Lawfulness of corporal punishment

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Corporal punishment is lawful in the home. Article 143 of the Family Code (1974, amended 2004) states: “Paternal authority confers rights and imposes the duty to educate, care for, watch over and, with moderation, correct the son or daughter.” In October 2005, the Criminal Court of Cassation of the Second Circuit Court of San Jose stated that “this can in no way be interpreted as a general authorization for parents or guardians of minors to hurt them without being punished for that action or simply to dispose of their lives as they please” and that “even though vested with parental rights and duties have no ‘right’ to hurt their children” (Judgment: 2005-1062, Case No. 02-002448-0369-PE-(3)). Article 159 of the Family Code protects children from “excessive harshness in treatment or orders”. Under article 11 of the Code on Children and Adolescents (1998), children have an obligation to obey and respect their parents.

Other legal protection from violence and abuse is given by the Law Against Domestic Violence (1996), the Code on Children and Adolescents, the Juvenile Criminal Justice Law (1996), the Criminal Code and the Constitution (article 51 on state obligations to protect children from violence in the family). The Code on Children and Adolescents recognises children’s rights to protection from any form of abuse and cruel, inhuman or degrading treatment (article 13) and to physical, psychological and moral integrity (article 24). A Law on Punishment of Violence against Women was adopted in April 2007.

A draft law on the Abolition of Corporal Punishment Against Minors (2004) has been presented before the Legislative Commission on Youth, Children and Adolescents. Article 1 states that a new article 25B should be added to the Code on Children and Adolescents which should say: “It is prohibited for the father, mother, legal representative or persons in charge of the custody, care, attention, treatment, education and vigilance of minors, to use corporal punishment as a corrective or disciplinary measure on children or adolescents. The National Infancy Trust (Patronato Nacional de la Infancia), in coordination with other State institutions, will promote and carry out awareness-raising and education programmes aimed at parents and others responsible for the care of minors, on discipline and setting limits for their sons and daughters that do not involve corporal punishment.” Article 2 of the draft law states that article 143 of the Family Code should be modified to read: “Parental authority confers rights and imposes the duty to educate, care, watch over and discipline children, excluding physical punishment or any other form of mistreatment or degrading treatment….”

Schools

Corporal punishment is lawful in schools. Article 11 of the Regulations for the Teaching Profession (1972), article 20 of the Regulation for Learning Evaluation, and article 68 of the Code on Children and Adolescents make provisions for protecting the child’s dignity and physical integrity, but there is no explicit prohibition of corporal punishment. The draft law on the Abolition of Corporal Punishment Against Minors (see above) would explicitly prohibit corporal punishment by persons charged with education.

Penal system

Corporal punishment is unlawful as a sentence for crime. It is not among the permitted sanctions under article 121 of the Juvenile Criminal Justice Law. Article 138 states that the children who are being sanctioned have the “right to life, dignity and physical and moral integrity” and may not be subject to corporal punishment.

Corporal punishment is unlawful as a disciplinary measure in penal institutions. The constitutional Tribunal has prohibited the use of physical violence and handcuffs on juvenile offenders. The provisions of the Juvenile Criminal Justice Law and the Code on Children and Adolescents apply (see above). Under article 138 of the Juvenile Criminal Justice Law, children in specialised detention centres have the right to be informed about disciplinary sanctions that can be applied to them, including the right not to be subjected to corporal punishment.

Alternative care

There is no explicit prohibition of corporal punishment in other institutions and forms of childcare. The draft law on the Abolition of Corporal Punishment Against Minors (see above) proposes explicit prohibition in all settings.

Workplace

No information.

Prevalence research

In 2003, a survey by the Paniamor Foundation of 1,034 school children aged 9-16 found that nearly half (47.8%) experienced physical punishment occasionally in the home, while 4.2% experienced it frequently, more so for boys than girls in both cases; 11% said they had been punished in the past 15 days. The reasons given for being punished were mainly concerned with correcting behaviour: “they behave badly” (71.5%), “they don’t do as they are told” (22.7%), “to educate” (5.8%). Most punishment was administered by parents (mother 78%, father 77%), but was also given by grandparents (20%), older siblings (20%), uncles (19%), caregivers (16%), teachers (12%), domestic workers (9%), and the school principal (8%). When asked how they feel when they are punished, the most frequent responses were sadness (79.2%), pain (56.7%), fear (42.6%), guilt (39.8%) and loneliness (37.1%). The large majority of children viewed corporal punishment negatively, with almost two out of five children saying it is very bad and almost a third saying that people should not be punished in this way.
(Paniamor Foundation/Save the Children Sweden, 2004, “National Survey of Children and Adolescents on Physical Punishment”, part of project “Prevencion de la Violencia desde la Familia y la Adolescencia”, presented at Costa Rica, March 2004)

Interviews with parents in 1997 found that one in ten mothers and fathers always hit their child when she or he did wrong, six in ten sometimes; almost a quarter reported never hitting. Asked about objects used to hit their children, 41.8% of mothers and fathers said they always used a belt, 12.2% sometimes used a rope or cord, 52.5% always or sometimes used their hand, and 8.1% used a cane. One in ten said they punished their children every day and over a third said once a week.
(Barrantes, Z., Castillo, E. & Ortega, X., 1997, “Problems of child aggression and the role of the administrator teacher in the one-teacher (unidocente) schools of Circuit 1 of the Guapiles Regional Education Management in 1997”, Latina University, cited in paper on draft law abolition of physical punishment of children and adolescents, presented in Costa Rica, March 2004)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee welcomes the efforts made by the State party to sensitize the different actors involved on the need to eradicate corporal punishment in the family, in school and in other institutions, and the fact that the Legislative Assembly is examining a bill prohibiting corporal punishment. The Committee remains however concerned at the fact that corporal punishment is still not explicitly prohibited in domestic law, as recommended by the Committee in its previous concluding observations, and still perceived as ‘sometimes necessary’ by a large portion of the population (CRC/C/15/Add.117, para. 17).

“The Committee reiterates its recommendation that the State party should incorporate the prohibition of corporal punishment in its legislation and continue to take appropriate measures to raise the awareness of the general public on the negative consequences of corporal punishment and other forms of violence in the upbringing of children, and to sensitize parents, teachers and others working with and for children about the alternative, non-violent means of discipline in the light of article 28 (2) of the Convention.”
(21 September 2005, CRC/C/15/Add.266, Concluding observations on third report, paras. 31 and 32)

“The Committee expresses its concern about the inadequate enforcement of the prohibition on the use of corporal punishment in schools and other institutions and in the penal system. In addition, the Committee expresses its concern that the practice of physical punishment of children in the home is not expressly prohibited by law and remains regarded as socially acceptable. The Committee recommends that the State party prohibit the use of corporal punishment in the home and take effective measures to enforce the legal prohibition of corporal punishment in schools and other institutions and in the penal system. The Committee further recommends that the State party undertake educational campaigns for the development of alternative disciplinary measures for children at home, in schools and other institutions.”
(24 February 2000, CRC/C/15/Add.117, Concluding observations on second report, para. 17)

“The Committee encourages the Government to intensify its information and advocacy campaigns at the community and family levels. The Committee therefore suggests that efforts should be made to widen educational campaigns to focus on gender discrimination and the role of parents, particularly with respect to the prevention of violence and abuse in the family and the problems associated with early marriage and early pregnancy.”
(18 October 1993, CRC/C/15/Add.11, Concluding observations on initial report, para. 16)

Committee on Economic, Social and Cultural Rights

“The Committee is concerned about the fact that corporal punishment within the family, in the form of ‘moderate correction’, is still allowed under article 143 of the State party’s Family Code.

“The Committee encourages the State party to expedite the adoption of currently existing proposals to amend article 143 of the Family Code and the law providing for an explicit prohibition of all corporal punishment that is currently under consideration.”
(4 December 2007, E/C.12/CRI/CO/4 draft, Concluding observations on combined second, third and fourth report, paras. 23 and 44)

Committee Against Torture

“El Comité toma nota con satisfacción que el castigo corporal está prohibido en al ámbito educativo y en el sistema penal juvenil. Sin embargo, en el ámbito familiar, el artículo 143 del Código de Familia señala que los padres tienen derecho a corregir a los niños en forma moderada, lo que se ha interpretado como pudiendo recurrirse al castigo corporal (art. 16).

El Comité toma nota de la presentacióon a la Asamblea Legislativa por la Defensoría de los Habitantes del proyecto de ley ‘Abolición del Castigo Físico contra Niños, Niñas y Adolescentes’ y la creación de un grupo encargado de la redacción en la Comisión Plena Primera de la Asamblea General y alienta al Estado Parte a acelerar la prohibición total del castigo corporal contra los niños.”
(15 May 2008, CAT/C/CRI/CO/1 Advance Unedited Version, Concluding observations on second report, para. 23) (as at 18 May 2008 available in Spanish only)