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

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 with 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, n/a. doi: 10.1002/car.1128, cited in “Spanking And Other Forms Of Corporal Punishment Of Children Are Still Common In The U.S. And Worldwide, Despite Bans In 24 Countries”, Medical News Today, 10 August 2010)

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 is 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. In 2006-7, disabled students constituted 13.7% of the total student population but made up 18.8% of the number of students who were “paddled” (beaten with a wooden paddle). In the states which use the most corporal punishment, disabled students were up to twice as likely as non-disabled students to experience this form of corporal punishment. Disabled students were also spanked, slapped, pinched, dragged across the floor and thrown to the floor. (Human Rights Watch & American Civil Liberties Union (2009), Impairing Education: Corporal Punishment of Students with Disabilities in US Public Schools)

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)

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 under the Universal Periodic Review process in 2010. No recommendations were made concerning corporal punishment of children.

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.