Corporal Stagnation: Breaking Legislative Inertia

Rennique Thomas

Prime Minister Andrew Holness, in a recent address to students and teachers, acknowledged the controversy surrounding the call for a total ban on corporal punishment (hitting/slapping/physical punishment). The National Commission for Violence Prevention, the entity established in 2019 and charged by the Prime Minister with developing recommendations to reduce the prevalence of various forms of violence in the country, has identified corporal punishment as a violation of the “personhood” of children and has recommended its prohibition

Despite numerous calls to ban corporal punishment, extensive research highlighting its negative effects, societal awareness of its drawbacks, and several national and international commitments on the part of the state, it remains legal.  Currently, common law permits corporal punishment within the home under the right to administer "reasonable and moderate" discipline. The Child Care and Protection Act (CCPA) of 2004, as outlined in Article 9, penalizes "cruelty to children," which includes assault and physical or mental mistreatment "in a way likely to result in unnecessary suffering or harm to the child's health." However, this law does not explicitly prohibit all forms of corporal punishment and implies that causing "necessary" suffering is acceptable. The issue of corporal punishment is emblematic of other national issues that persist not due to a lack of identified solutions, but rather because legislative reform, when necessary, gets mired in the country's slow and cumbersome legislative process.

Violence against and abuse of children is prevalent in Jamaica. The National Children’s Registry (NCR) has documented approximately 12,000 reports of child abuse in all its forms occurring annually. There was a peak in 2022, with 15,068 reports, suggesting the practice may even be on the increase.  Indeed, corporal or physical punishment occurs in homes and schools throughout the world, with one estimate of 60 percent of children aged 2 to 14 years regularly suffering physical punishment by their parents or other caregivers. The rates of corporal punishment vary widely across countries in 2018 with Albania and Mongolia at the lower end (48 and 49 percent, respectively) and Bangladesh and Iraq (89 and 81 percent, respectively) at the upper end. Jamaica’s rates are on the higher end of the spectrum: it has been reported that 80 percent of Jamaican children experience violence at home.

In the broader Caribbean region, the acceptance of physical punishment remains widespread. UNICEF, researching on childhood experiences with violence in Jamaica, found that some caretakers believe in the need for physical punishment. Moreover, boys, children from poorer households, and those in rural communities are more likely to be subjected to violent discipline. CAPRI’s 2021 report, Stress Test: the Impact of the Pandemic on Domestic and Community Violence revealed the harsh experiences endured by Jamaica's children, including neglect, physical, sexual, and psychological violence such as “dissing” or name-calling, all which were exacerbated by the pandemic-related school closures which forced many families to be at home together for extended periods. CAPRI’s Mind the Gap report further found that only 8 percent of children’s mental health needs in Jamaica are currently being met.

Numerous studies have found those who were victims of child abuse to be more troubled as adults, and have a higher chance of being abused later in life. Children who experience physical and sexual violence are at a greater risk of replicating abusive behavior as adults. They may develop mental health conditions such as anxiety and depression, and experience a range of stressors, including early pregnancy and suicide attempts.

While the delay in translating this recommendation to outlaw corporal punishment into law raises questions about the government's commitment to protecting Jamaica’s children, there are several other legislative amendments that are long outstanding. For the 2021-22 legislative year, there were 18 pieces of legislation to be dealt with but only three were finalised, nine were untouched and five were started but not finished. Among the legislative commitments made, amendments to the Restrictive Covenants Act, Rent Restriction Act, and the completion of the Credit Unions (Special Provisions) Bill, among others, remain untouched or incomplete. These commitments were poised to address diverse issues, but their inertia signals a broader challenge in enacting necessary legal changes. 

Amendments to the CCPA stand out as a prime example of this legislative quagmire. The Act’s own provisions require it to be updated regularly; a review exercise was completed in 2014; and a parliamentary joint select committee deliberated and proposed changes in 2019. CAPRI's 2021 report, Fix the Village, outlined several shortcomings in the Act, which had then still not been updated. The Act languishes without necessary amendments in 2024, leaving its shortcomings, including the proposed ban on corporal punishment, unaddressed.

As the government grapples with the imperative to address corporal punishment and enact relevant reforms, the threat of inaction casts a shadow of uncertainty. The delayed progress not only hampers the protection of children but also undermines the commitment to building a more peaceful society. The concerns extend beyond child protection issues, encapsulating a broader legislative inertia.

Jamaica’s Minister of Constitutional Affairs recently stated that the country’s legislative and constitutional reform process is designed to be deliberately slow, to allow citizens time to think about the kind of changes they want.  However, one would think the Jamaican people have had enough time to deliberate on the evidence to settle on a position on whether corporal punishment should be banned. Seemingly all that’s missing is the political will to protect the well-being and prospects of our youngest citizens.