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Report updated January 2014

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Child population
956,000 (UNICEF, 2011)

Summary of law reform necessary to achieve full prohibition

Prohibition is still to be achieved in the home, day care and schools.

The right to inflict “reasonable and moderate” punishment on children is recognised in common law. It does not appear to be confirmed in written law, but legal provisions against violence and abuse are not interpreted as prohibiting corporal punishment in childrearing. The near universal acceptance of violence in childrearing necessitates clarity in law that no degree or kind of corporal punishment is acceptable or lawful. Explicit prohibition should be enacted of all corporal punishment in all settings, including the family home and all settings where adults have authority over children, together with explicit repeal of the common law defence.

Day care – Legislation should explicitly prohibit corporal punishment in all formal early childhood care and care for older children, including crèches, after-school childcare, childminding, etc.

Schools – Explicit prohibition should be enacted in relation to all schools, public and private, in addition to repeal of the common law defence.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home under the common law right to inflict “reasonable and moderate” punishment. The Child Care and Protection Act 2004 does not confirm a right to administer punishment or similar, but provisions against violence and abuse in that Act and in the Offences Against the Person Act 1864, the Domestic Violence Act 1996 and the Constitution 1962 and its Charter of Fundamental Rights and Freedoms 2011 are not interpreted as prohibiting corporal punishment in childrearing. In 2012, Parliament passed the National Parenting Support Commission Act 2012 which aims to support implementation of the National Parenting Policy. The Act does not prohibit corporal punishment in childrearing: we have yet to establish whether or not the issue is addressed in the National Parenting Policy.

A review of the Child Care and Protection Act 2004, including a review of the legality of corporal punishment in the home, was expected to be completed by the end of 2013.

Alternative care settings

Corporal punishment is unlawful in alternative care settings. It is prohibited in institutions and other forms of childcare in article 62 of the Child Care and Protection Act 2004: “A child in a place of safety, children’s home or child in the care of a fit person shall have the following rights – ... (d) to be free from corporal punishment….” Permitted disciplinary measures in children’s homes are prescribed by the Child Care and Protection (Children’s Homes) Regulations No. 22 2005, which states in article 17: “(1) No licensee or member of staff of any children's home shall strike, cuff, slap or use any other form of physical violence towards any child who resides or is at the home. (2) No child at a children’s home shall be permitted to administer any form of punishment upon any other child at the home.”

Day care

Corporal punishment appears to be prohibited in some but not all day care. It is prohibited in early childhood institutions in the Act to Provide for the Regulation and Management of Early Childhood Institutions and for other Connected Matters 2005 (art. 16(1)): “Corporal punishment shall not be inflicted on a child in an early childhood institution.” An early childhood institution is defined in the Act as “a setting that provides developmentally appropriate care, stimulation, education and socialisation, for children under the age of six years, including day care centres and basic schools” (art. 2). There appears to be no explicit prohibition in relation to other forms of day care, including day care for older children.

Schools

Corporal punishment is lawful in schools, with the exception of “basic schools” (see under “Day care”). There is no provision for it in the Education Act 1965 or in the Education Regulations 1980, but a teacher is justified in administering “moderate and reasonable” corporal punishment under common law.[1]

The Government has stated its intention to abolish corporal punishment in schools and has informed all public schools not to use it.[2] In 2011, the Government stated it was seeking law reform to abolish corporal punishment through the development of a safe school policy to be tabled in Parliament for approval.[3] It is not clear whether this would lead to prohibition in law, including repeal of the common law defence, or remain at the level of policy. It appears that no Bill which would prohibit corporal punishment in schools has yet been tabled in Parliament.

Penal institutions

Corporal punishment is unlawful as a disciplinary measure in penal institutions under article 62 of the Child Care and Protection Act 2004 (see under “Alternative care settings”). The Flogging Regulation Act 1903, which provided for disciplinary corporal punishment, was repealed in the Law Reform (Flogging and Whipping) (Abolition) Act 2013.

Sentence for crime

Corporal punishment is unlawful as a sentence for crime. It was ruled unconstitutional by the Jamaican Court of Appeal in December 1998 and there is no provision for it in the Criminal Justice (Reform) Act 1978, the Corrections Act 1985 and the Child Care and Protection Act 2004. The Law Reform (Flogging and Whipping) (Abolition) Act 2013 states in article 2: “(1) The imposition of flogging or whipping as a penalty for any offence is abolished. (2) Every reference to flogging or whipping, as a penalty for an offence, appearing in any enactment, is declared to be of no effect….” The Act repeals the Flogging Regulation Act 1903 and the Crime (Prevention of) Act 1942. Provisions for whipping in the Obeah Act 1898 and the Larceny Act 1942 were repealed in the Obeah (Amendment) Act 2013 and the Larceny (Amendment) Act 2013 respectively.

Prevalence/attitudinal research in the last ten years

In a 2008-2009 study involving 6,435 women aged 15-49 with children, 53.3% reported that children in their home were punished by being hit, beaten, spanked or slapped. Women who had experienced partner violence were more likely to report that children in their home were physically punished: 64.5% of women who had experienced partner violence compared with 52.1% of women who had not.[4]

In a study involving six focus groups with 60 children aged 7-12 and eight parent focus groups with 44 adults, all groups of children described experiencing harsh disciplinary measures, including beatings with objects such as belts, rulers, garden hose and boards. Many of the children said they felt angry and hurt by physical punishments, and recommended discussion and withdrawal of privileges as alternatives. Some children said that when they were parents they would use more democratic or flexible discipline, while others said they wanted to hurt their own children as much as they had been hurt. Almost all parents defended the use of corporal punishment (“beating”) as a justified mode of disciplining children.[5]

According to a 2010 UNICEF report, 89% of children aged 2-14 experienced violent “discipline” (physical punishment and/or psychological aggression) in 2005-2006. Over three quarters experienced physical punishment, while a smaller percentage (33%) of mothers and caregivers thought physical punishment was necessary in childrearing; non-violent discipline was also widely used, experienced by 89% of children. Nine per cent of children experienced severe physical punishment (being hit or slapped on the face, head or ears or being hit over and over with an implement) and 77% experienced psychological aggression (being shouted at, yelled at, screamed at or insulted). Children aged 5-9 were more likely to experience violent discipline than those of other ages: 92% of children aged 5-9 compared with 90% of children aged 2-4 and 86% of children aged 10-14. Children living in households with adults with a higher average level of education were less likely to experience violent discipline than those living with less educated adults. Children engaged in child labour experienced violent discipline more than those not engaged in child labour: 95% compared with 89%. No significant differences in children’s experience of violent discipline were found according to sex or household size.[6]

UNICEF analysis of data in 2009 found that 6% of disabled children and 6% of non-disabled children were hit or slapped on the face, head or ears or hit over and over as hard as possible with an implement in 2005-2006; 6% of girls and women aged 15-49 thought that a husband is justified in hitting or beating his wife under certain circumstances.[7]

A 2010 Government-sponsored attitudinal survey of 1,000 adults, carried out by Market Research Services Limited, revealed that the majority – regardless of socio-economic status – believe beating a child is necessary in correcting bad behaviour; 30% supported ending the beating of children. More than half (51.8%) did not agree that acts such as pinching, hitting the head, biting, kicking and thumping a child constituted corporal punishment; 51% said they had physically punished a child. However, 80% of those surveyed agreed that parents could use other forms of discipline which are just as effective.[8]

In a survey of teachers from all types of primary educational settings, reported in 2007, 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.[9]

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.[10]

A 2006 survey 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.[11]

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….”
(15 February 1995, CRC/C/15/Add.32, Concluding observations on initial report, para.7)

Committee on Economic, Social and Cultural Rights

“While noting the establishment of various State agencies to ensure the protection of children, including the Child Development Agency, the Office of the Children’s Advocate and the Office of the Children’s Registry, as well as the adoption of the Child Care and Protection Act, the Committee remains deeply concerned at high levels of violence, use of corporal punishment in the home and in schools, abuse, neglect and sexual exploitation of children, as well as child victims’ lack of access to psychosocial support. It is also deeply concerned at reports of sexual, physical and mental abuse of children at the hands of caregivers in the State party’s children’s homes and places of safety supervised by the Child Development Agency (art. 10).

The Committee strongly urges the State party to eradicate all forms of violence against children, including through the assistance of relevant United Nations agencies operating in the State party, in particular the United Nations Children’s Fund (UNICEF), by adopting concrete measures to: ...
b) prohibit all forms of corporal punishment in all settings, including within the family….”
(10 June 2013, E/C.12/JAM/CO/3-4, Concluding observations on third/fourth report, para. 20)

“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)

Human Rights Committee

“While recognizing that corporal punishment as a penalty for crime has been abolished by judicial decision, the Committee expresses its regret that it remains legal in the State party, which permits its use in the education system and the home, where it traditionally continues to be accepted and practised as a form of discipline by teachers, parents and guardians (arts. 7 and 24).

The State party should take practical steps to put an end to corporal punishment in all settings by passing the bill that seeks to repeal the Flogging Regulations Act and the relevant provisions of the Crime (Prevention of) Act. The State party should promote non-violent forms of discipline as alternatives to corporal punishment, and should conduct public information campaigns to raise awareness about its harmful effects.”
(17 November 2011, CCPR/C/JAM/CO/3, Concluding observations on third report, para. 20)

“The Committee is deeply concerned about the fact that the Flogging Regulation Act, 1903 and the Crime (Prevention of) Act, 1942 are still in force, which provide for and regulate corporal punishment both as a penalty for certain crimes and as a penalty for breach of prison rules of other regulations. In this regard:

The Committee recommends that both Acts be repealed, as they are contrary to article 7 of the Covenant.”
(19 November 1997, CCPR/C/79/Add.83, Concluding observations on second report, para. 15)

Universal Periodic Review

Jamaica was examined in the first cycle of the Universal Periodic Review in 2010 (session 9). During the review, the Government stated that corporal punishment was forbidden in the education system and in state childcare facilities.[12] The following recommendation was made and was accepted by the Government, stating that it considered it already implemented or in the process of implementation:[13]

“Ensure that the new detention centres, which will be established in accordance with the auditing mentioned in the national report, comply with international standards, in particular regarding separation of minors from adults and the prohibition of corporal punishment (Mexico)”

Examination in the second cycle is scheduled for 2015.

Notes:
1. Ryan v Fildes [1983] 3 All E.R.517
2. Ministry of Education School Bulletin 94/08
3. 11 July 2011, CCPR/C/JAM/Q/3/Add.1, Written reply to Human Rights Committee list of issues, para. 83
4. Bott, S. et al (2012), Violence Against Women In Latin America And The Caribbean: A Comparative Analysis Of Population-based Data From 12 Countries, Washington DC: Pan American Health Organisation & Centers for Disease Control and Prevention
5. Brown, J. & Johnson, S. (2008), “Childrearing and child participation in Jamaican families”, International Journal of Early Years Education: 16 (1), 31–40
6. UNICEF (2010), Child Disciplinary Practices at Home: Evidence from a Range of Low- and Middle-Income Countries, NY: UNICEF
7. UNICEF (2009), Progress for Children: A report card on child protection, NY: UNICEF
8. Reported in The Gleaner, 17 February 2010
9. Reported in Jamaica Gleaner Online, 21 March 2007
10. Reported in The Jamaica Observer, 6 June 2007
11. Reported in Jamaica Gleaner Online, 19 August 2006
12. 4 January 2011, A/HRC/16/14, Report of the working group, para. 35
13. ibid., para. 99(10)

This analysis has been compiled from information from governmental and non-governmental sources, including reports on implementation of the Convention on the Rights of the Child. Every effort is made to maintain its accuracy. Please send us updating information and details of sources for missing information: info@endcorporalpunishment.org.

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