Lawfulness of corporal punishment

Home

Corporal punishment is lawful in the home where parents have the right to administer “reasonable” punishment. Section 9 (6) of the Juveniles Act states: “Nothing in this section shall be construed as affecting the right of any parent, teacher or other person having the lawful control or charge of a juvenile to administer reasonable punishment to him.” This Act was repealed by the Child Care and Protection Act (2004), which does not contain an equivalent clause, but as at March 2007 the new Act was not yet in force.

Limited protection from violence and abuse is given by the Child Care and Protection Act (2004, section 9), the Offences Against the Person Act (sections 39-40), the Domestic Violence Act (1996) and the Constitution (1962, amended 2001).

Schools

Corporal punishment is lawful in schools, where the Education Act allows teachers to administer “reasonable punishment”. The Jamaican Teachers Association and the Jamaica Independent Schools Association have advised teachers not to flog or whip students but to leave the administration of such punishment to school principals, and in November 2006 the head of the Jamaican Teachers Association called for corporal punishment to be prohibited (reported in The Jamaica Observer, 17 November 2006). It is prohibited in “basic schools” (see below).

Penal system

Corporal punishment is unlawful as a sentence for crime. It was ruled unconstitutional by the Jamaica Court of Appeal in December 1998. It had been revived in 1994 after not being used as a sentence since the mid-1970s. The Criminal Justice (Reform) Act, the Corrections Act (1985, amended 1995) and the Juveniles Act make no provision for corporal punishment and the Constitution includes the right to fair and humane treatment by any public authority or essential entity in the exercise of any of its functions. The Juveniles Act, applicable to persons under the age of 17 years, is repealed by the Child Care and Protection Act, which makes no provision for corporal punishment in the penal system (sections 13, 63, 76 and 78). It would seem that the provisions for the administration of a sentence of flogging in the Flogging Regulation Act (1903) have not been repealed.

Corporal punishment is unlawful as a disciplinary measure in penal institutions under the Child Care and Protection Act. However, physical punishment is reportedly used at Tranquility Bay, run by the WorldWide Association of Speciality Programs and Schools, where young people in conflict with the law are sent from the Cayman Islands and elsewhere (though Jamaican students are not permitted to attend). It would seem that the provisions for “disciplinary” flogging in the Flogging Regulation Act have not been repealed.

Alternative care

Corporal punishment of children up to the age of 6 years in early childhood institutions (known as basic schools) is prohibited under the Act to Provide for the Regulation and Management of Early Childhood Institutions and for other Connected Matters, passed in January 2005. Under the Act, the use of corporal punishment and beatings on children is a punishable offence. Corporal punishment is prohibited in other institutions and forms of childcare in section 62 of the Child Care and Protection Act in Part III (“Children in Care”). It states: “A child in a place of safety, children’s home or in the care of a fit person shall have the following rights: … (d) to be free from corporal punishment; (e) to be informed of the child’s rights under this Act and the procedures available for enforcing those rights.” Under section 88(1)(d) of the Act the offence falls under the penalty provision of section 89 which states that on conviction the Judge of a Family Court or a Resident Magistrate’s Court my impose a fine of up to $250,000 and on failure to pay imprisonment of up to 3 months. Permitted disciplinary measure in children’s homes are prescribed by the Child Care and Protection (Children’s Homes) Regulations (No. 22 of 2005) and do not include corporal punishment.

Workplace

 No information.

Prevalence research

Focus group research with parents, children aged 5-8 years and practitioners in 2007 found that young children were still receiving corporal punishment despite the prohibition in the Early Childhood Act passed in 2005. (Reported in The Jamaica Observer, 6 June 2007)

According to a study reported in The Gleaner in March 2007, in a survey of teachers from all types of primary educationl settings, one in four admitted to flogging students often and one in three to pinching and thumping them. Boys were more likely to be flogged. Less than a quarter of teachers believed beating was effective, and almost half identified negative effects they had seen, including students becoming oppositional, aggressive, destructive towards school property, gathering peer support against teachers, and becoming “disconnected” from school activities. (Reported in Jamaica Gleaner Online, 21 March 2007)

203 parents (71.3% mothers, 6.4% fathers, and other caregivers) from across six parishes, of 100 boys and 103 girls aged between 5 and 7, completed questionnaires which were adminstered by trained interviewers, followed by an investigation into the frequency of use of specific disciplinary methods. Of the 193 parents who responded to questionnaires about the disciplinary methods they used in their homes, 28% reported that non-violent methods were most commonly used; 25.4% reported psychological aggression and 46.6% physical assault. Of those reporting physical assault, 1% reported pinching, 31.1% spanking, 13% beating with an object, 1% shaking, and 0.5% tying of hands. In the week prior to the interview, 1% reported spaking more than 7 times, 3.1% 4-6 times, and 27.4% 1-3 times. Beating with a strap was reported as occuring 1-3 times over the same period by 14.6% of respondents. (Samms-Vaughan, M., Williams, S. & Brown, J. (2004), Disciplinary Practices among parents of six-year-olds in Jamaica, University of the West Indies)

Research was undertaken into the experiences of 1,720 children aged 11-12 (51.5% girls, 48.4% boys; 68.7% in primary schools, 32.3% in secondary schools) on conflict resolution measures between themselves and adults at home and school (the schools were in two urban parishes). Overall, 97.2% of children reported a lifetime experience of verbal aggression or violence resulting from conflict with adults in the home, with 82.3% reporting verbal aggression, 87.4% minor violence, and 84.8% severe violence. The preferred methods of resolving conflict between adults and children in the home were pushing, grabbing and slapping (86%) or beating with an object (84.2%). The main cause of conflict was reported as disobedience (reported by 73.5% of children). The mother was most frequently reported as responsible for administering discipline (73.7%, cf. fathers 30.5%, uncles and aunts 9.2%, grandparents 7.6%, siblings 4.6% and step-parents 2.7%). With regard to conflict resolution between teachers and children, a total of 86.2% of children reported a lifetime prevalence of verbal aggression or physical violence, with verbal aggression reported by 49.3%, minor violence by 74% and severe violence by 75.4%. The most common forms of resolving conflict were reported as pushing, grabbing or slapping (with a lifetime prevalence of 70.8%) and beating with an object (75.3%). For 64% of children there were no incidents in the four weeks prior to the survey, but for some such incidents occurred daily. Most physical punishment was administered by the class teacher (83.3%), followed by the principal (9.1%), the vice principal (3.9%) and subject teachers (1.7%). (Samms-Vaughan, M. et al. (2004), “Jamaican Children’s Experiences of Corporal Punishment at Home and School” (University of the West Indies/Ministry of Health. University of Missouri-Columbia))

A survey conducted in July 2006 for The Gleaner found that 60% of respondents were in favour of spanking and caning in schools, with 28% feeling strongly that teachers should be given the right to physically punish students. Over a third (37%) opposed corporal punishment, including 13% who were strongly against it. (“Jamaica Gleaner-Bill Johnson Poll – Majority support caning in schools”, Jamaica Gleaner Online, 19 August 2006, www.jamaica-gleaner.com/gleaner/20060818/lead/lead4.html, accessed 19-8-06).

A study of 75 economically deprived families in 1994 found that 79% of the mothers polled had beaten their 2-5 year olds with an implement. (Reported in Davidson, T. (2006), “JA ranked 2^nd in the world for smacking kids”, The Jamaica Observer, 27 February 2006, www.jamaicaobserver.com)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee urges the State party to considerably strengthen its efforts to address and condemn violence in society, including violence against women and children, particularly in the context of the family, as well as in schools and other environments. Further, it recommends that the State party take steps to monitor and address any incidents of violence and sexual or other abuse against children and take measures to ensure the rehabilitation of traumatized and victimized children by, inter alia:

1. carrying out public education campaigns about the negative consequences of violence and ill-treatment of children and promoting positive, non-violent forms of conflict resolution and discipline, especially within the family and in the educational system;
2. taking all legislative measures to prohibit all forms of physical and mental violence, including corporal punishment and sexual abuse, against children in all contexts in society as well as taking effective measures for the prevention of violent acts committed within the family, in schools and by the police and other State agents, making sure that perpetrators of these violent acts are brought to justice, putting an end to the practise of impunity;
3. providing care, recovery and reintegration for child victims of direct or indirect violence and ensuring that the child victim is not revictimized in legal proceedings and that his/her privacy is protected;
4. taking into consideration the recommendations of the Committee adopted on its days of general discussion on children and violence (CRC/C/100, para.866 and CRC/C/111, paras.701-745);

“The Committee welcomes the State party’s progress in the field of education, but remains concerned about:
e) the use of corporal punishment in schools.

“The Committee recommends that the State party, in the light of the Committee’s general comment on article 29 (1) of the Convention (aims of education):
e) adopt appropriate legislative measures to combat the use of corporal punishment in the schools….”
(4 July 2003, CRC/C/15/Add.210, Concluding observations on second report, paras.33, 48 and 49)

“The Committee is concerned that in the framework of the legislative reform under way, a number of areas remain where national legislation has not yet been brought into full conformity with the provisions of the Convention, including its general principles, as reflected in articles 2, 3, 6 and 12. In this regard, the Committee’s concerns relate in particular to the definition of the child, the need to protect children against corporal punishment….

“The Committee suggests that the State party take additional measures to combat violence and abuse of children, including sexual abuse. Comprehensive school guidance programmes to address the needs of children exposed to violent conditions and crisis services for children should be expanded….”
(15 February 1995, CRC/C/15/Add.32, Concluding observations on initial report, paras.7 and 25)

Committee on Economic, Social and Cultural Rights

“The Committee is profoundly concerned about the violence that has apparently become widespread in the State party. It is reported that over 1,000 people have been murdered in the year 2001 alone and that “tribal” politics is such that warlords rule large sections of the capital city where they are involved in extortion, drugs and prostitution. The Committee is particularly concerned that violence – including domestic and sexual violence – is committed against women of all ages and against children. According to reports from non-governmental organizations, children are regularly flogged and even threatened with weapons and child-rearing practices include corporal punishment of children in the home and in schools. The fact that these acts are committed with impunity constitutes a serious violation by the State party of its Covenant obligations.”
(30 November 2001, E/C.12/1/Add.75, Concluding observations on second report, para.14)