Lawfulness of corporal punishment

Home

Corporal punishment is prohibited in the home. In 1998, the Civil Code was amended to prohibit “degrading methods of discipline including physical and psychological abuse”, but further explicit prohibition of corporal punishment was found to be necessary. A 2000 amendment to the Civil Code states (article 1631): “Children have the right to a non-violent upbringing. Corporal punishment, psychological injuries and other humiliating measures are prohibited.” German childcare law was amended to place a duty on authorities to “promote ways in which families can resolve conflict without resort to force”.

The Constitution (Basic Law) (1949) states in article 1: “(1) Human dignity shall be inviolable.” Article 2 states: “(2) Every person shall have the right to life and physical integrity.” Under article 6(2), parents have a right and duty for the care and upbringing of children. Other protection is afforded by the Violence Protection Act (2002).

Schools

Corporal punishment has been prohibited in schools since the 1970s.

Penal system

Corporal punishment is unlawful as a sentence for crime under the Juvenile Courts Act. The Constitutional provisions apply (see above).

Corporal punishment is not a permitted disciplinary measure in penal institutions under laws governing the prison service – the national administrative regulations on juvenile punishment, the Act on the Execution of Sentences, the Juvenile Detention Execution Order, No. 85 Remand Custody Execution Order and the Juvenile Courts Act.

Alternative care

Corporal punishment is unlawful in other institutions and forms of childcare.

Workplace

Corporal punishment is prohibited.

Prevalence research

Research published in 1999 involved interviews with 16,190 children aged 14-15 years about their experiences of corporal punishment. Over two fifths (43%) reported that they had never been hit; 47% reported being smacked occasionally; 10% reported more severe corporal punishment. (Pfeiffer, C. & Wetzels, P., 1999, “Use of physical punishment within families against children and the consequences”, unofficial translation by Goodall, K. & Taverner, K. at National Society for the Prevention of Cruelty to Children, UK)

Government research was undertaken in 2001 and published in 2003 into the reception and initial impact of the prohibition of corporal punishment in childrearing in November 2000. Interviews were held nationwide with 3,000 parents of children below 18 years and 2,000 young people aged 12-18 years. Surveys were also administered to 1,074 government and nongovernmental institutions, with 30 representatives of relevant institutions interviewed in depth. The research found that around 28% of parents rarely resorted to disciplinary sanctions and “as far as possible” did not use corporal punishment; 54% frequently used “minor” but never “serious” corporal punishment (such as beatings and spankings); 17% frequently used “serious” corporal punishment, including beatings and spankings, as well as psychological punishments. Boys were more commonly hit than girls, and more commonly experienced “serious” corporal punishment. Based on parents’ reports, in comparison with previous studies the report notes a substantial decrease in corporal punishment at all degrees of severity. For example, in 1996 a third of parents (33.2%) reported they had hit their child’s bottom, compared with just over a quarter (26.4%) in 2001. (Federal Ministry of Justice & Federal Ministry for Family Affairs, Senior Citizens, Women and Youth, 2003, Violence in upbringing: An assessment after the introduction of the right to a non-violent upbringing)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee welcomes the introduction in 2000 of the law to prohibit violence in the upbringing of children, which prohibits corporal punishment within the family, and of various other legal instruments to fight against domestic violence (e.g. 2002 Act for Further Improving Children’s Rights) but remains concerned that there is a lack of comprehensive data and information on the impact of the new legislation….”
(26 February 2004, CRC/C/15/Add.226, Concluding observations on second report, para. 40)

“…The Committee encourages the State party to pursue its efforts towards changing attitudes with a view to eradicating all forms of violence against children, including the use of corporal punishment within the family. In this regard, it further encourages that, in the ongoing process of reform of the Civil Code, consideration be given to the incorporation of an absolute ban on corporal punishment.”
(27 November 1995, CRC/C/15/Add.43, Concluding observations on initial report, para. 30)

European Committee of Social Rights

"Protection from ill-treatment and abuse

"Youth welfare offices and private advice institutions ensure that support is given to victims of ill-treatment and abuse. The Committee asks the next report to provide any information on whether the investigation of complaints of violations of children's rights are conducted in a child sensitive manner.

"The Committee notes that a number of provisions in the German Penal Code ensure the prohibition of personal injury. Article 223 et seq. of the German Penal Code stipulates that it is a punishable offence to physically maltreat a person and to endanger a person's health. This prohibition applies regardless of the place of the offence. The Committee notes from another source that the law to prohibit violence in the upbringing of children of 2 November 2000 grants children the right to an upbringing free of violence and prohibits all forms of violence against children, including the application of physical punishment for the purposes of upbringing."
(2005, Conclusions XVII-2, vol. 1, pages 282-283)

“The Committee wishes to know whether legislation prohibits the corporal punishment of children in institutions, in schools, in the home and elsewhere….”
(1 June 2001, Addendum to Conclusions XV-2, pages 59-61)