Summary of law reform necessary to achieve full prohibition

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

Although there appears to be no defence of “reasonable chastisement” or similar enshrined in legislation, article 276 of the Criminal Code allows for aggression against a child which does not cause serious hurt. The prohibition of corporal punishment which causes harm in the Children and Adolescents Code implies that a certain degree or kind of corporal punishment is not harmful. Children have a right to protection from all corporal punishment, however light. The near universal social acceptance of corporal punishment in childrearing necessitates clarity in law that no level of corporal punishment is acceptable. Article 276 of the Criminal Code should be repealed and the law should explicitly prohibit all corporal punishment and other cruel or degrading forms of punishment, in the home and all other settings where adults have parental authority.

Explicit prohibition of all corporal punishment should be enacted in legislation applicable to all children in conflict with the law, including in traditional justice systems, and to all alternative care settings, including public and private day care, residential institutions, foster care, etc, in addition to repeal of article 276 of the Criminal Code.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. Article 276 of the Criminal Code states: “No aggression will be punished if the victim of the aggression is not seriously hurt and the aggressor is husband or wife, parent or grandparent, child or grandchild, sibling, close relative, political sibling, and if they are living together.” Article 19 of the Children and Adolescents Code (1999) puts a duty on the state to protect the child from “all forms of physical or mental or physical abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while the child is in the custody of the parent, legal guardian or any other person” (unofficial translation), and article 109 states that a child is considered to have been abused when he has been harmed “physically, psychologically, mentally or morally, whether for discipline or education”. However, these provisions protect children only from corporal punishment which are considered to cause harm; less severe corporal punishment is legally justifiable under the above quoted article 276 of the Criminal Code.

The Constitution (2009) states that no person shall suffer cruel, inhuman, degrading or humiliating treatment (article 15) and “prohibits all forms of violence against children and adolescents in the family and in society” (article 61). Under examination by the Committee on the Rights of the Child in 2009, the Government suggested that this prohibits corporal punishment of children but also confirmed that other legislation should be reformed to achieve full prohibition in law (UN press release, 17 September 2009).

Schools

Corporal punishment is unlawful in schools under Supreme Decree No. 212414 of 21 April 1993 on teacher misconduct and punishments, which categorises its use as “serious misconduct”. Article 61 of the Constitution applies (see above), and article 109 of the Children and Adolescents Code states that “a child or adolescent is the victim of abuse when … school discipline fails to respect his or her dignity and integrity”.

Penal system

Corporal punishment is unlawful as a sentence for crime: there is no provision for judicial corporal punishment in the Criminal Code, the Juvenile Code (1992), the Children and Adolescents Code or the Law on the Public Ministry (2001). However, sentences of corporal punishment are traditionally ordered by community elders in indigenous justice systems. The Constitution establishes Bolivia as a “plurinational republic” and recognises the right of indigenous peoples to self-determination; article 214 of the Children and Adolescents Code states with regard to juvenile justice that in the case of children and adolescents from ethnic groups or indigenous or native communities, their traditions and customs shall be taken into account “provided they do not conflict with the state Constitution, this Code and applicable laws”. We do not know whether corporal punishment under traditional justice systems would be lawful under the Constitutional right of indigenous persons to self-determination or unlawful under the Constitutional prohibition of cruel, inhuman, degrading or humiliating treatment and the prohibition of violence and abuse in the Children and Adolescents Code (see above).

There appears to be no explicit prohibition of corporal punishment as a disciplinary measure in penal institutions. Article 109 of the Children and Adolescents Code prohibits only corporal punishment which is considered harmful. Article 296 of the Code of Criminal Procedure states that police officers must use force “only when strictly necessary” should not “inflict, instigate or tolerate any act of harassment, torture or other cruel, inhuman or degrading treatment or punishment, either at the time of arrest or during detention”. Supreme Decree No. 26715 (2002) regulates the treatment of prisoners in the corrections system; subsequent regulations, together with Circular No. 10/2009, reportedly tighten the restrictions on the punishment of persons deprived of their liberty (5 March 2012, CAT/C/BOL/2, Second state party report to the Committee Against Torture, para. 147) but we have yet to establish whether or not they explicitly prohibit corporal punishment.

Alternative care

Corporal punishment is lawful in alternative care settings. Article 109 of the Children and Adolescents Code prohibits only corporal punishment which is considered harmful.

Prevalence research

According to UN statistics, in 2003 significant proportions of women believed that a husband is justified in hitting or beating his wife for specific reasons: 5% for burning the food, 6% for arguing with him, 9% for going out without telling him, 17% for neglecting the children and 3% for refusing to have sex. (United Nations (2010), The World’s Women 2010: Trends and Statistics, New York: Department of Economic and Social Affairs)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee urges the State party to take all necessary measures to address those recommendations from the concluding observations on the third periodic report (CRC/C/15/Add.256) that have not yet been implemented or sufficiently implemented, notably those related to … corporal punishment….

“The Committee welcomes the new Constitution which includes a section on child rights. However, it regrets that national legislation is not in conformity with the Convention in certain areas, for instance the Child Code (Codigo del Niño, Niña y Adolescente) and civil and penal laws concerning the prohibition of corporal punishment…. The Committee also notes difficulties with the dual legal system and certain incompatibilities between positive law and the indigenous customary law.

“The Committee recommends that the steps taken towards legislative reforms should be part of a comprehensive analysis of the legislative system in order to ensure that both positive law and indigenous customary law meet the obligations under the Convention, in particular regarding … corporal punishment…. The Committee also recommends that a clear division of the different competencies be established between the judicial bodies and the indigenous local authorities in civil, criminal and administrative matters, and that the State party promote awareness of legislation, in particular among communities which continue to apply customary laws.

“While welcoming that the new Constitution of 2009 prohibits all violence against children, both in the family and society, the Committee is concerned that corporal punishment remains lawful in the home and in residential or institutional care settings, and that there is no explicit prohibition of this form of ‘discipline’ in all settings.

“The Committee recommends that the State party expressly prohibit corporal punishment by law in all settings, taking into account the Committee’s general comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment. The Committee further recommends that the State party carry out public education campaigns, including through media, about the negative consequences of corporal punishment of children, and promote positive, non-violent forms of discipline.

“With reference to the United Nations Study on violence against children (A/61/299), the Committee recommends that the State party:

a) take all necessary measures for the implementation of the recommendations contained in the report of the independent expert for the United Nations study on violence against children while taking into account the outcome and recommendations of the regional consultation for Latin America held in Buenos Aires between 30 May and 1 June 2005. In particular, the Committee recommends that the State party pay particular attention to the following recommendations:

1. prohibit all violence against children, including corporal punishment in all places….”

(16 October 2009, CRC/C/BOL/CO/4, Concluding observations on fourth report, paras. 6, 7, 8, 40, 41 and 42)

“The Committee expresses deep concern that, despite its prohibition in the Code for Children and Adolescents, corporal punishment is still widely used within the family and in schools and other institutions.

“The Committee recommends that the State party take effective measures, including through public awareness campaigns, to promote positive, participatory and non-violent forms of discipline as an alternative to corporal punishment at all levels of society, and to effectively implement the law prohibiting corporal punishment.”
(11 February 2005, CRC/C/15/Add.256, Concluding observations on second report, paras. 35 and 36)

“While the Committee takes note of existing legislation prohibiting corporal punishment of children, it remains concerned that corporal punishment is still widely used within the family and in schools and institutions. In connection with the child’s right to physical integrity, recognized by the Convention in its articles 19, 28, 29 and 37, the Committee recommends that the State party consider the possibility of undertaking educational campaigns. Such measures would help to change societal attitudes towards the use of physical punishment within the family and in schools and institutions.”
(26 October 1998, CRC/C/15/Add.95, Concluding observations on initial report, para. 21)

Universal Periodic Review

Bolivia was examined in the first cycle of the Universal Periodic Review in 2010. The following recommendation was made and was accepted by the Government (A/HRC/14/7, Report of the Working Group, para. 98(36)):

“To adopt specific measures to protect boys, girls and adolescents from all violence against them, to eradicate child labour, to combat the exploitation of boys, girls and adolescents and to prohibit all forms of corporal punishment (Costa Rica)”

The Government’s review of implementation of the recommendations reported on efforts to address child labour and slavery but did not refer to corporal punishment (Mid-term report on implementation of the recommendations, June 2010).

Examination in the second cycle is scheduled for 2014.