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. 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. In Minnesota, examination of several laws 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

There is no prohibition at federal level of corporal punishment in all public and private 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)). Corporal punishment is unlawful in public schools in 31 states and the District of Columbia, though in some of these there is no explicit prohibition. Corporal punishment is unlawful in public and private schools in Iowa and New Jersey. It is lawful in public and private schools in 19 states.

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 a a sentence of the courts.

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 around 30 states which have prohibited by law all corporal punishment as a disciplinary measure in juvenile detention. In many others, policy states that corporal punishment should not be used but this has not been confirmed in legislation. 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 31 states. In the remaining 19 states and the District of Columbia, it is prohibited in some but not all such settings.

Prevalence research

A study in which researchers anonymously observed 106 discipline interactions between children ages 3-5 and their caregivers in public places found that in 23% of the interactions, the children were physically punished – for example, through having their arms pulled, being pinched, slapped or spanked. (Reported in All Michigan, 5 August 2012)

The Civil Rights Data Collection, a representative sample covering approximately 85% of school students, provided an analysis of data on school “discipline” from the school year 2009-2010. It found that students with disabilities were much more likely to experience physical restraint than students without disabilities: although only 12% of the sample had a disability, nearly 70% of students experiencing physical restraint in school had a disability. Hispanic students without disabilities were more likely to experience seclusion than other students without disabilities: 24% of students without disabilities were Hispanic, but 42% of students without disabilities who experienced seclusion were Hispanic. African-American students with disabilities were more likely to experience mechanical restraint than other students with disabilities: 21% of students with disabilities were African-American, but 44% of students with disabilities who experienced mechanical restraint were African-American. (Office for Civil Rights (2012), Civil Rights Data Collection March 2012, Washington DC: Office for Civil Rights)

A report by the North Carolina Department of Public Instruction stated that more than 600 students experienced corporal punishment once in North Carolina in 2010-2011, and over 150 students experienced it at least twice. In total, there were 891 uses of corporal punishment by 17 different school districts in 2010-2011. Children with disabilities represented 8% of the student population, but 22% of those experiencing corporal punishment. American Indian students comprised less than 2% of the student population, but experienced about 35% of the corporal punishment. More than 90% of the corporal punishment occurred in Robeson County, where American Indians represented 48% of the student population but 81% of students experiencing corporal punishment. (Reported in Star News Online, 3 February 2012, www.starnewsonline.com; Charlotte Observer, 3 April 2012)

A map created by Southern Echo in 2012 documents recorded incidents of school corporal punishment in 108 of the 152 school districts in Mississippi. Overall, 67 districts reported a decrease in the number of incidents of corporal punishment in the 2010-2011 school year compared to the 2009-2010 school year and 33 districts reported an increase in the number of incidents of corporal punishment. (Reported by Southern Echo, 19 January 2012, http://southernecho.org/s/?p=2439)

In a survey in North Carolina which involved nearly 3,000 mothers of children aged 3-27 months, 30% of respondents said that they had spanked their child in the past year. Eleven per cent of those who had spanked their child in the past year had done so more than 20 times. Five per cent of of mothers of 3 month olds said they had spanked them, and more than 70% of mothers of 23 month olds had done so. With every month of age, a child had 27% increased odds of being spanked. (Zolotor, A. J. et al. (2011), “The emergence of spanking among a representative sample of children under 2 years of age in North Carolina”, Frontiers in Child and Neurodevelopmental Psychiatry, 2(36), 1-8)

A large scale comparative study (World Studies of Abuse in the Family Environment (WorldSAFE)) which involved surveys with over 14,000 mothers of children aged under 18, carried out between 1998 and 2003, examined parental discipline in Brazil, Chile, Egypt, India, Philippines, and the United States. In the USA, 55% of children experienced “moderate” physical discipline (including being “spanked” on the buttocks, hit with an object, slapped on the face and having hot pepper put in their mouth). One per cent of children experienced harsh physical discipline (including being burnt, beaten up, kicked and smothered). More than a quarter of children (26%) experienced harsh psychological discipline such as being called names, being cursed and being threatened with abandonment. “Moderate” psychological discipline, including being yelled or screamed at or being refused food was experienced by 76% of children. Non-violent discipline, including explaining why a behaviour was wrong and telling a child to stop, was also widely used (experienced by 92% of children). The study found that rates of harsh physical discipline were dramatically higher in all communities than published rates of official physical abuse in any country, and that rates of physical punishment can vary widely among communities within the same country. (Runyan, D. et al (2010), “International Variations in Harsh Child Discipline”, Pediatrics, published online 2 August 2010, www.pediatrics.org)

A study of the relationship between gender and physical punishment in China, Colombia, Italy, Jordan, Kenya, Philippines, Sweden, Thailand and the US, which used interviews with around 4,000 mothers, fathers and children aged 7-10, found that in the US 38% of girls and 36% of boys involved in the study had experienced “mild” corporal punishment (spanking, hitting, or slapping with a bare hand; hitting or slapping on the hand, arm, or leg; shaking; or hitting with an object), and 4% of girls and 5% of boys had experienced severe corporal punishment (hitting or slapping the child on the face, head, or ears) by someone in their household in the past month. Smaller percentages of parents believed it was necessary to use corporal punishment to bring up their child: for girls, 17% of mothers and 11% of fathers believed it was necessary; for boys, 13% of mothers and 16% of fathers believed it was necessary. (Lansford, J. et al (2010), “Corporal Punishment of Children in Nine Countries as a Function of Child Gender and Parent Gender”, International Journal of Pediatrics)

A study found that fathers of children aged 1 year old with depression were more likely to spank their children. Over 1,700 fathers in cities in the USA were interviewed, of whom 7% had depression. 13% of non-depressed fathers and 41% of depressed fathers reported spanking their child in the past month, making depressed fathers nearly 4 times more likely to report spanking. The study authors noted that associations between maternal depression and spanking have been reported, and that the association may be directly related to symptoms of depression such as irritability and anger. (Davis, R. N. et al (2011), “Fathers' Depression Related to Positive and Negative Parenting Behaviors With 1-Year-Old Children”, Pediatrics, published online March 14 2011, www.pediatrics.org)

A 2010 report on the Judge Rotenberg Center, a residential facility and school for children and adults with mental disabilities, found that severe corporal punishment was widespread. Punishments included electric shocks, long-term restraint, food deprivation and isolation. (Ahern, L. & Rosenthal, E. (2010), Torture not Treatment: Electric Shock and Long-Term Restraint in the United States on Children and Adults with Disabilities at the Judge Rotenberg Center, Mental Disability Rights International)

Sixty-five per cent of three year olds in a sample of nearly 2,000 families had been “spanked” by one or both parents in the previous month. The study examined the prevalence of corporal punishment and intimate partner aggression, with 49% of the families reporting both of these. In about 15% of these families, bilateral aggression or violence between the parents was combined with a single parent spanking the child. (Taylor C.A. et al (2010), “Use of spanking for 3-year-old children and associated intimate partner aggression or violence”, Pediatrics 126, 415-424)

A study which tracked corporal punishment of 3-11 year olds from 1975 to 2002 found that 18% fewer children were slapped or spanked by caregivers in 2002 compared to 1975. However, in 2002, 79% of preschool-aged children were spanked, and nearly half of children aged eight and nine were hit with an object such as a paddle or switch. (Zolotor, A. J. et al (2010), “Corporal punishment and physical abuse: population-based trends for three-to-11-year-old children in the United States”, Child Abuse Review, 20(1), 57-66)

The CS Mott Children’s Hospital National Poll on Children’s Health 2010 presented various scenarios to over 1,500 parents of 2-17 year olds and asked how likely they were to use different discipline strategies. A third said they were very likely to spank (hit with a hand) or paddle (hit with a wooden paddle) their child. More parents of young children said they were very likely to spank (30% of parents of 2-5 year olds, 24% of parents of 6-12 year olds, 13% of parents of 13-17 year olds), while slightly more parents of older children said they were very likely to paddle their child (8% for 2-5 year olds, 10% for 6-12 year olds, 12% for 13-18 year olds). (C.S. Mott Children’s Hospital (2010), National Poll on Children’s Health, 16 April 2010, 9(4))

In 2009, a study by the American Civil Liberties Union (ACLU) and Human Rights Watch looked at corporal punishment of disabled children in American schools. The report, based on data from 202 interviews with parents, students, teachers, administrators, and special education professionals, and statistics from the Office for Civil Rights at the US Department of Education, shows that disabled students experience a high rate of “paddling” (beating with a wooden paddle). Disabled students made up 18.8% of students who experienced this form of corporal punishment in schools in 2006-7, despite constituting only 13.7% of the total student population. In the states which use the most corporal punishment, students with disabilities were up to twice as likely as non-disabled students to experience this form of corporal punishment. In addition to paddling, students with disabilities were also spanked, slapped, pinched, dragged across the floor and thrown to the floor. Most instances of corporal punishment uncovered by the report were in response to minor infractions of the rules such as lateness. Students with disabilities were also punished for behaviours connected to their disabilities – for example, students with autism were punished for rocking, spinning and other behaviours which were a direct result of their condition. (Human Rights Watch and American Civil Liberties Union (2009), Impairing Education: Corporal Punishment of Students with Disabilities in US Public Schools, www.hrw.org/node/84950)

In 2009, the US Government Accountability Office reviewed legislation on restraint and disciplinary techniques used in public and private schools and examined student death and abuse from these methods over the last 20 years. It discovered hundreds of allegations of death and abuse, nearly all of which involved disabled children. In several cases in which these techniques were proven to result in death or serious injury, the staff involved continued to be employed as educators. (United States Government Accountability Office (2009), Seclusions and Restraints: Selected cases of death and abuse at public and private schools and treatment centers)

A joint report by Human Rights Watch and the American Civil Liberties Union published in 2008 highlighted the extent of corporal punishment of children in schools. 181 interviews were carried out with parents, teachers, students and administrators, including interviews with 34 young people aged under 18 and 37 former students aged 18-26. The report states that, according to the Office for Civil Rights at the US Department of Education, more than 200,000 students were punished at least once in the 2006-2007 school year and notes that actual totals may well be higher. African-American students and disabled students were punished more frequently than others. The interviews focussed on Mississippi and Texas, where corporal punishment is widely used. They found that corporal punishment is used in response to a wide range of behaviours, including minor misdemeanors such as drinking in class and dress code violations. Corporal punishment usually takes the form of “paddling” or hitting a student on the buttocks and upper thighs with a wooden paddle, and in several cases had caused serious injury. (Human Rights Watch & American Civil Liberties Union (2008), A Violent Education: Corporal Punishment of Children in US Schools)

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, accessed 31 March 2010)

Federal statistics show that during the 2002-3 school year, more than 300,000 American schoolchildren were disciplined with corporal punishment, usually one or more blows with a thick wooden paddle. Sometimes holes were cut in the paddle to make the beating more painful. Of those students, 70% were in five Southern states: Texas, Mississippi, Tennessee, Alabama and Arkansas. (Reported in New York Times, 30 September 2006)

A report on foster homes and residential facilities in Texas documented several incidents of severe corporal punishment, including children being punched in the stomach, pushed down the stairs, thrown against walls, kicked and isolated. (Strayhorn, C.K. (2004), Forgotten Children: A Special Report on the Texas Foster Care System)

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.

In ratifying the International Covenant on Civil and Political Rights, the US entered a reservation stating that “the United States considers itself bound by article 7 to the extent that ‘cruel, inhuman or degrading treatment or punishment’ means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States”.

Universal Periodic Review

The US was examined in the first cycle of the Universal Periodic Review in 2010 (session 9). No recommendations were made specifically concerning corporal punishment of children. However, recommendations were made to ratify and incorporate into law the UN Convention on the Rights of the Child and to withdraw the reservation to the International Covenant on Civil and Political Rights, and the Government accepted these recommendations (A/HRC/16/11, Report of the Working Group, paras. 92(1)-(11), 92(13)-(25), 92(27), 92(34), 92(37)-(45) and 92(47)-(49)).

Examination in the second cycle is scheduled for 2015.

State-by-state analysis of the legality of corporal punishment in the US

Notes on schools:

1. Unless noted otherwise, state level prohibitions apply only to public schools.
2. 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.