Lawfulness of corporal punishment

Home

Corporal punishment is lawful in the home. The Code on Children and Adolescents (2000, amended 2007) states (article 74): “The duties and rights of parents who exercise custody include: … (d) Providing [children] with good examples and correcting them moderately. When this action is not sufficient, they can turn to the competent authority.” A similar provision in the Civil Code (1984, as modified by the Code on Children and Adolescents) states (article 423): “Duties and rights of parents who have custody include (3) Moderately correcting their children, and, when this is not sufficient, seeking assistance from judicial authorities, requesting that the child be placed in an establishment dedicated to the reeducation of children and adolescents.” Children must respect and obey their parents under the Code on Children and Adolescents (article 24), the Civil Code (article 454) and the Constitution (1993) (article 6). The same laws place an obligation on parents to protect, educate and care for their children (article 8, articles 235 and 418, and article 6 respectively).

Misuse of the means of correction or discipline is punishable under article 128 of the Criminal Code (1991). Other protection against violence and abuse is provided by other provisions in the Criminal Code (articles 121, 122 and 441) and the Code on Children and Adolescents, and the recognition of the right to physical integrity in the Constitution. Article 2 of the Law on Protection against Domestic Violence (2000) includes “abuse without injury” in its definition of domestic violence, punishable under article 441 of the Criminal Code.

As at February 2007, legislation to prohibit all corporal punishment, including in the family, had been drafted by the Andean Commission of Jurists and reviewed and approved by a group of national and international NGOs which have agreed to support its introduction into parliament. The People’s Ombudswoman has given her full support to the initiative.

Schools

Corporal punishment is forbidden in schools by Supreme Decree No 007-2001-ED, Approval of Norms for the Management and Development of Activities in Educational Centres and Programmes (2001), but there is no explicit prohibition in law. Under the Code on Children and Adolescents the goal of education is the person’s development and his or her dignity and fundamental rights and freedoms must be respected (article 15), and children must be respected by their teachers (article 16). The child’s dignity and physical well-being is also provided for in the General Education Law (2003) (article 53) and the Constitution (article 15). Article 128 of the Criminal Code (see above) applies.

Penal system

Corporal punishment is not among the permitted sentences for crime in the Code on Children and Adolescents (4^th Chapter) or the Criminal Code. Article 2 of the Constitution prohibits torture and inhuman or humiliating treatment.

There is no explicit prohibition of corporal punishment of children and young persons as a disciplinary measure in penal institutions. Article 240 of the Code on Children and Adolescents states: “During detention, the adolescent has the right … a) to decent treatment; l) to challenge disciplinary measures taken by authorities of the institution.” There is no provision for corporal punishment in the Penal Execution Code, which allows for re-education, reincorporation and treatment of the prisoner (article 2). Article 128 of the Criminal Code (see above) applies.

Alternative care

There is no explicit prohibition of corporal punishment in other institutions and forms of childcare. Provisions against violence in the Code on Children and Adolescents and article 128 of the Criminal Code (see above) apply.

Workplace

There is no explicit prohibition of corporal punishment of children in situations of employment. Under article 71 of the Constitution, the State pledges special treatment for children in all measures concerning labour relations. Under article 23, no labour relationship can restrict the enjoyment of constitutional rights or ignore or undermine the worker’s dignity. Article 128 of the Criminal Code (see above) also applies.

Prevalence research

In 2004, interviews were carried out with 870 female carers of children below the age of 10 years (95% mothers, 5% aunts, cousins and grandmothers) from six communities, as part of a project sponsored by Save the Children Canada and Save the Children UK to establish a community network for the eradication of corporal punishment. The majority (80%) believed corporal punishment necessary to educate their children; 52% believed ear pulling, slapping, or hitting with a belt or stick acceptable; and 20% believed corporal punishment helps children learn to obey. Just over a quarter (27%) felt that corporal punishment was not good but used it nevertheless, while only 16% stated that they did not use corporal punishment. In interviews with young children (aged 4-5 years), 96% reported having been physically punished for “bad behaviour”. (Base line project sponsored by Save the Children Canada and Save the Children UK in San Juan de Lurigancho – Lima, reported in International Save the Children Alliance, 2005, Ending Physical and Humiliating Punishment of Children – Making it Happen: Global Submission to the UN Study on Violence against Children, Save the Children Sweden)

In 2002, Save the Children surveyed 1,555 children and adolescents and 689 teachers, parents and other adults who work with children. Nearly half the children (48.2%) reported being “occasionally” punished in the home, 5.1% “frequently”, 30.4% “never”. The responses from adults were comparable, with 46.9% stating that they had been “occasionally” punished in their homes, 11.2% “frequently”, and 23.5% “never”. Just under one in five (18.8%) reported being “occasionally” punished in school, 1.8% “frequently”, and 39.7% “never” – but 39.7% did not respond regarding school corporal punishment. Boys reported being punished more often than girls in school (23% compared with 13%). (Reported in International Save the Children Alliance, 2005, Ending Physical and Humiliating Punishment of Children – Making it Happen: Global Submission to the UN Study on Violence against Children, Save the Children Sweden)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“While the Committee welcomes that there are legal provisions in place to prohibit corporal punishment both in the Penal Code and in Law No 26260, it expresses concern that corporal punishment is lawful at home and is still widely practiced in the society as an accepted measure of discipline, both within the family and at school. Furthermore, the Committee is concerned that a recent survey showed that children themselves regard this practice as a natural means of discipline and education.

“The Committee recommends that the State party introduce and enforce legislation explicitly prohibiting all forms of corporal punishment of children in all settings, including in the home. The State party should also conduct awareness raising and public education campaigns against corporal punishment and promote non-violent, participatory methods of childrearing and education.”
(14 March 2006, CRC/C/PER/CO/3, Concluding observations on third report, paras. 42 and 43)

“The Committee welcomes the legislative reforms aiming at preventing and combating domestic violence, but it remains concerned that physical and sexual abuse of children – within and outside the family – is a widespread phenomenon in the State party. In light of, inter alia, articles 3, 6, 19, 28 (2) and 39 of the Convention, the Committee recommends that the State party continue taking effective measures to prevent and combat abuse and ill-treatment of children within the family, at school and in society at large, including through setting up multidisciplinary treatment and rehabilitation programmes. It suggests, inter alia, that law enforcement should be strengthened with respect to such crimes; that adequate procedures and mechanisms to deal effectively with complaints of child abuse should be reinforced in order to provide children with prompt access to justice; and that the use of corporal punishment at home, in schools and other institutions be explicitly prohibited by law. Furthermore, educational programmes should be established to combat traditional attitudes within society regarding this issue…”
(22 February 2000, CRC/C/15/Add.120, Concluding observations on second report, para. 22)