禁止体罚儿童的国际法律规定与国内法律实施——以家庭内体罚儿童为视角

普遍存在的体罚儿童现象随着国际社会对儿童权利的关注逐渐进入人们的视野,特别是家庭内部的儿童体罚问题也开始受到关注。近年来,禁止一切形式的儿童体罚的观念逐渐被越来越多的国家所接受。探析儿童体罚问题的原因和危害,从国际人权文件和我国国内法律体系中寻找家庭内部禁止体罚儿童的依据,以类型化分析的方法比较世界各国保护儿童的立法例及其进展,借鉴外国禁止体罚的立法实践,针对我国在禁止家庭内体罚儿童中存在的种种问题,提出若干改进方向,以求尽快达到禁止体罚儿童的国际人权法律标准、不断改善国内儿童权利保护状况十分必要。     

The effect of social dominance orientation on perceptions of corporal punishment

Previous research has suggested the use of corporal punishment is widely endorsed in our society (Straus, 2000; Straus & Stewart, 1999). Furthermore, perceptions of what constitutes corporal punishment vary. The present study examined social dominance orientation (SDO) and age of child as potential factors that may influence perceptions of what is viewed as corporal punishment versus physical abuse. The sample consisted of 206 undergraduate students enrolled at a Rocky Mountain University. A series of regressions were used to examine the relationships between SDO and six forms of punishment. Findings suggest, higher levels of SDO are significantly related to more ratings of physical punishment versus physical abuse. The primary findings of the present study showed SDO was significantly related to how an individual perceives corporal punishment. These results have important implications by serving as a stepping-stone into further understanding what factors may have an influence on perceptions of corporal punishment.     

Corporal Punishment and Kids: How Do Parent Support and Gender Influence Child Adjustment?

Previous research on corporal punishment has failed to consider the interaction of parent support and parent gender in predicting child outcomes. The current study examined whether parental support moderated the effects of corporal punishment on child outcomes (i.e., depression and aggression), and more specifically, whether the gender of the supportive parent moderated the effects of punishment from the opposite-sex parent. Results differed depending on the gender of the punishing and supportive parents, suggesting that parental support can be a protective factor in child outcomes but only under certain conditions. Mother support moderated the effects of father punishment on child depression but not child aggression. High corporal punishment by father was related to more child depression at both high and low levels of mother support. High levels of mother support only seemed important (i.e., children were less depressed) at low levels of father corporal punishment. In contrast, father support moderated the relationship between mother corporal punishment and child aggression but not depression. Children with high father support showed less aggression across all levels of mother corporal punishment. At low levels of father support, child aggression increased as mother corporal punishment increased. For depression, mother corporal punishment was positively related to child depression regardless of level of father support. These findings suggest differential effects for mother and father support and have implications for the treatment and prevention of negative outcomes in children who are physically punished by their parents.

A CROSS‐CULTURAL EXAMINATION OF THE LINK BETWEEN CORPORAL PUNISHMENT AND ADOLESCENT ANTISOCIAL BEHAVIOR*

Several studies with older children have reported a positive relationship between parental use of corporal punishment and child conduct problems. This has lead some social scientists to conclude that physical discipline fosters antisocial behavior. In an attempt to avoid the methodological difficulties that have plagued past research on this issue, the present study used a proportional measure of corporal punishment, controlled for earlier behavior problems and other dimensions of parenting, and tested for interaction and curvilinear effects. The analyses were performed using a sample of Iowa families that displayed moderate use of corporal punishment and a Taiwanese sample that demonstrated more frequent and severe use of physical discipline, especially by fathers. For both samples, level of parental warmth/control (i.e., support, monitoring, and inductive reasoning) was the strongest predictor of adolescent conduct problems. There was little evidence of a relationship between corporal punishment and conduct problems for the Iowa sample. For the Taiwanese families, corporal punishment was unrelated to conduct problems when mothers were high on warmth/control, but positively associated with conduct problems when they were low on warmtwcontrol, An interaction between corporal punishment and warmth/Wcontro1 was found for Taiwanese fathers as well. For these fathers, there was also evidence of a curvilinear relationship, with the association between corporal punishment and conduct problems becoming much stronger at extreme levels of corporal punishment. Overall, the results are consistent with the hypothesis that it is when parents engage in severe forms of corporal punishment, or administer physical discipline in the absence of parental warmth and involvement, that children feel angry and unjustly treated, defy parental authority, and engage in antisocial behavior.     

Opening Pandora's Box: Protecting Children Against Torture or Cruel,Inhuman and Degrading Treatment or Punishment*

Children are rarely perceived as torture victims, although they may be easier targets. International inertia is compounded as not only torture, but also ‘other cruel, inhuman or degrading treatment or punishment’ is prohibited. Some of these occur in the private sphere, which traditionalists erroneously assume outside of international human rights law. Children may also be unprotected because they suffer from trauma in different ways from adults. Jurisprudence of human rights fora based principally on adult victims, despite some dicta to the contrary, risks international standards being inappropriately applied to child victims. This promotes an analysis which fails to address the particular vulnerabilities of children and their role as social actors.     

The United Nations Convention on the Rights of the Child and the Punishment of Children Under English Law – Public and Private Vices?

The punishment of children in the domestic sphere and in the public domain is an issue of concern for those with care of children or whose interests lie in the protection of children’s human rights. How children are treated when they are judged to have broken rules reveals fundamental approaches to the welfare of those who have yet to reach adulthood. The effect of the United Nations Convention on the Rights of the Child in respect of how children are punished, whether in the home or as transgressors of criminal law, may be examined through two distinct but linked spheres: the private and home life context of domestic or personal punishment, and the public domain of state punishment of children in terms of criminal responsibility under English Law. Both spheres reveal attitudes towards the rights of children which suggest how human rights are accorded to particular groups in applying international obligations to a state’s domestic provision. This article seeks to explore some issues of compliance with Article 19 (the physical chastisement of children), Article 37 (the imprisonment of children being a ‚last resort’) and Article 40 (the minimum age of criminal responsibility) of the United Nations Convention on the␣Rights of the Child. The application of the rights of children and the operation of the ‚best interests’ of the child in applying Articles 19, 37 and 40 suggests that there are issues in relation to non-compliance which indicate a diminution of the separate rights of children under English Law in particular and in the operation of the best interests of the child. Penny Booth is a Reader in Law at Staffordshire University Law School.     

Characteristic Features of Severe Child Physical Abuse—A Multi-informant Approach

Minor child physical abuse has decreased in Sweden since 1979, when a law banning corporal punishment of children was passed, but more serious forms have not decreased. The aim of this study was to examine risk and background factors in cases of severe child abuse reported to the police. Files from different agencies (e.g., Social services, Adult and Child psychiatry and Pediatric clinic) for 20 children and 34 caretakers were studied. An accumulation of risk factors was found. It is concluded that when the following four factors are present, there is a risk for severe child abuse: 1) a person with a tendency to use violence in conflict situations; 2) a strong level of stress on the perpetrator and the family; 3) an insufficient social network that does not manage to protect the child; 4) a child that does not manage to protect him or herself. Thus, multiple sources of information must be used when investigating child abuse.     

Corporal Punishment: Examining Attitudes Toward the Law and Factors Influencing Attitude Change

There remains considerable societal support for child corporal punishment, despite much research about its ineffectiveness and potential harm to children. We examined attitudes toward Section 43 of the Canadian Criminal Code which gives parents the right to use reasonable physical force for discipline purposes. We also examined attitude change and predictors of this change. Participants (N?=?212) completed an on-line study, which found that 39.2 % disagreed with ending Section 43. Upon presentation of corporal punishment-related information, the majority (63.8–70.5 %) now indicated being in favor of ending Section 43. Attitude change was highest for information on the potential for child abuse. Socio-demographics (ethnicity, religion), childhood disciplinary experiences (non-punitive discipline), and discipline perceptions (parental warmth/involvement) predicted attitude change. Results indicate that providing information about corporal punishment is key to changing attitudes toward parents’ legal right to its use. Also, parental background and childhood discipline characteristics may differentially influence the amount of attitude change.     

UNDERSTANDING CHILDREN'S RIGHTS: THEORY AND PRACTICE

This article discusses the meaning of children's rights in the context of the European Convention on Human Rights and the UN Convention on the Rights of the Child. Both place primary responsibility for the upbringing and education of children on their parents and families. The freedom of parents to bring up their children in their own way is an important component of a liberal democracy founded on respect for individual differences. So if parents believe in moderate corporal punishment as a means of educating their children in their own religious beliefs, is the state justified in banning such punishment either in school or in the home in order to protect the children's rights? This article discusses the children's rights which are protected by doing so.     

Intergenerational Transmission of Parental Corporal Punishment in China: The Moderating Role of Spouse’s Corporal Punishment

Intergenerational patterns in the transmission of parental corporal punishment and the moderating effects of the spouses’ use of discipline on these patterns in China were examined. A total of 761 father-mother dyads reported on their experience of corporal punishment in childhood and their current use of discipline toward children. Results indicated that corporal punishment was transmitted across generations in China, and the strength of transmission was stronger for mild corporal punishment than for severe corporal punishment. Moreover, fathers’ corporal punishment moderated the transmission of the mothers’ discipline, but the moderating impact of mothers on the fathers’ discipline was absent. These findings suggest that the intergenerational transmission of corporal punishment differs according to severity and is moderated by the spouses’ discipline.     

Stress Appraisal and Attitudes Towards Corporal Punishment as Intervening Processes Between Corporal Punishment and Subsequent Mental Health

The purpose of this research was to examine the role of within-person processes in determining the impact of parental corporal punishment on mental health in older adolescents. A stress appraisal scale specific to corporal punishment and an attitudes towards corporal punishment scale were developed for this study and examined as determinants of the impact of corporal punishment on psychological and parent-child relationship outcomes. Results of this research indicated that participants’ evaluations of their parents’ corporal punishment as threatening was more important than the actual frequency of corporal punishment in determining adolescent mental health, and were significantly associated with the mental health measures after controlling for other elements of parenting. In addition, the mother-child relationship was more adversely impacted by mothers’ corporal punishment when adolescents evaluated that punishment negatively. These results enhance theoretical models describing intrapersonal processes through which subabusive parental violence affects children and can help to improve intervention efforts aimed at reducing negative outcomes associated with corporal punishment.     

Juvenile delinquency and the juvenile justice system: U.S. and India

The paper deals with comparative issues in the definition, nature, and extent of juvenile delinquency, juvenile law, juvenile justice with special reference to India and the United States. Through an analysis of comparative data on patterns of delinquency differentials on the variables of sex, age, social class, and type of offense, the paper identifies the similarities between the two countries. The paper notes one exception regarding patterns of delinquency that indicate a relatively negligible involvement of the Indian juveniles in the crime of rape due to the cultural and socialization differences. The paper discusses the provisions under the Children Act of 1960 in India and points that both in philosophy and practice, the parens patriae doctrine in juvenile justice fares better in the Indian context. Unlike in the U.S., juveniles in India do not have certain Constitutional due process rights, such as the right to an attorney, yet the children courts in India serve as criminal courts and the Indian act provides for greater procedural safeguards. The paper also suggests that the disposition of juvenile cases in India results in lesser hard-core institutional commitment than in the U.S. and that the maximum period of punishment does not exceed the limits provided for the offense as stipulated by the Indian act.     

Where and When to Spank: A Comparison Between U.S. and Japanese College Students

Although physical punishment has been studied for decades, there are gaps in the literature regarding frequently used form, context, and cross cultural differences. A comparison was made using 227 college students in the United States and Japan, who were presented with four scenarios and surveyed regarding attitudes toward physical punishment, perceptions of appropriate discipline methods, and past experience with physical punishment. Japanese and U.S. respondents reported similar personal experience with physical punishment (Japanese 86%, U.S. 91%). However, U.S. respondents reported a higher likelihood of being hit with an object than did Japanese respondents. For U.S. respondents, the bottom and the hand were the top two sites on the body used for physical punishment, whereas the head and the face were the top two places for the Japanese sample. Unlike U.S. respondents, type of child misbehavior was found to have an impact on Japanese respondents’ views on the appropriate discipline method.     

追寻公正：解析我国轻罪重判刑事赔偿问题

本文试从分析一起轻罪重判刑事赔偿案入手,围绕本案所涉及到的我国在有关刑事赔偿的立法、司法方面实现公平、正义的法治精神问题进行阐述,进而立足于对法治精神追寻,探求解决这一国家赔偿问题的有效途径,以期实现真正的人权保障与司法公正。     

Discipline, Assault, and Justice: Violent Parents and the Law

This article calls attention to an unacceptable double standard in American law: the lenient treatment of parental violence against children when compared to other forms of physical assault. Parts II and III critique the generous privilege of physical discipline extended to parents and the differential state response to violence when the victim is a child in the assailant's family. Appeals to family privacy and parental autonomy to justify the current double standard are examined and found wanting. Clearer and much stricter limits on corporal punishment are recommended and defended as constitutional. We further recommend that parental violence which falls outside these limits should be treated no differently than other misdemeanor and felony assaults. These two proposals give children the protection against domestic violence to which they are entitled as a matter of right and prudence.     

Listening to children: Participation rights of minors in Italy and the United States

This article compares laws and policies in Italy and the US regarding children's right to be heard and to engage in the life of the community. Italy has adopted a strong children's rights perspective, informed by the principles of the Convention on the Rights of the Child (CRC). The US, with its pre-modern constitution and resistance to international law, has been slow to recognise children's rights to voice and agency. The US Supreme Court has extended some due process rights to children in criminal court proceedings, but the US lags far behind Italy in recognition of children's rights to participate in civic life and collective decision-making. Child well-being rankings may reflect these differences in attitudes towards children's rights. Italy ranks significantly higher than the US on objective measures of child well-being and Italian children report superior peer and family relationships.     

Opinions about child corporal punishment and influencing factors

The use of corporal punishment has been linked to negative developmental outcomes for children. Despite this finding, Section 43 of the Canadian Criminal Code permits the use of corporal punishment by parents for children 2 to 12 years of age. Therefore, this study's first objective is to investigate opinions toward Section 43 and spanking more generally. The second objective is to investigate predictors of opinions toward Section 43 and spanking more generally. The sample consists of 818 nonparents (70.7% female, 29.0% male) who completed an online study. Results indicate that 38.6% were favorable toward upholding Section 43. However, this decreases to 25.8% when a condition is included, stating that parents would not be prosecuted for mild slaps or spankings. For attitudes toward spanking more generally, results reveal that 16.7% of the participants held favorable attitudes. Hierarchical regression analyses reveal that planning to use corporal punishment upon becoming a parent predicted having a more favorable attitude toward Section 43 as well as toward spanking more generally (after controlling for sociodemographics). In contrast, having experienced violence during one's childhood predicts having less favorable attitudes toward Section 43 and spanking more generally. Significant interactions are found between childhood experiences of corporal punishment and perceptions of parental warmth/support and impulsiveness during discipline in predicting attitudes toward spanking. Those who report experiencing more corporal punishment during childhood but also more parental warmth/support hold more favorable attitudes toward spanking and those who report experiencing more corporal punishment during childhood and also more parental impulsiveness hold less favorable attitudes toward spanking. Findings indicate that examining opinions toward Section 43 and spanking separately is important because these concepts are not synonymous. In addition, both more immediate factors and those related to one's developmental history play a role in predicting opinions toward Section 43 and spanking more generally.     

Law From Below: Women's Human Rights and Social Movements in New York City

Despite the ambivalent history of the domestic application of human rights in the United States, human rights increasingly offer important resources for American grassroots activists. Within the constraints of U.S. policy toward human rights, they provide social movements a kind of global law "from below": a form of cosmopolitan law that subalterns can use to challenge their subordinate position. Using a case study from New York City, we argue that in certain contexts, human rights can provide important political resources to U.S. social movements. However, they do so in a diffuse way far from the formal system of human rights law. Instead, activists adopt some of the broader social justice ideas and strategies embedded within human rights practice.     

A Human Right not to be Punished? Punishment as Derogation of Rights

In this essay, I apply international human rights theory to the domestic discussion of criminalization. The essay takes as its starting point the “right not to be punished” that Douglas Husak posited in his recent book Overcriminalization. By reviewing international human rights norms, I take up Husak’s challenge to imbue this right with further normative content. This process reveals additional relationships between the criminal law and human rights theory, and I discuss one analogy: the derogation by states of an individual’s human rights under specified conditions has certain similarities to the punishment by states of an individual who holds a right not to be punished. Along the way, I highlight the normative implications of defining a human right not to be punished under both generalist and specificationist perspectives on moral rights. Noting the similarities as well as the differences in the concepts of punishment and derogation, this essay aims to contribute to the exchange between theories of human rights and the criminal law.     

SOLVING THE FAMILY COURT PUZZLE: INTEGRATING RESEARCH,POLICY, AND PRACTICE

In my opening remarks to the 42nd Annual Conference of the Association of Family and Conciliation Courts, I discuss trends in family law cases from the Supreme Court of Washington and the U.S. Supreme Court. I also review the wide variety of advancements in the way that court systems approach family law cases. Noting a recent emphasis on the fundamental rights of parents, I advocate a new paradigm, moving away from a focus on the parents and toward a focus on the child.