Summary of law reform necessary to achieve full prohibition

Prohibition is still to be achieved in the home, schools, penal institutions and alternative care settings.

Article 1.638 of the Civil Code allows “moderate” punishment of children by parents. In theory, the provisions in the Code on Children and Adolescents recognising the child’s right to dignity should prohibit corporal punishment (which invariably affects a child’s dignity), but the law is not interpreted in this way and is undermined by the Civil Code provision allowing “moderate” punishment. The near universal social acceptance of corporal punishment in childrearing necessitates clarity in legislation that no level of corporal punishment is acceptable. All legal justifications for corporal punishment should be repealed and explicit prohibition enacted of all corporal punishment and other cruel or degrading forms of punishment, in the home and all other settings where adults have authority over children.

Explicit prohibition of corporal punishment should be enacted in relation to all education settings, public and private, all institutions accommodating children in conflict with the law, and all alternative care settings, including public and private day care, residential institutions, foster care, etc.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. In stating that “immoderate” punishment of children can result in a loss of parental authority, article 1.638 of the Civil Code (2002) allows “moderate” punishment of children. Provisions against violence and abuse in the Criminal Code (1940), the Code on Children and Adolescents (1990), the Law on Domestic and Family Violence against Women (2006, The Maria da Penha Law) and the Constitution (1988) are not interpreted as prohibiting all corporal punishment in childrearing.

As at September 2012, a Bill which would prohibit had been passed by Congress and was awaiting passage to the Senate.

Schools

Corporal punishment is lawful in schools. The Code on Children and Adolescents protects children from inhuman, violent, terrifying and humiliating treatment (article 18) and states that children have a right to be respected by educators (article 53), but it does not explicitly prohibit corporal punishment.

Penal system

Corporal punishment is unlawful as a sentence for crime. There is no provision for it in the Penal Code or the Code on Children and Adolescents.

Corporal punishment is lawful as a disciplinary measure in penal institutions. The Code on Children and Adolescents recognises the right of adolescents deprived of their liberty to be treated with respect and dignity (article 124) and charges the state with responsibility for ensuring their physical and mental integrity (article 125), but there is no explicit prohibition of physical punishment in detention centres.

Alternative care

There is no explicit prohibition of corporal punishment in alternative care settings. Article 1.638 of the Civil Code (see above) presumably applies to persons with parental authority in alternative care settings.

Prevalence research

A 2012 study of men’s childhood experiences of violence in Brazil, Chile, Croatia, India, Mexico and Rwanda, which involved men aged 18-59 living in urban settings, found a high prevalence of corporal punishment in all six countries. In Brazil, of the 744 men who participated, 36% reported having been spanked or slapped by a parent in the home during childhood, 6% threatened with physical punishment in the home and 8% humiliated by someone in their family in front of other people; 4% reported having been beaten or physically punished at school by a teacher. The study found that men who had experienced violence, including corporal punishment, during childhood, were more likely to perpetrate intimate partner violence, hold inequitable gender attitudes, be involved in fights outside the home or robberies, pay for sex and experience low self-esteem and depression, and were less likely to participate in domestic duties, communicate openly with their partners, attend pre-natal visits when their partner is pregnant and/or take paternity leave. (Contreras, M. et al (2012), Bridges to Adulthood: Understanding the Lifelong Influence of Men's Childhood Experiences of Violence, Analyzing Data from the International Men and Gender Equality Survey, Washington DC: International Center for Research on Women (ICRW) and Rio de Janeiro: Instituto Promundo)

During the 2011 visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to Brazil, the Subcommittee received numerous and consistent allegations of ill-treatment of children and young people in police custody, pre-trial detention facilities and penal institutions for children and adolescents, including beatings by staff on the back of the head and other parts of the body with open hands, wood or metal batons, stripping of children and adolescents, forcing them to stand in uncomfortable positions, insults and threats. (Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2012), Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to Brazil)

A large scale comparative study (World Studies of Abuse in the Family Environment (WorldSAFE)) which involved surveys with over 14,000 mothers of children aged under 18, carried out between 1998 and 2003, examined parental discipline in Brazil, Chile, Egypt, India, Philippines, and the United States. In Brazil, 70% of children experienced “moderate” physical discipline (including being “spanked” on the buttocks, hit with an object, slapped on the face and having hot pepper put in their mouth). Two per cent of children experienced harsh physical discipline (including being burnt, beaten up, kicked and smothered). Nearly four children in ten (39%) experienced harsh psychological discipline such as being called names, being cursed and being threatened with abandonment. “Moderate” psychological discipline, including being yelled or screamed at or being refused food was experienced by 77% of children. Non-violent discipline, including explaining why a behaviour was wrong and telling a child to stop, was also widely used (experienced by 96% of children). The study found that rates of harsh physical discipline were dramatically higher in all communities than published rates of official physical abuse in any country, and that rates of physical punishment can vary widely among communities within the same country. (Runyan, D. et al (2010), “International Variations in Harsh Child Discipline”, Pediatrics)

A study on the relationship between severe physical punishment and mental health problems found that 20% of the  children (aged 6-17) in the 813 participating households had suffered severe physical punishment (being hit with an object, being kicked, choked, smothered, burnt, scalded, branded, beaten or threatened with a weapon) by one or both parents in the last 12 months. (Bordin, I. A. et al. (2009), “Severe physical punishment: risk of mental health problems for poor urban children in Brazil”, Bulletin of the World Health Organisation, May 2009, vol. 87(5), pp. 336–344)

Surveys carried out in 2002-2004 examined the attitudes of children and adults in Argentina, Brazil, Costa Rica, Nicaragua, Peru and Venezuela towards physical punishment. In Brazil, 800 people were surveyed (200 adults and 600 children). Nearly a quarter (23.2%) of the children agreed that physical punishment is “very bad” or “makes children violent”, and 37.2% agreed that physical punishment is “unfair”. Three-quarters of children and adults thought that physical punishment is never necessary. (Save the Children Sweden & Instituto de Encuestas y Sondeos de Opinión (2005), Sistematización de las Encuestas Sobre la Perceptión del Castigo Físico en Seis Países de America Latina, presentation: Managua, 16 May 2005)

Research by Human Rights Watch in 17 detention centres in Northern Brazil, including four girls and including interviews with 44 detained young people, found that children are routinely beaten by police. Beatings both during and after arrest were found to be common. Children complaining of beatings reported that military police hit them with rubber batons with a metal core.
(Human Rights Watch, 2003, Cruel Confinement: Abuses against detained children in Northern Brazil)

Research in five juvenile detention centres in the State of Rio de Janeiro found that beatings, and impunity for offenders, were common. Verbal violence was also common, and youths experienced lengthy periods of lock-up and being forced to stand for long periods of time in uncomfortable positions. (Human Rights Watch (2004), “Real dungeons”: Juvenile Detention in the State of Rio de Janeiro, 16(7))

A report comparing diagnosis and treatment of attention deficit hyperactive disorder (ADHD) in different countries found that in Brazil, physical punishment is considered by a large number of teachers to be a “therapeutic” treatment for ADHD. (Reported in Psychiatric News, 46(11), 3 June 2011)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee expresses its concern that corporal punishment is widely practised in the State party and that no explicit legislation exists in the State party to prohibit it. Corporal punishment is used as a disciplinary measure in penal institutions, ‘reasonable’ punishment is carried out in schools and ‘moderate punishment’ is lawful in the family.

“The Committee recommends that the State party explicitly prohibit corporal punishment in the family, school and penal institutions, and to undertake education campaigns that educate parents on alternative forms of discipline.”
(1 October 2004, CRC/C/15/Add.241, Concluding observations on initial report, paras. 42 and 43)

Subcommittee on Prevention of Torture

“The SPT also received numerous and consistent allegations from children and adolescents of torture and ill-treatment suffered upon arrest and during police custody. Children and adolescents alleged that the torture and ill-treatment committed by the military police took place upon arrest and the methods included slaps, kicking and boxing on all parts of the body....

“The SPT considers the above allegations to be cases of physical and mental torture or ill-treatment. The SPT condemns all acts of torture and ill-treatment and recalls that torture cannot be justified under any circumstance. The SPT reiterates its call for the Brazilian authorities to condemn any act of torture firmly and publicly and to take all the necessary steps to prevent torture and ill-treatment. Preventive steps include inter alia the conduct of prompt, impartial and independent investigations, the establishment of an efficient complaints system, and the prosecution and punishment of alleged perpetrators.

“On the basis of numerous interviews, the SPT found that children and adolescents were not given the special protection they needed from the moment of arrest. Those interviewed reported consistent practices of physical abuse, some amounting to torture, as well as a lack of legal safeguards.

“The SPT received consistent and numerous allegations of ill-treatment at Forum Bras and the adjacent building of Rio Nilo, both being pre-trial detention facilities adjacent to the Bras court in São Paulo. Children and adolescents reported a military atmosphere with strict discipline. The SPT observed that inmates kept their heads facing the floor and their hands behind their back, and were not allowed to talk. The SPT noticed bruises (black eyes) on the face of some of the inmates.

“Through interviews conducted with a number of children and adolescents, the SPT received credible and reiterated allegations of torture and ill-treatment. These included beatings by staff on the back of the head and other parts of the body with open hands, wood or metal batons, stripping of children and adolescents, forcing them to stand in uncomfortable positions, insults and threats. As an overall observation, the SPT noted that humiliating practices were resorted to as a tool to maintain discipline. In the Internment Unit of Jatobá in São Paulo the SPT collected evidence of dismissal and cover-up of injuries by medical staff....

“An extremely worrying element was the involvement of external security troops (‘tropa de choque’) to maintain discipline and quell riots. Ordinarily, these troops would remain outside the centres and intervene only when requested to do so by the administration in the case of riots. However, the SPT received a number of credible allegations that external troops would frequently, if not systematically, be requested to enter and apply excessive use of force and humiliating practices following a search of a centre or when a riot or even a disagreement arose between a child or adolescent and the staff. In one centre, these interventions had allegedly happened three times in one week. The children showed the SPT recent wounds from these beatings. This type of treatment was sometimes imposed with the participation of other staff, or even institution directors. The SPT received frequent allegations that acts of torture and other inhumane treatment were inflicted on children and adolescents in rooms or spaces hidden from existing video cameras.

“Regarding centres for girls, the SPT was concerned that in one centre, a silent mode system was imposed on newcomers during the first 24 hours in the centre, and as a form of punishment.

“The SPT considers the above allegations to be examples of physical or mental torture and ill-treatment, which are even more preoccupying given the young age of the victims. In light of the consistency of the allegations received, the SPT considers that torture, ill-treatment and other forms of abuse were practiced in most of the centres for children and adolescents visited.

“The SPT reiterates its categorical condemnation of all acts of torture and ill-treatment. The SPT recalls that children deprived of their liberty shall be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, reinforcing the child's respect for the human rights of others and taking into account the child’s age and desirability of their reintegration in society [footnote: Convention on the Rights of the Child, arts. 37 and 40]. The SPT requests to be provided with information on any plan of action devised to eradicate torture and ill-treatment in institutions for children and adolescents.”
(8 February 2012, Advance Copy, Report on first periodic visit, paras. 80, 86, 133, 143, 145, 146, 147, 148 and 149)

Universal Periodic Review

Brazil was examined in the first cycle of the Universal Periodic Review process in 2008 (session 1). No recommendations were made specifically concerning corporal punishment of children. However, the following recommendation was made and was accepted by the Government (A/HRC/8/27, Report of the Working Group, para. 83(2)):

“Continue its commitment to resolving the issue of abuse of power and excessive use of force (Ghana)”

Examination in the second cycle took place in 2012 (session 13). During the review, Congressman Domingos Dutra, President of Human Rights Commission of the House of Representatives, drew noted the bill prohibiting corporal punishment of children and adolescents as an example of legislative progress (A/HRC/21/11, Report of the Working Group, para. 87). No recommendations were made specifically concerning corporal punishment, but the following recommendations were made (A/HRC/21/11, Report of the Working Group, paras. 119(27), 119(63), 119(66), 119(67) and 199(68)):

“Continue its efforts strengthening human rights, particularly within the framework of the family (Saudi Arabia);

“Implement further measures to combating and preventing torture, as well as strengthen existing mechanisms for the implementation of the recommendations of the UN Committee Against Torture and other international bodies (Uzbekistan);

“Make sure prisoners and detainees have at all times access to their rights and descriptions of proper treatment, including those laid down in the Standards Minimum Rules and the Body of Principles for the Protection of Detainees and to make sure that they have access to effective procedures to realize these rights (Netherlands);

“Make further efforts to improve conditions in detention facilities according to international standards, especially including developing gendersensitive policies and programmes for women (Republic of Korea);

“Take action to improve prison conditions, in particular to improve conditions of women’s detention facilities in accordance with international standards, and ensure protection of human rights of all detainees, including guarantees of due process and protection against cruel and inhumane treatment (Slovenia)”

The Government accepted the recommendations (13 September 2012, A/HRC/21/11/Add.1, paras. 5 and 15).