social work

Corporal Punishment of Children

Introduction

Although the corporal punishment of women, employees, and convicted criminals has fallen into disrepute, and despite "a gradual softening of sentiments towards children" and "increasing attention to children as moral subjects"' in many liberal democracies, physical punishment of children is still resorted to and considered a morally permissible compo- nent of child discipline. The perceived acceptability of corporal punish- ment extends to the legal toleration of this practice. Except in 32 coun- fries, the use of some form of corporal punishment by parents, or teach- ers, or both, is legally permitted.^ Corporal punishment by parents is le- gally sanctioned in 166 counfries. The physical chastisement of school children with implements such as paddles is permitted in 81 counfries, including the United States. In light of the popularity and "widespread normative approval"^ of this pain-inflicting practice, there is a surprising paucity of philosophical literature in which its moral status is debated.

My purpose in this paper is to consider whether the corporal punish- ment of children is morally permissible.'' Since all punishments coerce those subjected to them, they require compelling justification. But since, unlike many other punishments, corporal punishment inflicts physical pain on its recipients (a disvalue that children are in many ways less able than adults to bear), it requires very persuasive justification, in the ab- sence of which physical punishment should not be infiicted on children.^

'Michael Donnelly, "Putting Corporal Punishment of Children in Historical Perspec- tive," in Michael Donnelly and Murray A. Strauss (eds.). Corporal Punishment of Children in Theoretical Perspective (New Haven: Yale University Press, 2005), pp. 41-54, at p. 46.

^Statistics in this paragraph, accurate as of January 2012, are available at http://www. endcorporalpunishment.org/pages/pdfs/GlobalProgress.pdf (accessed 16 April 2012).

'Richard J. Gelles, "Exchange Theory," in Donnelly and Strauss (eds.). Corporal Punishment of Children in Theoretical Perspective, pp. 245-54, at p. 246.

"The judicial sentencing of convicted criminals to corporal punishment still has its defenders, but this practice is not my focus here. See, for example, Geoffrey Scarre, "Corporal Punishment," Ethical Theory and Moral Practice 6 (2003): 295-316.

'it is sometimes claimed that imprisonment is painful too. Yet although both impris- onment and corporal punishment are both coercive, they differ in quality. Prison is not inherently physically painful. See Jeremy Waldron, "Torture and Positive Law: Jurispru-

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In what follows, I shall argue that the arguments offered by philosophical defenders of corporal punishment—David Benatar, James Allan, and, to the extent that his arguments in support of the corporal punishment of convicted criminals have application to the corporal punishment of chil- dren, Geoffrey Scarre—fail to meet this burden of justification.^ I shall show that the reasons to think that corporal punishment is impermissible far outweigh whatever reasons there are in its favor. I shall argue not on- ly that corporal punishment is morally wrong, but also, towards the end of my paper, that it ought to be illegal.

Punishments are usually justified on either consequentialist or retribu- tivist grounds. Consequentialists justify a punishment by identifying the goods that it can bring—deterrence of wrongdoing, and reform, for ex- ample—and by showing that it is an efficient means to these ends. For a punishment to be justified from a consequentialist standpoint, it must not only do good, it must also do more good than harm—its benefits must outweigh its costs. In addition, there must be no available alternative punishments that would bring about as much benefit at a lower cost. I shall argue that corporal punishment cannot be justified on consequen- tialist grounds because it involves the infiiction of pain that has not con- clusively been shown to do significant good, because it poses some risk of serious harm, and because there are alternative punishments that bring about as much (if not more) benefit at a lower cost.

I do not believe that corporal punishment can be justified on retribu- tivist grounds either. This is in part because I do not think that any pun- ishment of young children can be justified on retributivist grounds. Re- tribufivists jusfify punishment on the grounds of the wrongdoer's deserts. In the context of punishment, a necessary condition for adjudging an agent, X, to deserve punishment is that X is morally responsible for some wrong- doing.^ It would be unreasonable to hold young children morally respon- sible, because they lack a developed ability to reason and to maintain self-control. As R. Jay Wallace observes, cognitively, young children

are at the stage where they are learning how to apply moral principles ... affectively, they have not yet acquired the ability to control their behavior reliably in accordance with such

dence for the White House," Co/wme/a ¿aw Äev/ew 105(2005): 1681-750, pp. 1702-3. *See David Benatar, "Corporal Punishment," Social Theory and Practice 24 (1998):

237-60; James Allan, "Taking Spanking Seriously," in James Allan (ed.). Sympathy and Antipathy: Essays Legal and Philosophical (London: Ashgate, 2002), pp. 109-32; and Scarre, "Corporal Punishment." I shall henceforth refer to Benatar, Allan, and Scarre, as well as to Robert Larzelere and Diana Baumrind, interchangeably as "supporters" and "defenders" of corporal punishment. These individuals are not advocates of corporal punishment, but argue that corporal punishment is sometimes morally permissible.

'Fred Feldman, "Desert: Reconsideration of Some Received Wisdom," Mind 104 (1995): 63-77, pp. 64-65.

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moral principles. Reflective self-governance requires the capacity to comply with moral obligations because one grasps the moral reasons in support of those obligations, and young children may not yet have the ability to act from motives of this sort.^

The leading social scientists who defend corporal punishment consider it acceptable (that is, psychologically nonharmftil) only if used on children between the ages of "18 months and puberty."' Retributivism might be invoked as a partial justification for the punishment of some of the older children in this group, whose abilities to reason and maintain self-control are sufficiently developed to the point where it may not be unreasonable to hold them at least partially responsible. But retributivism cannot justi- fy the punishment of the younger children in this group.

Another part of my case against corporal punishment is rights-based.'" Fundamental human rights, especially the rights to security of the person and not to be subjected to degrading punishment, set limits on how we are permitted to punish. Children, I believe, possess these rights. That children should be accorded fundamental rights attributed to adults might seem uncontroversial, since, as Peter Newell puts it, "children are people too."" Yet there is some controversy over whether moral rights should be attributed to children. I have argued that young children fypically lack certain basic cognitive abilities related to reasoning and autonomy. There may therefore seem something odd about attributing rights to children, on the grounds that the liberal basis for considering individuals as bear- ers of rights is that they are autonomous, rational agents. It might seem, in other words, that young children lack the capacify to exercise the au- tonomous choice that is a necessary condition for being a rights-bearer.

The "autonomous choice" theory of rights is not the only theory of rights, however. On an "interest" theory of rights, which I find plausible, rights passively to enjoy or not to suffer certain things are attributed to individuals in virtue of important interests they possess.'^ On this theory.

^R. Jay Wallace, Responsibility and the Moral Sentiments (Cambridge, Mass.: Har- vard University Press, 1998), pp. 155-57.

'Diana Baumrind, Robert Larzelere, and Philip Cowan, "Ordinary Physical Punish- ment: Is it Harmful? Comment on Gershoff (2002)," Psychological Bulletin 128 (2002): 580-89, p. 581.

'"By no means all writers with children's liberationist sympathies have condemned corporal punishment as a violation of children's rights. David Archard, for example, in a discussion of corporal punishment, considers it "uncivilised to strike the young and de- fenseless." Yet he equivocates between the acknowledgment that corporal punishment "may be judged a violation of a child's rights," the claim that such a characterization is likely to be "controversial," and the further claim that "it may be a serious mistake" to consider corporal punishment "a violation of a child's rights." See David Archard, Chil- dren: Rights and Childhood, 2nd ed. (New York: Routledge, 2004), p. 198.

"Peter Newell, Children are People Too: The Case Against Physical Punishment (London: Bedford Square, 1989).

'^For variants and defenses of the interest theory of rights, see Joseph Raz, The Mo-

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it does not matter whether rights-holders are autonomous, competent choosers, but only that they have certain basic recognizable interests that warrant protection. Although children lack autonomous agency, since they have such important interests, it is not inappropriate to consider them rights-bearers.'''

This is not to claim that all human rights possessed by adults extend to children. I do not believe that children have such "autonomy rights" as the right to choose to work, to refuse medical treatment, to enter into contracts, to marry, to have sex, and to make decisions regarding their education. These rights, by their nature, belong to adults and not to chil- dren, or at least not to young children. However, as Joel Feinberg recog- nizes, children do possess some rights in common with adults, rights that protect important interests that children have in common with adults such as "rights not to be mistreated."'" These rights include, I believe, the right to security of the person and the right not to suffer unacceptably degrading punishments. The attribution of these rights to children and adults does not assume, as one defender of corporal punishment claims, "that children and adults are identical.""

Corporal punishment infringes these rights. In order to justify this infringement, the beneficial consequences of this punishment would have to be substantial. But in fact, as I shall show, the benefits brought about by corporal punishment are not great. Accordingly, those who profess to "take rights seriously" ought to oppose corporal punishment.

Corporal Punishment Distinguished

To bring into focus the subject matter of this paper, and to clarify what is at issue in the disagreement between supporters and opponents of cor- poral punishment, some distinctions are necessary. It is important to dis- tinguish in the first place between a broad and narrow sense of corporal punishment. Corporal punishment may on a broad constmction include punishments inflicted on the body that involve the infiiction of pain but not the administration of physical force, for example, requiring an indi-

rality of Freedom (Oxford: Clarendon Press, 1986); and Matthew H. Kramer, "Rights Without Trimmings," in Matthew H. Kramer, N.E. Simmonds, and Hillel Steiner, A De- bate Over Rights: Philosophical Enquiries (Oxford: Clarendon Press, 1988), pp. 7-112.

'^See Harry Brighouse, "What Rights (if any) do Children Have?" in David Archard and Colin M. Macleod (eds.). The Moral and Political Status of Children (New York: Oxford University Press, 2002), pp. 31-52.

'"Joel Feinberg, "The Child's Right to an Open Future," in Joel Feinberg (ed.). Free- dom and Fulfillment: Philosophical Essays (Princeton: Princeton University Press, 1992), pp. 76-97, at p. 76.

' ^ n , "Taking Spanking Seriously," p. 125.

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vidual to carry out back-breaking labor.'* I am here not concemed with corporal punishment in this broad sense, but with corporal punishment in its narrow and more commonly used sense: "the use of physical force with the intention of causing a child to experience pain but not physical injury for the purposes of correction or confrol of the child's behavior."''

Corporal punishment must also be distinguished from abuse. Support- ers of corporal punishment often charge that the failure of opponents of this practice to distinguish between corporal punishment and physical abuse allows them to heap moral opprobrium on all forms of corporal punishment, when in fact condemnation is only warranted in the case of abuse.'^ I propose to distinguish corporal punishment from abuse as its defenders do—that is, on the basis that punishing children in a way that produces physical injury (fiogging or buming, for example) constitutes abuse. I shall reserve the term "corporal punishment" for punishment that does not result in physical injury. Most philosophers who claim that cor- poral punishment is morally permissible are at pains to emphasize that they are only interested in defending "mild"'' or "moderate"^" physical punishment of children—that is to say, "the infliction of physical pain without injury."^' These defenders of corporal punishment insist that they are not interested in defending abuse of children, which they join in condemning. Benatar adds that his defense extends only as far as cor- poral punishment that is infrequent as well as mild. I shall argue in what follows that even mild and infrequent corporal punishment is wrong.

Considering tbe Case for Corporal Punisbment

What important benefits does corporal punishment bring about that alter- native punishments, such as detention, writing lines, time-out, and sus- pension of privileges, do not? The most obvious possibility is that it may have positive effects on the behavior of children on whom it is infiicted and that these positive effects exceed the positive effects of available, altemative nonphysical punishments. Aside from securing children's immediate compliance with commands, however, there is consensus, or near-consensus, among social scientists about there being little evidence to suggest that corporal punishment is a more effective means of confrol-

'^Scarre, "Corporal Punishment," p. 297. "Murray A. Strauss, Beating the Devil Out of Them: Corporal Punishment in Ameri-

can Families (New York: Lexington Books, 1994), p. 4. '^Allan, "Taking Spanking Seriously," p. 111. "Benatar, "Corporal Punishment," p. 254. ^''Allan, "Taking Spanking Seriously," p. 109. ^'Benatar, "Corporal Punishment," p. 238.

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ling and improving behavior than altemative, available punishments.^^ Indeed, many deny that corporal punishment is even as effective as available altematives.

One empirical psychologist, reviewing the results of studies that com- pare the effects of corporal punishment with altemative disciplinary tac- tics, concludes that spanking is as effective as altemative, available pun- ishments in young children." In the assessment of another empirical psy- chologist, however, "the current state of the field ... is that at its worst cor- poral punishment may have negative effects on children and at its best has no effects, positive or otherwise."^" And a recent overview of the social science devoted to corporal punishment concludes that "it has little associ- ation with desirable behavior change."" The evidence purporting to show that corporal punishment has a beneficial effect on child behavior or, bet- ter, a more positive effect than available altematives, is inconclusive.

Another clear benefit would exist if corporal punishment deterred children from misbehavior. Deterrence justifies the punishment of wrong- doers as an effective way of providing them with an incentive not to commit the wrongdoing in future (special deterrence) or of providing others who are aware of their punishment with an incentive not to com- mit the crime (general deterrence). Benatar adduces evidence, in the form of a single study, that corporal punishment may deter its recipients from

In their meta-analysis, Larzelere (one of two leading social scientists defending the use of mild corporal punishment) and Kuhn find that "customary" corporal punishment does not more effectively promote the development of children's moral awareness or positive behavior than other methods of discipline such as time-out and suspension of privileges. See Robert Larzelere and Brett Kuhn, "Comparing Child Outcomes of Physi- cal Punishment and Altemative Disciplinary Tactics: A Meta-Analysis," Clinical Child and Family Psychological Review 8 (2005): 1-37, p. 25. The American Academy of Pe- diatrics advises pediatricians to discourage spanking in part because "it has been demon- strated to be no more effective than other approaches for managing undesired behavior in children." See American Academy of Pediatrics, Committee on Psychosocial Aspects of Child and Family Health, "Guidance for Effective Discipline," Pediatrics 101 (1998): 723-28, p. 726. As far as the securing of immediate compliance is concemed, "many studies show that this benefit can also be achieved by using removal, restraint or [altema- tive punishments] instead of corporal punishment." See Susan M. Tumer, Something to Cry About: An Argument Against Corporal Punishment of Children in Canada (Water- loo: Wilfred Laurier University Press, 2002), p. 217.

Robert Larzelere, "Child Outcomes on Non-Abusive and Customary Physical Pun- ishment," Clinical Child and Family Psychology Review 3 (2000): 199-221.

^"Elizabeth Gershoff, "Corporal Punishment, Physical Abuse, and the Burden of Proof: Reply to Baumrind, Larzelere, and Cowan (2002), Holden (2002), and Park {2002)," Psychological Bulletin 128 (2002): 602-11, p. 609.

"Bemadette J. Saunders and Chris Goddard, Physical Punishment in Childhood: The Rights of the Child (Oxford: Wiley-Blackwell, 2010), p. 205. See also Tumer, Something to Cry About, pp. 23-24. Tumer refers to the "almost complete absence of data showing corporal punishment is correlated with any benefits."

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further wrongdoing. Yet, as he concedes, this finding "cannot be consid- ered decisive" and "[t]o establish deterrence, much more research needs to be done."^^ Even if corporal punishment does deter some offenders from some offenses, the salient question is not whether it deters but whether it has a significantly greater deterrent effect compared to the most severe noncorporal punishment. There is no evidence to suggest that it does.

Defenders of corporal punishment purport to identify other benefits following from corporal punishment. Benatar identifies four putative benefits.

(1) Corporal punishment is convenient. He contends, first, that detaining students at school might inconvenience some parents by forcing them to collect children detained at school at a later time than they otherwise would have.̂ ^ Corporal punishment, because it does not require children to stay at school after normal hours, infiicts no such burden on parents. I find this supposed advantage to corporal punishment to be slight, if it exists at all. There are punishments alternative to corporal punishment that could be imposed at school that would not require children to stay at school after normal hours: weeding the school lawns and fiowerbeds dur- ing breaks may serve as an example. Other punishments imposable at school, such as writing lines, could be carried out at home. Furthermore, the burden imposed on parents by detention would be restricted mostly to "parents with more than one child at the school"^^ in cases in which the punished child's taking public transport or walking home from school is unfeasible.

(2) Corporal punishment enhances the expressive function of punish- ment. Benatar argues that abolishing corporal punishment in schools ad- versely affects "the scale of punishments" by the elimination of a pun- ishment intermediate between expulsion and detention that differs in se- verity from other punishments. He contends that there is "value in having a scale of punishments of discemibly increasing severity" and that "having different forms of punishment that vary in severity can enhance the expres- sive function of punishment by making the various degrees of condemna- tion more explicit."^' If we grant, as I am inclined to, that one of the ftinc- tions of punishment is to express condemnation of the wrongdoing that is being punished, eliminating corporal punishment does not prevent there being a tariff of punishments varying in severity. It is hard to see how the expressive ftinction of punishment will be significantly impeded in the

^'Benatar, "Corporal Punishment," p. 250. "ibid., p. 251.

^'Ibid.

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absence of corporal punishment, since it is possible, as Benatar acknowl- edges, to "replace corporal punishment with detention of a longer dura- tion"^" or to combine (qualitatively distinct) punishments (e.g., detention plus writing lines).

(3) Corporal punishment is not good in itself and is unpleasant. Benatar claims that there is reason not to assign extra work or community service as punishments, because these things are "good in themselves." Requir- ing that a child engage in such activities as punishment might have the effect of "reinforcing the child's resistance to such practices" as a result of the child's coming to "associate these activifies with punishment."^' It may be preferable, he thinks, to inflict punishments like detention, writ- ing lines, or corporal punishment, which are not good in themselves and are unpleasant.

I do not think that this argument is successful. Suppose, for example, that a child has committed an act of vandalism, at school or elsewhere. Requiring as punishment that the child repair the effects of her own van- dalism or that of others

communicates to her the censure she deserves for her crime—not just a formal censure whose content is simply that she has committed an offense, but a richer and more substan- tive censure that seeks to bring home to her the nature and implications ofthat offense. By confronting her with the damage done by vandalism and the work done in making it good, it says to her in effect "Look what you have done!" It also constitutes an apologetic repara- tion that she is now required to make to the community (to her community) that she has wronged ... if she comes to accept it in these terms for herself, if it thus becomes a sin- cere expression of her apologetic recognition of the wrong she has done (and she might come to such a recognition precisely through carrying out [this community service]), then she also implicitly commits herself to avoiding such wrongdoing in the friture.'^

Requiring children to undertake activities that provide a service to the home, school, or communify and that are more generally valuable gives them an opportunity to make reparation and fosters a new relationship between the child and the home, school, or communify, "strengthening

'»Ibid. "ibid., p. 253.

R.A. Duff, Punishment, Communication, and Community (Oxford: Oxford Univer- sity Press, 2001), p. 105. It is perhaps true that inflicting corporal punishment in response to an act of physical violence by one child on another has the potential to bring home to the offending child the nature of his offense. But in order for it to do so, use of corporal pun- ishment would have to be reserved for acts of physical violence. If corporal punishment is administered for a variety of offenses, it is only likely to communicate to the wrongdoer the sort of "formal censure" to which Duff refers. Benatar does not restrict the permissible use of corporal punishment to acts of physical violence committed by children. Furthermore, corporal punishment would not afford the offending child the opportunity to make apolo- getic reparation in the way that Duff rightly says community service would.

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the child's sense of self as good and constmctive rather than bad and anti- social."" Inflicting corporal punishment does not afford children this opportunity.

But even if it were tme that we should not assign as punishment extra work or community service on the grounds that it is detrimental for chil- dren to associate beneficial activities with punishment, other punish- ments that are unpleasant and not good in themselves, such as writing lines or detention, could be imposed as altematives to corporal punish- ment. Benatar argues that corporal punishment differs from these other available punishments "in the intensity of its unpleasantness."^'' But we should not underestimate the unpleasantness of punishments like deten- tion, which because they are of longer duration than corporal punishment infiict burdensome sufferings including boredom and fhistration (as cor- poral punishment does not) and which interfere to a greater extent with the recipient's freedom.^'

(4) Disagreement and parental liberty. Benatar argues that since reason- able people disagree about the value of corporal punishment as a compo- nent of child-rearing and education, and since it "might do some good,"^* it should be tolerated. It is, I suppose, inevitable that reasonable people will disagree about the value of corporal punishment. I nevertheless think that those who support corporal punishment are mistaken. Furthermore, although corporal punishment may do some good, there is little evidence to suggest that this is ever the case and (to anticipate the arguments in my case against corporal punishment) it violates children's basic rights and poses a risk of harm to them. Benatar claims that "from the perspective of public policy, prohibiting corporal punishment would constitute a serious interference with the liberty interests of ... parents."^^ I do not deny that parents have an important interest in being accorded some discretion in how they raise their children. Nevertheless, parental liberty on its own does not justify the infiiction of corporal punishment. Mill considered "the sentiment of liberty" as "altogether misplaced" in the relations of parents to children: "A person should be fTee to do as he likes in his own con- cems; but he ought not to be ñ'ee to do as he likes in acting for another.

C. Nussbaum, Hiding From Humanity: Disgust, Shame, and the Law (Princeton: Princeton University Press, 2004), p. 246.

^"Benatar, "Corporal Punishment," p. 253. •'^Nevertheless, the restriction of the freedom of children that detention entails does

not necessarily violate their basic rights as I believe corporal punishment does. Children do not have a basic interest in being free of all discipline and punishment, and to the ex- tent that punishment may involve a restriction on children's liberty, their rights are not necessarily thereby violated.

•'"Benatar, "Corporal Punishment," p. 253. "Ibid.

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under the pretext that the affairs of the other are his own affairs."^^ Where parents' exercise of their liberty to raise and educate their children clashes with children's fundamental rights and poses a risk of serious psy- chological harm, the state is obliged to restrict this parental liberty.

In my assessment, the reasons provided in support of corporal punish- ment are not good enough—not nearly good enough—to justify it. Be- fore I proceed with the case against corporal punishment, I want first to present two disadvantages it has relative to other forms of punishment, which may well outweigh whatever slight advantages its supporters may have shown it to possess over available altematives.

Punishments like time-out, grounding, detention, withdrawal of privi- leges, and writing lines have an advantage over corporal punishment inas- much as the wrongdoer suffers over a relatively long period of time, yet during the course of his suffering retains his capacity for reflection in a way prompted by that suffering. These kinds of punishment cannot of course guarantee repentance and reform, but they do provide an opportuni- ty for, and the stimulus to, a reflective examination that will ideally induce repentance and self-reform.^' Corporal punishment does not allow the wrongdoer to reflect much during the course of his suffering, since its infliction is quickly over and to the extent that it can be considered to last for the duration of the physical pain suffered by the child, the suffering of pain makes it difficult if not impossible for the child to refiect at all.

Defenders of corporal punishment are not necessarily against giving children an opportunity to reflect on their wrongdoing in the hope that it will inspire repentance. Providing such an opportunity is one of the rea- sons why Benatar thinks it a good idea to delay corporal punishment, rather than administer it as soon after the wrongdoing as possible."" Per- haps this interval before the infiiction of corporal punishment does in- duce repentance in some children. For many children, however, fear of the impending physical chastisement itself, and the psychological terror induced by refiection on the anticipated physical pain, is likely to inter- mingle with, and in some cases displace, reflection on their wrongdoing.

•'*John Stuart Mill, "On Liberty," in On Liberty and Other Writings, ed. Stefan Collini (Cambridge: Cambridge University Press, 1989), pp. 1-116, at p. 104.

idea that punishment has the purpose of persuading offenders to repent their crimes is a feature of Duffs justification of punishment. See Punishment, Communica- tion, and Community, pp. 151-52. Commenting on this kind of patemalistic theory of punishment, Jeffrie Murphy points out: "Perhaps the best arena in which initially to at- tempt to apply [Duffs] theory is to be found, not in the adult criminal law, but in the law dealing with juvenile offenders. Juvenile offenders are probably more open to radical character transformations than adults." Jeffrie Murphy, Getting Even: Forgiveness and Its Limits (New York: Oxford University Press, 2003), p. 49.

""Benatar, "Corporal Punishment," p. 256.

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Intense psychological anguish does not typically accompany reflection in anticipation of punishments like detention, writing lines, or community service. To inflict such mental anguish on children, who because of the immaturity of their faculties may be especially susceptible to it, is cmel. The infliction of psychological torment on the child may not on its own render corporal punishment impermissible, but it is a disadvantage and a reason to prefer altemative, available punishments if they perform the disciplinary and corrective function of corporal punishment at least equally well. Defenders of corporal punishment may respond that this sort of psychological torment is not an inherent feature of corporal pun- ishment, since it can be administered immediately after the wrongdoing. But to do so is to allow no time for reflection that might inspire repent- ance on the part of the child and no time for due process, as well as to risk the punishment being inflicted while the adult administering it is still in the grip of anger—things that are surely undesirable.

The Case against Corporal Punishment

(a) Corporal punishment violates the right to security of the person

Individuals have a basic interest in being free from physical interference or attack. Feinberg refers in this regard to "an inviolate right which is infringed whenever another person inflicts a harmful or offensive contact on one's body without one's consent—an unwanted caress, a slap, a punch in the nose." We "acknowledge its violation in cases of assault."'" He considers this right to extend to children and I think he is right about this.''^ Corporal punishment infringes the right to security of the person. I do not think this right is absolute, but its infringement will only be per- missible if it is done for compelling reasons. As my response to the rea- sons offered in support of corporal punishment indicates, however, the benefits of corporal punishment are insufficiently substantial to think that corporal punishment is morally permissible. I conclude that corporal punishment violates the right to sectirity of the person.''^

ß) Corporal punishment violates the right not to suffer degrading punishments

Children have a right not to suffer degrading punishments. Supporters of corporal punishment usually accept this, but deny that this practice is unacceptably degrading. Can we specify the meaning of "degrading"

"'Joel Feinberg, Harm to Self {Oxford: Oxford University Press, 1986), p. 53. "^See Feinberg, "The Child's Right to an Open Future," p. 76. "'See also Nir Eyal, "Is the Body Special?" Utilitas 21 (2009): 233-45, p. 237.

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with any precision? Predictably, in view of the vagueness of standards such as "degrading," the question whether corporal punishment is unac- ceptably degrading—that is, whether it wrongfully lowers its recipients' standing—has given rise to disagreement.

Though it does not explicitly refer to corporal punishment, the United Nations Convention on the Rights of the Child requires states to ensure that no child shall be subject to "degrading treatment or punishment."^'' In its General Comment No. 8 (2006), the Committee on the Rights of the Child, which monitors the implementation of the Convention, defines corporal punishment as "any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light," which it condemns as "invariably degrading."^^ By contrast, defenders of mild corporal punishment deny that this practice is unacceptably degrad- ing. They argue that imprisonment may equally inflict indignity on of- fenders. Indignities of restricted freedom and privacy are intrinsic to im- prisonment, they claim. Yet, they argue, we do not condemn imprison- ment as objectionably degrading. It is inconsistent, the argument goes, for people both to accept the indignities of prison as justified and to con- demn corporal punishment as unacceptably degrading.

This argument advanced by supporters of corporal punishment (like Benatar and Scarre) does not, in fact, show that corporal punishment is not unacceptably degrading. Some of the features of contemporary im- prisonment to which they allude are unacceptably degrading, but they are not inherent or necessary features of incarceration. That they are features of contemporary prison life gives us reason to "pursue the humanization of prisons and the protection of certain basic rights of inmates,""** rather than to think that corporal punishment is morally permissible. Other fea- tures of incarceration to which Benatar and Scarre draw our attention are degrading but may conceivably be justified as necessary to ensure safety and security in prison. By contrast, the practice of corporal punishment is, I want to argue, inherently degrading and not necessary to achieve the purposes for which it is used. To show this, I shall consider some exam- ples of indignities of prison life to which defenders of corporal punish- ment refer, and contrast them with corporal punishment.

Benatar draws attention to aspects of the contemporary penal appa- ratus that he deems more degrading than corporal punishment, but which, he claims, do not elicit moral censure: "severe invasions of privacy (such as strip-searches and ablution facilities that require relieving oneself in

""See Article 37 of the United Nations Convention on the Rights of the Child, availa- ble at http://www2.ohchr.org/english/law/pdf/crc.pdf (accessed 16 April 2012).

"'See paragraph 11 of the General Comment, available at http://www.unhcr.org/ refworld/docid/460bc7772.html (accessed 16 April 2012).

"^Nussbaum, Hiding From Humanity, p. 249.

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the ftiU view of others).""' If we do not condemn these prison arrange- ments as morally degrading, he argues, we should not condemn corporal punishment.

In Benatar's view, strip-searches, which employ "indirect and mild power""*̂ are more degrading than corporal punishment, which inflicts physical pain. I accept that strip-searches, by exposing intimate parts of the body to the view of strangers, are a serious indignify. Where they require inmates to submit to body-cavify inspections, they may be expe- rienced as deeply degrading."' Strip-searches will, I concede, be more intrusive on the privacy of the prisoner's body than many forms of cor- poral punishment. Yet it seems to me difficult to assess whether strip- searches occasion greater shame than corporal punishment. Corporal punishment need not expose intimate parts of the child's body to the view of strangers. Yet the infliction of physical pain that is inherent in corporal punishment of children, but not in strip-searches of prisoners, may seriously degrade.

As David Sussman has argued, physical pain has "a peculiar quali- fy." On the one hand, it is experienced as an unbidden imposition from outside of the sufferer, who is passive before it. Recipients of pain, par- ticularly if they are children, often experience a need to do something in response to its demands—writhe, grimace, groan, or cry. On the other hand, pain is not fully distinct from its recipients' agency. The child on whom pain is inflicted may with sufficient effort of the will be able to control his responses to pain, and children are often enjoined to do so, as when they are told not to be "cry-babies." When children fail to control their response to pain, they often experience shame. The pain inflicted through corporal punishment may cause a child to experience not only the infantilizing disgrace of writhing, grimacing, groaning, or weeping, but also the shameful failure of his stmggle against his own body not to do so.

It may be urged in response that prisoners may experience shame when they are unable to control their various responses to being strip- searched. This may be tme, but prisoners' shame produced by failing to control their responses to strip-searches is likely to be considerably less than that experienced by children in the case of corporal punishment, since inmates will be more able to control their responses to the uncom- fortable yet painless experience of being strip-searched and because

r, "Corporal Punishment," pp. 241-42. "^Ibid., p. 242. ""This is the assessment of U.S. Supreme Court Justices Marshall, Stevens, and Bren-

nan in their dissenting opinions in Bell v. Wolfish 441 U.S. 520 (1979), at pp. 578, 593. '"David Sussman, "What's Wrong With Torture?" Philosophy & Public Affairs 33

(2005): 1-31, p. 19.

702 Patrick Lenta

adults' capacity for self-control usually far exceeds that of children. Fur- thermore, there is something about the relationship between adult and child in the context of corporal punishment that is relevant to the produc- tion of shame. David Velleman observes, conceming the origins of shame: "Threats to your standing as a self-presenting creature are a source of deep anxiety, and anxiety about the threatened loss of that standing is ... what constitutes the emotion of shame."" In the case of corporal punishment, the insubordination of a child's body to his will following the infliction of pain may occasion shame because he is forced to act inconsistently with the self-presentation that he is endeavoring to establish. Within their childhood milieu, children often, as a bid to be considered worthy of social interaction, strive to present themselves to adults, who they deem fully worthy of social interaction, in a way that is consistent with the norms of grown-up behavior, including self-control and resilience in the face of pain. When as a result of corporal punish- ment the child gives in to his pain's demand that he writhe, groan, or cry, doubt is cast on his capacity for self-presentation. His efforts to keep pri- vate his responses to suffering, the outward expression of which he con- siders discreditable, have failed, as has (from his perspective) his bid for eligibility as a participant in social interaction. The result is a feeling of profound shame.'^ Since adult inmates are not making the same kind of bid for eligibility for full social interaction, they are unlikely to experi- ence shame of this kind to the same extent as children are in the context of corporal punishment.

A second reason why the infiiction of pain on a child's body may de- grade is that physical pain characteristically seriously compromises "the very capacities constitutive of autonomous agency."''' To the extent that the pain following corporal punishment is short-lived, these capacities are undermined only temporarily. Yet, while it lasts, it may be impossi- ble for a child to reflect or even think straight. This is itself a violation of the child's dignity, one that is either missing from or less pronounced in

" j . David Velleman, "The Genesis of Shame," Philosophy & Public Affairs 30 (2001): 27-52, p. 37.

^^See also Nussbaum, Hiding From Humanity, pp. 183-84: "shame involves the reali- zation that one is weak and inadequate in some way in which one expects oneself to be adequate ... [It is] a painful emotion responding to a sense of failure to attain some ideal state." Some experiences to which children may be exposed may cause them to experi- ence feelings of shame, but may nevertheless be justified because of the importance of resulting benefits. The toilet training of young children, in the course of which they may experience shame as a consequence of failures of bodily control, may serve as an exam- ple. But if toilet training is justified, that is because of the important benefits it produces and because there is no altemative practice that would produce the same benefits without shaming children in this way.

"Sussman, "What's Wrong With Torture?" p. 14.

Corporal Punisbment of Cbildren 703

sfrip-searches, since prisoners' capacity to reflect is usually not under- mined to the same extent in the course of a sfrip-search (even if prisoners may to some extent be disfracted by the humiliation they experience as a result of the strip-search).

As I have indicated, I am uncertain whether sfrip-searches are more degrading than corporal punishment. But even if sfrip-searches are more degrading, I nevertheless think, for the reasons I have provided above, that corporal punishment is unacceptably degrading. Moreover, it is not necessary to degrade in this way, as it may conceivably be in the case of sfrip-searches. Benatar is correct that sfrip-searches that involve body- cavity searches are widely considered a justified limitation of prisoners' privacy. Sfrip-searches are typically justified as necessary to forestall the smuggling of weapons, dmgs, and other confraband into, and to preserve a secure environment in, prisons.^"

Even if we accept that sfrip-searches are necessary, and a cost worth paying to safeguard the safety and security of prisons, we are not thereby commifted to tolerating corporal punishment. That is so because corporal punishment is not necessary to achieve the disciplining and correction of children. There are available altemative punishments to corporal pun- ishment that, though they involve constraints on children's liberty and privacy, involve less degradation and indignity, yet are at least as effi- cient in ftirthering the aims of discipline and correction.

Furthermore, there is insufficient reason to subject those (children and adults) innocent of criminal fransgression to anj^hing like the level of degradation that would be justified in the case of convicted criminals. Since the rights of those who have not been adjudicated guilty of a crime are more extensive than those of prisoners, and since young children do not deserve punishment, resfrictions of their rights should be proportion- ately less.

In the case of "ablution facilities that require relieving oneself in the full view of others" that Benatar identifies as a further feature of prison life, Nussbaum points out that "to be forced to urinate in public before sfrangers is shaming and humiliating."^^ Defecating before sfrangers is equally, and for many, more shaming. Assuming it was tme at the time he asserted it, Benatar's assertion that the practice of forcing prisoners to relieve themselves in front of sfrangers has not met with moral condem- nation is no longer accurate. The conditions of Irish prisons have recently

majority of the U.S. Supreme Court came to this conclusion in Bell v. Wolfish (see pp. 558-60). This justification for strip-searches may, however, be challenged on the grounds that visitors and their packages could be searched by metal-detector, fluoro- scope, and by hand, and visits could be closely monitored. See the dissenting opinion of Justices Stevens and Brennan in Bell v. Wolfish, pp. 594-95.

^^Nussbaum, Hiding From Humanity, p. 206.

704 Patrick Lenta

been criticized as "degrading, humiliating and completely unacceptable" on, amongst other grotmds, prisoners' being forced "to defecate in a chamber pot in the presence of other prisoners."^^

One reason why inmates' being forced to relieve themselves before sfrangers does not atfract more condemnation than it currently does is that it is sometimes considered a justifled abrogation of their right not to suffer degrading punishments, on the grounds that ubiquitous surveil- lance is necessary to ensure a secure and crime-free environment. I am not sure whether we should accept this justification. At the very least, serious consideration should be given to sfriking a balance between secu- rity and inmates' privacy. Compromises are possible and are a feature of arrangements in some prisons. They include permitting prisoners tempo- rarily to erect a sheet that permits others only enough visibility to ascer- tain that the toilet is being occupied and installing toilets with doors that cannot be locked from the inside."

Another reason why many people may be disinclined morally to ob- ject to inmates being forced to relieve themselves in the sight of sfrangers and to consider altematives to this practice (as well as to body-cavity searches), and why they may be motivated to defend their reluctance to consider altematives to these practices by reference to "budgetary short- falls" and "fiscal resfraints," is that inmates of prisons are often viewed by what Richard Posner refers to as "a vengeftil populace," as "members of a different species, indeed as a type of vermin, devoid of human digni- ty and entitled to no respect; and then no issue conceming the degrading or bmtalizing freatment of prisoners would arise."^^ Of course, it is pos- sible that even were we were inclined to freat inmates in a manner re- spectful of their dignity, we might still conclude that altematives less degrading to prisoners than exposing them to the gaze of strangers while relieving themselves are untenable. That is, we might deem constant sur- veillance necessary. If that is so, the case of prisoners being forced to

'«"Criticism leveled at conditions in Limerick Prison." Limerick Post, 6 December 2010. A copy is accessible at http://www.limerickpost.ie/index.php/navigation-mainmenu -30/local-news/2558-criticism-levelled-at-conditions-in-limerick-prison.html (accessed 16 April 2012). Another report includes prisoners being forced to "urinate and defecate in front of each other" as being "among the 'degrading' and 'debasing' conditions exposed by an intemational torture committee." A copy is accessible at http://www.examiner.ie /ireland/committee-on-torture-blasts-degrading-irish-prison-conditions-144828.html (ac- cessed 16 April 2012).

"See Torres v. Wisconsin Department of Health and Social Service 838 F.2d 944 (7th Cir, 1988), at p. 31 : "a prison could afford inmates privacy when dressing or using a toilet in their cells by permitting them to cover the window on their cell doors while en- gaging in these activities."

'^Posner states this view in his capacity as judge rather than legal scholar. See. John- son V. Phelan 69 F. 3d 144 (1995), at p. 31.

Corporal Punishment of Children 705

relieve themselves before others is dissimilar from the corporal punish- ment of children, for which there are tenable, less degrading, alternatives.

Finally, it is not unreasonable to think that in view of their vulnerabil- ity, children should not suffer anything close to the same level of degra- dation as adults. Benatar denies that children would in fact experience a similar level of degradation as adults, since "in the case of young chil- dren especially, it seems that the element of shame would be less than that of adults given that the capacities for shame increase between the time one is a toddler and the time one is an adult."^^ Recent studies have shown, however, that even "preschool children are far more emotionally competent normatively than previously recognised" and may experience emotions such as embarrassment and shame "as early as 2 or 3 years of age."^'' It may be true that the experience of shame to some extent inten- sifies with age. But it is also true that young children will often not pos- sess the same psychological resources as adults to enable them to place shame in perspective and overcome the distress accompanying it.

(c) Corporal punishment is unfairly discriminatory

Adults possess fundamental rights to security of the person and not to suffer degrading punishments that are considered to impose a correlative duty on others (refiected in criminal law prohibitions) to refrain from assaulting or inflicting corporal punishment on them. I have argued that children possess these rights as well. Corporal punishment of children is thus discriminatory. Is this discrimination fair? I do not think so. We might have reason to think it fair were there compelling reasons in sup- port of corporal punishment. As I have argued, however, there are not. Corporal punishment therefore unfairly discriminates against children. The unfair discrimination inherent in the corporal punishment of children is a serious moral wrong. It is a violation of the ideal of respect for the equal dignity of all. In the case of corporal punishment of children, the discrimination deprives children of access to a basic good: "What is ob- jectionable is ... the fact that, as a result of the exemption for reasonable corrective force, children are left without access to the basic good of pro- tection from intentional infliction of physical force."^' It may also have the effect of injuring children's sense of self-worth or self-respect—their dignity, understood in a subjective sense—in a way that produces feel-

"Benatar, "Corporal Punishment," p. 242. Luby, Andy Beiden, Jill Sullivan, et al., "Shame and Guilt in Preschool De-

pression: Evidence for Elevations in Self-Conscious Emotions in Depression as Early as Age 3," Journal of Child Psychology and Psychiatry 50 (2009): 1156-66, p. 1156.

*'Sophia Moreau, "The Wrongs of Unequal Treatment," The University of Toronto Law Journal 54 (2004): 291 -326, p. 312.

706 Patrick Lenta

ings of inferiorify and inadequacy. In the absence of conclusive evidence as to its beneficial effects, corporal punishment, in the words of Canadi- an Supreme Court Justice Ian Binnie, "effectively designate[s] children as second class citizens" in a way that is "destmctive of dignify from any perspective including the child's."^^

(d) Corporal punishment poses a risk of psychological harm

Supporters of corporal punishment argue that the available data are too inconclusive to establish that mild and infrequent corporal punishment causes children psychological harm.*^ Yet a preponderance of studies of the psychological effects of corporal punishment indicates a correlation between corporal punishment and the infliction of serious psychological harm on children. Elizabeth Gershoff, the author of a recent overview of the empirical data on child behavior associated with corporal punishment administered by parents, found that

[t]en of the 11 meta-analyses [of studies of corporal punishment] indicate parental cor- poral punishment is associated with the following undesirable behaviors and experiences: decreased moral intemalization, increased child aggression, increased child delinquent and antisocial behavior, decreased quality of relationship between parent and child, de- creased child mental health, increased risk of being a victim of physical abuse, increased adult aggression, increased adult criminal and antisocial behavior, decreased adult mental health, and increased risk of abusing own child or spouse.^

Gershoff S analysis has elicited responses from certain other social scien- tists who claim that "a blanket injunction" against corporal punishment "is not warranted by the data." They criticize Gershoff for failing to dis- tinguish between "harsh" (nonabusive) corporal punishment, which they concede is "detrimental to children's well-being and ethically unaccepta- ble," and "the more moderate application of normative spanking within the context of a generally supportive parent-child relationship" on children between the ages of 18 months and puberfy that "inflicts a minor, tempo- rary level of physical pain, if that," which they defend as nonharmful.*^

The issue whether "mild disciplinary spanking" of children between 18 months and puberfy is psychologically damaging "remains controver-

"justice Binnie, dissenting in part in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) [2004] 1 S.C.R. 76, at paragraph 72.

"Benatar, "Corporal Punishment," p. 242; Allan, "Taking Spanking Seriously," pp. 121-24.

'""Elizabeth T. Gershoff, "Parental Corporal Punishment and Associated Child Behav- iors and Experiences: A Meta-Analytic and Theoretical Review," Psychological Bulletin 128 (2002): 539-79, p. 544.

'^Baumrind, Larzelere, and Cowan, "Ordinary Physical Punishment: Is it Harmful?" pp. 579-81.

Corporal Punishment of Children 707

** Let us suppose, in favor of its supporters, that at some level of mildness and infrequency corporal punishment does not pose a risk of psychological harm to its recipients. We should still, I believe, be con- cerned about the risk of harm that parents committed to spanking below this level may pose to their children, for defenders of corporal punish- ment do not provide a bright-line rule stipulating at exactly what level of severity and frequency it risks doing psychological damage. Diana Baumrind, Robert Larzelere, and Philip Cowan assert that "parental spanking that inflicts a minor, temporary level of physical pain, if that" is nonharmful.*' The imprecision of these words (and, indeed, terms like "mild" and "infrequenf ) is troubling, because parents and teachers who are determined to restrict their use of corporal punishment to a safe level may not know precisely what level of severity (and frequency) they are restricted to. This is a serious problem because, if corporal punishment is to be permitted, parents need to know in advance the upper limits of se- verity and frequency, the location of the point at which corporal punish- ment becomes unsafe—just as drivers need to know how fast they can go without breaking the speed limit. They may be tempted to press up as closely as possible to this point to ensure the "intensity of its unpleasant- ness"^^ that gives corporal punishment the supposed disciplinary efficacy supporters claim for it as a punishment, as well as the advantages Benatar argues it possesses relative to alternative available punishments. But as they do so, they risk inadvertently passing the point at which it risks doing psychological damage, which may in any case vary from child to child. The infiiction of corporal punishment, even if considered sufficiently mild and infrequent by the person inflicting it, thus poses some risk of psychological harm.^'

Children should not be subjected to the risk of serious and possibly

* % d . , p . 581. *'lbid. (emphasis added). '^Benatar, "Corporal Punishment," p. 253. ' ' i t is, of course, true that any punishment could be administered too severely, poten-

tially resulting in psychological damage to the recipient child. Nevertheless, alternative punishments to corporal punishment such as detention, time-out, and suspension of privi- leges have not to the same degree been associated by social scientists with the serious psy- chological harms associated with corporal punishment. One explanation for this is that cor- poral punishment increases stress in children that may result in mental health problems. See Elizabeth Gershoff, "More Harm Than Good: A Summary of the Scientific Research on the Intended and Unintended Effects of Corporal Punishment on Children," Law and Contem- porary Problems 13 (2010): 31-56, p. 44. Furthermore, the risk of parents and teachers inadvertently causing psychological harm through corporal punishment is relatively high, because this may occur at a relatively low level of severity. By contrast, the risk of parents inadvertently doing serious psychological damage through the administration of punish- ments like detention, time-out, and suspension of privileges is relatively low, because these alternative punishments risk doing psychological damage only at a high level of severity.

708 Patrick Lenta

irreversible harm if refraining from engaging in the potentially harmful practice does not deprive sociefy of significant benefits or produce seri- ous harms that would not otherwise occur. Since the benefits that cor- poral punishment brings about are minor and the magnitude of the harm that is risked is great, even if the probabilify of harm cannot be assigned with confidence, corporal punishment should not be administered.

It is important to notice as well that the defense of only very mild forms of corporal punishment by its supporters weakens the claim that corporal punishment has advantages over available altemative punish- ments. Defenders of corporal punishment must show that there is a level of severify that is sufficiently mild that it will not result in psychological harm, yet sufficiently "intensely unpleasant" to give corporal punishment whatever disciplinary efficacy and advantages are claimed for it over other forms of punishment. But "mildness" and "intensify" are antonyms. I do not think that supporters of corporal punishment have established that such a point exists, much less that they have located that point.

(e) Corporal punishment is associated with physical abuse

Several social scienfists have found that parents' use of corporal punish- ment is associated with a risk of their abusing their children.™ Social sci- entists opposed to corporal punishment point out that most physical abuse begins as corporal punishment, a fact revealed by an examination of abuse cases and by the testimony of abusive parents.^' Parents and teachers may inadvertently "cross a poorly marked and vaguely defined line that separates corporal punishment from physical child abuse."^^ In response, the pre-eminent supporters of mild corporal punishment, Baumrind and Larzelere, concede that there exists a "high association" between corporal punishment and physical abuse, but deny that this shows a causal link between the two. They conclude that "[t]he relatively

See David G. Gil, Violence Against Children: Physical Abuse in the United States (Cambridge, Mass.: Harvard University Press, 1973); James Garbarino, "The Human Ecology of Child Maltreatment: A Conceptual Model for Research," Journal of Marriage and the Family 39 (1977): 721-35; Ross Vasta, "Physical Child Abuse: A Dual- Component Analysis," Developmental Review 2 (1982): 125-49; and John Myers, Child Protection in America: Past, Present, and Future (New York: Oxford University Press 2006), pp. 146-47.

"Elizabeth T. Gershoff and Susan H. Bitensky, "The Case against Corporal Punish- ment of Children,"/»^ycÄo/ogy, Public Policy, and Law 13 (2007): 231-72, pp. 240-41.

'^Gelles, "Exchange Theory," p. 254. Gary Bartlett has recently argued that the risk of mild corporal punishment escalating into abuse, in response to habituation by a child to mild corporal punishment and because it will be difficult for a parent to tell whether a blow is excessively severe, by itself provides sufficient reason to think that corporal pun- ishment is morally impermissible. See Gary Bartlett, "An Argument Against Spanking," Public Affairs Quarterly 24 (2010): 65-77.

Corporal Punishment of Children 709

large size effect of the association between corporal punishment and physical abuse is not evidence that mild or moderate corporal punish- ment increases the risk of abuse."'^

I cannot hope to arbitrate this disagreement between the social scien- tists concemed. I do, however, want to challenge the following argument, advanced by Benatar:

The fact that there are some parents and teachers who inflict physical punishment in an abusive way does not entail the conclusion that corporal punishment should never be inflicted by anybody. If it did have this entailment, then, for example, the consumption of any alcohol by anybody prior to driving would have to be condemned on the grounds that some people cannot control how much alcohol they consume before driving. Just as we permit the moderate use of alcohol prior to driving, so we should condemn the abusive but not the non-abusive use of corporal punishment.

My response to this is as follows. On the empirical assumption that a ban on all corporal punishment would result in a lowering of the incidence of physical abuse, there is a strong argument in favor of its prohibition, since a ban would be justified to reduce the harms of abuse. The harms of child abuse are serious enough to be the object of legitimate govem- ment concem. The prevention of these harms may justify a prohibition of corporal punishment on the empirical assumption just mentioned. Alco- hol abuse is likewise associated with serious harms, including motor- vehicle accidents. If alcohol prohibition reduces the incidence of such harms substantially, there is a strong argument in its favor.^' In the case of alcohol consumption, this reason in favor of a ban is arguably out- weighed by reasons in favor of permitting moderate use of alcohol prior to driving, as a result of which no one harms or wrongs anyone or vio- lates anyone's rights. Arguably we should concede that there is a general right to liberty that includes the right to drink alcohol. By contrast, since even mild and infrequent corporal punishment violates the rights of chil- dren, is unfairly discriminatory, and has no substantial advantages rela- tive to available altematives, corporal punishment cannot be justified by invoking the right to liberty. There is thus a disanalogy between corporal punishment and the consumption of alcohol. The argument for banning all corporal punishment in order to reduce the incidence of child abuse is

"Baumrind, Larzelere, and Cowan, "Ordinary Physical Punishment: Is it Harmful?" p. 584.

'"Benatar, "Corporal Punishment," p. 241. "Peter de Mameffe, "Against Drug Legalization," in Douglas Husak and Peter de

Mameffe, The Legalization of Drugs (New York: Cambridge University Press, 2005), pp. 109-98, at pp. \1\-11. De Mameffe notes that "independent research ... indicates that heavy drinking generally decreases with decreased availability and increased price, and that as drinking decreases the independent harms of consumption generally decrease as well" (p. 172).

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not outweighed by countervailing reasons of liberty, whereas the argu- ment for the prohibition of alcohol arguably is outweighed by drinkers' liberty interests. On the empirical assumption that banning corporal pun- ishment would lower the incidence of child abuse, reducing the incidence of abuse is a further reason in favor of banning corporal punishment.

(f) Corporal punishment teaches the wrong lesson

It is often argued that corporal punishment teaches the wrong lesson to children, whose "ethical sense is liable to be permanently confused and distorted by a lesson in personal violence ... likely to implant in the mind of the child who suffers it a tendency to act in a similar manner when the conditions are reversed."'^ Defenders of corporal punishment are apt to deny that physical punishment teaches children "that violence is an ap- propriate way to settle differences or respond to problems."" Benatar argues that there is an important moral difference between "legitimate authorities ... using punitive powers responsibly to punish wrongdoing and children or private citizens going around beating each other" and that "[t]o suggest that children and others cannot exfract this message, but only the cmder version that the objection suggests, is to underestimate the expressive function of punishment and people's ability to compre- hend it."'^

This refiects unwarranted confidence in children's ability to make distinctions. We should recall that the pre-eminent social scientists in favor of corporal punishment consider it permissible only in respect of children between 18 months and puberty. This includes young children with undeveloped cognitive abilities, many of whom are likely, given their experience of corporal punishment and consistently with the self- absorption of young children, to consider themselves relative to others of whose conduct they disapprove as "legitimate authorities ... using puni- tive powers responsibly to punish wrongdoing."

Benatar purports to identify a reductio ad absurdum: if corporal pun- ishment is wrong because children may leam the wrong lesson from it— the lesson that violence is an acceptable way of dealing with conflict— other punishments, including detention, must be wrong, since children might just as easily exfract from their experience of detention the wrong lesson—the lesson that resfriction of the liberty of those with whom one is in conflict is acceptable. Yet it would be absurd to consider punish-

'^Henry Salt, "The Ethics of Corporal Punishment," International Journal of Ethics 16 (1905): 77-88, p. 82.

"Benatar, "Corporal Punishment," p. 246. See also Allan, "Taking Spanking Serious- ly," pp. 124-25.

'^Benatar, "Corporal Punishment," p. 246 (emphasis in original).

Corporal Punishment of Children 711

ments like detention wrong. I have two responses. First, we should be far more concemed about

children exfracting the message that physical violence is an acceptable response to confiict than about children leaming that restrictions of liber- ty are an acceptable way of dealing with confiict. Physical violence in- flicted by individuals against those with whom they are in conflict is a far more prevalent and pressing social problem than individuals' detain- ing or incarcerating (or fining) others in response to confiict. There is, furthermore, an important difference between physical violence and re- sfrictions of liberty: the former involves the infiiction of pain and is often harmful, whereas the latter do not involve the infiiction of pain and tend to be less harmful than acts of physical violence. To combat the problem of widespread recourse to nonconsensual physical violence in society, we need as far as possible to discourage such violence, and to abolish prac- tices children may constme as an endorsement of it, such as corporal punishment. The objection to corporal punishment that it teaches the wrong lesson is an objection to practices that might lead children to think that the use of physical violence as an expression of displeasure or cen- sure is acceptable. It is not an objection to the teaching of wrong lessons —any punishment has the potential to do that—but to the teaching of a particular wrong lesson, a lesson about violence. There is thus no reductio, because no one thinks that children will learn from detention (or imprisonment, or fines) the lesson that physical violence is an ac- ceptable expression of displeasure.

Second, there is an important difference between the lessons that cor- poral punishment and detention teach. Corporal punishment surely does teach children, at whatever stage of cognitive development, that it is ac- ceptable for legitimate authorities to use punishments that degrade and violate the bodily security of those who are at their most vulnerable. This is decidedly the wrong lesson and it may undermine children's confi- dence in other things that we try to teach them—that the punitive fiog- ging of convicted criminals is wrong, for example. The lesson of pun- ishments like detention and time-out is that it is acceptable for legitimate authorities to punish wrongdoers through the resfriction of their liberty. This lesson is not obviously wrong.

The Location of Corporal Punishment

Defenders of corporal punishment may respond that to the extent that the foregoing arguments tell against corporal punishment, they make out a case against corporal punishment at school only. They may argue that it makes a moral difference whether corporal punishment is administered by teachers at school or by parents at home. Two arguments are ad-

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vanced in support of the claim that corporal punishment administered in the home is morally acceptable. Neither, I shall argue, is successful.

The first holds that parents are more likely than teachers to know their children, to be concerned for their children's interests, and to love them. It should probably be conceded in response that a loving environment will in some instances mitigate adverse effects of corporal punishment.'^ But the assumption that where affection or love characterizes the rela- tionship between parents and their children, this will ensure that chil- dren's interests are protected, is open to question: "there are many per- verted forms of affection even if the affection is sincerely felt. Affection can be informed by a false conception of the other person and their needs. Many a child's path to hell has been paved with the best of paren- tal intentions."^" Whether a punishment is unacceptably degrading and disrespectful of the dignity of the child turns not on the motives of the person imposing it, but on the character of the punishment and its effects on the recipient. For example, a punishment involving placing children in a pillory may be imposed out of love or concern for the welfare of the child, but the benign intentions of the individual imposing this punish- ment should not deter us from condemning this practice, which shames the child unacceptably.^' Besides, not all parents will be concerned about their children's well-being or will love them: there is "a range in the quality of parent-child relationships."^^ To rely on the presence of paren- tal love in the home to secure the well-being of children is to take opti- mism to the point of irresponsibility.

It is also sometimes claimed that what occurs in the private sphere of the family should be safeguarded from public scrutiny and intervention. But although it is true that liberals think that individuals' privacy should be protected from intrusion by the state and other citizens, they have al- so, as a matter of historical record, pressed for intervention in family life to protect vulnerable women and children. I take it that no one whose opinion is worthy of consideration suggests that the state should refrain, for privacy reasons, from intruding into family life to prevent child abuse, for example.

"See Kirby Deater-Deckard and Kenneth Dodge, "Externalising Behaviour Problems and Discipline Revisited: Non-Linear Effects and Variation by Culture, Context and Gender," Psychological Enquiry S (1997): 161-75.

^"Archard, Children: Rights and Childhood, p. 122. ^'See Nussbaum, Hiding From Humanity, pp. 230-31; and Velleman, "The Genesis

of Shame," pp. 47-50. ^^Gershoff, "Corporal Punishment, Physical Abuse, and the Burden of Proof," p. 602.

Corporal Punishment of Children 713

Is Corporal Punishment Permissible for Religious Parents and Teachers?

It might be imagined that, to the extent that my arguments are persuasive, they show that corporal punishment is impermissible for some, but not all, parents and teachers. Certain Evangelical Christian parents and teachers, for example, argue that the exercise of corporal punishment "is a component of the right of religious childrearing which, in tum, is a key dimension of religious liberfy" to which they have a moral and constitu- tional right.̂ ^ The right to religious liberfy (or "free exercise," as it is known in the U.S.) is considered to protect not only the holding of be- liefs, but also the manifestation of religious convictions in the practices of believers. The Bible contains several verses—for example. Proverbs 23: 13-14—that have been interpreted as mandafing the physical pun- ishment of children.^''

We should concede that a law that requires religious believers to break faith with their identify-defining religious beliefs and convictions may place a serious burden on them. Nevertheless, where granting an exemption would violate the fundamental rights of children or risk harm- ing them severely, there is no room for such an exemption.^^ Parents' freedom of religion should be limited where their religious practices con- flict with the rights and basic interests of children.^* As Richard Ameson and Ian Shapiro put it, "[i]f the parents' free exercise rights genuinely do clash with the children's rights ... then parents must either intemalize their own religious freedom or, in the limiting case, decline to be parents."^'

*'Rex Adhar and Ian Leigh, Religious Freedom in the Liberal State (Oxford: Oxford University Press, 2005), p. 219.

"̂"The U.K. House of Lords and the South African Constitutional Court have been confronted with near-identical cases involving claims by Christian teachers for an exemp- tion from laws proscribing corporal punishment in schools on the grounds that they are enjoined by their faith to administer corporal punishment. See R (Williamson) v. Secre- tary of State for Education and Employment [2005] 2 AC 246 (HL) and Christian Educa- tion South Africa v. Minister of Justice 2000 (4) SA 757 (CC), respectively. Both the U.K. House of Lords and the South African Constitutional Court refused to grant an ex- emption in favor of the religious claimants.

*^See, for example, Paul Bou-Habib, "A Theory of Religious Accommodation," Journal of Applied Philosophy 23 (2006): 109-26, p. 123; and Jeremy Waldron, "One Law for All? The Logic of Cultural Accommodation," Washington and Lee Law Review 59(2002):3-35, pp. 30-31.

William Galston argues that religiously motivated practices that "endanger the basic interests of children" are undeserving of accommodation. See William Galston, Liberal Pluralism: The Implications of Value Pluralism for Political Theory and Practice (Cam- bridge: Cambridge University Press, 2002), p. 114.

^'Richard Ameson and Ian Shapiro, "Democratic Autonomy and Religious Freedom: A Critique of Wisconsin v. Yoder," in Ian Shapiro, Democracy's Place (Ithaca: Cornell University Press, 1996), p. 154.

714 Patrick Lenta

Corporal Punishment Ought to Be Illegal

I shall argue in this section that corporal punishment ought to be illegal: that it ought to be criminalized. In the introduction to this paper, I argued that supporters of a punishment bear the burden of its justification. Since the criminalization of corporal punishment may result in the punishment of those who choose to infiict it, advocates of criminalization must bear the burden of justification. If anything, supporters of the criminalization of corporal punishment must shoulder an even greater burden of justifi- cation than those seeking to justify its use, because "state action by its very nature tends to be cumbersome and heavy handed."^^

Were the defense of corporal punishment of children to the charge of criminal assault to be repealed in countries in which it is currently avail- able, corporal punishment would be an instance of the crime of assault. This defense should, I think, be repealed. The protection of the basic in- terests of children and prevention of the risk of psychological harm to them are among the most important functions of the state in its role as parens patriae. I have argued that for insufficiently good reasons cor- poral punishment violates children's rights to bodily security, not to suf- fer degrading punishment, and not to be unfairly discriminated against, and that it poses a risk of psychological harm to children. This provides a strong reason for repealing the defense of physical chastisement of chil- dren.

If corporal punishment is criminalized, those who resort to it face the possibility of punishment. Is this justified? Punishment of parents and teachers who infiict it may be justified on retributive groxmds. Punish- ment may also be justified on the grounds of deterrence. There is some evidence to suggest that the incidence of corporal punishment will be reduced by a criminal prohibition. Since the ban on corporal punishment in Sweden in 1979, the use of corporal punishment has reduced dramati- cally. Whereas 51% of all preschool children had experienced corporal punishment in 1980, only 8% had by 2000.^'

Legal prohibition of corporal punishment may bring other benefits. The aspirations of those who support the legal prohibition of corporal punishment go beyond the regulation of conduct. Their aim is to change attitudes and to bring it about that in time people will come to believe that they have no moral right to resort to corporal punishment. Banning physical punishment may result in such a change of attitude because of the effect of legal regulation on moral beliefs. Just as "we may appeal to morality to tell us what the law ought to be, so we may appeal to the law

^^Feinberg, "The Child's Right to an Open Future," p. 90. ^'Staffan Janson, "The Swedish Myth: The Corporal Punishment Ban and Child

Death Siatisúcs," British Journal of Social Work 35 (2005): 12-38.

Corporal Punisbment of Cbildren 715

as providing a pointer to sound thinking in the moral sphere ... law can influence the way people think in the moral sphere."'° Moreover, the gradual alteration of the moral beliefs of those inclined to inflict corporal punishment may, as the result of the operation of a cognitive dissonance mechanism, be brought about by their compliance with the law prohibit- ing corporal punishment." The case of Sweden provides some evidence that criminalization may have a beneficial impact on moral beliefs: "In 1959 Sweden removed its criminal defense of lawful correction in cases of assault against children and in 1979 the country definitively banned all physical punishment ... The acceptability of physical punishment in Sweden decreased from 53% in 1965 to 10% in 1999, at which time only 6% of Swedes under the age of 35 condoned it."'^ To be most successful in changing attitudes to corporal punishment and in reducing the inci- dence of it, governments should, simultaneously with a legal ban, insti- tute a campaign informing parents, teachers, and professionals who work with children, of the rationale for the law. These individuals should be educated about the reasons for avoiding corporal punishment and provid- ed with information conceming altemative disciplinary approaches, as has occurred in many countries in which corporal punishment has been legally prohibited, including Sweden.

I tum now to consider two objections to the criminalization of cor- poral punishment. In a case in which the Canadian Supreme Court con- sidered the issue of whether parents and teachers who infiict corporal punishment should be subject to the threat of sanction by the criminal law, the majority, per Justice MacLachlin, considered as a decisive rea- son against criminalization of corporal punishment by parents that the criminal law "is a blunt instrument" whose intmsion into the home "risks mining lives and breaking up families—a burden that would be borne in large part by children and outweigh any benefit derived from applying the criminal process."'^ I am not persuaded by this objection to criminal- ization. Under a defensible system of prohibition, corporal punishment would be considered a less serious offense—a misdemeanor rather than a felony, in the U.S. criminal classification—for which the penalty would be light and not damaging to the family stmcture: a small fine, or manda-

'"Peter Cane, Responsibility in Law and Morality (Oxford: Hart Publishing, 2002), p. 14. See also H.L.A. Hart, The Concept of Law, 2nd ed. (Oxford: Oxford University Press, 1994), p. 177.

"For a discussion of the operation of this cognitive dissonance mechanism, see Rich- ard Ameson, "Against Freedom of Conscience," San Diego Law Review 47 (2010): 1015- 41, p. 1038.

Saunders and Goddard, Physical Punishment in Childhood, p. 36. ^^Canadian Foundation for Children, Youth, and the Law v. Canada (Attorney Gen-

eral), paragraphs 60 and 62. This decision effectively makes corporal punishment by teachers in Canada illegal.

716 Patrick Lenta

tory counseling, or community service. Provided the penalty attached to corporal punishment is light and does not threaten the integrity of the family stmcture, the benefits to parents and children of evading the ef- fects of the criminal law are outweighed by the importance of preventing a violation of the fundamental rights of, and the risk of harm to, chil- dren—"precisely the point where the disapprobation of the criminal law becomes necessary," as Justice Deschamps points out in his dissent.'''

It might also be objected that criminalization will expose parents to the risk of criminal liability "for every minor instance of technical as- sault."'^ But I am here arguing only for the criminalization of resort to corporal punishment, not of other force exerted in relation to children. Even if corporal punishment in the home is criminalized, parents would still be in a position to resort to the common law defenses of necessity and de minimis to protect them from excusable and frivial conduct.

Conclusion

Social scientists for and against corporal punishment frequently call for more, and more sophisticated, studies to be imdertaken to investigate the benefits and costs of mild and infrequent corporal punishment in particu- lar.'* I support this demand for more and better studies. For the time be- ing, however, we must conclude that supporters of corporal punishment have failed to meet the burden of justifying it. Physical punishment may not be "an appalling moral lapse"^' on a par with child abuse, but it is nevertheless morally, and should be legally, impermissible.'^

Patrick Lenta School of Religion, Philosophy, and Classics

University of Kwazulu-Natal [email protected]

'"ibid., paragraph 241. "ibid., paragraph 195. '«Baumrind, Larzelere, and Cowan, "Ordinary Physical Punishment: Is it Harmful?"

p. 586. See also Gershoff, "Parental Corporal Punishment and Associated Child Behav- iors and Experiences," p. 564.

"Bartlett, "An Argument Against Spanking," p. 75. '^I am grateful to David Benatar and three anonymous referees for comments on a

previous version of this paper.

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