To Spank or Not to Spank Your Child

2016-01-25 14:51

Spanking your kids in the home? Although most of us got a spank or two from our parents, some parents may be spanked by the law soon.

Parents who spank their children as a means of correcting them, are acting against the Constitution and must be stopped according to the South African Human Rights Commission (SAHRC). This was the SAHRC’s view in a complaint lodged by a certain Hannah and Adriaan Mostert against the Joshua Generation Church in Cape Town. The SAHRC called on government to speed up legal changes to the Children’s Act to outlaw spanking children at the home. After an unsuccessful conciliation meeting between the complainants and the Joshua Generation Church, mediated by the SAHRC in November 2013, the next step was for the SAHRC to report back to the complainants about their decision and the corrective actions they would be proposing to the Joshua Generation Church in Cape Town.

The complainants in this matter objected to a “parenting manual” published by the Joshua Generation Church, a congregation in Cape Town, wherein the Church described the length and thickness of the rod which parents should use in training up children as young as one-year-old. The manual further stated that “Parents and caregivers still have the right to claim ‘reasonable chastisement’ as a defense against having assaulted their child”.

“Remember, a spanking must cause some pain otherwise it is useless and your child will remain unchanged” – Extract from Joshua Generation Church parenting manual.

The SAHRC recommended that:

  1. The Church furnished the SAHRC with a written undertaking that it will desist from advocating corporal punishment as a means of disciplining children;
  2. The Church remove all references to physical punishment / chastisement or correction from its teaching materials; and
  3. The Church’s trainers and pastors involved in presenting its parenting course, take a course in alternative forms of non-violent discipline of children, arranged and facilitated by the SAHRC.

The church opposed the matter on the basis that:

  1. The complaint was a caricature of the churches’ teaching in relation to the scriptural basis of parental discipline, and asserted that an investigation by the Commission unduly entangles the state in the internal workings of both religious and family life. The church further pointed out that because the Commission did not disclose the identity of the complainants in the allegations letter, the Commission had failed to follow its own complaint handling procedures.
  2. The church also stated that the Commission had prejudiced the matter and that since no particular child has been identified as having been harmed by the practices in question, there was no infringement and, accordingly, the Commission did not enjoy authority to investigate the complaint. The church distinguished between “abuse” and “chastisement” and defined chastisement as a parent striking the buttocks of a child to cause temporary pain without producing physical injury.
  3. The church’s response further detailed the churches’ doctrine on corporal punishment (which it referred to as chastisement) and referred to current South African common law and Constitutional law, which they alleged supported its position. In their response the church also included social science studies in support of its position and a list of religious organisations throughout South Africa that had penned letters of support for the churches’ practices.
  4. The church finally alleged that the Commission violated their right to equality in that, as a church, there are entitled to their belief or opinion. By investigating the allegations against the church, the Commission according to the church not only interfered in the private sphere, but also infringed upon the rights of the Christian Religious community by forcing them to conform to beliefs that they should not hold.

It is interesting to note that the complainants were supported by the Anglican Church through the office of the Archbishop.

The issues that the Commission had to determine were:

  1. Whether the churches’ conduct consisted of active encouragement and promotion of the use of physical "chastisement" by parents of their children, as a means of instilling discipline, which amounted to a violation of section 28(1)(d) of the Constitution, which provides that every child has the right to be free from maltreatment, neglect, abuse or degradation.
  2. Further, the Commission had to determine whether the churches’ promotion of the use of corporal punishment as a means of instilling discipline was inconsistent with the standard of the best interests of the child, as stated under section 28 (2) of the Constitution.
  3. The Commission also had to determine whether the use of corporal punishment, pursuant to religious beliefs, constituted a constitutionally acceptable limitation to the rights of children in terms of section 28 (1) (d) of the Constitution.

The Commission took cognizance of the provisions in international and human rights treaties such as the United Nations Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child and the sections 7, 8,  9, 10, 12,  15, 28,  31 and section 36 of the Constitution of the Republic of South Africa. The Commission also considered the South African Children’s Act more particularly, sections 1, 2, 7, 8 and 9, various reported cases in our courts and internationally.

The Commission’s findings were:

  1. The Commission found that the justification of moderate "chastisement" of children, and the advocacy and use of corporal punishment in the home by the church was unacceptable regardless of whether such is based on teaching of religion.
  2. The Commission specifically found that corporal punishment of children violates the right of the child to protection from maltreatment, neglect, abuse and degradation.
  3. The Commission also found further that the defense of reasonable "chastisement" relies upon a pre-Constitutional legal culture. Under the Constitution, bodily chastisement violates the right of the child to freedom and security of the person in that the child does not enjoy the protection of his or her bodily integrity with in the home, which is the place where he or she should feel most secure in such bodily integrity.

The Commission also stated that the child is the most vulnerable member of our society and of the family unit. For this reason, the child has little authority, power and means to assess justice. The fact that the chastisement takes place in the private space, and determination of what constitutes moderate chastisement is a matter purely at the discretion of the parent, which compounds the challenge and potential undermining of the right of the child in the home. In the premises, the Commission found that corporal punishment advocated by the respondent, the church amounted to the undermining of the right to equality and equal protection of the law.

FORSA, a Christian lobby group criticized the SAHRC’s finding and stated that there is no difference between “disciplinary spanking” (a physically non-injurious act, motivated by love and concern, and intending to educate and correct), and “abuse” or “violence” (physical assault, motivated by anger and malice, intending to injuring or abusing, and in fact causing injury), is extraordinary. According to FORSA, “Any reasonable person would agree that there is a fundamental and obvious difference”.

The Joshua Generation Church is of the view that spanking at the home is condoned by passages in the Bible. The book of Proverbs states, that children are naturally foolish (22:15) and therefore need instruction, discipline and tough love, spanking should be allowed. According to the church the book of Proverbs explains that spanking is actually a loving act (13:24) that helps to train children to become well-adjusted and wise.

On their website the Church states: “This is opposite to modern humanistic thinking, which says the children are basically good and will turn out “all right” if they are in the right environment. Incidentally, the New Testament does endorse the inflicting of pain/spanking as a means of training a child towards good; although the Christian does not need to prove this to justify spanking as a core belief in training children because, as mentioned, the book of Proverbs is still relevant. Our heart and intention is simply to train up our children in a way that we believe is Godly and right, according to how we interpret Scripture. We want to be able to do this in freedom and in right conscience, according to our beliefs. This is by no means an attempt to force anything on anyone else, but to be able to parent in a manner that we, as Bible believing Christians, believe is correct”. 

Although many of the followers of all the major religions in South Africa claim a theological basis for corporal punishment of children, this is increasingly being questioned. In August 2006 all of the major faiths committed themselves to non-violence in the raising of children in the Kyoto Declaration on Confronting Violence and Advancing Shared Security. Some people of faith no longer follow many of the commands of old religious texts, such as for example the "stoning of the adulterer".

Many Christians claim that the Bible specifically mandates that parents spank their children while other Christians interpret the scriptures  differently.  All Christians believe that the bible is the inspired word of God and yet while holding fast to interpreting the “rod” in the Proverbs passages above as a mandate to spank, they dismiss other passages that seem too harsh by today’s standards, such as, “Anyone who attacks his father or his mother must be put to death.” (Exodus 21:15). Some Christians do believe that the Bible simply does not support spanking and that it supports holding children accountable.

While it is true that certain passages of the Bible contain references to physically punishing children many Christians interpret these passages in diverse ways. Interestingly in the the original Hebrew text of the Bible, there were three different words that are translated in English as “rod”, and the one used most often in the verses from the book of Proverbs is the word “shebet”. The shebet was the walking staff that was held by the head of a family, the king's scepter, on the crook with which shepherds guided and rescued sheep. This use of “shebet” can also be seen in Psalms, where the “rod” is identified as something that “comforts me”. Within each of the major faiths there are differences in the ways that different factions interpret religious texts. There are arguments against the use of corporal punishment to be found within Christianity, Islam, Shiite Shari'a and Hinduism. Corporal punishment has been prohibited in schools since 1996 and calls for this to be banned in the home have been discussed for over a decade already. PAN: Children (2012).

A child-raising book by authors Michael and Debi Pearl titled "To Train Up a Child" caused much controversy a few years ago. The book advocated whipping with branches and belts and has sold hundreds of thousands of copies to evangelical Christians. But the deaths of three children whose parents appeared to have been influenced by the authors' teachings provoked a growing backlash. According to the book the implements can vary. For a child under one year old, a willowy branch or a 1ft (30cm) ruler is recommended. For older children, a larger branch or a belt and so on.

But the objective of the "spanking" described in Michael and Debi Pearl's To Train Up a Child is the same - making children surrender completely to their parents' will.

Generally, parents ahead of the state and all others, bear the primary responsibility for ensuring the healthy upbringing of their children. To perform this responsibility effectively, parents are legally authorised to exercise wide-ranging discretion in choosing what form of upbringing is suitable for children. Flowing from these rights, the state and other persons may not intervene in family life unless the parents have failed to achieve the minimum standards of upbringing as set out by our law.

Parents have wide discretion in making decisions that they consider to be in the best interests of their children. Parents usually decide what kind of education, whether religious or secular, their child should receive and how the child should generally view the world. Beyond their legal obligation to provide children with clothing, food, health care and an education, parents exercise control on how they are to provide these goods and services.

In the same breath, a parent’s right to provide religious direction to a child enables the parent, to instill the adoption of religious values of their choice. The state however, has the duty to intervene in family conflicts through the courts, and make decisions in the best interests of the child.

Corporal punishment was abolished by the South African Schools Act of 1996 which outlawed it in our schools. However, corporal punishment in the home is still permitted.

In a national survey conducted in 2005 by the SAHRC it was found that the most common age of children who are smacked is 3 years of age and the most common age of children who are beaten with some or other object is 4 years old. The data showed that 57% of parents with children under 18 used corporal punishment, and 33% used severe corporal punishment in the form of beatings (in addition to smacking). Another nation-wide opinion poll of 1,200 South African children on the rights most violated in their lives, as well as another survey with 410 South African children, found that boys experienced corporal punishment to a larger extent than girls. The latter survey also indicates that older girls might be subjected to humiliating and degrading punishment to a greater extent than boys, not least to control perceived sexual activities of teenage girls.

In the case of Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) it was stated that the state is under a duty to protect all people, particularly children, from ‘maltreatment, abuse or degradation’ and that the rationale behind banning corporal punishment in schools was ‘to protect the learner from physical and emotional abuse’.

Courts throughout the world have shown special solicitude for protecting children from what they have regarded as the potentially injurious consequences of their parents’ religious practices. It is now widely accepted that in every matter concerning the child, the child’s best interests must be of paramount importance.

In the Canadian case of P v S the Judge made the following remark: “In ruling on a child’s best interests, a court is not putting religion on trial nor its exercise by a parent for himself or herself, but is merely examining the way in which the exercise of a given religion by a parent throughout his or her right to access affects the child’s best interests". 

In similar vein Rutledge J of the US Supreme Court stated in Prince v Massachusetts: “And neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth’s wellbeing, the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor [sic] and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death" .

Parents use corporal punishment on children out of a desire for obedience and especially to reduce children's aggressive behaviours. There is however a significant body of evidence that physically punishing children tends to have the complete opposite effect, namely, a decrease in long-term compliance and an increase in aggression.

In many cultures, parents have historically been regarded as having the right and duty to physically punish their naughty children in order to teach appropriate behaviour but researchers point out that corporal punishment  has the opposite effect, leading to more violent behaviour in children and less long-term respect. Other adversarial effects, such as depression, anxiety, antisocial behaviour, and increased risk of physical abuse, have also been connected to the use of corporal punishment by parents. Evidence also shows that spanking, while nominally for the purpose of discipline, are inconsistently applied, often being used when parents are angry or under stress.

International human-rights and treaty bodies have advocated an end to all forms of corporal punishment, arguing that it violates children's dignity and right to physical integrity. A 2013 study at the University of New Hampshire found that children across numerous cultures who were spanked committed more crimes as adults than children who were not spanked, regardless of the quality of their relationship to their parents.

While Religious Freedom should be valued, such beliefs cannot defend practices which breach the rights of others, including children’s rights to respect for their physical integrity and human dignity.

The Royal Australasian College of Physicians has urged that physical punishment of children be outlawed in Australia, stating that is a violation of children's human rights to exempt them from protection against physical assault. The Australian Psychological Society holds that corporal punishment of children is an ineffective method of deterring unwanted behaviour this is also the position of the Canadian Paediatric Society and the Royal College of Paediatrics and Child Health of the United Kingdom.

The American Academy of Pediatrics (AAP) has stated that "Corporal punishment is of limited effectiveness and has potentially deleterious side effects". They recommend that parents be "encouraged and assisted in the development of methods other than spanking for managing undesired behaviour".

Most of the mainstream faith communities worldwide are now supporting moves to eliminate all violence against children, in 2006, a group of 800 religious leaders at the World Assembly of Religions for Peace in Kyoto, Japan endorsed a statement urging governments to adopt legislation banning all corporal punishment of children. Some 39 countries prohibit corporal punishment in all settings, including at home, where most abuse occurs. Those nations range from Sweden and Germany to South Sudan and Turkmenistan.

South Africa is a deeply patriarchal society with strongly held traditional and conservative views on the right and proper place of women and children, and a  degree of gender inequality. This feeds directly into the high levels of violence which currently bedevil South African society. South Africa is a violent society with among the highest-recorded levels of rape, domestic violence, intimate femicide, family murders and community violence.

The Department of Social Development proposed amendments to our Children’s Act, which will soon become law, the amendments, are as follows:

“1(1) A person who has care of a child, including a person who has parental responsibilities and rights in respect of the child, must respect, promote and protect to the fullest extent possible, the child’s right to physical and psychological integrity as conferred by section 12(1)(c), (d) and (e) of the Constitution.

1(2) No child may be subjected to corporal punishment or be punished in a cruel, inhuman or degrading way.

1(3) The common law defence of reasonable chastisement available to persons referred to in subsection (1) in any court proceeding is hereby abolished.

1(4) A parent, care-giver or any person holding parental responsibilities and rights in respect of a child who is reported for subjecting such child to inappropriate forms of punishment must be referred to an early intervention service as contemplated in section 144.

2 The Department must take all reasonable steps to ensure that— (a) education and awareness-raising programmes concerning the effect of section [1(1) and 1(2)] are implemented throughout the Republic; and (b) programmes promoting appropriate discipline are available throughout the Republic".

It was also proposed that the terms ‘positive discipline’ and ‘positive parenting’ be defined in the definitions section (section 1) of the Act.

It seems that the way that we parent children is going to change. A prohibition against corporal punishment will allow that parents can be held accountable when they assault the children with whose care they have been charged. But, no matter how one looks at it, this is a matter of huge debate and the Church now has 45 days to lodge an appeal. It remains to be seen what the final outcome will be.

Bertus Preller

Family Law Attorney - Cape Town

Twitter: @bertuspreller

Facebook: Divorceattorneys

Website: Bertus Preller & Associates Inc.

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