Summary of law reform necessary to achieve full prohibition

Prohibition is still to be achieved in the home.

The law confirms a right to correction (“jus corrigenda”). A 1996 Supreme Court ruling states that this cannot be used to defend the use of corporal punishment but this has not been confirmed in legislation. The near universal social acceptance of corporal punishment in childrearing necessitates clarity in law that no level of corporal punishment is acceptable. The “right to correction” should be explicitly repealed and prohibition enacted of all corporal punishment and other cruel or degrading forms of punishment, in the home and all other settings where adults have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.

Current legality of corporal punishment

Home

Corporal punishment is unlawful in the home. In 1996, a Supreme Court judgement outlawed all violence in childrearing (Judge Ippolito, Supreme Court of Cassation, 18 March 1996). Article 571 of the Criminal Code (1975, amended 2005) states: “Whoever misuses means of correction or discipline to harm a person subject to his authority, or entrusted to him for purposes of education, instruction, treatment, supervision or custody … shall be punished.” The offence of abuse of correctional methods is applicable if there is a relationship of authority between the abuser and the abused, if the abuse results in physical or mental injury, and if it involves legitimate correctional methods. Since, according to the 1996 ruling, corporal punishment is no longer a legitimate method of discipline, it is not defensible under the right to correction (“jus corrigenda”).

A number of Bills have been proposed over the years to repeal or amend article 571, but none has been successful, and as at April 2010 prohibition of corporal punishment had not been confirmed in legislation. In 2008, three members of parliament signed the Council of Europe’s petition against all corporal punishment of children.

Schools

Corporal punishment has been unlawful in schools since 1928.

Penal system

Corporal punishment is unlawful as a sentence for crime. It is not an available sentence under the Criminal Code. It is unlawful as a disciplinary measure in penal institutions.

Alternative care

Corporal punishment is unlawful in alternative care settings.

Prevalence research

Data analysis of calls to Telefono Azzurro (a children’s helpline) between January 2000 and June 2002 indicated that over 40% of abuse was physical and 78.6% of all child abuse takes place in the home, with children up to 10 years of age being most at risk. (Analysis presented in the alternative report by Telefono Azzurro to the Committee on the Rights of the Child, February 2003)

An inspection by the Council of Europe’s Committee for the Prevention of Torture of the penal institution for minors in Naples found that staff believed in and administered slaps to the child detainees, for their “educational function”. (Cecchetti, R. & Boffi, A. (2002), Rights of the Child in Italy: Report on the implementation of the Convention of the Rights of the Child, Switzerland: World Organisation against Torture)

A questionnaire survey in 1999-2000 of the families of 6,250 pupils aged 3-12 years from kindergartens and primary schools investigated resolution of family conflicts through parental self-reporting using the Conflict Tactics Scales. From the 2,388 responses suitable for analysis, three out of four (77%) of caretakers declared that they had thrown something at the child, pushed, grabbed or shoved the child, or slapped/spanked the child during the survey year. One child in 11 (8%) was found to have experienced more severe forms of physical punishment during the same period. (Bardi, M. & Borgognini-Tarli, S. A. (2001), “A survey of parent-child conflict resolution: intrafamily violence in Italy”, Child Abuse & Neglect, vol. 25, pp.839-853)

Telephone interviews with 1,009 adults aged 14 and over in April 2004, revealed that 69% believe it is acceptable for parents to smack their children, including 7% who believe it is always acceptable and 62% who believe there are some circumstances in which it is acceptable. A quarter believe it is unacceptable in any circumstances. (Market & Opinion Research International (2004), “Attitudes towards smacking children: Italy”, Research conducted for the Association for the Protection of All Children)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee is preoccupied by the existence of child abuse, including physical and sexual abuse and violence within the family, and the insufficient protection afforded by the Penal Code in this regard, as well as the lack of adequate measures for the psycho-social recovery of child victims of such abuses....

“The Committee also suggests that the clear prevention and prohibition of torture or other cruel, inhuman or degrading treatment or punishment, as well as a ban on corporal punishment within the family, be reflected in the national legislation.”
(27 November 1995, CRC/C/15/Add.41, Concluding observations on initial report, paras. 12 and 20)

European Committee of Social Rights

“The Committee recalls that the situation was found to be in conformity with the Charter in both the previous conclusion and in its decision on the merits of World Organisation against Torture (OMCT) v Italy (complaint No. 19/2003, decision on the merits of 8 December 2004). Italy prohibits corporal punishment of children within the family through a combination of legislation and case law (Decision No. 4909 of 16 May 1996 of the Court of Cassation). Since then, the Committee affirmed that in order ‘to comply with Article 17, states’ domestic law must prohibit and penalise all forms of violence against children, that is acts or behaviour likely to affect the physical integrity, dignity, development or psychological well being of children. The relevant provisions must be sufficiently clear, binding and precise, so as to preclude the courts from refusing to apply them to violence against children. Moreover, states must act with due diligence to ensure that such violence is eliminated in practice’ (World Organisation against Torture (OMCT)v Portugal, complaint No. 34/2006, Decision on the Merits of 5 December 2006, §§19-21).

“The Committee asks that the next report explain whether this ruling is still good law.”
(2007, Conclusions XVIII-1, vol.2)

“As regards corporal punishment of children, the Committee notes that the Corte di Cazzione declared all corporal punishment to be unlawful in a judgment of 18 March 1996. It wishes to know what the effect of this decision is….

“Pending receipt of the information requested, the Committee defers its conclusion.”
(1 October 2003, Conclusions 2003 Vol. 1, page 300)

“The Committee wishes to know whether legislation prohibits all forms of corporal punishment of children, in schools, in institutions, in the home and elsewhere….”
(1 January 2001, Conclusions XV-2 vol. 1, pages 315-317)