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 13 of the Integral Protection of Children and Adolescents Act and article 253 of the Civil Code confirm the right and duty of parents to guide, educate and correct their children. The near universal social acceptance of corporal punishment in childrearing necessitates clarity in law that no level of corporal punishment is acceptable. These provisions should be repealed and the law should explicitly prohibit all corporal punishment and other cruel or degrading forms of punishment, in the home and all other settings where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 should be enacted of corporal punishment in all schools, public and private, and in all alternative care settings, including public and private day care, residential institutions, foster care, etc. Legislation should also be clear that whipping of children under traditional forms of justice is unlawful.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. Article 13 of the Integral Protection of Children and Adolescents Act (2003) provides for the rights and duties of parents to “guide, educate and correct the child or adolescent using prudent means of discipline that do not violate their dignity and integrity”. Article 53 of the Code confirms children’s right not to be subject to any form of violence but does not explicitly prohibit all corporal punishment in childrearing. Article 253 of the Civil Code (1963) states that parents must “educate and correct” their children “using prudent means of discipline”. These provisions are not interpreted as prohibiting corporal punishment in childrearing. Article 53 of the Integral Protection of Children and Adolescents Act confirms the right of the child not to be subjected to any form of violence, cruelty or oppression and to be protected from all forms of abuse but it does not explicitly prohibit all corporal punishment in childrearing.

Schools

Corporal punishment is lawful in schools, including military schools. Article 1 of the National Education Law (1991), Legislative Decree No. 12-91, recognises the child’s right to dignity in the educational system, but there is no explicit prohibition of corporal punishment.

Penal system

Corporal punishment is unlawful as a sentence for crime, under the Integral Protection of Children and Adolescents Act and the Constitution (1985). However, local tribes may enforce traditional punishments, including whipping.

Corporal punishment is unlawful as a disciplinary measure in penal institutions under article 260(e)(8) of the Integral Protection of Children and Adolescents Act which states explicitly that during the enforcement of sanctions adolescents have the right not to be subjected to solitary confinement or the imposition of corporal punishment.

Alternative care

Corporal punishment is lawful in alternative care settings.

Prevalence research

None identified in the last ten years.

Recommendations by human rights treaty bodies

“While noting that Article 53 of the PINA Law prohibits corporal punishment, the Committee remains concerned that corporal punishment continues to be practiced in the home and in alternative care settings, and that there is no explicit prohibition of corporal punishment in schools. It is also concerned at the social acceptance of corporal punishment as a normal form of discipline.

“The Committee recommends that the State party amend Article 13 of the PINA Law as well as Article 253 of the Civil Code, and specifically prohibit corporal punishment and other forms of  cruel punishment  of children in all settings. It further recommends that the State party develop and implement information and awareness-raising campaigns among the population, in order to change the notion of disciplining through violence and the practice of violence present in many families. It further recommends the creation of an effective abuse detection system in the educational, health and alternative care systems, with appropriate instruments and means in order to provide assistance to children and training for the staff of the relevant institutions. The Committee brings to the State party’s attention its General Comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment.

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

1. 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:
   1. Prohibit by law all forms of violence against children in all settings, including all corporal punishment....”

(1 October 2010, CRC/C/GTM/CO/3-4, Concluding observations on third/fourth report, paras. 53, 54 and 55)

“The Committee is concerned about reports of the use of corporal punishment in military schools and that such punishment is not explicitly prohibited by law. In view of this, the Committee is concerned that adequate impartial complaints mechanisms for children attending military schools appear to be lacking.

“The Committee recommends that the State party;

1. ensure that all children in military schools receive education according to articles 28, 29 and 31 of the Convention on the Rights of the Child, taking into account its general comment No. 1 (2001) on the aims of education. In particular, human rights education should be included on the provisions of the Protocol.
2. formally prohibit corporal punishment, taking into account general comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment;
3. provide children attending military schools with adequate access to independent complaints and investigation mechanisms.”

(12 June 2007, CRC/C/OPAC/GTM/CO/1, Concluding observations on initial report on the Optional Protocol on the involvement of children in armed conflict, paras. 16 and 17)

“The decades of conflict affecting society have resulted in the frequent use of violence, including within the family.

“The Committee recommends that a comprehensive public information campaign be developed and implemented urgently to combat the abuse of children in the family and within society as well as the use of corporal punishment in schools.”
(7 June 1996, CRC/C/15/Add.58, Concluding observations on initial report, paras. 8 and 33)

Universal Periodic Review

Guatemala was examined in the first cycle of the Universal Periodic Review in 2008. In response to recommendations to prohibit all corporal punishment of children, the Government stated that corporal punishment is already prohibited and that the Integral Protection of Children and Adolescents Act complies with the Convention on the Rights of the Child (29 May 2008, A/HRC/8/38, Report of the Working Group, paras. 52 and 89(17)). Examination in the second cycle is scheduled for 2012.