Corporal punishment of children -- spanking

Background of spanking children in Canada

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Note:

We highlight developments in Canada for two reasons:

• About 8% of the visitors to this web site are Canadians.
• The cultures of the U.S. and Canada are so intertwined that some social and cultural developments in one country later surface in the other. Examination of the Canadian situation may give some insight into the future of spanking in the U.S.

The incidence of corporal punishment by parents is decreasing throughout North America. This trend is expected to accelerate in the future as the public realize the serious negative effects that spanking has on children's development and later mental health as adults.

Overview:

Assaulting people in Canada is a crime, with the exception of activity in boxing rings and homes. Section 43 of the Criminal Code criminalizes violence against children if it exceeds "...what is reasonable under the circumstances." Unfortunately, there is no agreement on meaning of the term "reasonable." Some child protective services regard any corporal punishment which results in bruising as child abuse. What one parent regards as an acceptable spanking technique, others might consider child abuse.

This law is in force in all provinces and territories of Canada. Attempts have been made to repeal Section 43, either by action of the Federal Government or the courts. None have been successful. However, a 2004 ruling by the Supreme Court of Canada has limited corporal punishment to very mild force, and only on children from the age of 2 to 12. No instruments, like a paddle or belt are allowed. Hitting the face or the rest of the head is banned. The court has banned corporal punishment in schools, punishment of developmentally delayed children, and any punishment involving "degrading, inhuman or harmful conduct."

The Criminal Code:

Legal structures in Canada are quite different from the U.S.  In Canada, the law restricting spanking is a part of the Criminal Code of Canada. It is created and maintained by the federal government. However, it is administered by the provinces and territories. Thus, a change to the law by the federal parliament, or a change in the interpretation of the law by the courts, affect parents and children across the entire country. In the U.S., laws in this area are maintained by the individual states.

In Canada, it is normally an offense for one person to use force against another, without their prior consent. One exception is made in the case of children. Spanking is covered in Section 43 of the Code under the general topic "Protection of Persons in Authority"  which dates from 1892:

Some claim that Section 43 violates:

• The Canadian Charter of Rights and Freedoms' guarantee for equal protection of the law an of freedom from cruel and unusual punishment.
• The United Nations Convention on the Rights of the Child, of which Canada is a signatory.

A common problem with Section 43 is the definition of the term "reasonable." One parent might consider hitting a child with a paddle so hard that she/he cannot sit down for a few days to be a justifiable use of corporal punishment. In fact, some conservative religious groups teach that a parent must not hit a child with their hand; they must be struck with a paddle of some kind. They believe that a parent's hand should be reserved for loving touch. A social worker might consider the use of an instrument to be abuse. The Supreme Court of Canada has declared it a criminal act. More info

Various past court decisions involving Section 43 have established that:

• Mild spanking is permissible.
• Picking up a child and relocating them to a "time-out" place is acceptable, even though some force might be required.
• Kicking, strangling, or hitting the child's face or genitals is not allowed.
• Force is not permissible if the child is over the age of 15.

A 2004 decision of the Supreme Court of Canada has more precisely interpreted Section 43.

Section 43: Retain or repeal?

Some have suggested that if Section 43 were repealed, then even very minor physical force against a child would constitute a criminal act and the adult responsible would be charged. For example, according to the National Post newspaper in 2007-JUN:

"Two Justice Department lawyers testified before the committee Monday, explaining that 'If section 43 was simply repealed, any non-consensual force that a parent or teacher uses on a child or pupil could be an assault given the broad definition under the Criminal Code. Parents who physically put a reluctant child in a car seat or remove a child to their bedroom for a time-out are applying non-consensual force and could be convicted of simple assault'." ₁

On the other hand, the Repeal 43 Committee, a group that promotes violence-free child raising, has stated:

"The common law de minimus rule prevents prosecutions for minor breaches of the law. Provincial guidelines can require education, counselling and practical help to learn other methods of discipline ... reasonable force to prevent a child from hurting others or damaging property would [not] be illegal. Reasonable force in such situations is allowed by other sections of the Criminal Code." ₂

Section 43: A third path:

Warning: The following contains the author's opinions and may lack objectivity.

It appears that repeal of Section 43 would be difficult or impossible to achieve in the foreseeable future.

• Past attempts to repeal Section 43 of the Criminal Code have been unsuccessful. The Supreme Court of Canada has declared that physical punishment of children is not a violation of their civil rights, as long as the hitting is done within certain limitations. That case was argued primarily on the basis of human rights of the child.
• It might be possible to pursue another lawsuit based on public health concerns:
  • Studies have shown that that even mild spanking of a child significantly increases levels of depression, anxiety, alcohol abuse, and other drug abuse later in life.
  • There are strong indications that serious levels of corporal punishment of children are linked to rage & criminal activity -- including homicide -- later in life.

However, such a case would probably be a long shot. We are unaware of any efforts being made in this direction.

Religious and social conservatives in Canada generally advocate spanking as a principal method of child discipline. This is often justified by passages in the Hebrew Scriptures (Old Testament) which indicate that parents are required to hit their children with a rod when disciplining their children. Many conservative see any restriction on corporal punishment of children by their  parents to be an infringement on religious liberty. Given the privileged position of religious freedom in Canada, their opposition has a very strong influence in retaining Section 43. They also make a case that is convincing to many that a simple repeal of Section 43 would make any parental forcing of children a criminal act.

A better solution may involve finding common ground by retaining, but rewriting, Section 43:

• To allow parents to use a minimal amount of force in specific situations:
  • While relocating children during a time-out scenario.
  • For safety reasons -- e.g. when buckling a child into a car seat.
  • While preventing children from hurting themselves, being injured or hurting others,
  • etc.
•  To criminalize hitting and striking a child:
  • Who is under the age of two;
  • Who is over the age of twelve;
  • Above the neck;
  • While using a weapon of any type -- belt, paddle, electric cord, etc.
  • While using more than minimum force.

If the Federal Government undertook a major education program that widely communicated:

• Specifically what forms of corporal punishment are legal, and
• The findings of studies that link childhood corporal punishment to mental health problems, addiction problems and criminal activities later in life, and
• The availability of alternate effective methods of discipline that do not involve pain,

then it is likely that a major reduction in the infliction of pain on children would result. This would have a significant positive impact on mental health, addiction and criminal activity among adults.

This topic continues in the next essay

References:

1. "National Post Editorial Board on spanking your children: There is such a thing as reasonable force," National Post, 2007-JUN-20, at: http://communities.canada.com/
2. "Why we advocate repeal," Repeal 43 Committee, at: http://www.repeal43.org/

Copyright © 2002 to 2007 by Ontario Consultants on Religious Tolerance
Originally written: 2002-SEP-09
Latest update: 2007-JUN-27
Author: B.A. Robinson