Between Assault, Abuse and Corporal Punishment
CHILDREN'S RIGHTS AND THE ISRAELI LAW, pp. 63-100, Tamar Morag, ed., Ramot Publishing, 2009
40 Pages Posted: 27 Mar 2011
Date Written: April 25, 2008
In 1989, Israel passed Amendment 26 to the Penal Code, known as "the Law for the Prevention of Abuse of Minors and the Helpless."
This amendment was a revolution, if only in theory, in the enforcement of the rights of the child in the criminal process, in those difficult cases in which he is harmed by those closest to him. The amendment includes various offenses of assault as well as a new offense of abuse. The amendment also placed a focus on the mental side of the assault and abuse and not only the physical and sexual aspects; a more stringent punishment was instituted for one who is "responsible for the minor" than for the general public; the definition of "responsible" was expanded to all those who surround the child in his family and everyone on whom the child is dependent to some degree; and a mandatory duty to report certain offenses of harm to children was instituted.
However, this legislation has some gaps: the legislator did not define the categories of abuse, thus creating uncertainty about the extent of its scope and the difference between it and the assault offenses; while the legislator did define who is considered "responsible," ambiguity remained on the question of the application to various parties temporarily responsible, such as a counselor, a babysitter, or a teacher; today it is not clear whether moderate corporal punishment, forbidden in 2000 in a Israeli Supreme Court ruling, is included in the mandatory duty to report instituted in 1989.
This Essay attempts to dispel these ambiguities. Inter alia, a section defining the types of abuse is proposed to replace the problematic and partial definition existing today in the case law; the determination of whether someone is "responsible" for a child, so that his punishment under the offenses listed in the amendment is harsher and the duty of report applies to his actions, is examined in various cases of permanent and temporary responsibility, and a section amending the relevant definition is proposed; an interpretation is offered that amendment 26 will not apply to moderate corporal punishment of a child by his parent, if it caused no harm and is not in the category of abuse, since under the amendment the punishments are significantly more harsh and there is a duty to report the actions.
It should be understood that with all the great importance of protecting children via criminal law and harsher punishments, we must not go too far and expand this to every case, thus disrupting the delicate-but-successful balances existing in the legislation.
The central goal of all these discussions and the proposed amendments is to make this important statute, sometimes the only refuge for children (whether by forceful deterrence or by punishment and actually stopping the violence), as clear and concise as possible, so that it can best serve the authorities in handling the painful (in all senses of the word) problems of children.
Note: Downloadable document is in Hebrew.
Keywords: Children's rights, UNCRC, assualt, battery, child abuse, neglect, corporal punishment, mandated reporting on child abuse and neglect
JEL Classification: Z00
Suggested Citation: Suggested Citation