Lawfulness of corporal punishment

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Corporal punishment is lawful in the home.

Legal protection from violence and abuse is given by the Law against Violence against Women and the Family (1995), the Childhood and Adolescence Code (2003), the Criminal Code (1991, amended 2005 and the Constitution (1998). The Childhood and Adolescence Code prohibits physical, psychological and sexual mistreatment of children, and defines ill-treatment as “any conduct, any act of omission or commission, that causes or may cause harm to the integrity or physical, psychological or sexual health of a child or young person, by any persons, including their parents, other relatives, educators and persons responsible for their care, whatever means used, whatever the consequences and whatever time is necessary for the victim to recover” (article 67). Article 76 states that abusive practices suffered by children cannot be justified on the grounds that they are educative methods or traditional cultural practices, but this is not interpreted as prohibiting all forms of corporal punishment of children. The Code recognises the child’s right to dignity (articles 41 and 52), physical integrity (article 50) and health (article 67), and provides for the loss of parental authority when ill-treatment is serious or repeated (article 113). The Law against Violence against Women and the Family defines physical violence as “every act of force that may cause harm, pain or physical suffering” (article 4).

Schools

Corporal punishment is unlawful in schools. Article 40 of the Childhood and Adolescence Code states: “Disciplinary measures. Teaching methods and discipline in educational institutions shall respect the rights and guarantees of children and young persons and shall exclude all forms of abuse, ill-treatment and disrespect, and, accordingly, any form of cruel, inhuman or degrading punishment.” Article 41 states: “Prohibited punishments. Educational institutions are: 1. Prohibited from using corporal punishment; 2. Prohibited from using psychological punishments that offend the dignity of children and young persons….” Article 76 (see above) also applies.

Penal system

Corporal punishment is unlawful as a sentence for crime. Article 23 of the Constitution prohibits all physical, psychological or social violence and article 51 states that children and adolescents have the right to respect for their constitutional safeguards. These provisions are incorporated into the Criminal Code. The Criminal Procedure Code (2001) also prohibits cruel and degrading treatment. The Childhood and Adolescence Code provides instead for socio-educational measures in the case of juvenile offenders, and, in exceptional circumstances, deprivation of liberty. However, the judicial system allows indigenous communities that are not served by police forces to apply vigilante justice as a form of “traditional” law, and public humiliation and beatings are reportedly a common form of punishment in isolated Andean villages. In November 2005, a draft law for indigenous justice was under discussion, and in practice authorities may forbid any practice that is harmful to the integrity of the person. Also in November 2005, a law on execution of sentences was being presented to Congress.

There is no explicit prohibition of corporal punishment as a disciplinary measure against children in detention.

Alternative care

Article 41 of the Childhood and Adolescence Code (see above) applies, prohibiting corporal punishment in institutions. There is no explicit prohibition of corporal punishment in other childcare settings but the law which forbids justifying practices that constitute abuse on the grounds that they are cultural practices (article 76, Childhood and Adolescence Code, see above) applies to families and groups such as religious or ethnic groups, and to private institutions that base their education on religious beliefs or traditional practices.

Workplace

Children are protected from economic and labour exploitation under article 50 of the Constitution. Under articles 87 and 91 of the Childhood and Adolescence Code adolescents are prohibited from working in households whose members have a history of abuse, and employers must safeguard the physical, psychological and moral wellbeing of adolescents in domestic service. Article 76 of the Code (see above) also applies. But there is no explicit prohibition of all corporal punishment of children in the workplace.

Prevalence research

In survey research in December 2000 on the situation of children in households, 40% of children reported that their parents hit them as a “disciplinary” measure. More than half the children in households in rural mountain areas and indigenous households reported ill-treatment by their parents (55% and 63% respectively). Almost half (49%) those in households below the poverty line described their parents’ behaviour and violent or punitive, compared with 34% in households above the poverty line. Ill-treatment by teachers as a response to misbehaviour was reported by 20% of children. Children in rural areas were more likely than those in cities to be punished by having recreation withheld or by receiving blows or insults or being ridiculed (25% compared with 17%), and boys were more frequently ill-treated than girls (21% compared with 18%). Ill-treatment by teachers was more common for children from households below the poverty line (22%) than those not considered poor (16%), and almost a third of indigenous children (29%) reported having been ill-treated by teachers. One in ten children reported being hit by teachers, with twice as many boys in rural areas as in cities being hit (14% compared with 7%). (EMEDINHO/National Statistics and Census Institute/Ministry of Social Welfare/National Institute for Children and the Family/Centre for Population Studies and Social Development (2000), reported in Children Now, Ecuador Integrated System of Social Indicators, cited in the second and third combined periodic state party report to the Committee on the Rights of the Child, 2004, CRC/C/65/Add.28, paras. 156, 173-176, and third report to the Committee Against Torture, 2003, CAT/C/39/Add.6, paras. 256-259)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“While taking note that the Childhood and Adolescence Code prohibits corporal punishment in schools and in the penal system as well as the introduction of programmes such as ‘good treatment’, the Committee remains concerned that corporal punishment is still traditionally accepted and widely practised in the family and in other settings as a form of discipline.

“The Committee recommends that the State party introduce and enforce legislation prohibiting all forms of corporal punishment in all settings, including in the family and alternative childcare system, as well as strengthening awareness-raising campaigns to ensure that alternative forms of discipline are administered in a manner consistent with the human dignity of the child and in conformity with the Convention, in particular article 28(2).

“The Committee takes note of the various measures undertaken by the State party with regard to indigenous children…. However, the Committee remains concerned … that indigenous children

b) are subjected to punishment, including forms of public shaming….

“The Committee recommends that the State party take all necessary measures to protect the rights of indigenous children against discrimination and to guarantee their enjoyment of the rights enshrined in domestic law and in the Convention. In this regard, the Committee refers the State party to its recommendations adopted following its day of general discussion on the rights of indigenous children at its thirty-fourth session in 2003. The Committee further recommends that the State party provide indigenous communities, including children with sufficient information regarding birth registration procedures, child labour, HIV/AIDS, child abuse and neglect, including corporal punishment.
(13 September 2005, CRC/C/15/Add.262, Concluding observations on second and third combined report, paras.37, 38, 73(b) and 74)

“The Committee is deeply concerned at the information provided in the State party’s report that “child abuse is a culturally accepted and justified practice”. In this regard, it expresses its concern at the insufficient awareness regarding the harmful consequences of ill-treatment and abuse, including sexual abuse, both within and outside the family. Concern is also expressed at the insufficient resources, both financial and human, as well as at the lack of adequately trained personnel to prevent and combat such abuse. The insufficiency of rehabilitation measures and facilities for such children and their limited access to justice are also matters of concern. In the light of, inter alia, articles 19 and 39 of the Convention, the Committee recommends that the State party take all appropriate steps, including setting up social programmes and introducing rehabilitation measures to prevent and combat child abuse and ill-treatment of children within the family, at school and in society at large. It suggests that law enforcement should be strengthened with respect to such crimes and that adequate procedures and mechanisms to deal with complaints of child abuse should be developed. Furthermore, educational programmes should be established to combat traditional attitudes within society regarding this issue….”
(26 October 1998, CRC/C/15/Add.93, Concluding observations on initial report, para. 21)