Prohibiting corporal punishment of children in the Caribbean ...

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The colonial roots of legalised corporal punishment of children acrossthe CaribbeanAs in much of Africa and Asia, corporal punishment of children was promoted andinstitutionalised across the Caribbean during the colonial period, in the context of militaryoccupation and slavery, in the development of early school and penal systems, and in someChristian missionary teaching.The legality of corporal punishment across the region has its origins in the laws of colonisingEuropean countries. This is visible in the provisions allowing for “reasonable punishment” inthe laws of many Caribbean nations, as well as the application of the English common lawconcept of “reasonable chastisement” in British overseas territories including Anguilla, theCayman Islands and the Turks and Caicos Islands.In the parts of the Caribbean which were colonised by Britain, not only was brutal treatmentof slaves, including corporal punishment, sanctioned by law, but the legal system wasdesigned to legitimise slavery:“The initiation of law into Caribbean society was within a colonial, imperialist and inequitableframework, as a tool to legitimise the exploitative nature of plantation society…. Historically …Caribbean law has been capitalistic, foreign, elitist and oppressive in outlook.”(Antoine, 2008)Corporal punishment of slaves, including whipping, was commonplace: in British colonies itwas regulated through slave laws. At the abolition of slavery, new laws regulating corporalpunishment of workers were introduced: for example, in 1824 an order forbade the use ofthe whip to coerce labour in the field and limited its use as a disciplinary measure – onlymen could be flogged, to a maximum of twenty-five lashes. Today, this is echoed in legalprovisions which specify the types of corporal punishment to be inflicted and allow forcorporal punishment of males only: for example, the laws of Barbados, Dominica and StVincent and the Grenadines all allow for boys but not girls to be sentenced to corporalpunishment and specify the number of strokes which may be used.Professor Merle Hodge of the University of the West Indies has said that the “profoundcommitment to the use of physical and verbal violence in the socialization of children” in theCaribbean is part of a “culture of violence” which can be traced back to the violent history ofthe Caribbean:“Caribbean society was born out of brutality, destructiveness, rape: the destruction of theAmerindian peoples, the assault on Africa, the forced uprooting and enslavement of the African;the gun, the whip, the authority of force. Yet the Caribbean today is not particularly noted forany large-scale, organized violence…. But the violence of our history has not evaporated. It isstill there. It is there in the relations between adult and child, between black and white, betweenman and woman. It has been internalized: it has seeped down into our personal lives.”(Hodge, 2010)ReferencesAntoine, R. (2008), Commonwealth Caribbean: Law and Legal Systems, 2nd ed, Oxon: Routledge-CavendishHodge, M. (2010), “Commentary: Everyday Violence Against Children”, Caribbean Review of Gender Studies, 422 Prohibiting corporal punishment of children in the Caribbean:
Repealing defences and authorisations of corporal punishmentIt is obvious that if corporal punishment is to be prohibited, laws and regulations which explicitly state that it can be used,by whom and in what manner, must be repealed. Equally, any provisions authorising a “right of correction”, or a “right toadminister reasonable punishment/chastisement”, or a “right to moderately and adequately correct a child” must also beremoved. Without explicit repeal of these defences and justifications, children do not have equal protection from assault; lawsmay exist against violence and abuse of children, but these are not interpreted as prohibiting all corporal punishment.The majority of states in the Caribbean have laws, inherited from the colonial period, which provide a legal defence for theuse of corporal punishment. In many, the defence for “reasonable chastisement” is derived from English common law; in theFrench territories there is a “right of correction” under customary law. Explicitly repealing these defences in their entirety(not simply limiting or restricting them) is an integral element of law reform to prohibit corporal punishment of children. Forexample, the English common law defence for “reasonable chastisement” might be repealed by enacting a law which states:Legal Islam and defences corporal punishment for corporal in alternative punishment care in Caribbean law -to be repealed as part of law reform to achieve prohibition“Nothing in this section [on child cruelty] shall be construed as affecting theright of any parent, teacher or other person having the lawful control orcharge of a juvenile to administer reasonable punishment to him.”Antigua and Barbuda (Juvenile Act 1951, art. 5(6)); Barbados (Prevention ofCruelty to Children Act 1904, art. 4); Belize (Summary Jurisdiction (Procedure)Act, art. 6); Cayman Islands (Penal Code 2007 Revision, art. 226(7)); JuvenilesLaw 1990, art. 41(8)); Dominica (Children and Young Persons Act 1970, art. 5(6));Grenada (Criminal Code, art. 54(i)); Guyana (Criminal Law (Offences) Act 1894,art. 9; Summary Jurisdiction (Offences) Act 1894, art. 7); Montserrat (PenalCode 1983, art. 193(6) ; Juveniles Act 1982, art. 37); St Lucia (Children and YoungPersons Act 1972, art. 5(6)); St Vincent and the Grenadines (Juveniles Act,art. 8); Trinidad and Tobago (Children Act 1925, art. 22); Turks and CaicosIslands (Juveniles Ordinance 1968, art. 5(6)); US Virgin Islands (Virgin IslandsCode 1992, 14.24.507)“A blow or other force, not in any case extending to a wound orgrievous harm, may be justified for the purpose of correction, asfollows – (1) a parent may correct his or her legitimate or illegitimatechild, being under sixteen years of age, or any guardian or personacting as a guardian, his ward, being under sixteen years of age, formisconduct or disobedience to any lawful command….”Bahamas (Penal Code, art. 110); Belize (Criminal Code 1981, art. 39(1))“It is lawful for a parent, or a person in the place of a parent, or for aschool-master or master, to use, by way of correction towards a child,pupil, or apprentice, under his care, such force as is reasonable underthe circumstances.”Bermuda (Criminal Code 1907, art. 266)“The minor or incompetent subject to guardianship owes respectand obedience to the tutor. The tutor may correct him moderately.”(Unofficial translation)Puerto Rico (Civil Code 1930, art. 208)“Nothing in any rule of commonlaw justifies the use of force for thepurpose of correction.”The legal defences in writtenCaribbean legislation identified in thebox on the left might be repealed withthe following law:“No child may be subjected tocorporal punishment. Section […]is repealed.”progress report 2012 23
Page 4 and 5: MessagesJean ZermattenI am always s
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Page 10 and 11: 14Progress towards prohibition in C
Page 12 and 13: Regional human rights instruments
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Page 35 and 36: Country Reports: Independent states
Page 37 and 38: BARBADOSCountry Reports: Independen
Page 39 and 40: DOMINICACountry Reports: Independen
Page 41 and 42: GUYANACountry Reports: Independent
Page 43 and 44: JAMAICACountry Reports: Independent
Page 45 and 46: ST LUCIACountry Reports: Independen
Page 47 and 48: SURINAMECountry Reports: Independen
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