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Legality of corporal punishment in the United States
 
Legality of corporal punishment in Europe
     Corporal punishment prohibited in schools and the home      Corporal punishment prohibited in schools only      Corporal punishment not prohibited

Corporal punishment is the deliberate infliction of pain as retribution for an offence, or for the purpose of disciplining or reforming a wrongdoer, or to deter attitudes or behaviour deemed unacceptable. The term usually refers to methodically striking the offender with an implement, whether in judicial, domestic, or educational settings.

Corporal punishment may be divided into three main types:

  • parental or domestic corporal punishment: within the family -- typically, children punished by parents or guardians;
  • school corporal punishment: within schools, when students are punished by teachers or school administrators;
  • judicial corporal punishment: as part of a criminal sentence ordered by a court of law. Closely related is prison corporal punishment, ordered either directly by the prison authorities or by a visiting court.

The corporal punishment of minors within the home is lawful in all 50 of the United States and, according to a 2000 survey, it is widely approved by parents.[1] It has been officially outlawed in 25 countries around the world.[2]

Corporal punishment in school is still legal in some parts of the world, including 20 of the States of the USA, but has been outlawed in other places, including Canada, Japan, South Africa, New Zealand, and nearly all of Europe except the Czech Republic[3] and France.[4]

Judicial corporal punishment has virtually disappeared from the western world but remains in force in many parts of Africa and Asia.

Contents

History of corporal punishment

While the early history of corporal punishment is unclear, the practice was recorded as early as c 10th Century BC in Míshlê Shlomoh, (Solomon's Proverbs),[5] and it was certainly present in classical civilizations, being used in Greece, Rome, and Egypt for both judicial and educational discipline.[6] Some states gained a reputation for using such punishments cruelly; Sparta, in particular, used them as part of a disciplinary regime designed to build willpower and physical strength.[7] Although the Spartan example was extreme, corporal punishment was possibly the most frequent type of punishment. In the Roman Empire, the maximum penalty allowed by law was 40 "lashes" or "strokes" with a whip applied to the back and shoulders, or with the "fasces" (similar to a birch rod, but consisting of 8-10 lengths of willow rather than birch) applied to the buttocks. Such punishments could draw blood, and were frequently inflicted in public.

In Medieval Europe, corporal punishment was encouraged by the attitudes of the medieval church towards the human body, flagellation being a common means of self-discipline. This had an influence on the use of corporal punishment in schools, as educational establishments were closely attached to the church during this period. Nevertheless, corporal punishment was not used uncritically; as early as the eleventh century Saint Anselm, Archbishop of Canterbury was speaking out against what he saw as the excessive use of corporal punishment in the treatment of children.[8]

From the 16th century onwards, new trends were seen in corporal punishment. Judicial punishments were increasingly turned into public spectacles, with public beatings of criminals intended as a deterrent to other would-be offenders. Meanwhile, early writers on education, such as Roger Ascham, complained of the arbitrary manner in which children were punished.[9] Perhaps the most influential writer on the subject was the English philosopher John Locke, whose Some Thoughts Concerning Education explicitly criticised the central role of corporal punishment in education. Locke's work was highly influential, and may have helped influence Polish legislators to ban corporal punishment from Poland's schools in 1783.[10]

During the 18th century, the concept of corporal punishment was attacked by some philosophers and legal reformers. Merely inflicting pain on miscreants was seen as inefficient, influencing the subject only for a short period of time and effecting no permanent change in their behaviour. Some believed that the purpose of punishment should be reformation, not retribution. This is perhaps best expressed in Jeremy Bentham's idea of a panoptic prison, in which prisoners were controlled and surveyed at all times, perceived to be advantageous in that this system supposedly reduced the need of measures such as corporal punishment.[11]

A consequence of this mode of thinking was a reduction in the use of corporal punishment in the nineteenth century in Europe and North America. In some countries this was encouraged by scandals involving individuals seriously hurt during acts of corporal punishment. For instance, in Britain, popular opposition to punishment was encouraged by two significant cases, the death of Private Frederick John White, who died after a military flogging in 1846, and the death of the schoolboy Reginald Cancellor, who was killed by his schoolmaster in 1860.[12] Events such as these mobilised public opinion, and in response, many countries introduced thorough regulation of the infliction of corporal punishment in state institutions such as schools, prisons and reformatories.

In the 1870s, courts in the United States overruled the common-law principle that a husband had the right to "physically chastise an errant wife".[13] In the UK the traditional right of a husband to inflict moderate corporal punishment on his wife in order to keep her "within the bounds of duty" was similarly removed in 1891.[14][15] See Domestic violence for more information.

In the United Kingdom, the use of judicial corporal punishment declined during the first half of the 20th century and it was abolished altogether in 1948, while most other European countries had abolished it earlier. Meanwhile in many schools, the use of the cane, paddle or tawse remained commonplace in the U.K. and the United States until the 1980s. In several other countries, it still is: see School corporal punishment.

Modern use

Corporal punishment in the home

Domestic corporal punishment, i.e. of children and adolescents by their parents, is usually referred to colloquially as "spanking", "smacking" or "slapping".

In some parts of the world, it is increasingly controversial. See Corporal punishment in the home for arguments for and against.

In an increasing number of countries it has been outlawed, starting with Sweden in 1979.[2] In some other countries, corporal punishment is legal, but restricted (e.g. blows to the head are outlawed and implements may not be used, and/or only children within a certain age range may be spanked). See Corporal punishment in the home for more information about the legal situation in individual countries.

In the United States, "spanking", "smacking" or "slapping" by parents is currently legal in all 50 states, it is also legal to use certain implements such as a belt or paddle. Attempts to ban spanking in Massachusetts have failed, and a law that would have restricted its use in California was defeated. (See Corporal punishment in the United States).

In Canada, spanking by parents or legal guardians (but nobody else) is legal, as long as the child is not under 2 years or over 12 years of age, and no implement other than an open, bare hand is used (belts, paddles, etc. are strictly prohibited). Provinces can legally impose tighter restrictions than the aforementioned national restrictions, but none currently do so.

In the UK, spanking or smacking is legal. Parents in England are also allowed and permitted to use implements (such as a cane, hairbrush or belt) similar to the US, but not in Scotland who outlawed the use of implements in October 2003.

Corporal punishment in schools

Legal corporal punishment of school students for misbehaviour involves striking the student on the buttocks or the palm of the hand in a premeditated ceremony with an implement specially kept for the purpose such as a paddle, or with the open hand.

It is not to be confused with cases where a teacher lashes out on the spur of the moment, which is not "corporal punishment" but violence or brutality, and is illegal almost everywhere.

Corporal punishment used to be prevalent in schools in many parts of the world, but in recent decades it has been outlawed in nearly all of Europe, and in Japan, Canada, South Africa, New Zealand and other countries. It remains commonplace and lawful in many Asian and African countries. For details of individual countries see School corporal punishment.

In the United States, the Supreme Court ruled in Ingraham v. Wright (1977) that school corporal punishment is exempt from the Eighth Amendment prohibition of cruel and unusual punishments. Paddling is used in schools in a number of Southern states, though it is on the decline. However, 30 states ban corporal punishment in public schools, and two states, New Jersey and Iowa, additionally prohibit it in private schools.

In Canada, corporal punishment has been banned in public and private schools since 2004. Every province but Alberta, Saskatchewan, and Ontario already had provincial bans prior to 2004. The first province to ban school corporal punishment was British Columbia, in 1973.

In the UK, corporal punishment was outlawed in state schools in 1987 and in all private schools by 2003.

Corporal punishment of male students has, in most cultures, generally been more prevalent and more severe than that of female students.[16] In Queensland, Australia, school corporal punishment of girls was banned in 1934, but for boys in private schools it is still legal as of 2009.[17] In Singapore, schoolboys are routinely caned for misbehaviour while the caning of girls at school is forbidden by law. In the U.S., statistics consistently show that about 80% of school paddlings are of boys.

Judicial or quasi-judicial punishment

     Countries with judicial corporal punishment

Some countries retain judicial corporal punishment, including a number of former British territories such as Botswana, Malaysia, Singapore and Tanzania. In Malaysia and Singapore, for certain specified offences, males are routinely sentenced to caning in addition to a prison term. The Singaporean practice of caning became much discussed around the world in 1994 when American teenager Michael P. Fay was caned for vandalism.

A number of countries with an Islamic legal system, such as Saudi Arabia, Iran, Sudan and northern Nigeria, employ judicial whipping for a range of offences. As of 2009, some regions of Pakistan are experiencing a breakdown of law and government, leading to a reintroduction of corporal punishment by ad hoc Islamicist courts.[18] As well as floggings, Saudi Arabia uses amputations or mutilation as a method of punishment.[19] Such penalties are highly controversial.[20][21] However, the term "corporal punishment" has since the 19th century usually meant caning, flogging or whipping rather than other kinds of physical penalties such as amputation.[22][23][24][25][26][27][28]

Pros and cons of corporal punishment

According to its proponents, corporal punishment offers several advantages over other kinds of punishment, such as that it is quicker to implement, costs nothing, and deters unruliness.[29][30]

The American Psychological Association opposes the use of corporal punishment in schools, juvenile facilities, child care nurseries, and all other institutions, public or private, where children are cared for or educated. It claims that corporal punishment is violent and unnecessary, may lower self-esteem, and is liable to instil hostility and rage without reducing the undesired behaviour. The APA also states that corporal punishment is likely to train children to use physical violence.[31]

A proponent of corporal punishment, David Benatar points out that using this last argument, fining people also teaches that forcing others to give up some of their property is an acceptable response to unwanted behavior in others. According to Benetar, the key difference lies in the legitimacy of the authority administering the punishment: "[T]here is all the difference in the world between legitimate authorities -- the judiciary, parents, or teachers -- using punitive powers responsibly to punish wrongdoing, and children or private citizens going around beating each other, locking each other up, and extracting financial tributes (such as lunch money). There is a vast moral difference here and there is no reason why children should not learn about it. Punishing children when they do wrong seems to be one important way of doing this."[32]

The psychologist Alice Miller claims that corporal punishment has many negative consequences.

Anatomical target

Different parts of the anatomy may be targeted:

  • The buttocks, whether clothed or bare, have often been targeted for punishment, particularly in Europe and the English-speaking world.[25] Indeed, some languages have a specific word for their chastisement: spanking in English, fessée in French, nalgada in Spanish (both Romanesque words directly derived from the word for buttock). The advantage is that these fleshy body parts are robust and can be chastised accurately, without endangering any bodily functions; they heal well and relatively quickly; in some cultures punishment applied to the buttocks entails a degree of humiliation, which may or may not be intended as part of the punishment.
  • Chastising the back of the thighs and calves, as sometimes in South Korean schools, is at least as painful if not more so, but this can cause more damage in terms of scars and bruising.
  • The upper back and the shoulders have historically been a target for whipping, e.g. in the UK with the cat-o'-nine-tails in the Royal Navy and in some pre-1948 judicial punishments, and also today generally in the Middle East and the Islamic world.
  • The head is a very dangerous place to hit, especially "boxing the ears."
  • The hand is very sensitive and delicate, and use of an implement could cause excessive damage.[33]
  • The soles of the feet are extremely sensitive, and flogging them (falaka), as has been sometimes done in the Middle East, is excruciating.

Ritual and punishment

Corporal punishment in official settings, such as schools and prisons, has typically been carried out as a formal ceremony, with a standard procedure, emphasising the solemnity of the occasion. It may even be staged in a ritual manner in front of other students/inmates, in order to act as a deterrent to others.

In the case of prison or judicial punishments, formal punishment might begin with the offender stripped of some or all of their clothing and secured to a piece of furniture, such as a trestle or frame,[34][35] (X-cross), punishment horse or falaka. In some cases the nature of the offence is read out and the sentence (consisting of a predetermined number of strokes) is formally imposed. A variety of implements may be used to inflict blows on the offender. The terms used to describe these are not fixed, varying by country and by context. There are, however, a number of common types which are encountered when reading about corporal punishment. These are:

  • The rod. A thin, flexible rod is often called a switch.
  • The birch, a number of strong, flexible branches of birch or similar wood, bound together with twine into a single implement.
  • The rattan cane (not bamboo as it is often wrongly described). Much favoured in the British Commonwealth for both school and judicial use.
  • The paddle, a flat wooden board with a handle, with or without holes. Used in US schools.
  • The strap. A leather strap with a number of tails at one end, called a tawse, was used in schools in Scotland and some parts of northern England.
  • The whip, typically of leather. Varieties include the Russian knout and South African sjambok, in addition to the scourge and the French martinet.
  • The cat o' nine tails was used in British naval discipline and as a judicial and prison punishment.
  • The hairbrush and belt were traditionally used in the United States and Britain as an implement for domestic spanking.
  • The plimsoll or gym shoe, used in British and Commonwealth schools, often called "the slipper". See Slippering (punishment).
  • The ferula, in Jesuit schools, as vividly described in a scene in A Portrait of the Artist as a Young Man.

In some instances the offender is required to prepare the implement himself. For instance, sailors were employed in preparing the cat o' nine tails which would be used upon their own back, while school students were sometimes sent out to cut a switch or rod.

In contrast, informal punishments, particularly in domestic settings, tend to lack this ritual nature and are often administered with whatever object comes to hand. It is common, for instance, for belts, wooden spoons, slippers, hairbrushes or coathangers to be used in domestic punishment, while rulers and other classroom equipment have been used in schools.

In parts of England, boys were once beaten under the old tradition of "Beating the Bounds" whereby a boy was paraded around the edge of a city or parish and would be spanked with a switch or cane to mark the boundary.[36] One famous "Beating the Bounds" took place around the boundary of St Giles and the area where Tottenham Court Road now stands in central London. The actual stone that separated the boundary is now underneath the Centre Point office tower.[37]

Corporal punishment, paraphilia and fetishism

The German psychologist Richard von Krafft-Ebing suggested that a tendency to sadism and masochism may develop out of the experience of children receiving corporal punishment at school.[38] But this was disputed by Sigmund Freud, who found that, where there was a sexual interest in beating or being beaten, it developed in early childhood, and rarely related to actual experiences of punishment.[39]

See also

References

  1. ^ Reaves, Jessica. "Survey Gives Children Something to Cry About", Time, New York, 5 October 2000.
  2. ^ a b Global Initiative to End All Corporal Punishment of Children (GITEACPOC).
  3. ^ Czech Republic State Report, GITEACPOC, February 2008.
  4. ^ France State Report, GITEACPOC, February 2008.
  5. ^ Proverbs 23:13-14
  6. ^ McCole Wilson, Robert. A Study of Attitudes Towards Corporal Punishment as an Educational Procedure From the Earliest Times to the Present, Nijmegen University, 1999, 2.3 to 2.6.
  7. ^ McCole Wilson, 2.5.
  8. ^ Wicksteed, Joseph H. The Challenge of Childhood: An Essay on Nature and Education, Chapman & Hall, London, 1936, pp. 34-35. OCLC 3085780
  9. ^ Ascham, Roger. The scholemaster, John Daye, London, 1571, p. 1. Republished by Constable, London, 1927. OCLC 10463182
  10. ^ Newell, Peter (ed.). A Last Resort? Corporal Punishment in Schools, Penguin, London, 1972, p. 9. ISBN 0140806989
  11. ^ Bentham, Jeremy. Chrestomathia (Martin J. Smith and Wyndham H. Burston, eds.), Clarendon Press, Oxford, 1983, pp. 34, 106. ISBN 0198226101
  12. ^ Middleton. J. "Thomas Hopley and mid-Victorian attitudes to corporal punishment". History of Education 2005.
  13. ^ Calvert, R. "Criminal and civil liability in husband-wife assaults", in Violence in the family (Suzanne K. Steinmetz and Murray A. Straus, eds.), Harper & Row, New York, 1974. ISBN 0396068642
  14. ^ R. v Jackson, [1891] 1 QB 671, abstracted at LawTeacher.net.
  15. ^ "Corporal punishment", Encyclopædia Britannica Eleventh Edition, 1911.
  16. ^ Straus, 1994; Kipnis, 1999; Kindlon and Thompson, 1999; Newberger, 1999; Hyman, 1997.
  17. ^ Queensland Department of Education.
  18. ^ Walsh, Declan. "Video of girl's flogging as Taliban hand out justice", The Guardian, London, 2 April 2009.
  19. ^ Campaign against the Arms Trade, Evidence to the House of Commons Select Committee on Foreign Affairs, London, January 2005.
  20. ^ "Lashing Justice", Editorial, New York Times, 3 December 2007.
  21. ^ "Saudi Arabia: Court Orders Eye to Be Gouged Out", Human Rights Watch, 8 December 2005.
  22. ^ Oxford English Dictionary, 2nd edition, 1989, "corporal punishment: punishment inflicted on the body; originally including death, mutilation, branding, bodily confinement, irons, the pillory, etc. (as opposed to a fine or punishment in estate or rank). In 19th c. usually confined to flogging or similar infliction of bodily pain."
  23. ^ "Physical punishment such as caning or flogging" - Concise Oxford Dictionary.
  24. ^ "... inflicted on the body, esp. by beating." - Oxford American Dictionary of Current English.
  25. ^ a b "mostly a euphemism for the enforcement of discipline by applying canes, whips or birches to the buttocks." - Charles Arnold-Baker, The Companion to British History, Routledge, 2001.
  26. ^ "Physical punishment such as beating or caning" - Chambers 21st Century Dictionary.
  27. ^ "Punishment of a physical nature, such as caning, flogging, or beating." - Collins English Dictionary.
  28. ^ "the striking of somebody's body as punishment" - Encarta World English Dictionary, MSN. Archived 2009-10-31.
  29. ^ Vorhaus, John. "A fair price to pay", The Guardian, London, 14 March 1998.
  30. ^ "Major panics on punishment" (Editorial), The Daily Telegraph, London, 30 October 1996.
  31. ^ Resolution on Corporal Punishment, American Psychological Association, 1975.
  32. ^ Benatar, David. Corporal punishment, Social Theory and Practice, vol.24 no.2, 1998.
  33. ^ "Corporal Punishment to Children's Hands", A Statement by Medical Authorities as to the Risks, January 2002.
  34. ^ See for instance Photograph of a public flogging in Iran (2007).
  35. ^ See Pictures of trestle used for judicial caning in Singapore
  36. ^ "Mayor may axe child spanking rite", BBC News Online, 21 September 2004.
  37. ^ Ackroyd, Peter. London: The biography, Chatto & Windus, London, 2000. ISBN 1856197166
  38. ^ von Krafft-Ebing, Richard. Psychopathia Sexualis, F.A. Davis Co., London & Philadelphia, 1892. Republished 1978 by Stein & Day, New York: ISBN 081286011X
  39. ^ Freud, Sigmund. "A child is being beaten", International Journal of Psychoanalysis 1919; 1:371.

External links


1911 encyclopedia

Up to date as of January 14, 2010

From LoveToKnow 1911

CORPORAL PUNISHMENT, chastisement inflicted by one person on the body (corpus) of another. By the common law of England, Scotland and Ireland, the infliction of corporal punishment is illegal unless it is done in self-defence or in defence of others, or is done either by some person having punitive authority over the person chastised or under the authority of a competent court of justice. Corporal punishment in defence of self or others needs no comment, except that, like all other acts done in defence, its justification depends on whether or not it was reasonably necessary for the protection of the person attacked. Among persons invested with punitive authority, mention must first be made of parents and guardians, and of teachers, who have, by implied delegation from the parents, and as incidental to the relation of master and pupil, powers of reasonable corporal punishment. Such powers are not limited to offences committed by the pupil upon the premises of the school, but extend to acts done on the way to and from school and during what may be properly regarded as school hours (Cleary v. Booth, 1893, I Q.B. 465). The rights of parents, guardians and teachers, in regard to the chastisement of children, were expressly recognized in English law by the Prevention of Cruelty to Children Act 1904 (§ 28). Poor law authorities and managers of reformatories are in the same position in this respect as teachers. The punitive authority of elementary school teachers is subject to the regulations of the education authority: that of poor law authorities to the regulation of the Home Office and the Local Government Board. A master has a right to inflict moderate chastisement upon his apprentice for neglect or other misbehaviour, provided that he does so himself, and that the apprentice is under age (Archbold, Cr. Pl., 23rd ed., 795). Where a legal right of chastisement is exercised immoderately, the person so exercising it incurs both civil and criminal liability.

In some of the older English legal authorities (e.g. Bacon, Abridg. tit. "Baron and Feme," B), it was stated that a husband might inflict moderate corporal punishment on his wife in order to keep her "within the bounds of duty." But these authorities were definitely discredited in 1891 in the case of R. v. Jackson (1 Q.B. 671). By the unmodified Mahommedan law, a husband may administer moderate corporal punishment to his wife; but it is doubtful whether this right could be legally exercised in British India (Wilson, Digest of Anglo-Mahommedan Law, 2nd ed., pp. 153, 1 54). In Hawkins's Pleas of the Crown (Bk. 1, c. 63, § 29) it is laid down that "churchwardens, and perhaps private persons, may whip boys playing in church" during divine service. But while the right to remove such offenders is undoubted, the right of castigation could not now safely be exercised. At common law the master of a ship is entitled to inflict reasonable chastisement on a seaman for gross breach of duty. But such offences are now specially provided for by the Merchant Shipping Act 1894 (§§ 220-238); and where the provisions of that statute are available, corporal punishment would probably be illegal.

As to corporal punishment in the army and navy, see articles Military Law; Navy. In civil prisons, whether they are convict prisons or local prisons, corporal punishment may not be inflicted except under sentence of a competent court, or except in the case of prisoners under sentence of penal servitude, or convicted of felony, or sentenced to hard labour, who have been guilty of mutiny or incitement to mutiny, or of gross personal violence to an officer or servant of the prison (Act of 1898, § 5). Flogging for these offences in prison may not be inflicted except by order of the board of visitors or visiting committee of the prison, made at a meeting specially constituted, and confirmed by a secretary of state (Prison Act of 1898, § 5; Convict Prison Rules 1899; Stat. R. and 0.1899, No.

321, rr. 77-79; Local Prison Rules 1899; Stat. R. and 0.1899, No.

322, rr. 84, 85). The mode of inflicting the punishment is prescribed by the Convict Prison Rules (rr. 82-85) and the Local Prison Rules (rr. 88-91), which limit the number of strokes and prescribe the instrument to be used for inflicting them, the cat or birch for prisoners over 18, and the birch for prisoners under 18.

Corporal punishment for breaches of prison discipline in Scottish prisons is not authorized by any statute nor under the Scottish Prison Rules (see Stat. R. and 0. Revised, ed. 1904, vol. x. tit. "Prison, Scotland," p. 60). In Irish convict prisons corporal punishment may be inflicted by order of justices specially appointed by the lordlieutenant under § 3 of the Penal Servitude Act 1864, but the Irish Prison Rules of 1902 (Stat.R. and 0.1902,No. 590)contain no reference to this power.

At common law, courts of justice had jurisdiction to impose a sentence of whipping on persons convicted on indictment for petty larceny or misdemeanours of the meaner kind (see 1 Bishop, Amer. Cr. Law, 8th ed., § 942). But they do not now impose such sentence except under statutory authority. The whipping of women was absolutely prohibited in 1820 by the Whipping of Female Offenders Abolition Act of that year. But there are numerous statutes authorizing the imposition of a sentence of whipping on male offenders. The following cases may be noted. 1. Adults: (a) who are incorrigible rogues (Vagrancy Act 1824, § 10); (b) who discharge fire-arms, &c., with intent to injure or alarm the sovereign (Treason Act 1842, § 2, and see 8 St. Tr. N.S. r, and O'Connor's Case, 1872, ib. p. 3 n.); (c) who are guilty of robbery with violence (Larceny Act 1861, § 43), or offences against § 21 of the Offences against the Person Act of 1861; there has been much controversy as to whether the Garrotters Act of 1861, which authorized the ordering of more than one whipping in the case of an offender over 16 years of age, was the effective cause of the diminution of the offences against which it was directed, but the best judicial opinion is in the affirmative. 2. Males under sixteen: (a) in any of the cases above noted; (b) for many statutory offences, e.g. larceny (Larceny Act 1861), malicious damage (Malicious Damage Act 1861, § 75; Criminal Law Amendment Act 1885, § 4); (c) by courts of summary jurisdiction (Summary Jurisdiction Act 1879, §§ 10, II, and 1899; First Offenders Act 1887); if a boy is over 7 and under 12, not more than 6 strokes, if he is over I 2, but under 14, not more than 12 strokes may be inflicted; the birch-rod is to be used, and the punishment is to be given by a police constable in the presence of a superior officer, and of the parent or guardian if he desire it.

In Scotland the whipping of male offenders under 14 is regulated by the Prisons (Scotland) Act 1860, § 7, the Whipping Act 1862, and § 514 of the Burgh Police (Scotland) Act 1892; and offenders over 16 may not be whipped for offences against person or property (Whipping Act 1862, § 2).

In Ireland the law is in substance the same as in England; for special statutes see official Index to Statutes (ed. 1905), p. 985, art. Punishment, 6.

The flogging of women is prohibited throughout British India (Code of Criminal Procedure, Act v. of 18 9 8, § 393) and the British colonies, where the infliction of corporal punishment by judicial order is in the main regulated on the lines of modern English legislation. In some British colonies the list of offences punishable by whipping is larger than in England (see Queensland Criminal Code 1899, arts. 212, 213, 216).

In the United States whipping is not a legal punishment under the Federal Law (Revised Stats. U.S. § 5327). But in some of the states of the Union whipping is inflicted under statute, and is not held cruel or unusual within the Federal Constitution (1 Bishop, Amer. Crim. Law, 8th ed., § 947). In Delaware wife-beating and certain offences against property by males are punishable with flogging; and in Maryland the same punishment is applicable for wife-beating. Flogging is in force as a disciplinary measure in some penal institutions.

It has been suggested by Laurent (Principes de droit civil francais (1870), vol. iv. § 275) that the express definition in the French Code Civil (arts. 371 et seq.) of parental rights over children excludes the power of corporal punishment. But this view is not generally accepted. The parental right of moderate chastisement is expressly reserved in the Civil Code of Spain (art. 155, 2). Flogging is not recognized as a legal punishment by the French Code Penal, nor by the Penal Codes of Germany, Italy, Spain or Portugal. (See also WHIPPING OR FLOGGING.) (A. W. R.)


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Bible wiki

Up to date as of January 23, 2010

From BibleWiki

Physical chastisement inflicted as legal punishment. Corporal punishment is one of the oldest forms of chastisement known to the law. The method of its infliction according to Jewish law differs from that of other penal codes, inasmuch as the former law carefully guards the convict from cruelty and excessive pain, stating expressly (Deut. xxv. 3), if the judge sentenced the wicked to be beaten a certain number of times, according to his fault, "Forty stripes he may give him, and not exceed; lest if he should exceed, and beat him above these with many stripes, then thy brother should seem vile unto thee." Upon this passage the Rabbis comment, saying: "The wicked is thy brother still" (Sifre 286; Mak. 22).

Three Judges Present.

The Talmudic law provides that whenever the infliction of corporal punishment is ordained, it is peremptory, and allows no discretion to the judge (Maimonides, "Yad," Sanh. xvi. 1), except in regard to the number of blows. Three judges must be present at the beating (ib. xvi. 2); one of them ordering the blows to be administered; the second counting them; and the third reading the verses Deut. xxviii. 58, 59, as an accompaniment (ib. xvi. 11). The punishment was inflicted by the beadle of the congregation, and the law recommends that the man chosen for this purpose shall be stronger in mind than in body, so that he may not strike too hard or upon a dangerous or weak spot (ib. xvi. 9; Mak. 23). The convict was tied to a post by his hands, his back and breast bared, and the beadle stood behind him, a fourfold thong of leather in hand. He was then bent forward and the lashes administered, one stroke on the breast and one on each shoulder alternately (Macc. iii. 12; "Yad," Sanh. xvi. 8-10). The maximum number of blows was thirty-nine (compare Mak. iii. 10, 22b with LXX. to Deut. xxv. 3, which reads (image) , "about the number of forty)."

Number of Stripes.

One less than the Biblical number of blows was given, in order to prevent the possibility of a mistake in giving one more than the lawful number. When the convict was found by medical examination to be physically unable to receive the full number of blows according to the sentence of court, he was given a smaller number, always a multiple of three ("Yad," Sanh. xvii. 1, 2). If he died under the lash, no one was held responsible, but if he died as the result of the infliction of a greater number of strokes than the law permitted, he was considered murdered (ib. xvi. 12); for no more blows could be given than the sentence of the court required, and in no event could the maximum of thirty-nine blows be exceeded (ib. xvii. 12). If the convict broke his bonds and escaped, he could not again be subjected to punishment for the same offense (ib. xvii. 6).

The infliction of corporal punishment was not, as Josephus says in the "Antiquities" (iv. 8, § 21), "a most ignominious one for a free man." Josephus' idea of its effect was probably the result of his affiliation with the Romans, among whom such punishment was infamous. The maxim of the Jewish law was that after the man had received his punishment he was again to be considered a brother (Mak. 23a). The infliction of stripes provided by the Biblical law was permitted only in Palestine; but the rabbinical authorities assumed the right, from the necessity of the case, to decree the infliction of corporal punishment outside of Palestine, denominatingit "makkat mardut," or beating for disobedience ("Yad," Sanh. xvi. 3).

Punishable Cases.

Maimonides enumerates 207 cases in which corporal punishment by the lash may be inflicted. They may be divided as follows: twenty-one cases of breaches of negative commandments, chiefly crimes against morality, punishable by Karet (excision), but not by death; eighteen cases of breaches of the laws relating to the priesthood and sacrifice; and one hundred and sixty-eight cases of breaches of negative commandments which are not punishable either by karet or by death. Among the last are included the making of idols, breaches of the Levitical laws, of priestly regulations, of the dietary laws, of the land laws, of the laws of pledge, of sumptuary laws, of marriage laws, as well as slander, cursing, perjury, breaking vows, and others (ib. xiv. 1, 4). See Capital Punishment; Lex Talionis.

Bibliography: Duschak, Das Mosaisch-Talmudische Eherecht, pp. 11 et seq.; Mendelsohn, Criminal Jurisprudence of the Ancient Hebrews, pp. 39, 43, 171; Mayer, Gesch. der Strafrechte, pp. 88, 90, 100; Saalschütz, Das Mosaische Recht, p. 202.

This entry includes text from the Jewish Encyclopedia, 1906.







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