Summary of law reform necessary to achieve full prohibition

Prohibition is still to be achieved in the home in all states and in schools, penal institutions and alternative care settings in many states.

State laws confirm the right of parents to inflict physical punishment on their children and legal provisions against violence and abuse are not interpreted as prohibiting all corporal punishment in childrearing. The near universal acceptance of corporal punishment in “disciplining” children necessitates a clear statement in law that all corporal punishment, however “light”, is prohibited and the repeal of all legal defences for its use.

Explicit prohibition should be enacted of corporal punishment in all schools, including private schools, in all institutions accommodating children in conflict with the law, and in all alternative care settings, including public and private day care, residential institutions, foster care, etc.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home in all states. In Minnesota, examination of several laws has led some legal experts to conclude that corporal punishment is not permitted in that state, but according to the legislation a parent, legal guardian or caretaker may use reasonable force to restrain or correct a child (Sec. 609.379. [Cr.]) and the Minnesota Court of Appeal has overturned convictions for physical abuse involving corporal punishment.

Schools

In 1977, the US Supreme Court found that the Eighth Amendment, which prohibits cruel and unusual punishment, did not apply to school students, and that teachers could punish children without parental permission (Ingraham v Wright, 430 U.S. 651 (1977)). Thirty states and the District of Columbia have passed laws prohibiting corporal punishment in public schools. In Iowa and New Jersey, this prohibition also covers private schools. In the remaining 20 states, corporal punishment is permitted unless banned by local boards.

Penal system

Corporal punishment as a sentence for crime has been ruled unconstitutional by the Supreme Court, and no federal or state laws permit its use as an element of criminal sentencing.

The 1977 Supreme Court ruling (see above) stated that the Eighth Amendment protected convicted criminals from corporal punishment. However, we have been able to identify only 32 states which have prohibited all corporal punishment of children as a disciplinary measure in juvenile detention by law. In many others, policy states that corporal punishment should not be used but this has not been confirmed in law. The American Correctional Association’s standards for juvenile detention facilities call for “written policy, procedure, and practice [that] protect juveniles from personal abuse, corporal punishment, personal injury, disease, property damage, and harassment”. The comment to the standard states: “In situations where physical force or disciplinary detention is required, only the least drastic means necessary to secure order or control should be used.” The National Juvenile Detention Association has passed a resolution which “opposes any policy or related procedure which advocates, promotes, or authorizes the use of offensive physical intervention techniques that allows staff to hit, kick, or strike juveniles”. The Detainee Treatment Act (2005) prohibits cruel, inhuman or degrading treatment and punishment of any person under the physical control of the state.

Alternative care

Corporal punishment is prohibited in all alternative care settings in 30 states. In the remaining 20 states and the District of Columbia, it is prohibited in some but not all such settings.

Prevalence research

In the 2006-2007 school year, 223,190 children were subjected to corporal punishment (paddling). African-American students make up 17% of all public school students but are 36% of those who were paddled. Almost 40% of all the cases of corporal punishment occur in just two states: Texas and Mississippi. (US Department of Education, Office for Civil Rights, analysis of data from the Center for Effective Discipline, www.stophitting.com/index.php?page=statesbanning, accessed 31 March 2010)

A telephone interview survey of 600 adults in each of the 50 states, carried out by SurveyUSA of Verona NJ in August 2005, found that overall almost three out of four (72%) supported the use of spanking as a disciplinary method (ranging from 55% in Vermont to 87% in Alabama), with almost one in four (23%) believing it acceptable for a teacher to spank a child (ranging from 8% in New Hampshire to 53% in Arkansas and Mississippi). Nearly one third (31%) believed it is acceptable to wash out a child’s mouth with soap (from 23% in Hawaii, Maryland and Massachusetts to 46% in Idaho). (SurveyUSA, Verona NJ, August 2005, Disciplining a Child 08/24/05, www.surveyusa.com/50StateDisciplineChild0805SortedbyTeacher.htm)

An ABC News telephone poll of a random national sample of 1,015 adults in 2002 found that overall 65% approved of spanking children, with 31% disapproving; 72% thought that teachers should not be permitted to spank children in school. (ABC News poll conducted by telephone, 25-29 October 2002; fieldwork by International Communications Research of Media, Pennsylvania)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

The USA has signed but not ratified the UN Convention on the Rights of the Child.

Legal status of corporal punishment of children in the USA

Notes on table

Schools: (i) Unless noted otherwise, in states in which there is no state level prohibition of corporal punishment, such punishment is permitted unless banned by local boards. In most of these states, it is up to local boards and schools to establish policies regulating the use of corporal punishment. (ii) Unless noted otherwise, state level prohibitions apply only to public schools.

Penal system: Corporal punishment as a sentence for crime has been ruled unconstitutional by the Supreme Court, and no federal or state laws permit its use as an element of criminal sentencing. We have identified 32 states which prohibit in law corporal punishment as a disciplinary measure in juvenile detention centres, together with some which have a policy stating it should not be used. In others we have been unable to locate an explicit prohibition in state laws available on the world wide web, but have not had access to all subsidiary regulations or policies. The American Correctional Association’s standards for juvenile detention facilities call for “written policy, procedure, and practice [that] protect juveniles from personal abuse, corporal punishment, personal injury, disease, property damage, and harassment”. The comment to the standard notes: “In situations where physical force or disciplinary detention is required, only the least drastic means necessary to secure order or control should be used.” The National Juvenile Detention Association has passed a resolution which “opposes any policy or related procedure which advocates, promotes, or authorizes the use of offensive physical intervention techniques that allows staff to hit, kick, or strike juveniles”.