*El Salvador is committed to reforming its laws to prohibit corporal punishment in all settings.*
El Salvador’s commitment to prohibiting corporal punishment
El Salvador expressed its commitment to prohibiting all corporal punishment of children by accepting clearly a recommendation to prohibit in all settings made during the Universal Periodic Review of El Salvador in 2010. The Government reaffirmed its commitment at a meeting of the Directing Council of the Inter-American Children’s Institute in 2014.
Summary of necessary legal reform to achieve full prohibition
Prohibition is still to be achieved in the home, alternative care settings and day care.
Article 215 of the Family Code 1994 confirm the duty of parents “to correct their children appropriately and moderately”, article 204 of the Criminal Code 1997 recognises a “right of correction”, and article 38 of the Law for the Integral Protection of Children and Adolescents 2009 confirms the right of parents to “adequately and moderately correct” their children. These defences should be repealed. The near universal social acceptance of corporal punishment in childrearing necessitates clarity in law that no level of corporal punishment is acceptable. Prohibition should be enacted of all corporal punishment and other cruel or degrading forms of punishment, in the home and all other settings where adults have parental authority.
Alternative care settings – Prohibition should be enacted in legislation applicable to all alternative care settings (foster care, institutions, places of safety, emergency care, etc).
Day care – Corporal punishment should be prohibited in all early childhood care (nurseries, crèches, kindergartens, family centres, etc) and all day care for older children (day centres, after-school childcare, childminding, etc).
Corporal punishment is lawful in the home. Article 215 of the Family Code 1994 states: “It is the parents’ duty to correct their children appropriately and moderately and, if necessary, to seek assistance from professional specialists or psycho-pedagogical guidance services at schools or agencies for the protection of minors or the family. If the child’s behaviour cannot be corrected through these means, the parent can request that a judge arrange for guardianship; in making such a decision, the judge will order any studies of the family group that he or she considers appropriate.” Article 204 of the Criminal Code 1997 recognises a “right of correction” and punishes its abuse. Article 38 of the Law for the Integral Protection of Children and Adolescents 2009 appears to protect children from some corporal punishment but confirms that the “right of correction” remains in force: “Children and adolescents should be treated with respect for their person and individuality and may not be subjected to corporal punishment, psychological or any other form of offensive which infringes their dignity, without prejudice to the right of the mother and father to direct, guide moderate and correct accordingly” (unofficial translation).
Provisions against violence and abuse in the Family Code 1994, the Criminal Code 1997 (amended 2005), the Law Against Domestic Violence 1996 and the Constitution 1983 are not interpreted as prohibiting all corporal punishment in childrearing.
In 2009, the Government reported that various courts have ruled that corporal punishment goes beyond adequate and moderate correction and therefore that article 215 of the Family Code excludes corporal punishment in childrearing, but the Government has also acknowledged the need for law reform. The Government signalled its commitment to prohibition by accepting the recommendation to prohibit corporal punishment in all settings including the home made during the Universal Periodic Review of El Salvador in 2010. During the second cycle UPR of El Salvador in 2014, the Government stated that corporal punishment is prohibited in articles 38 and 89 of the Law for the Integral Protection of Children and Adolescents 2009, but also went on to accept a recommendation to “expressly prohibit corporal punishment by law in all settings”. The Government reaffirmed its commitment at a meeting of the Directing Council of the Inter-American Children’s Institute in 2014. El Salvador is a Pathfinder country with the Global Partnership to End Violence Against Children, which was established in 2016. This commits the Government to three to five years of accelerated action towards the achievement of Target 16.2 of the Sustainable Development Goals.
The Government reported to the Committee on the Elimination of Discrimination Against Women in 2017 that the Penal Code was also under review, with notably the addition of article 338 which would strengthen women and children’s protection from family violence. Bills on the removal of the “right of correction” which were under discussion in 2017 were archived. No further Bills on the issue can be introduced until April 2018.
Alternative care settings
There is no explicit prohibition of all corporal punishment in alternative care settings. Article 38 of the Law for the Integral Protection of Children 2009 protects children from some but not all corporal punishment and article 215 of the Family Code 1994 and article 204 of the Criminal Code 1997 similarly confirm a “right of correction” (see under “Home”). These defences are potentially available to guardians and others with parental responsibility.
There is no explicit prohibition of all corporal punishment in early childhood care and in day care for older children, with the exception of preschool provision where the prohibition of corporal punishment in the General Law on Education 1996 is applicable (see under “Schools”). In other day care, article 38 of the Law for the Integral Protection of Children 2009 protects children from some but not all corporal punishment and article 215 of the Family Code 1994 and article 204 of the Criminal Code 1997 similarly confirm a “right of correction” (see under “Home”). These defences are potentially available to guardians and others with parental responsibility.
Corporal punishment is prohibited in schools in article 90 of the General Law on Education 1996 (amended 2000), according to which learners have the right to “(c) be treated with fairness and respect and not to be subjected to corporal punishment, humiliation, physical or mental abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse” (unofficial translation). The prohibition is confirmed in article 89 of the Law for the Integral Protection of Children 2009 (unofficial translation): “Public and private schools must teach the value of discipline and respect for teachers, students and all people. In the imposition of disciplinary measures, schools are obliged to respect the dignity, rights and guarantees of every girl, child and adolescent. As a result, the abuse, physical and psychological maltreatment and any form of cruel, inhuman or degrading punishment is prohibited….”
Corporal punishment is prohibited as a disciplinary measure in penal institutions. Article 128(2) of the Prisons Act states: “Disciplinary measures shall be imposed in such a way that they do not affect prisoners’ health or dignity. Corporal punishment, such as confinement in a dark cell, or any other cruel, inhuman or degrading treatment or punishment, is prohibited….” According to article 26 of the General Regulations for Detention Centers for Juvenile Offenders 1995, “the staff of the centers, in carrying out their duties, must respect and protect the dignity and basic human rights of all the children” and authorities must not “instigate or tolerate any act of physical, sexual or emotional abuse, punishment or cruel, inhuman or degrading corrective measure or discipline.” Article 118 of the Juvenile Offenders Act 1995 also prohibits corporal punishment.
Sentence for crime
Corporal punishment is unlawful as a sentence for crime. The Juvenile Offenders Act 1995 does not include corporal punishment among permitted sanctions, recognises the right of young offenders to respect for dignity and protection of personal integrity, and establishes that under the law, the minor enjoys the rights and safeguards recognised in the Constitution, treaties, conventions, covenants and other international instruments signed and ratified by the country (art. 5). Article 37 of the Law for the Integral Protection of Children 2009 prohibits inhuman, cruel and degrading treatment.
Universal Periodic Review of El Salvador’s human rights record
El Salvador was examined in the first cycle of the Universal Periodic Review in 2010 (session 7). The following recommendation was made and was accepted by the Government:
“To take specific measures to prohibit corporal punishment of children in all settings, including at home (Slovenia)”
Examination in the second cycle took place in 2014 (session 20). During the review, the Government stated that corporal punishment is prohibited in articles 38 and 89 of the Law for the Integral Protection of Children and Adolescents 2009. Nevertheless, the following recommendation was made and was accepted by the Government:
“Put further effort and attention into the prevention of violence against children, expressly prohibit corporal punishment by law in all settings, eliminate worst forms of child labour, and prevent children from living in the street (Estonia)”
Committee on the Rights of the Child, Concluding Observations
Session 053 (2010)
(17 February 2010, CRC/C/SLV/CO/3-4, Concluding observations on third/fourth report, paras. 9, 29, 45, 54 and 55)
"The Committee notes with appreciation that the Convention has been invoked in national courts on many occasions and has been used by judges in the judicial reasoning, particularly by the Constitutional Chamber of the Supreme Court. The Committee also notes the State party’s numerous efforts to bring its legislation in line with the Convention, including the recent adoption of the Law for the Integral Protection of Children (LEPINA). However, the Committee regrets that national legislation is not yet in conformity with the Convention in some areas, for instance, with respect to corporal punishment….
"The Committee notes with appreciation that the principle of the best interests of the child is already included in the Family Code (art. 305) and is also enshrined in the LEPINA, notably in its article 12. However, the Committee is concerned that the principle is not sufficiently implemented in practice, especially in the areas of prevention, corporal punishment….
"With reference to the United Nations Study on Violence against Children (A/61/299), the Committee recommends that the State party:
a) take all necessary measures for the implementation of the recommendations contained in the report of the Independent Expert for the United Nations Study on Violence against Children while taking into account the outcome and recommendations of the regional consultation for Latin America held in Argentina (30 May and 1 June 2005). In particular, the Committee recommends that the State party pay particular attention to the following recommendations:
− Prohibit all violence against children, including corporal punishment in all places….
"The Committee is concerned that corporal punishment is still lawful in the home, according to article 215 of the Family Code. The Committee regrets in particular that the newly adopted LEPINA has not expressly prohibited corporal punishment within the home, as in its article 38 it provides that parents can ‘adequately and moderately correct’ their children. The Committee notes the delegation’s remark that the State party is aware that the LEPINA is not in conformity with the Convention on this particular aspect, and that this is one of the issues that will be discussed in the context of possible future adjustments to the LEPINA.
"The Committee recommends that the State party expressly prohibit corporal punishment by law in all settings, taking into account the Committee’s general comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment. The Committee further recommends that the State party carry out public education campaigns about the negative consequences of corporal punishment of children, and promote positive, non-violent forms of discipline as an alternative to corporal punishment."Read more from Session 053 (2010)
Session 036 (2004)
(30 June 2004, CRC/C/15/Add.232, Concluding observations on second report, paras. 35, 36, 43 and 44)
"The Committee is deeply concerned about the incidence of torture and ill-treatment and the generalized disrespect for fundamental human rights in centres for juvenile offenders in the State party….
"The Committee urges the State party to take immediate and effective measures to bring an end to the occurrence of torture and other cruel, inhuman and degrading treatment, in particular of juvenile offenders. The State party must ensure that:
a) the fundamental rights and guarantees of juveniles who have committed a criminal offence set out in the Juvenile Offenders Act are respected, in particular, the prohibition, under all circumstances, of inhuman or degrading disciplinary measures, including: corporal punishment, detention in dark cells or solitary confinement, reduction of food rations, denial of contact with relatives, collective punishment and punishment more than once for the same disciplinary offence….
"While welcoming the measures taken by the State party to combat domestic violence, the Committee remains concerned at persistent large-scale abuse and violence within the family as well as the prevalence of corporal punishment.
"The Committee recommends that the State party strengthen current efforts to address the problem of domestic violence and child abuse, including through:
a) ensuring the effective implementation of the Domestic Violence Act, including the elimination of corporal punishment;
b) public education campaigns about the negative consequences of ill-treatment and preventive programmes,"Read more from Session 036 (2004)
Committee on the Rights of Persons with Disabilities, Concluding Observations
CRPD session 10 (2013)
(8 October 2013, CRPD/C/SLV/CO/1, Concluding observations on initial report, paras. 35 and 36)
"The Committee is concerned at: ...
d) the lack of an express ban on corporal punishment of children with disabilities….
"The Committee urges the State party: ...
c) to follow up on the recommendations of the Committee on the Rights of the Child (CRC/C/SLV/CO/3-4) regarding the express prohibition of all forms of corporal punishment and ensure that the prohibition includes practices in institutions for children with disabilities…."Read more from CRPD session 10 (2013)
Prevalence/attitudinal research for El Salvador in the last 10 years
Research conducted in 2014 as part of UNICEF’s Multiple Indicator Cluster Surveys (MICS) programme, found on average 52% of 1-14 year-old children experienced some form of violent discipline (psychological aggression and/or physical punishment) in the month prior to the survey. On average 32% of children experienced psychological aggression, 36% physical punishment and 3% severe physical punishment (hit or slapped on the face, head or ears, or hit repeatedly). Only 35% of children experienced only non-violent forms of discipline.
(Ministerio de Salud – Instituto Nacional de Salud, DIGESTYC & UNICEF (2015), Encuesta Nacional de Salud 2014 - Encuesta de Indicadores Múltiples por Conglomerados 2014, Resultados Principales, San Salvador, El Salvador: Ministerio de Salud e Instituto Nacional de Salud)
 21 December 2009, CRC/C/SLV/Q/3-4/Add.1, Reply to list of issues, paras. 67 and 68, no specific case law cited
 18 March 2010, A/HRC/14/5, Report of the working group, para. 81(38)
 17 December 2014, A/HRC/28/5, Report of the working group, paras. 96 and 103(23)
 9 January 2017, CEDAW/C/SLV/Q/8-9/Add.1, Reply to the list of issues on eighth/ninth report, para. 4
 18 March 2010, A/HRC/14/5, Report of the working group, para. 81(38)
 17 December 2014, A/HRC/28/5, Report of the working group, para. 96
 17 December 2014, A/HRC/28/5, Report of the working group, para. 103(23)