The frail boundary between correction and ill-treatment
The boundary between what constitutes a light, proportionate and educational punishment applied to children, and a violent conduct punishable by law, has been changing over time, in the conscience of the community and thus in court decisions.
The Committee on the Rights of the Child defined corporal or physical punishment as “any punishment involving physical force and aiming to cause a certain degree of pain or discomfort as slight as it may be” [1] and the common slaps and spanking, as well as the aggression of children using objects, are included there.
As a way of raising awareness for the abolition of corporal punishment, the Council of Europe [2] listed several reasons why we should abolish corporal punishment:
In addition to being a violation of children’s rights, disrespecting their physical integrity and human dignity, they can compromise their health, education and development, and in extreme cases may even threaten the child’s life.
Physical punishments “teach children that violence is an acceptable and appropriate strategy to resolve conflicts or to obtain what one wants from others” [3], leading to increased aggression among children, and between them and the surrounding adults, such as teachers, educators and family members.
In addition, physical punishments bring a feeling of helplessness for the child, who finds himself the target of aggression by those who should protect him, awakening in him a feeling of abandonment, sadness and loneliness. Such feelings can cause serious problems, such as depression, and may affect the formation of the child’s personality. Children behaviour and development shaped by their surroundings and the triggers they receive from others.
The harmful consequences of physical punishment are the fact that this type of punishment is ineffective to solve problems, lead to negative thoughts about the applicator of the punishment and causing feelings of anger and revolt, which may lead to the child’s behaviour only getting worse over time.
It is now known that the effects of corporal punishment on children are manifested not only in the short term but also in the child’s future. The education received in childhood and adolescence plays a decisive role regarding adulthood, influencing and shaping future behaviours. Often, adults who have been applied physical punishments in childhood adopt this type of behaviour with their own children, generating a chain of generational violence.
Physical punishments in Portugal
After the Portuguese Revolution of 74, and with the Constitution of the Republic of 1976, the conceptions relating to family and family life changed profoundly, and in 77 a profound reform in this matter occurred. Article 1884 of the Civil Code which expressly allowed parents to moderately correct their children was then revoked.
The Third Republic brought with it an idea of an egalitarian and participative family, directed jointly by men and woman. Children have gained rights and appear at the hub of parental power regulation.
Article 1877, n.º 1 of the Civil Code states that parents shall, in the interest of their children, direct their education. Thus, the problem of the application of corporal punishment to children is now how to draw a line between punishments framed in the power-duty of education of parents and those who exceed this power-duty, falling into the field of domestic violence, ill-treatment or offence to physical integrity, punished by the Penal Code.
The legality of moderate corporal punishment applied by parents to their children is a subject of discussion in our courts and doctrine.
On the one hand, there are those who advocate the absolute prohibition of any physical and psychic punishment, regardless of the circumstances in which they are applied.
Clara Sottomayor, considering that in the education of children should be used educational means other than physical violence, excluding from parental responsibilities the power of correction, which should be understood rather as a right-duty of education and not correction. It therefore considers it essential to implement a “specific legislative measure that devote a precise and direct prohibition of punishment”, since, regarding human rights, we cannot “give in to the customs or culture of the population” [4].
In court’s decisions, from 1994 (Judgment STJ of 09-02-1994) to this day, the application of physical punishments is said not to be included in the parental duty of educating children. Recently, a judgment of TRL ruling of 05-06-2019 also postulated the unacceptability of physical punishment, noting that the education of children shall be based on “the use of positive educational forms and models where empowerment, encouragement and (good) example prevail”, and rules and limits should be imposed, but “under no circumstances can these rules include corporal punishment”[5].
Despite the amendment of the Civil Code of 1977 and revocation of the rule that expressly permitted parents to moderately correct their children, there are still those who consider that the power of correction is susceptible of being framed within the scope of parental responsibilities.
Thus, in an intermediate position we find those who believe that this is a relative prohibition, considering that they can be applied provided that certain requirements are met. The Theory of Social Adequacy, developed by Welzel, argues that “behaviours that are shown according to the historically developed ethical-social ordination of a given community cannot represent a crime”[6] Thus, if we consider that the application of corporal punishment to children is accepted by the conscience of the community and society, these behaviours should not be punished.
Paula Faria, who began by defending the right of correction as a cause of justification of the behavior, in the light of Art. 31º/2 al. b) of the Penal Code [7], which provides that the illegality of a particular conduct is excluded when the agent acts in the exercise of a right, currently argues that “the true justification does not come from the recognition of a right, or, if it comes from the existence of that right, its assertion depends on a more complex weighting, and that it is the weighting or value of the circumstances in which the injury of the legal property of the minor occurs”[8].
Although she considers that the application of physical punishments to children should not be the educational method rule, it defines assumptions that must be fulfilled so that a certain punishing conduct can be considered legitimate. The punishment necessarily has to be applied by those who exercise parental responsibilities, and the action of the agent must have an educational purpose. It should be appropriate to the intended educational purpose, and the means used must be proportionate to the educational purpose.
Unavoidable figures of our Doctrine, such as Figueiredo Dias, Taipa de Carvalho and Pinto de Albuquerque recognize the power-duty of correction, understanding that the illegality of the behaviour of a father who beats a child whenever certain requirements are met should be excluded. When verified in the case, these requirements enter the conduct of the parent within the scope of Art. 31/2, al. (b) of the PC, which provides that the fact is not unlawful when committed in the exercise of a right, in this case the right of correction.
Figueiredo Dias considers that such justification arises when there is an action of the parent for educational purposes, and the punishment should be applied judiciously and proportionally, not calling into question the rights and dignity of the child. Taipa de Carvalho also considers that, to justify the conduct, punishments must be “necessary, appropriate, proportionate and reasonable”[9], and any serious punishments are excluded, even if they allegedly arise within the scope of the parents’ power of correction.
Pinto de Albuquerque considers that the child’s action to be punished must be voluntary, and the child should not have any mental weakness and must be of an age that allows him to understand his/her failure. Moreover, regarding the actions of the parents, it requires that it arise as a response to a very serious behaviour of the child, behaviour that would imply their criminal liability if it were not minor. Furthermore, he considers that punishments should only be applied when there is a prior warning to the child, and such punishments cannot be of a physical nature except in cases where it is repeated behaviour but is always excluded from “a serious bodily offence of the educated” [10].
In the case law, we find several judgments which also advocate a relative prohibition of physical punishment, considering that “Parents have the power to moderately correct their children” [11].
Perhaps the most controversial is the Supreme Court ruling of 05-04-2006, which alluded to a condemnation by an employee of an institution that took in children with special needs. The Supreme Court of Justice ruled that “Moderate punishments applied to minors by those entitled, for the purpose exclusively educational and appropriate to the situation, are not unlawful” [12]
In that judgment such a decision is justified by using the figure of the bonus pater familias, asking “What is the good father of a family who, once or twice, does not slap the ass of a son who refuses to go to school, who does not slap a child who throws a knife at him or who does not send a child in punishment to the bedroom when he does not want to eat? As for the first two, it can even be said that the educator’s abstention would constitute educational neglect”. Considering that “A hot slap cannot be considered excessive”, concludes “In the background, it was a vulgar case of relationship between child and educator, of a situation that is common in the best of families”.
The Oporto Court of Appeal also held, in a judgment of 18-02-2015, that “a slap or a pull of ears alone are not conduct likely to constitute an unlawful practice criminally punished in the context of the type of crime in question, due to caution so that the legislator intended to say with “corporal punishment”, noting that “Only those who do not have children or never cared for and gave them affection and love can associate a slap or a poke of ears, occasional and motivated by serious behaviour, to a criminal conduct, exceeding the limits of the educational power-duty of the responsible adult” [13].
In recent judgment of the Lisbon Court of Appeal of 02-07-2020 it can be read that “Although the conduct of the mother who, acting with the intention of correcting the disrespectful attitude of the child of 15, slaps him in the face, because not only did he not obey the order to retire to the room, but he adopted a physically aggressive attitude towards his mother, fill, in abstract, the elements of the type of offense to physical integrity, the illegality of this conduct is excluded, in accordance with Art. 31/1/2-b) of the CP” [14].
We can conclude that, currently, although it is still considered, both in doctrine and in case law, that in certain cases corporal punishment to children is legitimate, and that there is no legislation that expressly prohibits them, these are seen as subsidiary educational methods, consolidating a tendency towards the condemnation of this type of behaviour, giving preference to other educational methods.
The path to the abolition of physical punishments
103 countries, including all the Member States of the Council of Europe have ratified the UN Convention on the Rights of the Child, and to take “all legislative, administrative, social and educational measures appropriate to the protection of the child against all forms of physical or mental violence, damage or mistreatment, abandonment or negligent treatment, ill-treatment or exploitation, including sexual violence, while under the custody of his or her parents or one of them, legal representatives or any other person to whose custody has been entrusted” [15] . However, the Convention alone is not enough to protect children and abolish physical punishment.
Currently, only 46 countries completely prohibit corporal punishment at home, in foster care institutions, in nurseries and in schools, being Portugal one of those countries.
Although all Member States prohibit physical punishment of children, most of them allow exceptions such as the application of “moderate” and “reasonable” punishments, thereby granting children less protection than that accorded to adults in this type of situation.
According to the Council of Europe, the abolition of all physical punishments imposed on children “requires a combination of explicit legislative reforms, protection and prevention policies and other measures, especially educational measures, to bring society and stop accepting violent and humiliating punishments” [16]
Thus, although the legal prohibition is essential, such an amendment will be irrelevant if such behaviour is socially acceptable. Thus, the main objective should be« to change mentalities, raising awareness that assaulting a child is as or more serious than assaulting an adult.
Society’s awareness of the problem of physical punishment to children is thus the best way to prevent the proliferation of such behaviour. This involves a greater social debate on the subject, raising everyone’s awareness on children’s rights and warning about the harmful effects that physical punishments could have.
[1] Comité dos Direitos da Criança das Nações Unidas: Comentário Geral Nº 8, 2006, parágrafo 11. Disponível em http://www.ohchr.org/english/bodies/crc/comments.htm
[2] https://rm.coe.int/16806a456a
[3] https://rm.coe.int/16806a456a
[4] SOTTOMAYOR, Maria Clara – “Existe um Poder de Correção dos Pais?”, A propósito do Acórdão do STJ, de 05-04-2006. Lex Familiae – Revista Portuguesa de Direito da Família. Ano 4, nº 7 (janeiro-junho 2007), pp. 127 e 128.
[5]Ac. do TRL de 05-06-2019, Proc. n.º 600/18.2T9VFX.L1-3. Disponível em: http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/acff85eae3cc60cc8025842700527f0c?OpenDocument. Também neste sentido, Ac. do TRL de 12-10-2016, Proc. n.º 413/15.3PFAMD.L1-3 e Ac. do TRE de 11-03-2014, Proc. n.º 317/09.9GFSTB.E2
[6] Apud. FARIA, Paula Ribeiro de – O Castigo Físico dos menores no Direito Penal, in Estudos em Homenagem ao Professor Doutor Jorge Ribeiro de Faria, Coimbra: Coimbra Editora, 2003, p. 620
[7] Cf. FARIA, Paula Ribeiro de – A lesão da integridade física e o direito de educar- uma questão “também” jurídica. LOPES, José Azeredo (coord.) in juris et jure- Nos 20 anos da Faculdade de Direito da UCP, Porto: Universidade Católica Portuguesa Editora, 1998, p. 921
[8] FARIA – O Castigo Físico… p. 619
[9] CARVALHO, Américo Taipa de – Comentário dos artigos 152º e 152º do Código Penal), (dirig. por) DIAS, Figueiredo in Comentário Conimbricense do Código Penal – Parte Especial, Tomo I. 2ª ed., Coimbra Editora, Coimbra, 2012, p.521
[10] ALBUQUERQUE, Paulo Pinto de, Comentário do Código Penal à luz da Constituição da República Portuguesa e da Convenção Europeia dos Direitos do Homem. 2ª ed. actualizada, Lisboa, Universidade Católica Editora, 2010, p. 143
[11]Ac. STJ de 30-10-1996, Proc. n.º 048937. Disponível em: http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/89510adfa6032397802568fc003b3fa1?OpenDocument
[12]Ac. do STJ de 05-04-2006, Proc. n.º 06P468. Disponível em: http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/7b3cde591793c8b18025714d002b118c?OpenDocument
[13]Ac. do TRP de 18-02-2015 , Proc. n.º 156/13.2GCVFR.P1. Disponível em: http://www.dgsi.pt/jtrp.nsf/56a6e7121657f91e80257cda00381fdf/652c7a42fefc1ecf80257dfe003c8fdd?OpenDocument
[14]Ac. do TRL de 02-07-2020, Proc. n.º 14563/19.3T8SNT.L1-9. Disponível em: http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/7dd468f1d2a17a2a8025859f0034fa44?OpenDocument&Highlight=0,PODER,DE,CORREÇÃO,DE,PAIS,E,EDUCADORES
[15] Art. 19.º n.º 1 da Convenção das Nações Unidas sobre os Direitos da Criança. Disponível em: http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=1894&tabela=leis
[16] https://rm.coe.int/16806a456a, p.19