Summary of law reform necessary to achieve full prohibition

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

We have been unable to establish whether legislation confirms a right of parents and others to “moderately correct” children, but corporal punishment is widely accepted in childrearing and legal provisions against violence and abuse are not interpreted as prohibiting all corporal punishment. The near universal social acceptance of corporal punishment in childrearing necessitates clarity in law that no level of corporal punishment is acceptable. Explicit prohibition should be enacted of all corporal punishment and other cruel or degrading forms of punishment, in the home and all other settings where adults have parental authority, together with the repeal of all legal defences for its use.

Corporal punishment as a sentence of the courts should be unlawful in all justice systems, including among indigenous communities. Explicit prohibition should also be enacted of corporal punishment as a disciplinary measure in all institutions accommodating children in conflict with the law, and in 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. Article 67 of the Children and Adolescence Code defines ill-treatment of children 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), and 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. Provisions against violence abuse in 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 (2008) are not interpreted as prohibiting all corporal punishment in childrearing.

Schools

Corporal punishment is explicitly prohibited in schools in article 41 of the Childhood and Adolescence Code.

Penal system

Corporal punishment is unlawful as a sentence for crime under the Constitution, the Criminal Code and the Criminal Procedure Code. The Childhood and Adolescence Code provides 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 a law on execution of sentences was being presented to Congress, but we have no up to date information.

There is no explicit prohibition of corporal punishment as a disciplinary measure against children in detention, though children in institutions providing education would be protected from corporal punishment under article 41 of the Childhood and Adolescence Code.

Alternative care

There is no explicit prohibition of corporal punishment in alternative care settings.

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

“The Committee urges the State party to take all necessary measures to address those recommendations contained in the concluding observations on the combined second and third periodic reports that have not yet been implemented, such as those related to ... corporal punishment.....

“The Committee ... notes that national legislation is not entirely in conformity with the Convention, for instance in relation to corporal punishment....

“While welcoming the prohibition of all forms of violence in the new Constitution, the Committee is concerned that corporal punishment is still not explicitly prohibited in the home and remains a culturally accepted form of discipline in the family and other settings, including schools and other places of care, and that there is no explicit prohibition of corporal punishment as a disciplinary measure against children deprived of liberty.

“The Committee recommends that the State party introduce and enforce legislation prohibiting corporal punishment in all settings, including in the family, schools and all places of deprivation of liberty. In this respect, it should take into account the Committee’s general comment No. 8 (2007) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (CRC/C/GC/8).

“With reference to the United Nations Study on violence against children (A/61/299), the Committee recommends that the State party:

a) take all necessary measures for the implementation of the recommendations contained in the report of the independent expert for the United Nations study on violence against children while taking into account the outcome and recommendations of the regional consultation for Latin America held in Buenos Aires between 30 May and 1 June 2005. In particular, the Committee recommends that the State party pay particular attention to the following recommendations:

i. Prohibit by law all violence against children, including corporal punishment in all settings....

“The Committee ... [is] concerned at ... corporal punishment as a form of “discipline” in schools....

“The Committee recommends that the State party:

d) take measures to prevent corporal punishment and sexual abuse and harassment against children, especially girls, in schools and investigate and prosecute as appropriate promptly all such allegations; ...

h) take into account the Committee’s general comment No. 1 (2001) on the aims of education (CRC/GC/2001/1).”

(11-29 January 2010, CRC/C/ECU/CO/4 Advance Unedited Version, Concluding observations on fourth report, paras. 8, 9, 30, 31, 32, 64 and 65)

“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 and 74)

Human Rights Committee

“While the Committee notes that the Children and Adolescents Code prohibits corporal punishment in schools, it remains concerned that corporal punishment traditionally continues to be accepted and practised as a form of discipline in the family and other contexts (arts. 7 and 24).

The State party should take practical steps to put an end to corporal punishment. It should likewise encourage non-violent forms of discipline as alternatives to corporal punishment in the education system, and should conduct public information campaigns to explain its harmful effects.”

(4 November 2009, CCPR/C/ECU/CO/5, Concluding observations on fifth/sixth report, para. 14)