The Outlawing of Spanking
The ruling by the Constitutional Court to outlaw all forms of corporal punishment of children by parents has inevitably divided public opinion.
In its decision to uphold a High Court judgment, the Constitutional Court through Chief Justice Mogoeng Mogoeng argued that any exemption to laws that prohibit corporal punishment could be used to legally justify excessive violence against children.
The interpretation of what constitutes moderate and reasonable chastisement, the reasoning appears to be, is too subjective to be applied in the prosecution of evident assault.
Spanking, Justice Mogoeng said, is inconsistent with the Constitution, which guarantees freedom from all forms of violence from public or private sources.
Whatever the law says, however, many South Africans will argue that the administration of a spanking is a valid option in correcting a child’s conduct. And they might justify that by referring to one line in the Old Testament: Proverbs 13:24
But the verse—“Whoever fails to use the stick hates his child; whoever is free with correction loves him”—is not a divine command. At best, it’s wise counsel.
Some Scripture scholars suggest that the verse doesn’t advocate physical force but the inculcation of discipline (which, in itself, does not preclude the use of force). In that reading, the stick or rod serves as a metaphor for the staff used by shepherds to guide their sheep.
There is an objection that the state has no business telling parents how to raise children, that the law is an intrusion into the private sphere.
Some parents may feel powerless in confronting misbehaving children without resorting to corporal punishment, or at least the threat of it.
Some parents may feel powerless in confronting misbehaving children without resorting to corporal punishment, or at least the threat of it. Without the threat of a spanking, they fear, children who know their rights will feel entitled to misbehave with impunity. Criminalising it might even give rise to certain forms of manipulation, especially in cases of domestic conflict.
These concerns have some merit, even in an age when great numbers of parents prefer to raise their children without recourse to beating them. To reasonable minds, the thought that parents might be charged with assault should they use a flat hand on their child’s bottom seems preposterous.
To reasonable minds, the thought that parents might be charged with assault should they use a flat hand on their child’s bottom seems preposterous.
So the law must be applied sensibly, in such a way that a mother who in a moment of stress hits her toddler’s clothed backside does not risk legal repercussions.
The law’s purpose must be to protect children from abusive parents or guardians who dispense beatings harshly and regularly.
In that light especially, the law’s intent to protect such brutalised children must be welcomed.
Indeed, the rights of physically abused children—of whom there are many, especially in our brutalised society — must precede the parental right to administer corporal punishment.
Parents who frequently beat their children, especially in ways that cause physical injury, must be deterred from doing so by the law, and be held legally accountable. Safeguarding children from parental abuse is a matter of human rights. Adults insist on their right not to be beaten as a method of enforcing discipline, for example at the workplace. Why should children not be protected by the same right?
Safeguarding children from parental abuse is a matter of human rights. Adults insist on their right not to be beaten as a method of enforcing discipline, for example at the workplace. Why should children not be protected by the same right?
Protecting children from beatings also serves society if it helps to break the cycles of brutalisation which form the continual patterns of aggression and violence in South Africa.
Violence breeds violence. While it does not follow that children who were beaten will invariably grow up to be violent themselves, it is evident that people who were not subjected to regular beatings are likely to seek non-violent means of resolving disputes.
And it isn’t only parental violence that calls for our concern. The law excludes non-violent forms of parental cruelty and humiliation — some of which have devastating effects on children — but which are impossible to prove.
Legislation governing domestic conduct is notoriously difficult to enforce. To illustrate: spousal abuse is illegal in South Africa, yet wives are still being assaulted by their husbands in great numbers. Ideally, the anti-spanking law will serve not only as a deterrent to cruel parents but, more so, also as a framework for effecting a modification of behaviour in society.
Ideally, the anti-spanking law will serve not only as a deterrent to cruel parents but, more so, also as a framework for effecting a modification of behaviour in society.
A necessary component of the law would be public education which advocates for alternative means of dispensing corrective discipline: verbal persuasion, non-violent forms of correction (such as withdrawal of privileges) and positive reinforcement.
In this, we can look to the wise counsel of Proverbs: “Give a lad a training suitable to his character and, even when old, he will not go back on it” (22:6).
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