Ending corporal punishment of children in penal systems

Photo by Salman Hossain Saif on Unsplash

Despite international bodies calling for the abolition of corporal punishment of children, in many states it is still lawfully used as a disciplinary measure in penal institutions and as a sentence for crime. In the second blog of our series for the World Congress on Justice with Children, Sonia Vohito, Legal Policy Specialist at the End Violence Partnership, outlines recent progresses and remaining challenges in achieving prohibition of corporal punishment of children.

Corporal punishment is the most common form of violence against children worldwide. It includes any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light, as well as non-physical forms of punishment that are cruel and degrading. Abolition of corporal punishment in justice systems for children  – both as a sentence for crime and as a disciplinary measure in penal institutions – is a fundamental human rights obligation. The UN Convention on the Rights of the Child states in article 37 that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment” and that “every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person”. Article 40 confirms the right of “every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth”. In its General Comments No. 8 and No. 24, the Committee on the Rights of the Child has confirmed that corporal punishment is a violation of the Convention on the Rights of the Child and since the beginning of its work has recommended abolition of corporal punishment in penal systems as in all other settings.

ending violent punishment is fundamental to creating peaceful, non-violent and rights-respecting societies

Other treaties and their monitoring bodies similarly require abolition of corporal punishment in penal systems, including the Committee Against Torture, the Human Rights Committee, and the Committee on Economic, Social and Cultural Rights. Prohibition of corporal punishment is regularly raised in the Universal Periodic Review of states which have not yet achieved abolition. Crucially, ending violent punishment is fundamental to creating peaceful, non-violent and rights-respecting societies and key to achieving the UN Sustainable Development Goals for 2030 and other regional development goals including Africa’s Agenda for Children 2040.

The abolition of corporal punishment in penal systems across the world is at the forefront of progress towards universal prohibition of all violent punishment of children. As of October 2021, more states have prohibited corporal punishment as a sentence of the courts for children convicted of crimes than in any other setting – 169 have now abolished judicial corporal punishment (whipping, flogging, caning) compared with 144 prohibiting physical punishment as a disciplinary measure in penal institutions, 135 in schools, 70 in alternative care and day care settings and 63 in the home.

In many states where corporal punishment is lawful as a disciplinary measure in penal institutions and as a sentence for crime, high prevalence of its occurrence has been documented. For instance, in the autonomous Kurdistan region of Iraq, a 2020 report revealed that detained children were subjected to beatings, stress position and electric shocks. Similarly, in Nigeria, in 2014, based on visits to police stations and prisons throughout the country and interviews with hundreds of former detainees, a study found widespread torture and ill-treatment, including of children in detention.

In recent years, there has been a momentum to prohibit corporal punishment of children in all settings, including in the penal system. In 2020, with the enactment of its Miscellaneous Amendments Law, Sudan abolished whipping and flogging in penal institutions and as a sentence for crime. The new law subsequently replaced whipping with probation and community service. It should be noted that the Sudanese law reform followed a key decision of the African Commission on Human and People’s Rights of 2003, which ruled that the country’s legislation permitting flogging violated the African Charter on Human and People’s Rights. The Commission therefore recommended that the government of Sudan amend its legislation.

In 2020 again, in Saudi Arabia, the Minister of Justice issued a circular to all courts requiring them to implement a Supreme Court’s decision to end discretionary flogging punishments and replace them with prison sentences and/or fines. However, corporal punishment (amputation and flogging) remains lawful as a sentence for crime, including for children, pursuant to the Shari’a law.

More recently, in Colombia, a new law prohibiting the use of corporal punishment (Law 2089 of 14 May 2021) banned violent punishment of all children, including those living in indigenous communities. Previously, Colombia’s Children and Adolescents Code 2006 provided that indigenous children could be judged “according to the rules and procedures in their own communities”, and a judgment of the Colombian Constitutional Court in 1997 had also ruled that the sentence of whipping in the country’s Paez indigenous community was symbolic, not degrading punishment and did not violate the prohibition of torture in the Constitution and international human rights instruments. The reforms of 2021 mean that indigenous children can no longer lawfully be sentenced to corporal punishment, and like all Colombian children are protected from it in all areas of their lives.

states are required to reform their legislations and take all measures to ensure that children are effectively protected against all forms of violence

Despite recent progresses in achieving prohibition of corporal punishment in all settings, it is evident that more work needs to be done. All states are required to reform their legislations and take all measures to ensure that children are effectively protected against all forms of violence, including in penal systems. Ending violent punishment is key not only to ending violence against children, but to reducing violence across the whole of society in the longer term. There is overwhelming evidence that violent punishment of children is associated with increased aggression and involvement in criminal behaviour in children and adults. If the primary purpose of the justice system is not to punish but to rehabilitate and reintegrate young offenders, infliction of corporal punishment of children in penal systems clearly makes this goal harder to achieve, as well as violating their right to respect for their human dignity and physical integrity, and their rights to health, development and opportunity to reach their full potential.

Many legislations related to children in penal systems worldwide still need to be repealed or amended. In Singapore, children aged 7-15 can legally be caned up to 10 strokes with a light rattan, older children up to 24 strokes with a rattan up to 1.27cm in diameter. During the Universal Periodic Review of Singapore in 2016, the Government stated that “the application of corporal punishment in Singapore is guided by necessity and proportionality”. Equally, in Malaysia, corporal punishment is lawful as a sentence for crime both under secular and Islamic laws.

prohibiting corporal punishment of children in penal systems is an immediate human rights obligation

Nevertheless, in many states, efforts are under way to develop justice systems for children that are aimed at fulfilling the range of obligations under human rights law which require sensitive and respectful treatment of children in conflict with the law. It is imperative that the legislation underpinning such systems includes prohibition of corporal punishment, both as a sentence of the courts and as a disciplinary measure in penal institutions. Prohibiting corporal punishment of children in penal systems – as in other settings – is an immediate human rights obligation; it does not depend on the enactment of a comprehensive juvenile justice law but can be fulfilled whenever relevant laws are under review or being drafted, including constitutions, criminal codes and general laws relating to child protection or child rights. Ultimately, a commitment to achieving prohibition in a specific setting, for example in penal institutions, is certainly a significant step, but it is not enough to meet states’ human rights obligations and to guarantee children the protection from violence they deserve. States are required to explicitly prohibit all forms of corporal punishment of children, however light, in all settings, without delay.