Thursday, June 07, 2007

But maybe hitting a child is like smoking dagga...

An alert reader points out that the new legislation prohibiting corporal punishment of children by their parents in their own home, is bound to be challenged in the Constitutional Court on religious grounds. Commenting on my Blog posts here an here, the reader has an excellent point because such a challenge would not at all be far-fetched.

At the very least, the Court would look long and hard at the fact that the new legislation fails to make an exception for Christian parents who believe that God requires them to hit their children. After all such parents will be able to point to Bible verses like the following:

Proverbs 22:15 - Foolishness is bound in the heart of a child, but the rod of correction shall drive it far from him.

Proverbs 19:18 - Chasten thy son while there is hope and let not thy soul spare for his crying.

Proverbs 23:13 and 14 - Do not withhold discipline from a child, if you punish with a rod he will not die. Punish him with a rod and save his soul from death.”

This argument was already considered by the Constitutional Court in 2000 in the case of Christian Education South Africa v Minister of Education, when a society of Christian schools challenged the sections of the South African Schools Act which prohibit corporal punishment at schools.

Justice Sachs confirmed in that case that the Court would only question claims that a particular practice is based on religion in the most extreme cases. He therefore assumed that corporal punishment was part of the religious beliefs of the parents who sent their children to the religious schools.

Relevant for this case is that Sachs drew a sharp distinction between prohibiting corporal punishment only at schools on the one hand and placing an absolute ban on corporal punishment on the other hand.

[C]orporal punishment administered by a teacher in the institutional environment of a school is quite different from corporal punishment in the home environment. . . . Such conduct happens not in the intimate and spontaneous atmosphere of the home, but in the detached and institutional environment of the school.

The Court was careful to indicate that it was not deciding the issue of whether a complete ban on corporal punishment of children by their parents would be unconstitutional. However, when deciding whether the restriction on the right to freedom of expression was justified in terms of the limitation clause, Sachs looked at the extent to which the religious rights of the parents had been infringed and observed:

The parents are not being obliged to make an absolute and strenuous choice between obeying a law of the land or following their conscience. They can do both simultaneously. What they are prevented from doing is to authorise teachers, acting in their name and on school premises, to fulfill what they regard as their conscientious and biblically-ordained responsibilities for the guidance of their children.

Of course, if the new Bill is passed, parents who believe that God had instructed them to hit their children will have to make a “strenuous choice” between obeying the law or obeying their God. Christian parents will be able to make a strong case that such an absolute restriction on one of their religious practices cannot be justified in an open and democratic society.

On the other hand (how us lawyers like that phrase!) it is possible that the Constitutional Court will point out that we live in a brutal and violent society in which children suffer incomprehensible harm and will argue that the state’s obligation to protect children should override the right of parents to religious freedom.

If the Court chooses the latter route, Christian parents will suddenly find themselves in much the same invidious position as Rastafarians, who – after a ruling by the Court – must choose between smoking the holy weed or obeying the law.

14 comments:

Africannabis said...

Good lord - imagine the dilemma should a child need to be chastised for smoking the weed -

Imagine this Christian child firmly believes that god was correct in the Genesis 1:11-12?

11
Then God said, "Let the earth bring forth vegetation: every kind of plant that bears seed and every kind of fruit tree on earth that bears fruit with its seed in it." And so it happened:
12
the earth brought forth every kind of plant that bears seed and every kind of fruit tree on earth that bears fruit with its seed in it. God saw how good it was.


Oh dear – the little shit will get away with it; we better keep those weeds and axe’s out the hands of our children. Lord knows how we are going to rehabilitate them if we can’t guide them as the good book instructs...

Masgruva said...

Good lord - imagine if all religious people had such obtusely eisegetical understanding of their holy writ as africannabis. We'd be back in the stone age trying to club each other to death with rocks.

Africannabis said...

Masgruva - don't you see we're back there already - kids believe the best way to get R5 is with an axe>>>???!!!???

I don't think it matters what you believe or how you read it/ promote it - when the axe is the final word.

Children need guidence other than movies that show the best way to something you want is through violence...

it's not a club, masgurva - it's an axe the child used on the other child...

btw - would africannabis not fall into that genesis thing....? anyway?

Michael Osborne said...

Pierre, is beating your child not already technically unlawful, as common assault? (Subject to a de minimis defense for everyday slaps on the wrist?) If so, what difference does the Bill make?

Also, the Bible (as Hitchens et al remind us), is chock-full of barbaric injunctions that are unlikely ever to succeed as the basis for a freedom of religion claim. (Stone adulterers, impale blasphemers, burn sheep-rapers, commands the wise author of Leviticus.) So I do not think the injunction to beat a child with a rod will be a very persuasive religious-freedom A more viable defense would perhaps be based your the right to the privacy of the home. (See Case & Curtis (1997)).

Pierre de Vos said...

Michael, in terms of the common law, an otherwise unlawful criminal act can be rendered lawful by one of several defences, including "necessity", "self defence" and also moderate chastisement of children by parents and guardians. This defence is now being abolished. In the Christian Education case the Court seemed to accept the genuine nature of the religious belief around chastismenet, but the Court has always been extremely uncomfortable with religion and has always relied on the limitation clause to deal with the real issues around it.

Michael Osborne said...

Pierre, OK, I take your point. Re parental chastisement, perhaps the best route for Bible-believing parents with very naughty children would be to have them stoned to death. See Deuteronomy 21: 18-21 (recommending that "stubborn" or "rebellious" children be stoned.)

Anonymous said...

I would like to remind readers that it is not only the Christian faith that advances the notion of 'moderate' chastisement of children during their upbringing. As far as I know, Judaism and even Islam also allow (nay preach)it - and so do indigenous African culture laws.
If parents (mothers) can be allowed to terminate the lives of unborn (but medically proven to be already living human beings) babies just because they have a right to determine their own views on reproduction, then surely people who care about their (living and walking) children should have the right (or is it rather duty?) to moderately chastise them? (Incidentally, even though Foneman J, sitting with two assessors, recently in the light of the Masiya judgment refused to extend the common law definitions of murder and attempted muder to include the killing or attempted killing of an unborn child - S v Mashumpa (no 1) & Best (no 2) [unreported May 2007 - he seemed pretty convinced that an unborn baby can be regarded as a person.)
Africannabis, what about people chastising (nay assaulting) children while under the influence of the 'holy weed'? - or parents who have to use violence against their children in private defence while they (the children) are under the influence of cannabis, glue or whatever drug; or, simply because the children were not adequately disciplined while young? Go see the movie 'Alpha Dog' and see what happens in and to the lives of children that have not been adequately disciplined when necessary.
Michael, many of the barbaric Old Testamentical practices are no longer being practiced - and no Christian (or someone of any other faith) will still today kill his/her cildren just because they were naughty, but 'moderate' punishment is perfectly New-Testamentical. (This is why there is still today such a thing as a criminal legal system - where children that were not properly disciplined would probably all end up.)
Psychiatrists that say spanking breeds violence among children do not know what they are talking about, at least in as far as my experience of the society I live and move in is concerned. As a (Christian)lawyer I have never encountered a youngster having become violent because of spanking when needed, but I came accross many who have resorted to violence (and especially violent crime) even though they never had any spanking at all, but only some misguided attempts at teaching them psychologically to distinguish between right and wrong. If alternatives to chastisement do not work, what do you do? (Say you tell a child that because he has overstepped the line, he is caged for a day or two, and he/she says 'Stuff you!' Or, what when a child is admonished or ordered to do detenion at school, and he/she says 'Do your damnest, I'll do as I please, stuff you!' - See the debacle of the Afrikaans Hoer pupil that was reportedly grabbed by the throat and throttled by the Principal in more or less such circumsances. What do yo do? Lock him/her up? - or Wait until he/she has become naughty enough so that he/she be sent to reformatory or prison?)
I say "Teach your children well - and spare not the rod!?"

Michael Osborne said...

Anonymous, did not Jesus say (in Matthew 5:18), "...till heaven and earth pass away, one jot or one tittle shall in no way pass away from the law , till all things be accomplished."

It is odd that some Christians are very happy to quote the Hebrew Bible (for example, in condemning homosexuality), but feel no compunction in ignoring, to take but one example, the injunction to stone stubborn children. Deuteronomy 21: 18-21 ("Spare the rock, spoil the child?")

Africannabis said...
This comment has been removed by the author.
Africannabis said...

http://www.thebricktestament.com/the_law/

JP said...

however, smoking weed doesn't harm anyone except the smoker whereas hitting a child surely infringes on the child's dignity & bodily integrity... as well as the CC found as they did in Prince's case based on the impossibility to monitor / police the smoking of weed for religious purposes - wouldn't the same now be true of smacking a kid or are we allowing spot checks in random homes now?

Pierre de Vos said...

JP, in the Prince case the majority of judges said that it would be impossible to make an exception for Rastafarians to smoke dope. They may also argue that it would be impossible to make an exception for religious parents as well. But in Prince they accepted - without really discussing it - that the state had a very strong interest in regulating the smoking of weed. If they decide that the state had a very strong interest in stopping the hitting of children, they might well say that the limit on religious freedom is justified. It seems logical that they will agree it is at least as important to stop the abuse of children than to stop smoking of weed. But then again, judges are not always logical and their judgments sometimes also reflect the societal prejudices and contradictions. . .

Michael Osborne said...

While Parliament is regulating spanking, should it not also address other ways that parents routinely violate their children’s rights? I am told, for example, that even parents who do not inflict corporal punishments will impose other forms of punishment in a quite arbitrary fashion. Little Mary will have her pocket-money withheld, purportedly for not finishing her homework. Young Khanya will be forbidden from watching television - because he allegedly did not eat his vegetables. I submit that, if children’ rights are to be taken seriously, parents should be required by law at least to hold an informal hearing before taking such punitive measures. Perhaps the Children’s Court could hear appeals from decisions of parental tribunals.

Africannabis said...

Anonymous: re:Alpha Dog

Now if ever there's a movie that shows, the law is a maid - coming in after the fact to clean up...

it makes my point - this current law regarding cannabis - isn't working.

Doesn't prevent or stop people from it - or other drugs.

If drugs were controlled and sold from a shop front - like cigarettes and alcohol - not to minors 'use responsibly' etc - this whole alpha-dog thing would NEVER have happened in the 1st place.

Now THAT'S Prevention!