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17 Child. Legal Rts. J. 7 (1997)
Nonabusive Spanking: Parental Liberty or Child Abuse

handle is hein.journals/clrj17 and id is 119 raw text is: CHILDREN'S LEGAL RIGHTS JOURNAL Nonabusive Spanking: Parental Liberty or Child Abuse? by Robert E. Larzelere, Cindy Silver, and Kenneth Polite* Introduction The passage of the United Nations Convention on the Rights of the Child (the Convention) in 1989, and its subsequent ratification by 180 coun- tries worldwide, not including the United States, has cast an international spotlight on child rights, and a reciprocal shadow of doubt on the appropri- ateness of legal constructs such as family autonomy and parental rights.' The need has arisen for pol- icy makers to reexamine and rearticulate the na- ture of the family and the rationale that underlies the demarcation between the family and the state in a civil society. Although the right of parents to direct the upbringing of their children is well es- tablished in American jurisprudence, the nature and scope of the right and the evidentiary standard required of the state before it may justifiably inter- vene to protect the best interests of the child is no longer clear. While the primary purpose of this article is to explore the efficacy of parents' use of nonabusive spanking to correct their children, it devotes con- siderable effort in Part II to reexamining parental liberty in order to define the larger social context for the discussion of nonabusive spanking that fol- lows in Parts III, IV, and V. While this article acknowledges the legitimate role of the state in protecting children from maltreatment, it ascribes to the general proposition that when the parent and the state disagree on the child's best interests, the law must presume that the parent is right and that, similar to criminal proceedings, the state bears the burden to prove otherwise by due process of law. Further, while this paper concedes that it would unduly endanger children to require the state to prove its case beyond a reasonable doubt, the preponderance of the evidence (or balance of prob- abilities) standard that is presently used endangers family autonomy and is, therefore, equally unwork- able, especially when addressing the issue of non- abusive spanking. This article takes the position that equilibrium between the legitimate interests of the state and parents in the child welfare arena is best reached by requiring the state to present clear and convincing evidence in cases where pa- rental spanking is at issue.2 This standard falls squarely between the above two extremes. Part III reviews research regarding the effective- ness of corporal discipline as a deterrent to child misbehavior, focusing specifically on the effective- ness of nonabusive spanking. Using the standard of clear and convincing evidence, Part III assesses the evidence of harm associated with nonabusive spanking and concludes that the research is incon- clusive to justify state policies prohibiting its use or blanket recommendations against its use. Hav- ing established this, Part IV summarizes and re- sponds to the most common arguments against reasonable corporal discipline which, despite a lack of supportive empirical evidence, continue to find support among some child rights advocates and academics. Presently, all American states allow parents to use reasonable corporal punishment to correct their children. However, in light of growing opposition to all corporal discipline, and the possibility that the United States may ratify the Convention, par- ents! continued ability to use nonabusive spanking as a disciplinary tool is by no means certain. Un- fortunately, it is beyond the scope of this paper to discuss the U.N. Convention's impact on countries such as Canada and England, which have received a rebuke by the Convention's Monitoring Commit- tee for continuing to allow parents to use reason- able corporal punishment to discipline their children. The rights and interests of the state, par- ent, and child converge when the issue of non- abusive spanking arises.

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