Corporal Punishment

BIBLIOGRAPHY

Corporal punishment, including spanking, slapping, paddling, or the prolonged maintenance of a physically uncomfortable position, can be defined as the intentional infliction of physical pain in response to a child’s misbehavior that has the goal (whether it is met or not) of correcting the misbehavior. A complicated and controversial issue, however, is where to draw the line between corporal punishment and physical abuse. Incidents of physical abuse often develop out of parents’ disciplinary behaviors. For example, routine discipline may cross the line to become physically abusive if parents cannot control their anger, are unable to judge their own strength, or are unaware of children’s physical vulnerabilities. Nonabusive parents are likely to tailor their punishments to children’s misbehaviors, but abusive parents appear to use physical punishment indiscriminately. Moreover, physical abuse appears to be part of a constellation of parenting behaviors that also includes authoritarian control, anxiety induction, and a lack of expressed warmth toward the child.

One argument is that any form of corporal punishment constitutes physical abuse. Indeed, several countries have outlawed the use of corporal punishment. In 1979 Sweden became the first country to do so, adding a provision to the Parenthood and Guardianship Code stating, “Children are entitled to care, security and a good upbringing. Children are to be treated with respect for their person and individuality and may not be subjected to corporal punishment or any other humiliating treatment.” Prior to the 1979 ban, more than half of the Swedish population believed that corporal punishment was necessary in child rearing; just two years after the ban, the rate was reduced by 50 percent, and by 1996, the rate was down to 11 percent. Decreases in rates of use of corporal punishment have accompanied changes in attitudes about its use (from nearly 100 percent before the ban to 40 percent by 2000). Several other countries, including Finland, Denmark, Norway, Austria, Cyprus, Latvia, and Croatia, have also outlawed the use of corporal punishment. Beginning in 1990 with the Convention on the Rights of the Child, the United Nations has placed the protection of children’s rights at the forefront of issues before the international community. More recently, the United Nations has launched a global study of violence against children. In his interim report to the General Assembly in October 2005, independent investigator Paulo Pinheiro stated that the “objective of the study must be to ensure that children enjoy the same protection as adults. It will challenge social norms that condone any form of violence against children, including all corporal punishment, whether it occurs in the home, schools and other institutions.”

Despite the banning of corporal punishment in several countries and the movement against its use in the international community, about 75 percent of American parents endorse the use of physical discipline, and over 90 percent of parents have used physical discipline with their children (Straus 1996). Individuals who argue that corporal punishment can be used effectively without constituting abuse suggest that corporal punishment should not be overly severe, that parents should be under control and not in danger of “losing it” from anger, that punishment should be motivated by concerns for the child rather than parent-oriented concerns, and that it should be used privately after a single warning with children ages two to six years and accompanied by reasoning (Larzelere 2000).

Across a wide range of countries, males are more likely to endorse the use of corporal punishment than are females, and parents are more likely to use corporal punishment with boys than with girls. Other demographic variables are also related to the likelihood of using corporal punishment. In particular, lower socioeconomic status, having more children, and being affiliated with a conservative Protestant religion are all related to using corporal punishment more frequently. African American parents have been found to use more corporal punishment than European American parents, even after controlling for socioeconomic status.

Cultural norms and parent-child relationships appear to affect how the experience of corporal punishment is related to children’s adjustment. Certain family and cultural contexts may moderate the association between parents’ behavior and children’s adjustment to the extent that they influence children’s construal of the parents’ behaviors. Children who regard corporal punishment as a frightening experience in which their parents are out of control and acting in a way that is not accepted in their cultural context may interpret the experience as parental rejection (especially in the context of a parent-child relationship that is lacking in warmth) and may respond by escalating externalizing behaviors. On the other hand, children who regard spanking as a legitimate form of discipline that is normative in their cultural context may not interpret the experience of corporal punishment as their parents’ rejection of them (especially if the parent-child relationship is generally characterized by warmth), and corporal punishment in this context may not be associated with elevated levels of behavior problems. Ethnic differences in the meaning that children attach to being corporally punished may explain why corporal punishment is related differently to their subsequent externalizing behavior. Among European Americans, parents’ use of physical discipline has been related to higher levels of subsequent behavior problems in children, but this association is attenuated or reversed for African Americans. The finding has been replicated using different data sets and measures and controlling for potentially confounding variables. One purported explanation of these ethnic differences is that corporal punishment is more normative for African American than for European American families, which alters the meaning of corporal punishment to the child (Deater-Deckard and Dodge 1997). There is also some evidence that corporal punishment and children’s adjustment can be unrelated, if one takes into account parental characteristics such as warmth and involvement, which may offset the potentially deleterious effects of corporal punishment. For example, Vonnie McLoyd and Julia Smith (2002), who examined data from the National Longitudinal Survey of Youth, found that only in the context of low levels of maternal support did spanking predict an increase over time in mother-reported internalizing and externalizing problems.

In a study that addressed the normativeness hypothesis directly, findings from six countries (China, India, Italy, Kenya, Philippines, and Thailand) revealed that countries differed in the reported use and normativeness of corporal punishment and in the way that corporal punishment was related to children’s adjustment (Lansford et al. 2005). More frequent use of corporal punishment was less strongly associated with child aggression and anxiety when it was perceived as being more culturally accepted. In countries in which corporal punishment was more common and culturally accepted, children who experienced corporal punishment were less aggressive and less anxious than children who experienced corporal punishment in countries where corporal punishment was rarely used. In all countries, however, higher use of corporal punishment was associated with more child aggression and anxiety regardless of the level of acceptance.

A paradox is that although individual differences in corporal punishment do not strongly predict individual differences in child aggressive behavior within cultures for which corporal punishment is relatively normative, cultures in which corporal punishment is normative have higher levels of overall societal violence. Carol and Melvin Ember’s 2005 analysis of ethnographies from 186 preindustrial societies found rates of corporal punishment use to be higher in societies that also had higher rates of homicide, assault, and war. Within the United States, corporal punishment is used more frequently in the South than in other regions, which is quite likely a reflection of the South’s greater acceptance of a “culture of violence” that encompasses higher homicide rates as well as milder forms of violence.

SEE ALSO Child Development; Children; Parenting Styles; Violence

BIBLIOGRAPHY

Deater-Deckard, Kirby, and Kenneth A. Dodge. 1997. Externalizing Behavior Problems and Discipline Revisited: Nonlinear Effects and Variation by Culture, Context, and Gender. Psychological Inquiry 8 (3): 161–175.

Ember, Carol R., and Melvin Ember. 2005. Explaining Corporal Punishment of Children: A Cross-Cultural Study. American Anthropologist 107 (4): 609–619.

Lansford, Jennifer E., et al. 2005. Cultural Normativeness as a Moderator of the Link between Physical Discipline and Children’s Adjustment: A Comparison of China, India, Italy, Kenya, Philippines, and Thailand. Child Development 76 (6): 1234–1246.

Larzelere, Robert E. 2000. Child Outcomes of Nonabusive and Customary Physical Punishment by Parents: An Updated Literature Review. Clinical Child and Family Psychology Review 3 (4): 199–221.

McLoyd, Vonnie C., and Julia Smith. 2002. Physical Discipline and Behavior Problems in African American, European American, and Latino Children: Emotional Support as a Moderator. Journal of Marriage and the Family 64 (1): 40–53.

Straus, Murray A. 1996. Spanking and the Making of a Violent Society. Pediatrics 98 (4S): 837–842.

Jennifer E. Lansford

CORPORAL PUNISHMENT

Corporal punishment is the infliction of physical pain as a penalty for an infraction. Past forms of corporal punishment included branding, blinding, mutilation, amputation, and the use of the pillory and the stocks. It was also an element in such violent modes of execution as drowning, stoning, burning, hanging, and drawing and quartering (in which offenders were partly strangled and, while still alive, disemboweled and dismembered). In most parts of Europe and in the United States such savage penalties were replaced by imprisonment during the late eighteenth and early nineteenth centuries, although capital punishment (usually by hanging) remained. Physical chastisement became less frequent until, in the twentieth century, corporal punishment was either eliminated as a legal penalty or restricted to beating with a birch rod, cane, whip, or other scourge. In ordinary usage the term now refers to such penal flagellation.

Prevalence

Although corporal punishment has been widely banned, the extent to which it continues to be used is difficult to determine. Countries that strictly observe Islamic law inflict both amputation and whipping as penalties. In South Africa, until the mid-1990s, males under twenty-one years of age could be whipped for any offense in lieu of other punishment, and adult males between the ages of twenty-one and thirty could be whipped either in addition to or instead of other punishment for many offenses, including robbery, rape, aggravated or indecent assault, burglary, and auto theft. In the 1970s an annual average of 335 adults were sentenced to "corporal punishment only." Whipping was used more extensively to chastise juveniles, but official statistics were not kept.

In Great Britain the Cadogan Committee, appointed in 1937 to review the application of corporal punishment, reported that this penalty had been abolished for criminal offenses by adults in every "civilized country" in the world except those whose criminal code was influenced by English criminal law—that is, in some of the British dominions and American states, where it could still be legally imposed for offenses by juveniles and for violations of prison discipline (Cadogan Committee). The committee's recommendation that corporal punishment be abandoned as a judicial penalty in England was adopted in the Criminal Justice Act, 1948, 11 & 12 Geo. 6, c. 58 (Great Britain), which abolished the penalty for all offenses except serious violations of prison discipline; in 1967 it was also eliminated for these. The Advisory Council on the Treatment of Offenders (ACTO) reported in 1961 that corporal punishment had not been reintroduced in any country which had abolished it and that in those few countries which continued to prescribe such penalties various limitations had been introduced, so that infliction had become uncommon (Advisory Council on the Treatment of Offenders). The last two American states to use corporal punishment as a judicial penalty were Maryland, where it was seldom inflicted before being abolished in 1952, and Delaware, where the last flogging took place in 1952 although formal abolition did not occur until 1972. Corporal punishment remains available, however, as a penalty for serious breaches of prison discipline in a number of states. Milder forms of corporal punishment for students remain a possible penalty in many states.

In 1994, the caning of a young American in Singapore for a property offense drew wide political condemnation from American political leaders, although it also had the effect of temporarily raising public debate over the merits of judicial corporal punishment. As a result of a growing public concern over crime rates, as well as prison overcrowding, public support of corporal punishment for petty criminals and juvenile offenders increased, and bills were introduced in several state legislatures to reintroduce judicial corporal punishment as an alternative to imprisonment. Most efforts failed, however, because of potential constitutional infirmities.

More serious forms of corporal punishment, including flogging and amputation, have undergone a revival in certain Islamic countries that have experienced a resurgence in fundamentalism. The United Nations Human Rights Committee and other organizations have suggested that the prohibition of cruel, inhuman, or degrading punishment under Article 7 of the International Covenant on Civil and Political Rights could be extended by customary law to include corporal punishment. Nevertheless, while some of the practices of some Islamic countries have drawn rebuke and condemnation by the United Nations Commission on Human Rights, that body has as recently as 1997 suggested only that certain forms of corporal punishment may be violative of international law, leaving open the question of the extent to which evolving standards or general principles of law will tolerate other forms.

Normative arguments

Corporal punishment satisfies demands for reprisal and is seen as a just penalty for certain kinds of offenses. Both sentiments are resurgent among the public in countries in which such punishment has been abolished. Apparent or real increases in crime, particularly violent offenses, spark public demands for the restoration of corporal punishment. A 1960 poll in England revealed that 74 percent of the population thought it an appropriate penalty for some crimes. The idea that corporal punishment is particularly fitting for certain offenses—for example, those involving personal violence—is ultimately a moral or political judgment that reflects the retributive theory of punishment. Various modern expressions of human rights policy, however, condemn corporal punishment. Article 3 of the European Convention on Human Rights declares that "no one shall be subjected to torture or to inhuman or degrading treatment or punishment" (Council of Europe, p. 25), and in 1978 the European Court of Human Rights found corporal punishment to be "degrading" under the terms of this article (Tyrer v. United Kingdom, 2 Eur. Human Rights R. 1, 58 I.L.R. 339 (Eur. Ct. Human Rights 1978)). Moreover, the United Nations' "Standard Minimum Rules for the Treatment of Prisoners" specifically states that "corporal punishment . . . shall be completely prohibited as punishment for disciplinary offenses" (United Nations Secretariat, Rule 31, p. 69).

In the mid-1990s, several proponents of corporal punishment asserted an "economic" approach: that technology could enable the use of more effective forms of corporal punishment designed to provide temporary and specific physical incapacitation rather than imprisonment, which "over-incapacitates." Others have argued in favor of reintroduction of corporal punishment as a solution to overcrowding and the negative effects of long-term imprisonment.

Effectiveness

Advocates of corporal punishment argue that it is more likely than any alternative to prevent offenders from committing further criminal acts, and that it is also an exceptionally strong deterrent to potential offenders. These claims have been subjected to some empirical investigation, especially by the Cadogan Committee, whose research was continued in 1960 by the Home Office Research Unit for ACTO.

Individual deterrence. Part of the research carried out by the Cadogan Committee and ACTO covered 3,023 cases of robbery with violence (virtually the only offense for which corporal punishment was imposed) between 1921 and 1947. Offenders were divided into two groups: those previously convicted of serious crimes and those not previously convicted. In both categories, offenders who were not flogged showed slightly better subsequent records. Those who were flogged seemed slightly more likely to be convicted again of robbery with violence, although the numbers were small and the differences not statistically significant (Cadogan Committee; Advisory Council on the Treatment of Offenders). These findings suggested that flogging was not especially effective as an individual deterrent, but they were not conclusive: the groups of those flogged and not flogged were not properly matched, nor were the sentences randomly assigned, for some judges habitually made more use of the penalty than others.

General deterrence. The Cadogan Committee devoted special attention to five cases of corporal punishment used as an exemplary sentence in response to major outbreaks of crimes for which, according to public opinion, the penalty was particularly suitable. The committee found that in some cases the facts plainly contradicted such beliefs and that reductions in crime could just as plausibly be attributed to causes other than the penalties imposed on offenders. It also noted that the incidence of robbery with violence in England and Wales had declined steadily in the years before World War I notwithstanding infrequent and decreasing use of corporal punishment, whereas in the postwar years it had tended to increase despite a much greater and increasing resort to floggings. It was also shown that between 1890 and 1934 the incidence of robbery in England and Wales (where corporal punishment might have served as a deterrent) declined more slowly than in Scotland, where corporal punishment was not inflicted for those offenses (Cadogan Committee).

ACTO also compared the incidence of robbery with violence in England and Wales before and after corporal punishment was abolished as a judicial penalty in 1948. The number of robberies reported to the police increased steadily during and after World War II, although corporal punishment was employed more frequently than before the war. After 1948, however, there was a marked downward trend, and until 1957 instances of robbery remained well below the 1948 level. The causes of this reduction were unknown, but ACTO inferred that corporal punishment had not been a strong deterrent immediately before its abolition and noted that abolition was not followed by an increase in the offenses for which it had previously been imposed (Advisory Council on the Treatment of Offenders). In short, no evidence proved that corporal punishment provided more deterrence than imprisonment, to which it commonly served as an alternative penalty before abolition. Canadian and New Zealand studies confirmed these findings (Canada, Parliament; New Zealand Department of Justice).

Conclusion

Repudiation of the infliction of pain as a penal method and the substitution of corrective incarceration for physical punishment have been conspicuous features of penal history since the late eighteenth century. Corporal punishment has come to be seen as incompatible with "modern" penal methods and as likely to militate against the success of reformative or rehabilitative treatment. The decline of corporal punishment was once hailed as a sign of the progress of humanitarianism, enlightenment, and civilization. In the latter part of the twentieth century, however, such optimism has been questioned by certain writers, notably Michel Foucault, who have argued that the rehabilitation theory and the creation of "noncorporal" penal systems generally meant only the insidious expansion and refinement of penal repression. However, Foucault and most other critics of the rehabilitative ideal have not expressed approval of earlier penal practices, nor have they recommended that corporal punishment be revived as a penal method.

Gordon Hawkins

Richard S. Frase

See also Capital Punishment: Legal Aspects; Capital Punishment: Morality, Politics, and Policy; Comparative Criminal Law and Enforcement: Islam; Cruel and Unusual Punishment; Punishment; Shaming Punishments.

BIBLIOGRAPHY

Advisory Council on the Treatment of Offenders. Report: Corporal Punishment. Cmnd. 1213. London: Her Majesty's Stationery Office, 1961.

Bahrampour, Firouzeh. "The Caning of Michael Fay: Can Singapore's Punishment Withstand Scrutiny of International Law?" American University Journal of International Law & Policy 10 (1995): 1075–1108.

Cadogan Committee. Report of the Departmental Committee on Corporal Punishment. Cmnd. 5684. London: Her Majesty's Stationery Office, 1938. Reprint, 1963.

Caldwell, Robert G. "The Deterrent Influence of Corporal Punishment on Prisoners Who Have Been Whipped." American Sociological Review 9 (1944): 171–177.

Canada, Parliament. Reports of the Joint Committee of the Senate and House of Commons on Capital Punishment, Corporal Punishment, Lotteries. Ottawa: Queen's Printer and Controller of Stationery, 1956.

Council of Europe. The European Convention on Human Rights. Strasbourg, France: Directorate of Information, 1968.

Foucault, Michel. Discipline and Punish: The Birth of the Prison. New York: Pantheon, 1977.

Kan, Steven S. "Corporal Punishments and Optimal Incapacitation." Journal of Legal Studies 25 (1996): 121–130.

Matthews, Michael P. "Caning and the Constitution: Why The Backlash against Crime Won't Result in the Backlashing of Criminals." New York Law School Journal of Human Rights 14 (1998): 571–614.

Midgley, James O. "Corporal Punishment and Penal Policy: Notes on the Continued Use of Corporal Punishment with Reference to South Africa." Journal of Criminal Law & Criminology 73 (1982): 388–404.

Newman, Graeme. Just and Painful: A Case for the Corporal Punishment of Criminals. Harrow & Heston/Macmillan Book, 1983.

New Zealand Department of Justice. Crime in New Zealand. Wellington, New Zealand: Government Printer, 1968.

Phillips, Barry. "The Case for Corporal Punishment in the United Kingdom: Beaten into Submission in Europe?" International & Comparative Law Quarterly 43 (1994): 153–163.

Rodley, Nigel S. The Treatment of Prisoners under International Law. 2d ed. New York: Oxford University Press, 1999.

Scott, George Ryley. The History of Corporal Punishment: A Survey of Flagellation in Its Historical, Anthropological, and Sociological Aspects. Reprint. London: T. Werner Laurie, 1942.

United Nations Secretariat. "Standard Minimum Rules for the Treatment of Prisoners." First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Geneva, 22 August–3 September 1955. New York: United Nations. Department of Economic and Social Affairs, 1956. Pages 67–73.

Weidman, Whitney S. "Don't Spare the Rod: A Proposed Return to Public, Corporal Punishment of Convicts." American Journal of Criminal Law 23 (1996): 651–673.

FLAGELLATION

There are three stages in the history of flagellation in the Christian Church: (1) as a punishment it was in use from the 4th century; (2) as a form of voluntary penance it developed especially from the mid-11th century; and (3) as a feature of public penitential processions it began in the 13th century.

Penal Flagellation. Scourging was frequently a punishment for delinquent clerics. It was also administered to laymen, mostly to slaves, but occasionally also to free men. More generally, however, it was a feature of monastic discipline. In the East it is mentioned in the rule of pachomius (Reg. 163, in the Latin version of Jerome, Patrologia Latina 23:81d); in the West in the rules of caesarius of arles [Opera two (Maredsous 1942) 107], aurelian of arles (Patrologia Latina 68:392), benedict (only in cases of obstinate incorrigibility: ch. 28, ed. R. Hanslik; Corpus scriptorum ecclesiasticorum latinorum 60:84), and frequently in that of columban [Regula coenobialis; ed. G. S. M. Walker, Sancti Columbani opera (Dublin 1957) 142–181]. augustine states that it was used in episcopal courts (Ep. 133; Patrologia Latina 33:510). Councils from the 5th to the 7th centuries legislated for flagellation of monks (C. J. von Hefele, Histoire des conciles d'après les documents originaux, tr. and continued by H. Leclercq, 10 v. in 19 (Paris 1907–38) 2:905), as also did monastic customaries (Usus ordinis Cisterciencis, 70; Patrologia Latina 166: 1444; Lanfranc, Decreta pro ordine OSB, 18; Patrologia Latina 150:504). As a punishment for ecclesiastics it was recognized by Canon Law as late as the 17th century.

Voluntary Flagellation. This was a natural development from the penal form. Its motives are: expiation of personal sin and the sins of others, self-conquest, the impetration of divine graces and favors, and especially conformity with Christ in his Passion. In the early Church the martyrs were regarded as closest to Christ; but after the persecutions, the austerities of monastic life were esteemed the nearest equivalent to martyrdom. Monks were the first to adopt scourging as a systematic ascetic exercise, and the practice spread to the clergy and laity, becoming common throughout the Middle Ages. peter damian, by his advocacy and example, was influential in stabilizing the practice, first at fonte avellana, and later in camaldolese monasteries, at monte cassino, and elsewhere [De laude flagellorum; Patrologia Latina 145:679–686; Epistolae, 5.8; Patrologia Latina 144:350–352; 6.27, ibid. 414–417; J. Leclercq, "Inédits de saint Pierre Damien," Revue Bénédictine 67 (1957) 154].

As penal flagellation had long been part of the regular discipline of monasticism, the term "discipline" now came to be applied to voluntary penance, signifying the usage, the scourge used, or the individual strokes. The "discipline of rule" or custom became part of the observance of medieval religious orders. It was prescribed and regulated for certain days, especially during the penitential seasons. Similarly, provision for this kind of corporal penance was made in practically all religious rules composed or revised from the 16th to the 18th centuries. Undertaken with the sanction of a religious rule or the guidance of a spiritual director, such corporal penance has continued to be sanctioned by the Church. Without such safeguards it can lead to abuses and aberrations.

Penitential Processions of Flagellants. Originating in Perugia in May 1260 amid the misery of the wars of guelfs and ghibellines and the disastrous plague of 1259, processions were stimulated by the eschatological prophecies of joachim da fiore, who had predicted the coming of "the third age" for 1260. Instigated by the Umbrian hermit, Rainier Fasani, hundreds or even thousands, preceded by the cross and the clergy, made their way through the city, chanting and crying out for peace, scourging themselves to blood. Fasani's Disciplinati spread from Perugia throughout central and northern Italy, and beyond the Alps into Alsace, Bavaria, Hungary, Bohemia, and Poland. Good effects were noted in Perugia, but the spirit of the movement rapidly deteriorated. Severe measures were taken against the flagellant bands by the bishops of Poland, and in 1261 the processions were forbidden by the Holy See.

As a result, the movement abated and did not revive until the disastrous years of the Black Death (1348–50), when with astonishing rapidity numerous bands of antiecclesiastical flagellants reappeared throughout Europe. Although condemned and prohibited by clement vi (Oct. 20, 1349), many continued to exist, and in the early 15th century they were reinforced by the adherence of Beghards (see beguines and beghards) and the followers of John wyclif. They were still active in 1481.

Quite distinct from these fanatical and heretical groups were the associations of Disciplinati, common especially in Italy from c. 1350 until the end of the 16th century. These confraternities were under the control of the Church and were approved and supervised by such bishops as Charles borromeo. Similarly, occasional penitential processions of flagellants were held, such as those of vincent ferrer. They provoked the opposition in Paris of Jean gerson, but they were common in the Netherlands and in Austria in the 17th and 18th centuries, and survived in Italy into the 19th. They were encouraged also by Jesuit and Franciscan missionaries in the newly evangelized regions of Asia and Latin America.

Bibliography: p. bailly, Dictionnaire de spiritualité ascétique et mystique 5:392–408. É. bertaud, ibid. 3:1302–11. l. gougaud, Devotional and Ascetic Practices in the Middle Ages, tr. g.c. bateman (London 1927). g. alberigo, "Contributi alla storia delle confraternite dei disciplinati e della spiritualità laicale nei secc. XV e XVI," Il movimento dei disciplinati nel settimo centenario dal suo inizio (Spoleto 1962) 156–252. g. meersseman, "Études sur les anciennes confréries dominicaines," Archivum Fratrum Praedicatorum 20 (1950) 5–113; 21 (1951) 51–196; 22 (1952) 5–176. p. tacchi venturi, Storia della Compagnia di Gesù in Italia (2d ed. Rome 1950) v.1.2. w. ferner, Die Geisselmanie oder der Flagellantismus in den Mönchs- und Nonnenklöstern, ed. g. frusta (3d ed. Stuttgart 1922). g. m. monti, Le confraternite medievali dell'alta e media Italia, 2 v. (Venice 1927). o. j. blum, St. Peter Damian (Washington 1947) 114–120. j. leclercq, Saint Pierre Damien: Ermite et homme d'Église (Rome 1960).

[f. j. courtney]

Corporal Punishment

CORPORAL PUNISHMENT. Like their civilian counterparts, military authorities feared the spread of insubordination and resistance from persons at the lower levels of society. The infliction of punishment preserved order. Enlisted men in the Continental Army not only suffered deprivations and hardships, but they also were subject to brutal corporal punishment. Officers, like the gentleman class in civilian society, did not receive corporal punishment; instead they were liable to correction by means of reprimand, fines, imprisonment, or dismissal from the army.

Americans became inured to physically brutal penalties under military authority during the French and Indian War. Provincials serving with British regulars were put under all the severities of the British Articles of War, which sanctioned various forms of physical correction and floggings up to as many as one thousand stripes. At the beginning of the American Revolution, however, the military codes governing the colony and then state militias, and also the initial Articles of War invoked by the Continental Congress, were lenient in comparison to their British counterpart. The Congressional Articles of War of 30 June 1775 replicated the Massachusetts military code of April 1775; no death penalty was provided for desertion, mutiny, sedition, and treason, and flogging could not exceed the amount stated in the Bible—thirty-nine lashes. George Washington, as commander in chief, successfully prodded Congress to enact a sterner Articles of War, and on 20 September 1776 a new such document expanded the number of offenses meriting the death penalty to sixteen and set the limit of lashes per offense to one hundred. Washington tried in vain to persuade Congress to increase the number of lashes; he argued that there was too wide a gap in the maximum penalty of either a hundred lashes or death. Of course, there was a way to go beyond the restriction: for especially nefarious culprits, courts-martial ordered a hundred lashes for each count charged against a soldier.

Although corporal punishment of soldiers in the Continental Army did not reflect substantially the wide-spread use of torture by the British, various odd forms of physical correction were employed by the Americans, mostly in regard to crimes of less than maximum severity. For drunkenness, soldiers wore the "clog" (or log): they were shackled to a segment of wood weighing twenty to thirty pounds, which was dragged around wherever they went. A variation was to wear a three pound clog around one's neck. Also reserved for minor offenses was "the cage," a wooden structure in which a culprit, fed only bread and water, remained standing for up to thirty-six hours. This punishment seems to have been similar to the British army's whirligig, in which a person stood and was whirled around.

Other than simple flogging, three means of correction induced great injury and pain. For the wooden horse, carried over from British practice, two boards were nailed together to form an inverted V. This device was given four wooden legs, and pieces of wood designating a horse's head and a tail were attached to either end. The culprit was straddled over the sharp ridge, with hands tied behind and feet weighted down. The wooden horse was moved along, with vibrations causing pain and ruptures. Some persons undergoing this penalty were emasculated. Because of bodily injury, the use of the wooden horse was discontinued after the beginning phase of the war.

Picketing, a punishment that appears to have been confined to cavalry and artillery units, often accompanied a flogging. The victim had his wrist tied to the top of an upright pole, and a heel rested on a sharp peg driven into the ground. The prisoner had to shift his weight to either his wrist or his heel, which in some instances was penetrated entirely by the peg. Because of the possibility of causing the permanent disability of a soldier, this punishment was seldom used by the Continental Army.

Running the gauntlet, a punishment chiefly for desertion, was used throughout the war, though infrequently. Eventually Washington refused to approve such punishment because it exceeded the number of lashes allowed by Congress and also left a prisoner disabled or even dead. However, American commanders outside the main army were apt to permit courts-martial to inflict running the gauntlet. A soldier running the gauntlet might have to pass through all of a brigade or even, in the rarest of situations, through the whole army. The victim was stripped to the waist and then compelled to proceed through parallel lines of soldiers, his progress being impeded by a sergeant going on ahead, moving backward, pointing a bayonet at the culprit's chest, thereby allowing soldiers, yielding hickory sticks, to make blows well laid on. A sufferer of this punishment was soon, in the words of a contemporary, "in one general gore of blood."

Flogging was the preferred correction, for trivial as well as major offenses. Although sentences for the same crimes varied, usually because of extenuating circumstances, patterns did emerge. For example, repeatedly being drunk brought twenty lashes; not cleaning arms, twenty-five; stealing the shirt of a soldier, fifty; and one hundred or death for desertion, plundering, or sleeping on duty. A man accused of the plundering of civilians might be summarily whipped. Stragglers could be whipped on the spot if they could not explain their absence from their unit. Flogging was a frequent occurrence at camp, sometimes occurring as many as ten times a day. Most of the punishments were inflicted at the regimental level, during morning or evening roll calls, or at guard mounting on the parade ground. The victim, stripped to the waist, was tied to a tree or post, called the "adjutant's daughter." Troops of his regiment (or, rarely, his brigade) witnessed the ordeal from a hollow square or parallel line formation. The punishment was under the direction of the regimental adjutant or, sometimes, the provost marshal. Regimental drummers and fifers—in cavalry units, the trumpeter—performed the whipping.

The preferred instrument for flogging, the cat-o'-nine-tails, consisted of nine knotted cords attached to a handle. Before fifty lashes could be delivered, the back of the victim "would be all out and like jell." Frequently punishment was stretched over several days, "in which case the wounds are in a state of inflammation and the terror of the punishment is greatly aggravated." Usually the victim was given a lead bullet to chew on. A former drummer in the American army, Samuel Dewees, recalled that upon completion of a whipping, the victim was untied and laid down with his face to the ground, and then pack salt was strewed over his back. His comrades then took a small paddle-board and "patted" it down, beating it thus into the gashes, and then laid him by for awhile until he recovered a little. Cruel as it seems, the salt was actually a form of mercy, as it cleansed the wounds and enabled them to heal (Hanna, Dewees, p. 203).

Corporal punishment in the American Revolutionary army did not have the desired effect of making for a more disciplined body of troops. It did not reduce the rate of desertion; in fact, camp brutality undoubtedly was one of the factors that impelled men to desert. Moreover, the cruelty affected recruitment. As Lieutenant Colonel David Cobb of a Massachusetts regiment said, "the Continental officers are so cruel and severe" that "men can never be got to serve under 'em."

In the officer corps no protest mounted against corporal punishment. General Daniel Morgan, who did not resort to it, was close to being a lone exception; Dr. James Thacher, an army surgeon, spoke out against it; and Dr. Benjamin Rush, for a while Physician General of the middle department of the army, after the war, stated that corporal punishment "increased propensities to crimes" and that "a man who has lost his character at a whipping post, had nothing valuable to lose in society." The civilian population voiced little demand for army correctional reform. This lack of concern is attributable to the existence of physical punishment in civilian life for persons deemed to be of a lower class; a realization that a large number of soldiers were riffraff and therefore needed stringent discipline; and the belief that only a well-ordered army could win the war. Only toward the end of the war did Washington express any qualms about the use of corporal punishment. He had never shown any sympathy for soldiers being punished, being concerned only that the punishment fit the crime. In general orders of 12 November 1782, Washington noted that to "reclaim" soldiers "who are not lost to all sense of virtue and military Pride," different "modes of punishment may be introduced which by awakening the feelings of honor will have a better influence than corporal."

BIBLIOGRAPHY

Berlin, Robert H. "The Administration of Military Justice in the Continental Army during the American Revolution, 1775–1783." Ph.D. dissertation, University of California, Santa Barbara, 1976.

Bernath, Stuart L. "George Washington and the Genesis of American Military Discipline." Mid-America49 (1967): 83-100.

Bolton, Charles K. The Private Soldier under Washington. 1902. Revised, Port Washington, N.Y.: Kennikat Press, 1964.

Camus, Raoul F. Military Music of the American Revolution. Chapel Hill: University of North Carolina Press, 1976.

Cox, Caroline. "A Proper Sense of Honor:" Service and Sacrifice in George Washington's Army. Chapel Hill: University of North Carolina Press, 2004.

Hanna, John S., comp. History of the Life and Service of Captain Samuel Dewees. Baltimore: R. Neilson, 1844.

Neagles, James. Summer Soldiers: A Survey and Index of Revolutionary War Courts-Martial. Salt Lake City, Ut.: Ancestry Incorporated, 1986.

Niemeyer, Charles P. America Goes to War: A Social History of the Continental Army. New York: New York University Press, 1996.

Ward, Harry M. George Washington's Enforcers: Policing the Continental Army. Carbondale: Southern Illinois University Press, 2006.

CORPORAL PUNISHMENT

Physical punishment, as distinguished from pecuniary punishment or a fine; any kind of punishment inflicted on the body.

Corporal punishment arises in two main contexts: as a method of discipline in schools and as a form of punishment for committing a crime.

Corporal punishment, usually in the form of paddling, though practiced in U.S. schools since the American Revolution, was only sanctioned by the U.S. Supreme Court in the late 1970s. In Ingraham v. Wright, 430 U.S. 651, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977), students from a Florida junior high school had received physical punishment, including paddling so severe that one student had required medical treatment. The plaintiffs, parents of students who had been disciplined, brought suit against the school district, alleging that corporal punishment in public schools constituted cruel and unusual punishment in violation of the eighth amendment to the U.S. Constitution. The plaintiffs also maintained that the fourteenth amendment required due process before corporal punishment could be administered.

The Court rejected the Eighth Amendment claim, holding that the prohibition against cruel and unusual punishment was designed to protect persons who were convicted of crimes, not students who were paddled as a form of discipline. The Court also held that although corporal punishment did implicate a constitutionally protected liberty interest, traditional common law remedies, such as filing an action in tort, were "fully adequate to afford due process." Thus, the Court concluded, teachers could use "reasonable but not excessive" corporal punishment to discipline students.

Since the Court's decision in Ingraham, corporal punishment in the schools has been challenged on other constitutional grounds. In Hall v. Tawney, 621 F.2d 607 (4th Cir. 1980), a grade-school student from West Virginia alleged that she had been severely injured after she had been struck repeatedly with a hard, rubber paddle by her teacher while the school principal had looked on. She filed suit against the school, claiming that her Eighth Amendment rights had been violated and that she had been deprived of her procedural due process rights. She further alleged that she had been denied substantive due process under 42 U.S.C.A. § 1983, which provides that a civil action may be brought for a deprivation of constitutional rights. While the case was pending, the U.S. Supreme Court handed down its decision in Ingraham, thus foreclosing the plaintiff's Eighth Amendment and procedural due process claims.

Addressing the remaining constitutional claim, the U.S. Court of Appeals for the Fourth Circuit held that excessive corporal punishment in public schools could violate a student's constitutional right to substantive due process and thus subject school officials to liability under § 1983. The standard to be applied, the court ruled, was whether the force applied were to cause injury so severe and disproportionate to the need for it and were " so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal and inhuman abuse of official power literally shocking to the conscience." The case was remanded to the lower court so that the plaintiff's § 1983 claim could be tried in light of the Fourth Circuit's ruling. Other federal appeals courts have since followed Hall in corporal punishment cases involving schools, although the high standard has proved very difficult for plaintiffs to meet.

In cases where plaintiffs have been successful, the conduct of the educator is often rather extreme. In Neal ex rel. Neal v. Fulton County Board of Education, 229 F.3d 1069 (11th Cir. 2000), a high-school teacher and football coach, while breaking up a fight, struck one of the fighting students with a metal weight lock. The blow to the student was so severe that it knocked his eyeball out of its socket. The Eleventh Circuit Court of Appeals found that because the punishment inflicted by the coach had been intentional, and obviously excessive, and that it had created a foreseeable risk of serious injury, the student had stated a claim upon which he could recover. Many other cases, on the other hand, have held in favor of educators and school districts because the students who brought suit could not prove the elements necessary to hold the defendants liable.

As a result of limited success in the courts, opponents of corporal punishment have turned to the political process and have worked to persuade state legislatures to outlaw the use of corporal punishment in schools. Scientific studies over the past decade have demonstrated that corporal punishment contributes to such behavioral problems as increased anger, aggression, tolerance for violence, and lower self-esteem. Partially as a result of these studies, a growing number of groups, including the national education association, the American Academy of Pediatrics, the American Academy of Child & Adolescent Psychiatry, and the american bar association, disfavor corporal punishment and have sought to ban it in public schools. These lobbying efforts have proven successful: Only about half of the states continue to practice corporal punishment, whereas the other half specifically prohibit it by state statute or regulation.

In California, for example, state law provides that "[]no person employed by … a public school shall inflict, or cause to be inflicted corporal punishment upon a pupil" (Cal. Educ. Code § 49001 [West 1996]). But despite the trend against permitting corporal punishment in schools, public opinion is split on the issue: In a 1995 Scripps Howard News Service Poll, 49 percent of those surveyed favored corporal punishment, and 46 percent opposed it.

Like corporal punishment in schools, physical punishment for committing a crime also dates back to the American Revolution. The continental congress allowed floggings on U.S. warships, and confinement in stocks and public hangings were common. Gradually, imprisonment and other forms of rehabilitation began to replace corporal punishment, largely

because of the work of reformers who campaigned against its use on convicts and advocated for improved prison conditions. Most states eventually abolished public floggings and other forms of physical punishment for crimes, but in some jurisdictions "whipping laws" remained in effect until the early 1970s. In addition, courts have held that corporal punishment in prisons can take a variety of forms (e.g., whipping, deprivation of food, and placement in restraints) and is prohibited by the Eighth Amendment.

The mid-1990s case of a U.S. teenager convicted of vandalism in a foreign country revived a long-dormant debate over whether criminals should be corporally punished. In May 1994, Michael Fay was sentenced to six strokes with a rattan cane and four months in jail for painting graffiti on parked cars and for other acts of vandalism he had committed while living in Singapore. The case drew immediate international attention. Many U.S. citizens—including President bill clinton, who appealed to the government of Singapore for clemency—were outraged by the sentence. Despite the intervention of the U.S. government and human rights groups, the punishment was eventually carried out, although the number of strokes was reduced to four.

In the wake of the publicity surrounding the Fay matter, polls indicated that a surprising number of U.S. citizens supported the sentence. Unconvinced that current penalties provide a sufficient deterrent, many believed that the long-standing prohibition against physical punishment should be reconsidered, at least with respect to juvenile offenders. In some states, lawmakers introduced legislation to provide for corporal punishment of juveniles who were convicted of certain crimes. In California, for example, a bill requiring paddling of juvenile graffiti vandals was proposed (1995 California Assembly Bill No. 7, California 1995–96 Regular Session).

Proposed measures in other states have not limited the use of corporal punishment to juveniles. In Tennessee, for instance, a bill was introduced in 1995 providing for floggings for property crimes such as burglary, vandalism, and trespassing. The measure would further provide for the punishment to be administered by the county sheriff on the courthouse steps of the county where the crime was committed. According to the bill's sponsor, "People that follow a life of crime generally get started in the area of property crimes … if you knew they were going to … whale the living daylights out of you, you might think twice about it." This bill, like other measures proposed for physically punishing juveniles, failed to pass the state legislature.

In response to renewed calls for physical punishment for criminals, critics have argued that such measures may meet a "revenge" need on the part of the public but that they do nothing in the long term to address the deeper issue of why crime occurs. Groups such as the american civil liberties union, in lobbying against corporal punishment, maintain that state legislators, law enforcement personnel, criminologists, and social scientists should instead direct their efforts to what can be done to prevent crime in the first place.

further readings

Bloom, Scott. 1995. "Spare the Rod, Spoil the Child? A Legal Framework for Recent Corporal Punishment Proposals." Golden Gate University Law Review 25.

Dayton, John. 1994. "Corporal Punishment in Public Schools: The Legal and Political Battle Continues." Education Law Reporter 89.

Parkinson, Jerry R. 1994. "Federal Court Treatment of Corporal Punishment in Public Schools: Jurisprudence That Is Literally Shocking to the Conscience." South Dakota Law Review 39.

cross-references

Juvenile Law.