Summary of law reform necessary to achieve full prohibition

Prohibition is still to be achieved in the home, schools, penal system and alternative care settings.

The Penal Code (article 110) allows a parent or guardian to “correct his or her legitimate or illegitimate child ... for misconduct or disobedience to any lawful command”. The near universal acceptance of corporal punishment in childrearing necessitates a clear statement in law that all forms of corporal punishment and other cruel and degrading treatment are unacceptable, however light, whatever the relationship between the child and adult, and whatever the setting.

Explicit prohibition of corporal punishment should be enacted in legislation applicable to all educational settings, public and private. All provisions authorising and regulating corporal punishment as a sentence for crime and as a disciplinary measure in penal institutions, including those in the Criminal Law (Measures) Act and the Industrial School Rules under the Children and Young Persons (Administration of Justice) Act, should be repealed. Explicit prohibition should be enacted in relation to disciplinary measures in all institutions accommodating children in conflict with the law and in relation to all alternative care settings, including public and private day care, residential institutions, foster care, etc.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. Under provisions for “justifiable force”, article 110 of the Penal Code (1873) allows a parent or guardian to “correct his or her legitimate or illegitimate child ... for misconduct or disobedience to any lawful command”, and states that “no correction can be justified which is unreasonable in kind or in degree”. The Child Protection Act 2006, which came into force in October 2009, recognises children’s right “to exercise, in addition to all the rights stated in this Act, all the rights set out in the United Nations Convention on the Rights of the Child”, but this is “subject to any reservations that apply to The Bahamas and with appropriate modifications to suit the circumstances that exist in The Bahamas with due regard to its laws” (article 4c). The Act does not repeal article 110 of the Penal Code and provisions in the Act against violence and abuse are not interpreted as prohibiting corporal punishment in childrearing. During the Universal Periodic Review of the Bahamas in 2008, the Government strongly defended legislation allowing corporal punishment of children in the home and in schools (7 January 2009, A/HRC/10/70, Report of the Working Group, paras. 16 and 34).

Schools

Corporal punishment is lawful in schools under article 110 of the Penal Code. The Child Protection Act does not prohibit corporal punishment in schools. In defending the legality of such punishment during the Universal Periodic Review (see above), the Government stated that corporal punishment may only be inflicted by a principal, vice-principal, or senior master/mistress, following guidelines set out by the Department of Education.

Penal system

Corporal punishment appears to be lawful as a sentence for crime but the law is unclear. Until 1984, corporal punishment was specified in the Penal Code as punishment for a number of crimes. Act No. 12 of 1984 repealed the corporal punishment provisions and inserted article 118 which states: “Notwithstanding anything to the contrary in this, or any other law, no form of corporal punishment shall be imposed as a penalty under any law in respect to the commission of a criminal or disciplinary offence.” The Criminal Law (Measures) Act (1991) reintroduced corporal punishment for certain offences in the Penal Code, the Sexual Offences and Domestic Violence Act (1991) and the Firearms Act (1969), article 3(1) stating: “Subject to the provisions of this Act, any offender on being convicted by a court of any of the offences mentioned in the First Schedule may be ordered by the court to undergo corporal punishment in addition to any other punishment to which the offender is liable.” The punishment may be inflicted on males only: for a child (under 14) or young person (aged 14-17) it takes the form of whipping up to 12 strokes on the buttocks with a light cane in the presence of a parent or guardian or other approved person (articles 4 and 5). However, the 1991 Act did not repeal article 118 of the Penal Code, and the two laws are in conflict. Case law in the Privy Council and the Supreme Court has ruled that judicial corporal punishment as reintroduced is constitutional and lawful only for offences for which the law had previously and explicitly prescribed corporal punishment, and is unconstitutional for offences which were not previously punished in this way (sexual offences).

The Child Protection Act does not include corporal punishment among the measures that a juvenile court may order for juveniles convicted of an offence, but it does not explicitly prohibit it. The Act states in article 120(5) that where a child or young person is charged with certain offences (including homicide, treason, causing harm, arson, use of explosives, and robbery) or where the charge relates to other indictable offences and the court or the young person does not agree to hold the trial in a juvenile court, then the case must be remitted to a magistrate and dealt with under the Magistrates Act, the Penal Code and the Criminal Procedure Code Act. In such cases, it seems that child offenders may therefore be liable to whipping.

During the Universal Periodic Review of the Bahamas in 2008, the Government stated its intention to repeal legislation authorising judicial corporal punishment (7 January 2009, A/HRC/10/70, Report of the Working Group, paras. 16 and 34). To our knowledge, this has not been achieved.

Corporal punishment appears to be unlawful as a disciplinary measure in penal institutions under article 118 of the Penal Code, but we have yet to confirm that the abolition overrides all laws authorising such punishment. There is no explicit prohibition of corporal punishment in institutions in the Child Protection Act. Rules enacted under the now repealed Children and Young Persons (Administration of Justice) Act possibly remain in force pending the construction of new rules, and these allow for disciplinary corporal punishment in penal institutions for girls and boys, including under the Children and Young Persons (Industrial School for Girls) Rules (1961) (Rule 18) and the Children and Young Persons (Industrial School for Boys) Rules (1947) (Rule 44).

Alternative care

Corporal punishment is explicitly prohibited in residential institutions by article 27(1) of the Residential Care Establishments Act (2003). It is lawful in non-residential institutions and non-institutional forms of care under article 110 of the Penal Code (see above).

Prevalence research

A 2010 study involving a survey of 933 adults and 12 semi-structured interviews with adults examined the coexistence in homes in the Bahamas of corporal punishment of children and other behaviours including sexual abuse, illegal drug use, violence among adults in the home and hitting of pets. 77% of respondents from households with children reported that “spanking” was sometimes used to discipline them. 37% of respondents said that children were spanked only when “very naughty”, 28% that they were spanked “sometimes”, 26% “rarely” and 9.7% “often”. 4.1% of respondents in households where children were spanked considered the spanking to be abuse. Violence between adults occurred more in households where children were spanked “often” than where they were not spanked “often”. (Brennen, S. et al. (2010), “A Preliminary Investigation of the Prevalence of Corporal Punishment of Children and Selected Co-occurring Behaviours in Households on New Providence, The Bahamas”, The International Journal of Bahamian Studies, 16, 1-18)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

"The Committee expresses its concern at the fact that corporal punishment is still widely practised in the family, in schools, and in institutions, and that domestic legislation does not explicitly prohibit its use.

“The Committee recommends that the State party:

1. expressly prohibit corporal punishment by law in the family, schools and other institutions; and
2. conduct awareness-raising campaigns to ensure that alternative forms of discipline are administrated in a manner consistent with the child’s human dignity and in conformity with the Convention, especially article 28, paragraph 2.

(31 March 2005, CRC/C/15/Add.253, Concluding observations on initial report, paras. 35 and 36)

Universal Periodic Review

The Bahamas was examined in the first cycle of the Universal Periodic Review process in 2008. The Government rejected the recommendations to prohibit corporal punishment of children (A/HRC/10/70, Report of the Working Group, para. 54(5)); the Government defended the legality of corporal punishment in homes and schools but stated that judicial corporal punishment would be repealed (pars. 16 and 34). Examination in the second cycle is scheduled for 2013.