40 Pages Posted: 25 Mar 2012
Date Written: March 24, 2012
For generations, parents have viewed spanking and slapping as important, though perhaps regrettable, methods of discipline for ensuring the appropriate social development of their children. As the proverbial dictum warns, to spare the rod is to spoil the child. To be sure, some parents abjure corporal punishment entirely, and other parents employ it as an infrequent and last resort, but corporal punishment of children has wide and deep roots in American society.
This broad social imprimatur of corporal punishment is reflected in the law. Court decisions regularly show a good deal of tolerance for corporal punishment of children. Indeed, in the absence of significant bruising or worse, corporal punishment by parents does not run afoul of prohibitions against child abuse.
Yet when we compare the legal acceptability of corporal punishment with the view of medical and other experts in child rearing and family violence, we see a substantial gap. Child-rearing experts are far less tolerant of corporal punishment than is the law. In the view of professionals in the field, corporal punishment has serious disadvantages, and its advantages can be achieved through less harmful, alternative means of discipline. Accordingly, experts see little, if any, role for corporal punishment in child rearing.
This gap between the law and professional expertise needs to be explained. Why does the law permit much more corporal punishment than can be justified in terms of the purposes of discipline? The gap might reflect a distrust of professional expertise, but, in other areas of the law, particularly medical malpractice, the legal standard expressly incorporates a deference to professional expertise. The gap might also reflect some important legal principle, but consideration of legal principle indicates that this explanation is not adequate either. In this Article, I argue that the legal-professional disjunction reflects a combination of our society's views about pain and about children--we overvalue pain, and we undervalue children.
Keywords: spanking, corporal punishment, child abuse, family law
JEL Classification: I18
Suggested Citation: Suggested Citation
Orentlicher, David, Spanking and Other Corporal Punishment of Children by Parents: Undervaluing Children, Overvaluing Pain (March 24, 2012). Houston Law Review, Vol. 38, p. 147, 1998. Available at SSRN: https://ssrn.com/abstract=2028343