CORPORAL PUNISHMENT OF CHILDREN BY PARENTS Is It Discipline or Violence and Abuse?
| Published date | 01 December 2018 |
| Author | CHAN Wing Cheong MA (Oxon), LLM (Cornell); Barrister (Gray's Inn); Advocate and Solicitor (Singapore); Attorney and Counsellor (New York State); Associate Professor, Faculty of Law, National University of Singapore. |
| Date | 01 December 2018 |
Physical punishment is still used as a means of child discipline by Singaporean parents. Is there a difference between such use of violence and abuse of children which is punishable as a criminal offence? What does Singapore and international law say about the use of punitive force on children by parents and other adults who act in loco parentis? This article argues that there is in fact sufficient evidence that Singapore law implicitly prohibits corporal punishment of children by their parents.
1 Although there may be evidence of the use of corporal punishment as a form of child discipline since ancient times in various civilisations,1 its modern use has been increasingly frowned upon. The prohibition of corporal punishment of children in all settings has accelerated in recent years: from only one country in 1979, to five countries in 1996, 28 countries in 2008, and 51 countries in 2016.2 A total of 53 countries have banned the corporal punishment of children
to date, which are located mostly in South America and Europe.3 The only countries in the broader Asian region to join this list so far are Turkmenistan which prohibited the practice in 2002 and Mongolia in 2016, but it can be comfortably predicted that the number of Asian countries to do so will no doubt increase in the coming decades.2 The diametrically opposite positions taken by the two camps for and against corporal punishment of children is well-known and this section will just briefly summarise some of the arguments. Those who claim the right to carry out corporal punishment may make arguments based on (a) a religious viewpoint (for instance, “the Bible instructs parents to do so”); (b) cultural or traditional values (for example, “that is how I was brought up”); (c) family autonomy (for example, “parents should be free of state intrusion/parents are the ones responsible for teaching children what is socially acceptable behaviour”); (d) pragmatism (for example, “it works/leads to better behaviour”); (e) parents know best (for example, “parents know the difference between abuse and discipline”); (f) personal experience (for example, “I was caned and I turned out ok/better than if I weren't”); or even link it with (g) crime rates and perceived social disorder (for instance, “juvenile delinquency is up because their parents did not cane them”).4
3 On the other hand, those who argue against corporal punishment of children may refer to (a) its long-term consequences (such as aggression, depression or anti-social behaviour) which outweigh short-term compliance; (b) the right of children to dignity and physical integrity just like any adult; (c) wrongly teaching children that using violence to solve problems is acceptable; (d) using of one form of corporal punishment will eventually lead to other and more severe forms as its effectiveness decreases with use; and (e) the fact that condonation of corporal punishment in some situations undermines the efforts to protect children from abuse.
4 The purpose of this article is to show that corporal punishment of children under 16 years old by parents at home and those who act in loco parentis is in fact implicitly forbidden by the law in Singapore.5 Corporal punishment of children raise different issues from corporal punishment of adults. It is beyond the scope of this article to discuss whether caning as a form of punishment imposed by the criminal justice system on adult offenders can be justified.6
5 The definition of “corporal punishment” adopted in this article is the one used by the Committee on the Rights of the Child (“CRC Committee”). It is used interchangeably with “physical punishment” to mean:7
[Any] punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light.
6 This definition does not require any physical injury to be caused so long as physical force is used to cause pain. It will thus encompass any acts which cause “bodily pain”8 as well as the more serious acts such as:9
[Hitting] (‘smacking’, ‘slapping’, ‘spanking’) children, with the hand or with an implement – whip, stick, belt, shoe, wooden spoon, etc … kicking, shaking or throwing children, scratching, pinching, biting, pulling hair or boxing ears, forcing children to stay in uncomfortable positions, burning, scalding or forced ingestion (for example, washing children's mouths out with soap or forcing them to swallow hot spices) …
7 Considering the number of scientific studies that have been conducted on this subject, there is no doubt about the detrimental effects of corporal punishment or its lack of effectiveness. However, these points are perhaps the hardest for parents to accept because the harmful effects may take a long time to surface and it is counterintuitive to think that corporal punishment may not “work”.
8 Elizabeth T Gershoff and Andrew Grogan-Kaylor performed a review of studies done over a period of about 50 years involving more than 160,000 children on the effect of spanking children. The type of physical punishment studied by the authors were ones which are non-injurious in nature, such as hitting a child with an open hand with the intention of modifying behaviour. It excluded punishments involving the use of objects or methods which will cause serious harm such as burning or choking a child which would no doubt attract the attention of the child protection officers in Singapore. The review therefore focused on the types of physical punishments which are typically used by Singaporean parents which cause fleeting or momentary pain. The study found:10
[No] evidence that spanking is associated with improved child behavior and rather found that spanking to be associated with increased risk of 13 detrimental outcomes … there is no evidence that spanking does any good for children and all evidence points to the risk of it doing harm.
9 A local study has also confirmed the association between either witnessing or experiencing violence as a child and the perpetuation of violence as an adult.11 The impact of corporal punishment therefore goes beyond the physical, mental and emotional effects on the child – there could be far-reaching consequences later on in life which affect others as well.
10 If this is the case, how is it that many people still support the use of corporal punishment on children?12 This could be due to a dissonance in messages being sent out because its use is not explicitly condemned and may even be argued to be approved of by some Singapore laws. Furthermore, statements can be found equating caning as a form of judicial punishment with caning in the home, even though the two are vastly different:13 convicted offenders are referred to as “adult delinquents” and the caning ordered by the court described as “the punishment which would normally be meted out to children”.14 Former Minister for Home Affairs, Wong Kan Seng, when defending the caning of American Michael Fay for vandalism, said:15
We do not think it is ‘unusual’ or ‘cruel’. Parents cane their children from time to time, and school headmasters are also allowed to cane under specified conditions to discipline serious delinquents.
11 It has long been the stance of the common law that corporal punishment of children is not unlawful so long as certain limits are followed. In the case of R v Hopley,16 it was said:17
By the law of England, a parent or a schoolmaster … 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 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 and 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.
12 In other words, in deciding on whether the corporal punishment amounts to a criminal offence, the court must consider the nature and context of the defendant's behaviour, its duration, its physical and mental consequences in relation to the child, the age and personal characteristics of the child and the reasons given by the defendant for administering punishment.18 What is considered as reasonable depends on the standards prevailing in society with regard to the physical punishment of children.19
13 In Public Prosecutor v AFR,20 where the accused was convicted of culpable homicide not amounting to murder for the death of his two-year-old daughter, the Singapore Court of Appeal said:21
The measure of discipline imposed by a parent or caregiver on a child must be commensurate with the age and the extent of understanding of that child. What the respondent did … went well beyond what any sensible person would have done by way of discipline. [emphasis added]
14 This suggests that corporal punishment is not against the law so long as it was within certain limits. Support for this case-by-case approach in Singapore law for determining if the boundary of acceptable punishment is breached can also be seen in the following cases and the definition of “family violence” in the Women's Charter.22
15 This case involved an application by the Child Protective Service of the Ministry of Social and Family Development (“CPS”) for a care and protection order for a boy against his mother. The parents were divorced and the mother had sole custody, care and control of the child. The relationship between the boy's parents was acrimonious and there were allegations of family violence by the father against the mother. The father was not...
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