Child abuse law just got blurrier.

Child abuse law just got blurrier.

Child abuse law just got blurrier.

The law, lawyers, and the court.
Jan. 30 2004 7:04 PM

Spare Us the "Spare the Rod"

Canada tries to sort out the good spankings from the bad.

Illustration by Robert Neubecker

The Supreme Court of Canada just handed down a decision permitting parents and teachers to spank children but setting new legal limitations on what constitutes a reasonable paddling versus an unreasonable one. In a 6-3 decision, the high court upheld Section 43 of Canada's Criminal Code, which provides that: "Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child … if the force does not exceed what is reasonable under the circumstances."

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Needless to say, Canadian judges have devoted a good deal of their dockets to deciding what "reasonable under the circumstances" means. The joke is that they will spend even more time doing so in the future. In the United States, where the law on corporal punishment is up to the various states, spanking as "reasonable discipline" is similarly legal in every state but Minnesota. In the United States, as in Canada, this only leads to bizarre outcomes in which different courts have vastly divergent ideas of what's reasonable smacking. In general, "reasonableness" in beatings turns on the resulting injuries, the justifications, or whether the judge herself was spanked as a child. It's a myth that this is a debate about parental autonomy versus kids' rights. This is a debate about certainty in the law versus continued ambiguity.

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Here's California's utterly unhelpful rule on reasonable spanking: "Child abuse is a physical injury which is inflicted by other than accidental means on a child by another person. ... It does not include spanking that is reasonable and age appropriate and does not expose the child to risk of serious injury." Which leads to another legal oddity: Many states draw the line between abuse and "benign" spankings as the difference between beatings that leave welts and bruises and those that don't. It's legal to spank but illegal to have spanked in such a way that caused bruising, bleeding, or fractures. Which means child abuse depends more on the child's propensity for bruising—or how often she's been beaten in the past—than a parent's level of force.

Section 43 of Canada's Criminal Code, the so-called "spanking law" in question, was enacted in the late 19th century. It essentially immunizes caregivers who spank from traditional assault laws if they are within these squishy bounds of "reasonableness." (Only ship commanders who are using force against sailors to maintain discipline are still similarly off the hook for assault.) The challenge to Section 43 was mounted by a children's advocacy group, the Canadian Foundation for Children, Youth and the Law, which argued, among other things, that the law discriminates against children as a class to exempt them from assault laws. Why, the group argued, is it a crime for a man to lift a finger against his wife, yet acceptable when he whacks his child?

Chief Justice Beverley McLachlin, writing for the majority, held that corporal punishment may from now on involve only "minor corrective force of a transitory and trifling nature'' (i.e., it's only spanking if it's a tap or a cuddle) and that it's legally impermissible to spank a child younger than 2 or older than 13; to use belts, rulers, and other objects; or to strike a child in the head or face. Children under 2 can't learn from a spanking, she argued, although it's not at all clear what 3-year-olds learn other than the efficacy of violence as a teaching method. McLachlin disagreed with the dissenters that the "reasonableness" requirement under the statute was too vague, arguing that it's a standard used in many legal doctrines and that she was "satisfied that [there is] substantial social consensus on what is reasonable correction."

If there was substantial social consensus, of course, there wouldn't be divergent and irreconcilable results all across Canada and the United States, where some parents are convicted for slapping a child and others are acquitted for pummeling and kicking.

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What's unclear after today is whether these new rules—that it's OK to hit a toddler but not an infant; that it's all right to kick a 9-year-old but not a teenager (we wouldn't want to smack someone who isn't small and impressionable, after all …)—clarify some standard of "reasonableness" or just impose artificial and arbitrary limits on what is still vague and subjective. The court didn't hold—as some spanking advocates would wish—that family discipline is a private matter, and parents deserve broad leeway in disciplining their kids. The court simply held that courts would retain broad leeway in disciplining parents who unknowingly cross a blurry line.

The government in Canada had taken a pragmatic position in this case. Since they couldn't be for paddling, they argued that physical discipline is always bad parenting, but they contended the courts should not interfere with every parental attempt to restrain or correct a child. That argument is echoed by the many conservative Christian groups in the United States, who insist that parents can do virtually anything they wish to a child—citing biblical and common law precedents for the principle that children are a parent's property and it's not the state's business to meddle.

Twelve countries—including Sweden, Denmark, and Italy—prohibit corporal punishment altogether. The U.N. Convention on the Rights of the Child condemns most forms of corporal punishment and provides that the "best interests of a child" should always be paramount. Canada had been censured by the commission for permitting spanking. The United States isn't a signatory to the convention—to the delight of conservative groups—many of whom cite Proverbs 13:24 for the proposition that it's a very good idea to hit your kid with a stick.

The notion that "the best interests of the child" should be paramount in any legal dispute alarmed Canada's Supreme Court, just as it alarms parents' rights groups who believe that their own rights should trump their children's. Under American law, the best interests of the child analysis only kicks in when parental systems break down—if there is a divorce or abuse—otherwise, parents are assumed to know best. But that is, of course, the sleight of hand that went unrecognized today by the Canadian Supreme Court and that goes unrecognized by the folks in this country who'd like to keep smacking their young: Parents don't have an unfettered right to discipline their kids. The only right they have is to hit their kids just up to some moving target of "reasonableness."

You are either for or against spanking. In my experience, the most vocal proponents of spanking seem to be those who claim that "I was whipped with a belt/switch/open palm regularly, and look how great I turned out." That could be an argument for dressing kids up in caps, knickers, and knee socks too. The important legal point is that whether or not you consider your kids to be your property, the courts will step in when you've crossed a line. And that line is decided by courts and legislatures, not by you. Those of you who want the state out of your lives might not like the idea of a broad no-spanking rule. But you should recognize that predictability and certainty in the law are the best ways to hold the state at bay.