our government do this while at the same time fighting to uphold Section 43 in the constitutional challenge currently before the courts?
The connection between our social and legal approval of corporal punishment and Randal's death cannot be proven with the scientific precision required by the Ontario Court of Appeal in its recent decision on Section 43. But it is apparent enough when Randal's death is viewed in this context. However, his death is but the latest in a long catalogue of injuries and deaths in the name of "correction."
Other Randals could be saved if Section 43 were ended. Do our politicians and judges care enough to do so?
Corinne Robertshaw is a retired lawyer and founder of the Repeal 43 Committee.