A decision in the South Gauteng High Court on 19 October 2017 was a significant step forward for child protection in South Africa. The judgement found that the 'defence of reasonable chastisement' is unconstitutional and thus no longer open to parents who hit their children, i.e. it effectively prohibits corporal punishment in the home.
What was the defence of reasonable chastisement?
The defence of reasonable chastisement is a relic of our colonial past and was in our common law (i.e. not in statutory law). It means that, should a parent be charged with assaulting their child, they could claim reasonable chastisement as a defence. South African law has been clear for a long time that hitting anyone is an offence. But the defence being available to parents meant they might not be found guilty if the person they hit was their child.
Effectively, this meant that children, who are more vulnerable than adults in every way, were less protected from assault than were adults.
What does removing the defence mean?
Has a new crime been created? Are hordes of children going to beat a path to the doors of police stations to lay charges against their parents? Are parents going to be criminalised and imprisoned for 'every little smack'? This is very unlikely. Firstly, children usually do not report even very serious assaults against them. The idea that they are going to beat a path to the door of police stations and clog up the system with frivolous complaints is ridiculous.
Secondly, it is not usually the best thing for children if their parents are imprisoned. Thirdly, our legal system operates on the principle that it does not concern itself with the trivial (the lex minimus principle).
In fact, in her judgement, the judge was at pains to stress that the intention is to guide and support parents in finding more positive and effective ways of disciplining children, and not to charge parents with a crime. No new offence has been created. All this decision means is that you cannot assault your own children, and then invoke the defence of reasonable chastisement.
Importantly, the decision means that families at risk can be identified and supported to parent and discipline their children in a warm, nurturing and non-violent environment which focuses on the longer-term goal of raising the next generation to be self-sufficient and self-disciplined, active and contributing members of a democratic society.
South Africa has arguably the highest global levels of all kinds of violence (interpersonal, sexual, community).
But what is so wrong with corporal punishment?
There are many reasons to prohibit corporal punishment in the home, and, in fact, in all settings. A growing, reliable and valid body of research finds undeniable links between negative psycho-social, behavioural and cognitive outcomes for children who experience corporal punishment in childhood. Some of these negative outcomes include:
- Boys who are corporally punished are more likely to become abusive in their intimate relationships in adulthood; conversely, girls tend to seek out violent intimate partners.
- Corporal punishment in childhood is linked to depression and substance abuse in adulthood.
- Children in schools where corporal punishment is used have been found to have an average IQ, five points lower than that of children where positive forms of discipline are used
But corporal punishment also often results in serious physical injury and even death. South Africa's child homicide rate is twice the global average, and far too often is the result of 'discipline gone wrong' or discipline taken too far'. Indeed, the judgement acknowledged the particular importance of protecting children in the context of the high levels of child abuse and violence that bedevil our society.
South Africa has arguably the highest global levels of all kinds of violence (interpersonal, sexual, community). In such an environment, physical violence against children, even that which appears relatively mild, teaches children the wrong lessons: that bigger, stronger more powerful people can hurt those who are smaller, weaker and less powerful. Is this not one of the very attitudes that lie at the root of the malaise in our society?
It is also very costly; it is estimated that the costs of failing to prevent violence against children in childhood range in the billions of rand.
So, does this mean we are not allowed to discipline our children?
Not at all. On the contrary, children need discipline that is focused on guiding and enabling them to be self-disciplined, responsible and productive adults.
Help children to understand the consequences of their actions and make good when possible for things they have done to hurt or upset people.
So how can we discipline children if we can't smack them?
There are many, many things we can do. Among the most important is to take a long view of childrearing, and think about the kind of adults we want our children to become. Another is to remember that children learn more from how they see us as adults behave than from what we tell them. It is also helpful to understand a little of how children develop emotionally so that we can have more realistic expectations of our children at different ages.
Younger children can usually be distracted fairly easily and are commonly very eager to please the adults in their lives with whom they have warm and loving relationships. Removal or privileges and 'time out' works well for middle-childhood and adolescence.
Drawing up a code of conduct for your household together with your children is also a useful technique. Everyone agrees on the rules (which should include the parent/parents) and on the consequences when the rules are broken.
Help children to understand the consequences of their actions and make good when possible for things they have done to hurt or upset people. There is lots of good parenting advice on www.parent24.com. Raising the next generation is a critically important task. It can be tough. But it is also infinitely rewarding. And it can be done with no hitting at all.
Carol Bower is a child rights activist and chairperson of the Quaker Peace Centre, Cape Town.