Corporal Punishment of Children by Their Parents in Jewish Law and Israeli Law
APPLICATION OF JEWISH LAW IN ISRAELI CASE LAW, Yuval Sinai ed., pp. 124-143, 2009 (Hebrew)
12 Pages Posted: 30 Nov 2009 Last revised: 29 Dec 2014
Date Written: November 27, 2009
In 1989, Amendment 26 to the Israeli Penal Code was adopted, with the goal of defining special crimes relating to injuries to minors and to the defenseless. This amendment constitutes a revolution, if only in theory, in the legal regulation of questions relating to the attitude of the criminal law towards children in cases of assault or abuse that are particularly serious, both in terms of their severity and in terms of their having being committed specifically by the closest relations of the child, that is, his parents and other guardians. The amendment includes various assault offenses, as well as a new criminal offense of abuse. Within the amendment, an emphasis was placed on the mental aspect of the assault and the abuse, rather than solely on the physical or sexual aspects, as was classically more common; a more stringent penalty was set for a parent or one who is "responsible for a child" than for the general public, out of an understanding that these parties are betraying their mission and the trust of the child in a particularly severe manner; and a duty to report was also established for the general public and for professionals regarding crimes of severe injury to a child, including serious assault, abuse, neglect, etc.
At the same time, the legislation contains two central deficiencies: (1) the legislator did not define the offense of abuse in all its types - neither in that amendment from 1989 nor thereafter. As a result, ambiguity was created regarding the extent of the application of this offense and regarding the distinction between it and the other assault offenses, including the offense of neglect. (2) It is not clear from the language of the law whether light corporal punishment of children, which was forbidden in the year 2000 in a Supreme Court decision even if done for the purposes of education, is included in bounds of the duty to report set in 1989 and entailing harsh sanctions, or whether the duty to report applies only to offense of more severe assault, and not to every assault.
The article attempts to help dispel that ambiguity. Inter alia, a clause is suggested to define all the types of abuse, in place of the problematic and partial definition existing in the judicial literature today. In addition, an interpretation is offered according to which the arrangement set in the amendment to the Penal Code regarding the duty to report does not apply to light corporal punishment when it is done by a parent towards his children, if it does not enter the category of abuse and does not cause damage, since the amendment to the law is directed at significantly more severe punishments. This Paper will attempt to argue that despite the great importance of protecting a child under the penal law and the need to make punishments severe, it is improper to go too far and to extend this to every case and thus to violate the delicate and successful balances existing in the legislation. The current arrangement- which stipulates that light corporal punishment will be considered a crime, but does not obligate a report and receives a relatively light punishment relative to more severe offenses of assault and offenses of abuse- seems to be a satisfactory arrangement.
The principle goal of the Paper is to make the legislation accepted in the framework of this amendment- which sometimes is the only refuge of children (whether via deterrence, in the potential, or via punishment and stopping the violence, in the actual) - as clear and sharp as possible, so that it can loyally serve the authorities in their handling of problems that hurt children.
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