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.

Article 262 of the Civil Code confirms the right of parents and others with authority over children to “correct them and sanction them moderately”. The inclusion of “punishment” in the definition of mistreatment in the Children and Adolescents Code does not clearly prohibit all forms of corporal punishment, however light. Article 262 of the Civil Code should be repealed.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 parental authority.

Explicit prohibition of corporal punishment should be enacted in relation to all schools, public and private, and all alternative care settings, including public and private day care, residential institutions, foster care, etc. In the penal system, explicit prohibition is necessary in relation to disciplinary measures in all institutions accommodating children in conflict with the law, and corporal punishment should be prohibited as a sentence in traditional/customary systems of justice.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. Article 262 of the Civil Code (1883, as amended 1974) confirms the right of parents and others in charge of children to “correct them and sanction them moderately”. Article 18 of the Children and Adolescents Code (2006) defines mistreatment as all forms of harm, punishment, humiliation or physical or psychological abuse, but this is not interpreted as prohibiting all corporal punishment, however light, in childrearing. Provisions against violence and abuse in the Civil Code, the Juvenile Code (1989), the Criminal Code (2000), the Constitution (2005), the Domestic Violence Law (1996) and the Law on the Integral Protection of the Family (2009) are not interpreted as prohibiting all corporal punishment.

Schools

Corporal punishment is lawful in schools. Article 319 of the Juvenile Code states that “school directors … cannot impose sanctions that ridicule the child or affect his or her personal dignity in any way”, but there is no explicit prohibition of corporal punishment. There is no reference to corporal punishment in the Education Act (1994).

Penal system

Corporal punishment is unlawful as a sentence for crime, except in indigenous Indian communities. Under article 246 of the Constitution (on special jurisdictions), the authorities of indigenous people can exercise jurisdictional functions within their territory in accordance with their own rules and procedures, when these do not contravene the Constitution and the laws of the Republic. Case law has established that corporal punishment among the “Paeces” community is not considered to breach the Constitutional prohibition of torture (Sentence No.T-523/97) on the grounds that it is a common practice and is regarded as being aimed not at correcting the person in public but at regaining one’s place in the community. According to legal opinion, while the limit for what constitutes torture or inhuman or degrading treatment should be lower when applied on a child, some degree of violence would be permissible as a punishment for indigenous children in conflict with the law. There are 85 Indian communities in Colombia.

There is no explicit prohibition of corporal punishment as a disciplinary measure in penal institutions. According to the Juvenile Code a minor in detention “shall receive humanitarian treatment” (article 16). Article 262 of the Civil Code confirms the right of persons with authority over children to correct and punish them.

Alternative care

Corporal punishment is lawful in alternative care settings. There is no explicit prohibition of corporal punishment in other institutions and forms of childcare, and article 262 of the Civil Code confirms the right of persons with authority over children to correct and punish them.

Prevalence research

As part of a study of the impact of publicly funded early childhood education centres in Bogotá, the kinds of punishments used on children were examined. Interviews were carried out with 97 fathers and mothers and 97 children aged 5-6 years, in which 63% of parents reported seldom using physical punishment and 1% reported using it a lot. Of those who said they smacked their children, 47% said they used their hand, 44% a belt, 10% a slipper or shoe, and 2% a paddle or broom. In the four months prior to the interviews, the most recent punishment had been smacking for 32% and scolding for 11%. Interviews with the children revealed higher incidences of corporal punishment, including 83% reporting punishment by smacking. Various ways of being hit were reported by the children, including with a belt (70%), the hand (31%), a slipper (27%), a whip (5%), a paddle (5%), a shoe (5%), and a switch (3%). Reasons given for the punishment included disobedience (27%), not doing homework or poor performance at school (29%) and talking back or being rude (12%). (Pineda, N. et al. (2005), Evaluación de Algunas Modalidades de Atención a la Primera Infancia en el ICBF y el DABS, Bogotá, Cinde, Save the Children UK, UNICEF, Colombian Institute for Family Welfare and Bogotá Social Welfare Department, reported in International Save the Children Alliance, 2005, Ending Physical and Humiliating Punishment of Children – Making it Happen: Global Submission to the UN Study on Violence against Children, Save the Children Sweden)

A study of the relationship between gender and physical punishment in China, Colombia, Italy, Jordan, Kenya, Philippines, Sweden, Thailand and the US, involving interviews with around 4,000 mothers, fathers and children aged 7-10, found that in Colombia 68% of girls and 63% of boys had experienced “mild” corporal punishment (spanking, hitting, or slapping with a bare hand; hitting or slapping on the hand, arm, or leg; shaking; or hitting with an object), and 15% of girls and 4% of boys severe corporal punishment (hitting or slapping the child on the face, head, or ears; beating the child repeatedly with an implement) by someone in their household in the past month. Smaller percentages of parents believed it was necessary to use corporal punishment to bring up their child: for girls, 14% of mothers and 13% of fathers believed it was necessary; for boys, 19% of mothers and 8% of fathers believed it was necessary. (Lansford, J. et al (2010), “Corporal Punishment of Children in Nine Countries as a Function of Child Gender and Parent Gender”, International Journal of Pediatrics)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee regrets the lack of statistics on the number of reported cases and is concerned that corporal punishment continues to occur in the school, the home and in institutions.

“The Committee recommends that the State party 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, while taking due account of the 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).”
(8 June 2006, CRC/C/COL/CO/3, Concluding observations on third report, paras. 61 and 62)

Universal Periodic Review

Colombia was examined in the first cycle of the Universal Periodic Review in 2008. No recommendations were made concerning corporal punishment of children. Examination in the second cycle is scheduled for 2013.