Lawfulness of corporal punishment

Home

Corporal punishment is lawful in the home. Under the Civil Code a child is subject to “parental power” (article 818), but this may be removed if it is abused (article 834).

The Penal Code provides protection from violence leading to bodily injury (article 204), physical violence without bodily injury (article 208) and intimidation (article 222), but does not prohibit all corporal punishment. The definition of abuse in the Revised Child Abuse Prevention Law (in effect from 2004) includes violence which causes or may cause bodily injury and “behaviour and words that inflict psychological trauma to a child” (article 2). Other applicable legislation includes the Law Concerning Punishment of Physical Violence and Others.

Schools

Corporal punishment was first prohibited in schools in 1879. The law was repealed in 1885, but the prohibition reintroduced in 1890 under the Law for Primary Schools. The prohibition was again repealed in 1900 and reinstated in 1941. Corporal punishment has been continuously prohibited since the end of the Second World War. The School Education Law (1947) states that disciplinary punishment may be inflicted but “in no case is corporal punishment permitted” (article 11). In early 2007, the government definition of corporal punishment was amended so that ordering students out of the classroom and giving after-school detention, for example, no longer constitutes physical punishment. New Ministerial guidelines prohibit teachers from inflicting corporal punishment, including causing physical pain.

According to the Ministry of Education, boards of education nationwide punished 4,086 teachers in the fiscal year 2005, including 447 teachers who physically punished students (reported in The Japan Times Online, 4 January 2007). Official figures for previous years show that corporal punishment cases numbered 236 in 2000, 252 in 2001, 236 in 2002 and 275 in 2003 (fifth state party report to the UN Human Rights Committee, 2006, CCPR/C/JPN/5, para. 368).

Penal system

Corporal punishment is unlawful as a sentence for crime and as a disciplinary measure in penal institutions. A juvenile committed to a home for juvenile training and education or to a home for dependent children is received under the Revised Child Welfare Law (1997). Treatment of juveniles in correctional institutions is covered by the Juvenile Law. Article 36 of the Constitution prohibits the use of torture and cruel punishments by public officers. Other applicable law includes the Act on Penal and Detention Facilities and the Treatment of Inmates (2005, amended 2006).

Alternative care

Corporal punishment is reportedly prohibited in day care and residential institutions for children. However, heads of Child Welfare Institutions exercise parental authority until someone is found to exercise parental authority or guardianship and it would seem that corporal punishment could be administered in such circumstances. It is lawful in foster care as for parents. Applicable legislation includes the Revised Child Welfare Law.

Workplace

No information.

Prevalence research

A retrospective survey was conducted in 1998 on the socialisation of pre-school and school-age children (aged 3-12 years), and included an examination of children’s experiences of and opinions about being praised or scolded. Overall, it was found that more than 80% of children had been hit by their parents, with other punishments reported including making children stay outside, reprimanding them, restricting their activities and ignoring them. (Benesse Educational Research Centre, 1999, Kosodate seikatsu kihon chosa houkokusholl Kenkyu shoho, vol. 19, Tokyo: Benesse Corporation, reported in Save the Children, 2005, Discipline and punishment of children: a rights-based review of laws, attitudes and practices in East Asia and the Pacific – Save the Children Sweden Southeast Asia and the Pacific, regional submission to the UN Secretary General’s Global Study on Violence against Children, Save the Children Sweden)

According to Ministry of Education reports, schools using and suspected of using corporal punishment during the years 1990 to 1995 numbered from 600 to 850 per year, about 2% of all public schools. The number of cases of corporal punishment reported during the period was 700 to 1,000 per year, with 30% to 45% of teachers responsible receiving legal sanctions. The figures show an increase in the use of corporal punishment over the period. (Kobayashi, N., Tanimura, M. & Shimauchi, Y., 1997, “Corporal punishment in the schools and homes of Japan”, IPA Journal (INCH), vol.8, no.3 Pre-congress workshops: Prevention of childhood injuries: intentional and unintentional – 9th Asian Congress of Paediatrics, Hong Kong, 22-23 March 1997)

A retrospective survey of 600 mothers of 13-year-old children, carried out by the Educational Research Center, Benesse Corporation, found that 56% had received corporal punishment once or more since primary school, with the number of children increasing with age and more commonly for boys than girls. Nearly half the children felt the punishment had been severe or too severe. 50% of mothers accepted or tolerated the punishment because their child had misbehaved; 16% denied their child had misbehaved; and only 20% objected to the teacher’s use of corporal punishment. 14% of mothers felt that punishment was an effective discipline tool; 68% approved of occasional punishment; 17% disapproved of corporal punishment on any occasion. (Fukaya, K., 1986, Corporal punishment monograph: Primary school children now, Educational Research Center, Fukutake Shoten, Benesse Corp. Cited in Kobayashi, N., Tanimura, M. & Shimauchi, Y., 1997, “Corporal punishment in the schools and homes of Japan”, IPA Journal (INCH), vol.8, no.3 Pre-congress workshops: Prevention of childhood injuries: intentional and unintentional – 9th Asian Congress of Paediatrics, Hong Kong, 22-23 March 1997)

Of the 435 cases of child abuse encountered at paediatric departments of general and children’s hospitals registered with the Department of Child Ecology, National Children’s Medical Research Center, and the National Children’s Hospital from 1986 to 1995, the rationale of “discipline and education” or the child’s misbehaviour was given in 36.3% of cases. (Kobayashi, N., Tanimura, M. & Shimauchi, Y., 1997, “Corporal punishment in the schools and homes of Japan”, IPA Journal (INCH), vol.8, no.3 Pre-congress workshops: Prevention of childhood injuries: intentional and unintentional – 9th Asian Congress of Paediatrics, Hong Kong, 22-23 March 1997)

In a survey by the All Japan Parents and Teachers Association in 1996, only 25.6% of respondents stated that corporal punishment should never be administered by a teacher. (Goodman, 2003, cited in Save the Children, 2005, Discipline and punishment of children: a rights-based review of laws, attitudes and practices in East Asia and the Pacific, Save the Children Sweden)

Research into teachers’ opinions about corporal punishment was reported in a news article in 1987. A questionnaire survey administered by the Kobe Municipal Teachers Union to all its members found that around 60% of junior high school teachers felt corporal punishment was necessary – 7% said they believed corporal punishment was necessary under present conditions, 59% said they had felt at times that it was needed, and 32% disapproved of corporal punishment. In elementary schools, 2% of teachers supported corporal punishment, 47% said it was sometimes necessary, and 49% were against it. (“Many Japanese teachers favor corporal punishment”, Nichi Bei Times, San Francisco, USA, 21 November 1987)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee notes with concern that corporal punishment, although legally prohibited in schools, is widely practised in schools, institutions and the family.

“The Committee recommends that the State party:

1. prohibit corporal punishment in institutions and the home;
2. carry out public education campaigns about the negative consequences of ill-treatment of children in order to change attitudes towards corporal punishment, and promote positive, non-violent forms of discipline in schools, institutions and at home as an alternative to such punishment;
3. strengthen complaints mechanisms for children in institutions and schools to ensure that they deal with complaints of ill-treatment effectively and in a child-sensitive manner.”
   

(26 February 2004, CRC/C/15/Add.231, Concluding observations on second report, paras. 35 and 36 (a, b and c))

“The Committee is concerned about the increase of child abuse and ill-treatment, including sexual abuse, within the family. The Committee notes with concern that insufficient measures have been taken to ensure that all cases of abuse and ill-treatment of children are properly investigated, sanctions applied to perpetrators and publicity given to decisions taken. It is also concerned about the insufficient measures taken to ensure the early identification, protection and rehabilitation of abused children.

“The Committee is concerned at the frequency and level of violence in schools, especially the widespread use of corporal punishment and the existence of numerous cases of bullying among students. While legislation prohibiting corporal punishment and such measures as hot lines for victims of bullying do exist, the Committee notes with concern that current measures have been insufficient to prevent school violence.

“In light of, inter alia, articles 3, 19 and 28.2 of the Convention, the Committee recommends that a comprehensive programme be devised and its implementation closely monitored in order to prevent violence in schools, especially with a view to eliminating corporal punishment and bullying. Additionally, it recommends that corporal punishment be prohibited by law in the family and in child-care and other institutions. The Committee also recommends that awareness-raising campaigns be conducted to ensure that alternative forms of discipline are administered in a manner consistent with the child’s human dignity and in conformity with the Convention.”
(5 June 1998, CRC/C/15/Add.90, Concluding observations on initial report, paras. 19, 24 and 45)