Summary of law reform necessary to achieve full prohibition

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

Article 1.638 of the Civil Code allows “moderate” punishment of children by parents. In theory, the provisions in the Code on Children and Adolescents recognising the child’s right to dignity should prohibit corporal punishment (which invariably affects a child’s dignity), but the law is not interpreted in this way and is undermined by the Civil Code provision allowing “moderate” punishment. The near universal social acceptance of corporal punishment in childrearing necessitates clarity in legislation that no level of corporal punishment is acceptable. All legal justifications for corporal punishment should be repealed and explicit prohibition enacted of all corporal punishment and other cruel or degrading forms of punishment, in the home and all other settings where adults have authority over children.

Explicit prohibition of corporal punishment should be enacted in relation to all education settings, public and private, all institutions accommodating children in conflict with the law, and 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. In stating that “immoderate” punishment of children can result in a loss of parental authority, article 1.638 of the Civil Code (2002) allows “moderate” punishment of children. Provisions against violence and abuse in the Criminal Code (1940), the Code on Children and Adolescents (1990), the Law on Domestic and Family Violence against Women (2006, The Maria da Penha Law) and the Constitution (1988) are not interpreted as prohibiting all corporal punishment in childrearing.

A 2003 bill which would have achieved prohibition in all settings, including the home, failed to proceed to the Senate in 2006. In July 2010, President Luiz Inacio Lula da Silva, before leaving office, submitted a Bill to Congress which would prohibit in all settings. In December 2011, the Bill was approved in the Lower House and as at January 2012 is pending in the Senate.

Schools

Corporal punishment is lawful in schools. The Code on Children and Adolescents protects children from inhuman, violent, terrifying and humiliating treatment (article 18) and states that children have a right to be respected by educators (article 53), but it does not explicitly prohibit corporal punishment.

Penal system

Corporal punishment is unlawful as a sentence for crime. There is no provision for it in the Penal Code or the Code on Children and Adolescents.

Corporal punishment is lawful as a disciplinary measure in penal institutions. The Code on Children and Adolescents recognises the right of adolescents deprived of their liberty to be treated with respect and dignity (article 124) and charges the state with responsibility for ensuring their physical and mental integrity (article 125), but there is no explicit prohibition of physical punishment in detention centres.

Alternative care

There is no explicit prohibition of corporal punishment in alternative care settings. Article 1.638 of the Civil Code (see above) presumably applies to persons with parental authority in alternative care settings.

Prevalence research

A large scale comparative study (World Studies of Abuse in the Family Environment (WorldSAFE)) which involved surveys with over 14,000 mothers of children aged under 18, carried out between 1998 and 2003, examined parental discipline in Brazil, Chile, Egypt, India, Philippines, and the United States. In Brazil, 70% of children experienced “moderate” physical discipline (including being “spanked” on the buttocks, hit with an object, slapped on the face and having hot pepper put in their mouth). Two per cent of children experienced harsh physical discipline (including being burnt, beaten up, kicked and smothered). Nearly four children in ten (39%) experienced harsh psychological discipline such as being called names, being cursed and being threatened with abandonment. “Moderate” psychological discipline, including being yelled or screamed at or being refused food was experienced by 77% of children. Non-violent discipline, including explaining why a behaviour was wrong and telling a child to stop, was also widely used (experienced by 96% of children). The study found that rates of harsh physical discipline were dramatically higher in all communities than published rates of official physical abuse in any country, and that rates of physical punishment can vary widely among communities within the same country. (Runyan, D. et al (2010), “International Variations in Harsh Child Discipline”, Pediatrics)

A study on the relationship between severe physical punishment and mental health problems found that 20% of the  children (aged 6-17) in the 813 participating households had suffered severe physical punishment (being hit with an object, being kicked, choked, smothered, burnt, scalded, branded, beaten or threatened with a weapon) by one or both parents in the last 12 months. (Bordin, I. A. et al. (2009), “Severe physical punishment: risk of mental health problems for poor urban children in Brazil”, Bulletin of the World Health Organisation, May 2009, vol. 87(5), pp. 336–344)

Surveys carried out in 2002-2004 examined the attitudes of children and adults in Argentina, Brazil, Costa Rica, Nicaragua, Peru and Venezuela towards physical punishment. In Brazil, 800 people were surveyed (200 adults and 600 children). Nearly a quarter (23.2%) of the children agreed that physical punishment is “very bad” or “makes children violent”, and 37.2% agreed that physical punishment is “unfair”. Three-quarters of children and adults thought that physical punishment is never necessary. (Save the Children Sweden & Instituto de Encuestas y Sondeos de Opinión (2005), Sistematización de las Encuestas Sobre la Perceptión del Castigo Físico en Seis Países de America Latina, presentation: Managua, 16 May 2005)

Research by Human Rights Watch in 17 detention centres in Northern Brazil, including four girls and including interviews with 44 detained young people, found that children are routinely beaten by police. Beatings both during and after arrest were found to be common. Children complaining of beatings reported that military police hit them with rubber batons with a metal core.
(Human Rights Watch, 2003, Cruel Confinement: Abuses against detained children in Northern Brazil)

Research in five juvenile detention centres in the State of Rio de Janeiro found that beatings, and impunity for offenders, were common. Verbal violence was also common, and youths experienced lengthy periods of lock-up and being forced to stand for long periods of time in uncomfortable positions.
(Human Rights Watch, 2004, “Real dungeons”: Juvenile Detention in the State of Rio de Janeiro, vol.16, no.7)

A report comparing diagnosis and treatment of attention deficit hyperactive disorder (ADHD) in different countries found that in Brazil, physical punishment is considered by a large number of teachers to be a “therapeutic” treatment for ADHD. (Reported in Psychiatric News, 46(11), 3 June 2011)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee expresses its concern that corporal punishment is widely practised in the State party and that no explicit legislation exists in the State party to prohibit it. Corporal punishment is used as a disciplinary measure in penal institutions, ‘reasonable’ punishment is carried out in schools and ‘moderate punishment’ is lawful in the family.

“The Committee recommends that the State party explicitly prohibit corporal punishment in the family, school and penal institutions, and to undertake education campaigns that educate parents on alternative forms of discipline.”
(1 October 2004, CRC/C/15/Add.241, Concluding observations on initial report, paras. 42 and 43)

Universal Periodic Review

Brazil was examined in the first cycle of the Universal Periodic Review process in 2008. No recommendations were made concerning corporal punishment of children. Examination in the second cycle is scheduled for 2012.