Summary of law reform necessary to achieve full prohibition

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

Article 234 of the Civil Code and article 57 of the Child Law confirm the “right to correct” of parents and others with parental responsibility. This “right” should be repealed. The near universal social acceptance of corporal punishment in childrearing necessitates clarity in law that no level of corporal punishment is acceptable, as well as explicit prohibition 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, and all alternative care settings, including public and private day care, residential institutions, foster care, etc.

Lawfulness of corporal punishment

Home

Corporal punishment is lawful in the home. Article 234 of the Civil Code provides for parents’ “right to correct” their children. In 2008, this was amended to state that this excludes all forms of physical and psychological abuse (“maltrato físico y psicológico”) and shall be exercised in accordance with the Convention on the Rights of the Child. However, there is no clear prohibition of corporal punishment which does not reach the threshold of “abuse”. We have no evidence that provisions against violence and abuse in the Criminal Code, the Family Violence Act and the Child Law (1967) are interpreted as prohibiting all corporal punishment in childrearing.

Schools

Corporal punishment is lawful in schools but we have no details of applicable legislation.

Penal system

Corporal punishment is unlawful as a sentence for crime under the Juvenile Justice Act (2005, in force 2007).

Corporal punishment is prohibited as a disciplinary measure in penal institutions by article 45 of the Juvenile Justice Act.

Alternative care

Corporal punishment is lawful in alternative care settings. Article 57 of the Child Law confirms the “right to correct” children in children’s homes and institutions. Article 234 of the Civil Code presumably applies to adults with parental authority in other 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 Chile, 69% 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). Nearly one child in twenty (4.5%) experienced harsh physical discipline (including being burnt, beaten up, kicked and smothered). Nearly a third of children (32%) 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 85% of children. Non-violent discipline, including explaining why a behaviour was wrong and telling a child to stop, was also widely used (experienced by 97% 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 2006 survey by the Association of Chileans for the United Nations, together with Save the Children Switzerland, found that many parents admitted to frequent use of corporal punishment, most commonly in families of lower socio-economic status, and more commonly mothers than fathers; most also expressed concern about physical violence. (Soledad Salazar Medina, 2006, Estilos de crianza y cuidado infantile en Santiago de Chile: Algus reflexiones para comprender la violencia educative en la familia, Associacion Chilena Pro Naciones Unidas – ACHNU – PRODENI. Reported in The Santiago Times, 15 November 2006)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee reiterates its previous concern (CRC/C/15/Add.173 paras. 31-32) and regrets that article 234 of the Civil Code appears to authorise corporal punishment in the home. Furthermore the Committee notes the lack of statistical data on the number of reported cases and is concerned that corporal punishment continues to occur in the home, as well as in schools and institutions.

“The Committee recommends that the State party, while taking due account of general comment No. 8 of the Committee on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (2006), amend article 234 of the Civil Code and enforce legislation explicitly prohibiting all forms of corporal punishment of children in all settings, including the home. The State party should also conduct awareness raising and public education campaigns against corporal punishment and promote non-violent, participatory methods of childrearing and education.”
(23 April 2007, CRC/C/CHL/CO/3, Concluding observations on third report, paras. 40 and 41)

“The Committee is concerned that corporal punishment of children remains socially acceptable in Chile and it is still practised in families, schools and other institutions. It further notes that Chilean legislation does not expressly prohibit corporal punishment.

“In light of articles 3, 19, and 28 (2) of the Convention, the Committee encourages the State party to:

1. develop measures to raise awareness on the harmful effects of corporal punishment and engage in the promotion of alternative forms of discipline in families to be administered in a manner consistent with the child’s dignity and in conformity with the Convention; and
2. explicitly prohibit corporal punishment in the family, in schools and in other institutions.”

(1 February 2002, CRC/C/15/Add.173, Concluding observations on second report, paras. 31 and 32)

Universal Periodic Review

Chile was examined in the first cycle of the Universal Periodic Review in 2009. No recommendations were made concerning corporal punishment of children. Examination in the second cycle is scheduled for 2014.