Judgment does not spoil the child
Victory for activists who argue that prohibition of corporal punishment will help build better society
ON OCTOBER 19, 2017, the Johannesburg High Court made history in South Africa when it determined that the defence of reasonable chastisement, previously available to parents convicted of assaulting their children under common law, is unconstitutional.
This means that corporal punishment in the home has effectively been prohibited. This is a victory for the many activists who have advocated for prohibition since before the release of the Draft Children’s Act in late 2002.
But what does this mean? Are hordes of children going to beat a path to the doors of police stations to lay charges against their parents? Are parents going to be criminalised and imprisoned for “every little smack”?
Hardly. In fact, in her judgment, the judge was at pains to stress that the intention is to guide and support parents in finding more positive and effective ways of disciplining children, and not to charge parents with a crime.
Firstly, children seldom report even the most egregious assaults against them. The notion that they are going to stream into police stations and clog up the system with frivolous complaints is ridiculous.
Secondly, it is seldom in children’s best interests to imprison their parents.
And, finally, our legal system operates on the principle that it does not concern itself with the trivial (the lex minimus principle). So, what does it mean? No new offence has been created. In fact, children’s right to protection from assault has (finally!) been given the same level of protection as that of adults. South African law already provides for the illegality of assaulting another person. All this decision means is that you cannot assault your own children, and then invoke the defence of reasonable chastisement.
Families at risk can be identified and supported to parent and discipline their children in a warm, nurturing and non-violent environment which focuses on the longer-term goal of raising the next generation to be self-sufficient contributing members of a democratic, just and peaceful society.
There are many reasons to prohibit corporal punishment in the home – and, in fact, in all settings. A growing, reliable and valid body of research finds undeniable links between negative psycho-social, behavioural and cognitive outcomes for children who experience corporal punishment in childhood. To say nothing of the numbers of children we manage to kill – our child homicide rate is double the global average.
Estimates of the costs of failing to prevent violence against children in childhood range in the billions of rand.
But perhaps the most compelling reason is the simple fact that violence begets violence. In a country with arguably the highest global levels of all kinds of violence (interpersonal, sexual, community), we teach children the wrong lessons when we hit them.
We teach them that it’s okay for bigger, stronger more powerful people to hurt and denigrate those who are smaller, weaker and less powerful. Is this not one of the very attitudes that lie at the root of the malaise in our society, and that gives rise to the likes of Donald Trump (and Jacob Zuma, closer to home)?
Indeed, the judgment acknowledged the particular importance of protecting children in the context of the high levels of child abuse and violence that bedevil our society.
This judgment by the Johannesburg High Court is an important step in the right direction, and provides a golden opportunity to build a society where might and strength do not always win the day, but compassion and respect and self-discipline help us become an equitable, just and democratic society.
It puts us well on the road to doing what 53 countries in the world, seven of them in Africa (Kenya, South Sudan, Tunisia, Benin, Cabo Verde, the Republic of Congo and Togo) have already done: abolish corporal punishment in all settings.
THE INTENTION IS TO GUIDE AND SUPPORT PARENTS IN FINDING MORE POSITIVE AND EFFECTIVE WAYS OF DISCIPLINING CHILDREN JUDGMENT IS AN IMPORTANT STEP IN RIGHT DIRECTION AND PROVIDES AN OPPORTUNITY TO BUILD A SOCIETY WHERE MIGHT DOES NOT ALWAYS WIN THE DAY