 |
||
 |
|
Legislative measures to prohibit corporal punishment
This area of the website is designed to accompany the Global Initiative handbook Prohibiting corporal punishment of children: A guide to legal reform and other measures (December 2007), available here [LINK] as a pdf. These resources are also available as a separate pdf file here. We welcome further information about other legal and other resources to support prohibition: please email info@endcorporalpunishment.org.
Prohibition in juvenile justice systems
Prohibition as a sentence for crime
South Africa
Judicial corporal punishment was prohibited following a 1995 Constitutional Court judgement (The State v Williams et al, Constitutional Court, 9 June 1995, 1995(3) SA 632 (CC)), when the Abolition of Corporal Punishment Act (1997) was enacted. It illustrates the need for both an explicit statement prohibiting corporal punishment and the need to repeal all existing laws providing for such punishment. It states:
Abolition of corporal punishment
- Any law which authorises corporal punishment by a court of law, including a court of traditional leaders, is hereby repealed to the extent that it authorises such punishment.
Amendment or repeal of laws
- The laws mentioned in the Schedule are hereby amended or repealed to the extent indicated in the third column thereof.
Short title
- This Act shall be called the Abolition of Corporal Punishment Act, 1997.
Schedule 2 of the Act lists the laws amended or repealed by section 2, namely the Black Administration Act (1927), the Magistrates’ Courts Act (1944), the Witchcraft Suppression Act (1957), the Stock Theft Act (1959), the Animals Protection Act (1962), the Dangerous Weapons Act (1968), the National Parks Act (1976), and the Criminal Procedure Act (1977).
Trinidad and Tobago
As in South Africa, explicit prohibition of judicial corporal punishment was achieved through repeal of laws under which it was authorised, as exemplified by parts IV and V of the Miscellaneous Provisions (Children) Act No. 66 (2000), though in this case judicial corporal punishment of adult offenders was retained:
PART IV
THE CORPORAL PUNISHMENT (OFFENDERS NOT OVER SIXTEEN) ACT, CHAP. 13:03
6. In this Part, “the Act” means the Corporal Punishment (Offenders Not Over Sixteen) Act.
7. The Act is repealed.
PART V
THE CORPORAL PUNISHMENT (OFFENDERS OVER SIXTEEN) ACT, CHAP. 13:04
8. In this Part, “the Act” means the Corporal Punishment (Offenders Over Sixteen) Act.
9. The long title of the Act is amended by deleting the word “Sixteen” and substituting the word “Eighteen”.
10. The short title of the Act is amended by deleting the word “Sixteen” and substituting the word “Eighteen”.
11. Section 2 of the Act is amended by deleting the word “Sixteen” and substituting the word “Eighteen”.
Prohibition in penal institutions
Hong Kong
Prohibition is achieved for the most part by omitting corporal punishment from permitted disciplinary measures. It is not included among permitted disciplinary measures in the Prison Rules (1954, amended 1997), the Reformatory School Rules (1959, amended 1990), the Detention Centre Regulations (1972, amended 1990) or the Rehabilitation Centres Regulation (2001). It is explicitly prohibited – and defined – in the Probation of Offenders Rules (rule 37):
(2) (a) No corporal punishment of any kind shall be inflicted on a probationer in an approved institution;
(b) For the purpose of this rule the term “corporal punishment” includes striking, cuffing or shaking or the intentional infliction of any form of physical pain as a means of punishment.
United States
In the state of Colorado, the Department of Corrections published a Code of Penal Discipline (2004) which provides a list of sanctions available for use in the case of breaches of internal discipline. Paragraph 9 of section p states:
Under no circumstances should corporal punishment of any kind be administered to any offender.
In Florida, the rules of the Department of Corrections provides for a number of responses to staff who violate the prohibition of corporal punishment. Section 33-208.003 (“Range of Disciplinary Actions”) states (original emphasis):
Violations of the foregoing Rules of Conduct as well as other departmental, and institutional policies will result in disciplinary actions, which may be by oral reprimand, written reprimand, reassignment, transfer in excess of 50 miles, suspension, reduction in pay, demotion or dismissal.
Any employee who feels that unjust disciplinary action such as an oral or written reprimand has been given, has the right to submit a grievance as established by the grievance procedures of the Department of Corrections. For disciplinary actions involving reassignment, transfer in excess of 50 miles, suspension, reduction in pay, demotion, or dismissal, permanent Career Service employees have the right to appeal to the Career Service Commission. Violation of more than one rule shall be considered in the application of discipline and may result in greater discipline than specified for one offense alone.
Any questions regarding these rules and personnel procedures should be referred to the employee’s circuit administrator, warden or Personnel Manager.
The preceding section titled Rules of Conduct and the following list of offenses and work deficiencies with their ranges of disciplinary actions will be used by this Department in administering an effective disciplinary program.
THE SEVERITY OF PENALTIES MAY VARY DEPENDING UPON THE FREQUENCY AND NATURE OF A PARTICULAR OFFENSE AND THE CIRCUMSTANCES SURROUNDING EACH CASE. WHILE THE FOLLOWING GUIDELINES ARE NOT A SUBSTITUTE FOR IMPARTIAL SUPERVISION AND EFFECTIVE MANAGEMENT, AND DO NOT SET ABSOLUTE MINIMUM AND MAXIMUM PENALTIES, IT IS EXPECTED THAT ALL SUPERVISORS WILL CONSIDER THEM IN REACHING DISCIPLINARY DECISIONS.
...
(20) Use of Corporal Punishment, Verbal or Physical Abuse of an Inmate
First Occurrence ... Written Dismissal or Reprimand, up to 30 days of Suspension or Dismissal
Second Occurrence ... Dismissal.
In Idaho, the Rules of the Department of Juvenile Corrections, Secure Juvenile Detention Facilities (IDAPA 05-01-0) define corporal punishment as (para 10):
Any act of inflicting punishment directly on the body, causing pain or injury
Section 255-01 states:
Written Policy and Procedures. The facility shall have written policy and procedure for maintaining discipline and regulating juveniles’ conduct. The following general principles shall apply:
...
f. Corporal or unusual punishment is prohibited, and care shall be taken to ensure juveniles’ freedom from personal abuse, humiliation, mental abuse, personal injury, disease, property damage, harassment, or punitive interference with daily functions of living, such as eating or sleeping; ...
Venezuela
Article 631 of the Law for the Protection of Children and Adolescents states that a child deprived of liberty has the right to:
not be, in any case … submitted to corporal punishment.
Article 638 states that the internal regulations of each detention centre must include as a minimum:
a strict regulation of sanctions that can be imposed on the adolescent, during the fulfilment of the measure. In no case can cruel, inhumane or degrading measures be applied, including corporal punishment.
Additionally, the Criminal Code (1964) states in article 441:
Anyone who, by abusing means of correction or discipline, causes harm to or endangers the health of a person who is under his or her authority, education, instruction, care, oversight or custody, or who is under his or her direction because of his or her art or profession, will be punished with one to twelve months in prison, depending on the severity of the harm.