中文撮要：
儘管聯合國《兒童權利公約》第十九條列明「締約國應採取一切適當的立法、行政、社會和教育措施，保護兒童在受父母、法定監護人或其他任何負責照管兒童的人的照料時，不致受到任何形式的身心摧殘、傷害或凌辱，忽視或照料不周，虐待或剝削，包括性侵犯。」，但目前全球只有約60個國家正式立法禁止體罰兒童。尤有甚者，各種為體罰辯護的守舊觀念在多國仍然大行其道。法律和應用倫理學學者Patrick Lenta在2018年出版了《Corporal Punishment: A Philosophical Assessment》的學術書籍，對那些似是而的論點和論據予以駁斥。
不過，Lenta認為應賦予警察或檢察官決定起訴體罰子女的家長與否的酌情權的論點，是整本著作最具爭議性的部分。Lenta指出，在某些情況下，警察或檢察官與曾施予輕微體罰的家長加強溝通後可避免個案中的兒童再受到體罰對待（筆者按：正如球證可先行向犯規的球員作出口頭警告，如他們在場上的行為仍沒改善後才正式出示黃牌或紅牌）。此外，Lenta強調，在部分個案中，把施予輕微體罰的家長送進大牢會令兒童頓時失去照顧者。因此，Lenta聲稱須容許警察或檢察官平衡一系列的因素後才決定是否正式提出起訴。然而，這種進路會衍生執法尺度不一，因而導致部分個案有罪不罰的潛在問題。
Patrick Lenta, Corporal Punishment: A Philosophical Assessment. New York: Routledge, 2018. 239 pp. ISBN 978-1-138-07999-1 (hbk). £110.00.
Article 19 of the United Nations Convention on the Rights of the Child states that children shall be protected by the state ‘from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child’. Yet, despite the convention existing for more than 25 years, there have been numerous mistaken attempts to defend its morality and legality. This is suggested by Patrick Lenta’s “Corporal Punishment: A Philosophical Assessment”, which offers fundamental critiques regarding this issue via cost-benefit analysis and rights-based theories.
In Chapter 2, Lenta reiterates that corporal punishment is neither a necessary means nor an efficient means to achieve the goal of ‘moral education’ (pp. 23-27), making children obey parent(s), legal guardian(s) or teachers’ instructions (pp. 27-32), and ‘deterrence’ (pp. 32-34). Rather, it tends to discourage children from making ‘repentance-inducing reflection’ (pp. 38-39). ‘They may indeed exhibit signs of contrition, but these are more likely to be faked out of a desire to arrest the punishment and gain relief from the pain than to reflect genuine remorse or a sincere commitment to amendment of conduct’ (p. 30). Worse still, corporal punishment is anxiety-, fear- and violence-inducing, which is very likely to impose serious physical and psychological harm to children (pp. 39-51). Lenta further criticises the ill-grounded assertion that parental love can alleviate the harms of corporal punishment, in part because empirical studies provide little evidence to support it, and in part because there is no guarantee that parents who assume parental love know how to protect their children’s best interests (pp. 51-53). In brief, Chapter 2 argues that none of the retributive justification, necessity justification, lesser evil justification, and paternalist justification of corporal punishment is sound.
Nevertheless, Lenta devotes great effort to elaborate the moral repugnance of corporal punishment from deontological perspectives (Ch. 3). He sees no morally justifiable reason to exclude children from ‘possess[ing] the rights to security of the person and to protection against degrading, cruel or torturous punishment’ (p. 71), because these types of rights are elementary and inviolable. Thus, Lenta believes that the imposition of corporal punishment to children is as morally indefensible as other types of domestic violence, such as wife abuse. He further remarks ‘that as children develop and acquire the capacity for autonomous, rational choice, their rights shift from the protection of interests to the protection of choices’ (p. 71). This is an important step for Lenta when defending children’s fundamental right against corporal punishment, while also distinguishing himself from child liberationists who insist that children ought to have the same scope and content of rights as adults.
Simultaneously, Lenta refuses to adopt the same conclusion as child protectionists, even though they share some presuppositions about the moral status of children. While Lenta’s thoughts are similar to Matthew Kramer’s view, in that consensual corporal punishment is not necessarily torturous, he doubts that children can make free and autonomous decisions due to their ‘level of cognitive development and immaturity’ and their inferior status (compared to parents and teachers) (pp. 126-128). ‘Of course, not all parents and teachers will abuse their positions of authority to place coercive pressure on children to consent to corporal punishment, but there will always be the temptation to do so, given the asymmetry in power between the parties and the fact that corporal punishment may offer itself as a more convenient punitive option for parents and teachers than alternative punishments that might demand a greater expenditure of time’ (p. 128). Consequently, Lenta disagrees with granting absolute guardianship to caregivers, regardless of children not being mature enough to make their own decisions.
It is certainly true that some might counter-argue one should not rule out the possibility that a few children can actually make free and autonomous decisions. Nonetheless, acquiescing to the belief that children can make autonomous choice does not necessarily make the justification of imposing corporal punishment more lenient. First, if children can make autonomous decisions, it is questionable whether the guardianship of their caregivers should be preserved, unless children are only able to make autonomous choice about whether or not to accept corporal punishment. However, there is very little evidence to support such a claim. Second, for the sake of further discussion, if one presumes that children are only capable of making autonomous choice about whether or not to accept corporal punishment, it is highly unlikely that they would be willing to accept corporal punishment. It is not difficult to assume that moral agents would refuse to accept corporal punishment. Third, children can express their objection to mild and even harmless rights violation (Rodin, 2011, p. 98). Accordingly, children can refuse a caregiver’s imposition of corporal punishment, even if it is beneficial to their future development. In which case, the arguments of paternalists and child protectionists cannot be applied, leaving little meaning to evaluate corporal punishment against children separately. Only when one shifts back to the presupposition of denying that children can make autonomous choice, the separate discussion about the ethical controversy of corporal punishment against children is meaningful. On this basis, it is argued that Lenta provides solid enough deontological arguments to cry foul on corporal punishment against children.
Some liberals claim that the state should not intervene in rectifying the moral wrongdoings of caregivers. On the contrary, Lenta highlights the importance of criminalising corporal punishment because it can cause great harm to children, and thus violates their right to security and bodily integrity. Yet, quite surprisingly, the primary purpose of criminalising corporal punishment, for Lenta, is communicative and pedagogical. He urges to grant prosecutors or state officials discretionary power about whether or not to prosecute corporal punishers. He cites examples from New Zealand and Europe (especially Sweden) to illustrate that the introduction of educational campaigns accompanied by occasional prosecutions is effective enough to significantly reduce the rate of imposing corporal punishment to children (pp. 168-171). However, whether this arrangement can fulfil its goal highly depends on whether prosecutors or state officials exercise their discretionary powers reasonably. If prosecutors or state officials receive insufficient training to judge whether cases are serious enough for corporal punishers to be prosecuted, or they are inclined to acquiesce to corporal punishment, then this arrangement will connive to impose corporal punishment to children. Meanwhile, it should be noted that the successful examples cited by Lenta are those from developed states where citizens overwhelmingly accepted that every person should have basic human rights and human dignity, which made a communicative approach to abhor corporal punishment more cost-effective. For example, the police or prosecutors require little effort to explain the importance of preserving others’ human rights and dignity before persuading corporal punishers to stop their actions of depriving children’s right to bodily security. Yet, it is unclear whether those successful examples can be duplicated in states where the notion of human rights and dignity is ill-developed, since there is little common ground for prosecutors and corporal punishers to communicate in order to minimise the divergences.
Furthermore, it seems that Lenta has double standards when it comes to endorsing selective and infrequent prosecution of corporal punishers but not wife abusers, given that he believes they are equally morally unacceptable. One attempt to avoid such inconsistency is to endorse the infrequent prosecution of wife abusers so as to serve the communicative and pedagogical purpose of criminalising this moral wrongdoing simultaneously. That said, this conclusion would also be extremely unlikely. Lenta disagrees with imposing any retributive punishment to children because ‘they lack a developed ability to reason and to maintain self-control’ (p. 22), but this rationale cannot be used to exempt the punishment of both corporal punishers and wife abusers (though the content of punishment should aim at promoting rehabilitative justice as well); as adults, they should be responsible for their moral wrongdoing.
Furthermore, while Lenta acknowledges children’s positive right against corporal punishment, it is problematic for him not to encourage them to ‘stand on their rights’ bravely (p. 164). Strictly speaking, abusive, torturous, or degrading corporal punishers are liable to attack in self-defence, but it is difficult to imagine that large numbers of children are capable of warranting such a scenario. This is why the police and prosecutors, as agents of the state, are obliged to intervene to protect children’s right to security and bodily integrity. Admittedly, due to budget constraints, it would be extremely difficult for the police and prosecutors to intervene in every case of corporal punishment. However, this does not mean that the state should stick to merely accepting occasional prosecution for acts of corporal punishment. Educating children to seek help from reliable third parties and introducing measures to stimulate the incentive of neighbourhoods to intervene and report cases of corporal punishment—which Lenta’s book fails to mention—is essential when attempting to reduce the cost of enforcing legal proceedings against corporal punishment.
Moreover, it should be noted that the primary duty of the police and prosecutors is to preserve the rule of law rather than to communicate with and educate citizens via exercising discretion. Asking law enforcement officers to play the communicative and pedagogical role would leave them facing the problem of conflicting duties. Lenta recognises that granting the police and prosecutors the power to exercise discretion is an ‘imperfect’ arrangement, but argues that it can reconcile the dilemma between ‘leaving children defenceless against’ abusive, torturous, and degrading corporal punishment and making the situation of children worse off by prosecuting their parents (pp. 165-166). However, it would be more appropriate for states to facilitate non-governmental child protection organisations or informal legal agencies to play the communicative and pedagogical role. This might include employing social workers to provide outreach services, such as counselling and therapy, so as to improve parenting skills and re-build the intimacy of parent-child relationships. As a result, they would not need to play the role of enforcing the law impartially—so that conflict of interest would not be involved—and also because they are more equipped than formal legal agencies to play such roles. Formal legal agencies, at best, focus on ensuring the criminal law against corporal punishment is enforced impartially in order to uphold the rule of law.
It is certainly true that some might enumerate paradigmatic cases of civil disobedience. For instance, allowing prosecutors and the police to exercise discretion about whether or not to arrest and to prosecute law-breakers, does not necessarily undermine the rule of law. Yet, those who attempt to defend infrequent prosecution of corporal punishers through this line of argument fail to highlight the important difference between civil disobedience and corporal punishment: the former is supposed to be nonviolent in principle, whereas the latter tends to involve direct and serious physical violence. It is difficult to imagine that formal legal agencies can preserve the rule of law by waiving the right to prosecute those who impose direct and serious physical harm to others such as corporal punishers and wife abusers. Therefore, the scope of prosecutorial discretion should not be extended to absolve the legal responsibility of the imposers of domestic violence.
Nonetheless, Lenta still provides many insightful arguments and suggestions. For instance, it is praiseworthy for him to advocate for ‘corporal punishers to attend specialized programmes focused on violence against women and children with a view to making them aware of the nature and effects of their violent conduct, persuading them to change it, and educating them about healthy child development and effective nonviolent techniques of curbing children’s refractoriness and indiscipline’ (p. 166), in addition to imposing financial penalties given that this arrangement is compatible with the idea of rehabilitative justice. Likewise, he is correct to reject the cultural and religious relativist approach—which attempts to justify corporal punishment morally and legally—because it serves as an excuse to perpetuate harm to children. Crucially, Lenta is practical enough to highlight the importance of protecting the interests of children. While one may not accept Lenta’s conclusion of endorsing the occasional prosecution of corporal punishers, a viable alternative must be considered to avoid making the situation of children worse. Otherwise, the original intention of criminalising corporal punishment against children would be violated. Overall, “Corporal Punishment: A Philosophical Assessment” is one of the few studies to offer a comprehensive philosophical and legal evaluation of corporal punishment. Therefore, it is highly recommended that academics, policymakers, and caregivers—regardless of their stance on corporal punishment—should read this book to gain a better understanding of this topic.
References
Rodin, David. (2011), ‘Justifying Harm’, Ethics 122, 74-110.
T-Fai Yeung is a researcher at the Global Studies Institute Hong Kong, a blogger for Stand News, and a guest contributor to the Hong Kong Economic Journal, Hong Kong Free Press, Apple Daily, and Linhe Zaobao (Singapore). This article first appeared in Faith100.media. The views expressed in this article are his own and do not reflect the view of the aforementioned organisations.