Summary of law reform necessary to achieve full prohibition

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

The Civil Code recognises the right of those with parental authority to discipline their child “to the extent necessary” (article 822), and the Child Abuse Prevention Law states that those with parental authority should discipline their child in “an appropriate way” (article 14) but does not rule out corporal punishment. The near universal social acceptance of corporal punishment in childrearing necessitates clarity in law that no level of corporal punishment can be considered “appropriate” or lawful. These provisions should be repealed, and explicit prohibition enacted of all corporal punishment and other cruel or degrading forms of punishment, in the home and all other settings where adults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.

Corporal punishment is explicitly prohibited in the School Education Law (1947), but a 1981 High Court ruling suggested this did not cover all forms of physical punishment in all settings, and Ministerial guidelines over the years have offered varying definitions of physical punishment and of what is and is not lawful. The law should clearly state that all forms and degrees of corporal punishment are prohibited, in all education settings, if necessary including a clear definition of corporal punishment.

Explicit prohibition should be enacted in relation to all institutions accommodating children in conflict with the law and in 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. The Civil Code states that a person with parental authority “may discipline the child to the extent necessary” (article 822). Article 14 of the Child Abuse Prevention Law states that “those who have parental authority have to take an appropriate way when disciplining a child” and that those charged with inflicting bodily injury and violence cannot evade those charges under this provision. Provisions against violence and abuse in the Criminal Code, the Revised Child Abuse Prevention Law and the Law Concerning Punishment of Physical Violence and Others are not interpreted as prohibiting all corporal punishment in childrearing.

Corporal punishment is prohibited in Kawasaki City by local ordinance.

Schools

Corporal punishment is prohibited in schools under article 11 of the Education Law (1947), which states that disciplinary punishment may be inflicted but “in no case is corporal punishment permitted” (article 11). However, a ruling by the Tokyo High Court on 1 April 1981 suggested that this provision did not prohibit all physical punishment in all cases, and in 2007 a ministerial guideline issued to public schools relied on this in suggesting that some forms of physical punishment may be permitted in some circumstances.

Penal system

Corporal punishment is unlawful as a sentence for crime. There is no provision for corporal punishment in the Criminal Code or the Criminal Procedure Code.

Corporal punishment is lawful as a disciplinary measure in penal institutions. The Constitution (1946) prohibits cruel punishments and the Act on Penal Detention Facilities and Treatment of Inmates and Detainees (2005) provides for the maintenance of discipline in penal institutions, but there is no explicit prohibition of corporal punishment.

Alternative care

Corporal punishment is lawful in alternative care settings under the power of those with parental authority to punish and discipline children in the Civil Code and the Child Abuse Prevention Law (see above). Minimum Standards for Child Welfare Facilities (1948) address abuse of disciplinary methods but do not prohibit corporal punishment.

Prevalence research

None identified in the last ten years.

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee welcomes the efforts made by the State party to address some of the concerns and recommendations (CRC/C/15/Add.231) made upon consideration of the State party’s second report (CRC/C/104/Add.2) in February 2004, but regrets that a number of them have not been fully implemented or have not been addressed at all. The Committee reiterates those concerns and recommendations in the present document.

“The Committee urges the State party to make every effort to address the recommendations from the concluding observations on the examination of the second report which have not yet been implemented (including those contained in ... paragraph 35 on Corporal Punishment ...) and to comprehensively address the concerns contained in the present concluding observations.

“While noting the explicit prohibition of corporal punishment in schools, the Committee expresses concern at reports that the prohibition is not effectively implemented. The Committee notes with concern the ambiguous ruling of the Tokyo High Court in 1981 which refrained from prohibiting all physical punishment. Furthermore, it is concerned that corporal punishment in the home, alternative care settings and penal institutions is not expressly prohibited by law and that the Civil Code and the Child Abuse Prevention Law, particularly, allow the use of appropriate discipline and are unclear as to the admissibility of corporal punishment.

“The Committee strongly recommends that the State party:

a) explicitly prohibit corporal punishment and all forms of degrading treatment of children in all settings by law, including the home, alternative care settings and penal institutions;

b) effectively implement the ban on corporal punishment in all settings; and

c) undertake communications programmes, including campaigns, to educate families, teachers, and other professionals working with and for children on alternative, non-violent forms of discipline.

“The Committee welcomes measures such as amendments to the Child Abuse Prevention Law and the Child Welfare Law, which provide and enforce mechanisms for the prevention of abuse. The Committee remains concerned, however, that the notion of "parental authority" giving the right to exercise “comprehensive control" in the Civil Code as well as undue parental expectations, puts children at risk of violence at home. It notes with concern that the incidence of child abuse continues to rise.

“The Committee recommends that the State party strengthen current efforts to address the problem of child abuse, including by:

a) conducting public education programmes about the negative consequences of abuse and neglect and preventive programmes, including family development programmes, promoting positive, non-violent forms of discipline....”
(11 June 2010, CRC/C/JPN/CO/3 Advance Unedited Version, Concluding observations on third report, paras. 7, 8, 45, 46, 54 and 55)

“The Committee notes with concern that corporal punishment, although legally prohibited in schools, is widely practised in schools, institutions and the family.

“The Committee recommends that the State party:

1. prohibit corporal punishment in institutions and the home;
2. carry out public education campaigns about the negative consequences of ill-treatment of children in order to change attitudes towards corporal punishment, and promote positive, non-violent forms of discipline in schools, institutions and at home as an alternative to such punishment;
3. strengthen complaints mechanisms for children in institutions and schools to ensure that they deal with complaints of ill-treatment effectively and in a child-sensitive manner.”
   

(26 February 2004, CRC/C/15/Add.231, Concluding observations on second report, paras. 35 and 36)

“The Committee is concerned about the increase of child abuse and ill-treatment, including sexual abuse, within the family. The Committee notes with concern that insufficient measures have been taken to ensure that all cases of abuse and ill-treatment of children are properly investigated, sanctions applied to perpetrators and publicity given to decisions taken. It is also concerned about the insufficient measures taken to ensure the early identification, protection and rehabilitation of abused children.

“The Committee is concerned at the frequency and level of violence in schools, especially the widespread use of corporal punishment and the existence of numerous cases of bullying among students. While legislation prohibiting corporal punishment and such measures as hot lines for victims of bullying do exist, the Committee notes with concern that current measures have been insufficient to prevent school violence.

“In light of, inter alia, articles 3, 19 and 28.2 of the Convention, the Committee recommends that a comprehensive programme be devised and its implementation closely monitored in order to prevent violence in schools, especially with a view to eliminating corporal punishment and bullying. Additionally, it recommends that corporal punishment be prohibited by law in the family and in child-care and other institutions. The Committee also recommends that awareness-raising campaigns be conducted to ensure that alternative forms of discipline are administered in a manner consistent with the child’s human dignity and in conformity with the Convention.”
(5 June 1998, CRC/C/15/Add.90, Concluding observations on initial report, paras. 19, 24 and 45)