INTRODUCTION: THE JUDGMENT AND THE LAW
In a unanimous decision, today (18 September 2019) the Constitutional Court ruled that children may be effectively disciplined without resorting to moderate and reasonable chastisement. It argued that less restrictive means to achieve discipline are available. The court effectively held that the common law defence of reasonable and moderate parental chastisement is inconsistent with the provisions of sections 10, 12(1)(c), and 28(2) of the Constitution. This means that as of today, parents who physically discipline their children could be charged with the crime of assault.
I am not going to consider the facts of the case that resulted in this matter reaching the Constitutional Court but will limit my response to the law and what the Bible says, and what this means for parents.
It is worthwhile to look at the provisions of the Constitution that the court relied upon in arriving at its decision. Section 28(2) of the Constitution says, “A child’s best interests are of paramount importance in every matter concerning the child”. Section 10 says “Everyone has inherent dignity and the right to have their dignity respected and protected”. Section 12(1)(c) says “Everyone has the right to freedom and security of the person, which includes the right – to be free from all forms of violence from either public or private sources”. In [para 31] of the judgment, the court held that the constitutionality of moderate and reasonable chastisement will primarily be resolved on the provisions of Section 12(1)(c), quoted above.
THE PARENTS AND DISCIPLINE
In informal settings, I have long stated that I believe that my wife and I reserve the sole responsibility to discipline our children the way we believe God has privileged us. I have maintained that I am in full support of the banning of corporal punishment in schools because I do not want my children to be disciplined by a person who is not going to do discipline the way God teaches. The way God teaches discipline, is by instructing us to shepherd our children’s hearts. By looking at it this way, one can see that the Bible is in favour of less restrictive means if the heart of a child is shepherded by the gospel. After all, a shepherded heart becomes an obedient heart, one that receives less discipline. Biblically, discipline may be achieved by communicating with the child (which is how most parents get to their children’s hearts anyways) or by lovingly spanking the child.
In his book on Shepherding a Child’s Heart, Tedd Tripp says “By definition, the rod is a parental exercise. All the passages that urge the use of the rod place it in the protected context of the parent-child relationship. The command is ‘discipline your son’. The Bible does not grant permission to all adults to engage in corporal punishment of all children. It is an element in a broader range of parenting activities. It does not stand alone. This is one of the problems with spanking children at school. When a teacher undertakes the spanking, the spanking process is removed from its context in the parent-child relationship. The same mother and father who comfort the child when he is sick, who take him to amusement parks, who remember his birthday, give the spanking. A spanking is very different when administered by a non-parent”.
THE JUDGMENT AND IMPLICATIONS
Interestingly, the Court differs with this. In its judgment, it argues that if a non-parent were to apply discipline to another person’s child they could be charged with assault, and therefore criticises this biblical position I adopt. Even though we do not want our children to be disciplined by people who are not their parents, we are not going to argue that when they do, they would be assaulting them. My position is that I as a parent will know when my child is being abused, and I believe I am capable and responsible to deal with abuse to my child. If the chastisement is moderate but does not cover all the other biblical gospel principles of shepherding a child’s heart, I would biblically deal with that person as a sinner, not a criminal. If there is assault, I will know and then I will deal with that by pressing charges against the perpetrator. What I am saying is I am not allowed to assault my children. If I do, I should be prosecuted, same as when a non-parent was to abuse them. But with spanking, non-parents should not spank my children, but rather they should bring them to me to deal with them as their parent. Their corporal punishment, regardless how moderate, should not be equated to my loving-moderate chastisement.
But the judgment in this matter made all forms of physical chastisement acts of violence, so spanking a child is violent assault, regardless by who, regardless how light, and well-intended.
This is a consistent interpretation of those who argued that the term ‘reasonable’ carries a relative meaning. I agree, but do not agree that simply because it is relative it should be interpreted rigidly. It is worrying that the way we discipline our children biblically is now regarded as violence. Assault laws now apply to anything spanking, light or heavy. This defies common sense, but that’s what the law is now. Basically, the court found that threats of violence, not even the actual violence, should be classified as violence. In [para38] the court found that “Violence is not so much about the manner and extent of the application of the force as it is about the mere exertion of some force or the threat thereof”.
When I initially thought of this judgment, I wondered about what sanctions will be imposed if a parent were found to have spanked their child. In [para 75] the court states that “how law enforcement agencies would deal with reported cases of child abuse flowing from this declaration of unconstitutionality is a matter best left to be dealt with on a case-by-case basis”. It is going to be interesting to see if any parent will actually be dealt with criminally for administering moderate chastisement. When teachers use corporal punishment, they usually get warnings or expulsion, so we will have to wait and see what will become of spanking parents.
But you can just imagine a bread winner sent to prison for lovingly disciplining their children. It is my contention that godly parents know the distinction between abuse and discipline. We learn this from our God, who tells us that when He lovingly disciplines us, He will not cripple us (Hebrews 12:7-13). So, if we apply what the Bible teaches accurately, we will not abuse our children. It is going to make for an interesting case when the first case of spanking is heard in a court of law.
I don’t know how the evidence of “moderate chastisement” is going to be gathered. It will in all probabilities be gathered from a child who might have to be led in evidence in a criminal trial to testify against their parent, if they are the only witness in the matter. The courts have already warned that evidence of minors should be approached with caution to reduce the dangers that go with such testimonies but may accept it if it is trustworthy. It is already a challenge to deal with cases where a spouse testifies against their spouse, so how are our courts going to deal with minors who might not comprehend the full implications of testifying against their parents, and thus prove their guilt beyond a reasonable doubt?
EVALUATING THE IMPLICATIONS
If this is not a classic case of judicial overreach, then I don’t know what it should be classified as. The very reason that God allows spanking is because children are not reared based on the same values. Children of Christian parents are reared in the Lord (Ephesians 6:1-4). That is an important factor. But beyond Scriptural principles there are other crucial socio-economic factors that influence the raising of children. For example, disciplining a child by spanking can prove to be quite challenging for parents who live in a single room house. If they wished to discipline their child by isolating them how would they do that in a single room? There is no uniform rule for disciplining children, which is why the court would have ruled wisely to leave family values untouched and let parents discipline children the best way the know how, based on their circumstances, personal preferences and convictions.
We are not told in this judgment what would be an acceptable form of discipline. Does this not expose the limitations of the court? If a court of law cannot decide what the alternative should be, then that proves that it is even beyond judicial overreach for the court do away with parental rights without providing the alternative. The problem is not that the court did not have alternatives or failed to provide them. The problem is that the court cannot tell parents to spank or to not spank.
What we are told, however, is that any degree of spanking is now illegal and constitutes violence. Wonder not why the court could not prescribe what is deemed an acceptable form of discipline? The sad reason is that this case was about regulating what cannot be regulated. This is why the court could only go so far as to say there are other effective methods of disciplining, but could not outline them. If violence, and any threat thereof, is now illegal then soon verbally reprimanding children is going to become illegal.
WHERE TO FROM HERE?
There has not been an outcry in our societies lamenting the fact that parents are abusing their children under the guise of common law defence of moderate and reasonable chastisement, so one wonders who is this law for and what does it resolve? Law is for the people, not the people for the law. What this judgment has inadvertently done is that it has paved the way for religion to be regulated. Now that there is a law that tells Christians how to interpret and apply their Holy Scriptures, a dangerous precedent has been set.
I know, in S v Makwanyane, the Constitutional court made it plain that the courts make laws not according to public opinion. What is rather odd for me is that the Constitution was drafted by the people to make South Africa a country of laws they want to be ruled and governed by, but now they seem powerless to voice out their desires. How the public feels about this judgment is not not a small matter that can be set aside as mere public opinion. What this judgment means now, is that the public is dependant on the politicians to do something about amending the Constitution to allow for spanking.
We live in an interesting country with interesting laws. We have laws that allow for babies to be murdered in the womb, but if they are born we want to tell their parents how to parent them, while we allow some parents to smoke marijuana. I think it is perhaps a good thing that our courts keep on shooting themselves in the foot like this. Maybe that will pave the way for a mechanism to be put in place to allow for reviews of undesirable Constitutional court judgments. A judgment like this, especially a mere 29-page judgment on such an important matter, which took almost a year to deliver, often leaves many questions unanswered. I have stated a number of them, but one of which would be dealing with children who spank other children. I am only asking this to entertain legal questions, and I know full well that the law already state that minors cannot be held accountable for crimes they commit because they lack criminal capacity.
What was very worrying for me was the lengths the Court went to, to interpret the Scriptures. This is unprecedented, because the Courts have no authority and mandate from God to do Biblical exegesis. Parents who are convinced of their biblical convictions and who disagree with the Court’s interpretation of the Scriptures are going to be in contempt of court and end up being criminalised. However, I do not foresee that it would go to this extent, but it is a possibility.
Parents might not be criminalised because of the di minimis rule. This rule basically says that the law does not concern itself with trivial things. What it means for this judgment is that if a parent ends up spanking their child, they might not be prosecuted if law enforcement is convinced that the “assault” was minimal, and well intended. But it means that if charges are pressed the police might need to investigate or even a social worker might need to go into parents’ homes to assess whether the home is safe for a child or not. The Chief Justice remarked that even if the majority of the cases might be deemed trivial, the prospects of facing prosecution might deter some parents from even trying to spank.
LEGAL-THEOLOGICAL APPLICATION FOR PARENTS
I think parents should continue obeying the Bible and raise their children the way God’s wisdom dictates, without any fear of the state. Is this a hill to die on for parents? It depends on how biblically convinced you are of biblical spanking. If you do spank God’s way, I do not see how you could be charged with assault, but anything is possible. Above all, shepherd your child’s heart, and do yourself a favour and pick up Tedd Tripp’s book “Shepherding a Child’s Heart” at this point.
This judgment left some questions unanswered. How is a child going to know when they are being disciplined for serious sin issues if all forms of spanking are not involved? How does this judgment not amount to judicial overreach? The court did not say what the other acceptable means of discipline are, but what if they are later challenged and regarded as violence, since even a threat of violence is equal to violence? The reason why court judgments cannot answer some of the questions is because courts are trying to use laws to deal with societal problems that can be dealt with the existing law enforcement. Biblical spanking is not the cause of the societal ills we are faced with.
If all forms of ‘touching’ are illegal, how is it going to be possible to distinguish between a playful pat on the back and pat that is assault? Are we going to look at the facial expression? Body language? What if I pat for chastisement with a smile on my face? This judgment is not dealign with criminal intent, but it is permitting for motives to be judged by the law; a thing laws cannot achieve. This judgment just made the slippery slope more slippery; and as you know, Constitutional Court judgments cannot be appealed unless the Constitution is amended, and they are binding on all courts of law in South Africa.
It is fitting to end with [para 70] of today’s judgment, because I think it is a beautiful part of the judgment, even though I fundamentally disagree with other parts: “All of the above considered, I am satisfied that important though the purpose of the possible limitation of these rights is, the paucity of proof that the chastisement is beneficial and the availability of less restrictive means to instil discipline militate against the reasonableness and justification of the limitation. Children are indeed vulnerable and delicate. They are not always able to protect themselves and may not always know what to do in the event of the law being broken to the prejudice of their best interests. This conclusion is arrived at without branding parents, who prefer moderate and reasonable chastisement, as unloving, irresponsible and inclined to harm or abuse their children”.