Current legality of corporal punishment

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Corporal punishment of children is lawful in the home. Article 5 of the Children and Young Persons Act 1970 confirms “the right of any parent, teacher or other person having the lawful control or charge of a juvenile to administer reasonable punishment to him”. Provisions against violence and abuse in that Act, in the Offences Against the Person Act 1873 and the Small Charges Act are not interpreted as prohibiting corporal punishment in childrearing. As part of an initiative to reform child laws in the region, the Organisation of Eastern Caribbean States (OECS) circulated a number of draft laws for consideration by member states, including Dominica. In this context, the Protection Against Domestic Violence Act 2001 was repealed and replaced by the Domestic Violence Act 2023. Section 2 of the Domestic Violence Act 2023 defines domestic violence as “any controlling or abusive behaviour or conduct or act that harms, injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of a person or any child…”. The Act does not include corporal punishment in the definition of domestic violence. In addition to the Domestic Violence Act 2023, Dominica also adopted the Status of Children Act 10 of 2023, the Maintenance of Children Act 11 of 2023, the Children Care and Adoption Act 12 of 2023 and the Maintenance Act 13 of 2023. None of these legislations prohibit corporal punishment in any settings. As of March 2024, the Child Justice Bill was still under review.[1]

During the Universal Periodic Review of Dominica in 2014, the Government stated that its view “was that the country should move away from the use of corporal punishment as far as possible, and that it would continue to work towards that goal”.[2] However, it did not respond clearly to recommendations made during the review to prohibit corporal punishment.[3] The 2018 National Child Protection Action Plan does not refer to corporal punishment. Recommendations to prohibit all corporal punishment extended during the Universal Periodic Review in 2019 were noted.[4]

Alternative care settings

Corporal punishment is lawful in alternative care settings under the right of persons with lawful control of a juvenile “to administer reasonable punishment” in article 5 of the Children and Young Persons Act 1970. Section 29 (1) of the Children Care and Adoption Act 2023 provides that a person authorised to provide care for a child shall “correct and manage the behaviour of the child” (s. 29(1) (c)). Section 73 (b) of the Act also states: “a child care service shall provide care that is safe, positive and nurturing". It does not prohibit corporal punishment in child care services.

Day care

Corporal punishment is prohibited in early childhood education facilities in the Education (Early Childhood Education) Regulations 2003, article 54 of which states: “A permit holder operating a facility shall ensure - … (c) that no child while attending the facility is subjected to emotional, physical or sexual abuse or to physical or emotional neglect or to shaking, shoving, hitting, spanking or any other form of corporal punishment.”

Corporal punishment is lawful in other early childhood care (nurseries, crèches, children’s centres, etc) and in day care for older children (day centres, after-school childcare, childminding) under the right of persons with lawful control of a juvenile “to administer reasonable punishment” in article 5 of the Children and Young Persons Act 1970. It is not prohibited by the Children Care and Adoption Act 2023 (see “Alternative care settings”).

Schools

Corporal punishment is lawful in schools under the right of teachers “to administer reasonable punishment” in article 5 of the Children and Young Persons Act 1970 and article 49 of the Education Act 1997, which states: “Corporal punishment may be administered where no other punishment is considered suitable or effective, and only by the principal, deputy principal or any teacher appointed in writing by the principal for that purpose, in a manner which is in conformity with the guidelines issued in writing by the Chief Education Officer.” Article 50 provides for the Minister to abolish corporal punishment in public and private schools by Order, but no abolition order has been made.

The Education Regulations 2011 set out how corporal punishment should be provided for in schools. It states that a school’s student disciplinary policy should contain guidelines based on a number of principles, including “that corporal punishment, suspension and expulsion are acceptable components of discipline administered in the school” (art. 33(b)(iii)). Corporal punishment should be administered on the palms of the hands of a student, using “a leather strap eighteen (18) inches long, one and a quarter (1¼) inches wide and not more than a quarter (¼) inches thick” or “such instrument as the Chief Education Officer may recommend and describe in guidelines”; up to four strokes may be inflicted, where practicable by a person of the same gender as the student (art. 34).

During the Universal Periodic Review of Dominica in 2014, the Government reported that there are several guidelines which must be followed regarding corporal punishment in schools, that it has come under criticism by several associations in Dominica “for having such rigorous guidelines for corporal punishment” and that “the Government’s view is that the country should move away from the use of corporal punishment as far as possible, so that is something that the country will continue to work on”.[5] According to Chief Education Officer Melena Fontaine, speaking in March 2016 on the Child-Friendly Schools Initiative, there is a need to reassess whether or not corporal punishment should be retained in statute.[6] In 2019, the Government reported that in the past decade the Ministry of Education and Human Resource Development had been promoting alternative discipline, including “school-wide use of positive behavioural practices”.[7]

Penal institutions

Corporal punishment is lawful as a disciplinary measure in penal institutions. Under the Children and Young Persons Act 1970, a juvenile in conflict with the law may be detained in a government training school or a prison: government training schools are governed by the Children and Young Persons Welfare Act 1972 and the Government Training School Act 1970, neither of which prohibits corporal punishment. Young people under 18 may also be sentenced to imprisonment: article 33 of the Prisons Act 1877 and articles 47 and 48 of the Prison Rules 1956 allow visiting justices to order corporal punishment for breaches of discipline. The Children Care and Adoption Act 2023 does not prohibit corporal punishment in penal institutions. It is unclear whether the Child Justice Bill which was under discussion as of March 2024 would prohibit corporal punishment in penal institutions.

Sentence for crime

Corporal punishment is lawful as a sentence for crime. The Juvenile Offenders’ Punishment Act 1881 provides for any High Court Judge to order a boy under 14 who has been convicted of any offence “to be as soon as practicable privately whipped”, in lieu of or in addition to any other punishment (art. 2). The whipping shall be up to 12 strokes with a tamarind rod, in the presence of a police officer and, if desired, the boy’s parent/guardian; a medical practitioner should certify the boy fit to receive the punishment but this requirement can be dispensed with if no medical practitioner is available within 24 hours (art. 3). Under the Corporal Punishment Act 1987, a court may sentence a boy under 16, convicted of any offence, to corporal punishment in lieu of or in addition to any other punishment; if the sentence is passed by a Magistrate’s Court it must be confirmed in the High Court before being carried out (art. 3). The High Court may pass a sentence of corporal punishment on any male convicted of rape, sexual intercourse with a girl under 14, or attempting or aiding these offences (arts. 4 and 5). It should be inflicted as soon as possible, up to 12 strokes on the buttocks for a boy under 16, 24 for older males, using a tamarind rod for those under 18 (arts. 7 and 8). The flogging should be carried out in the prison; for boys under 16, it could be administered in a police station; a medical officer must certify that the person is fit to undergo the punishment (art. 9). On ratifying the American Convention on Human Rights, Dominica made a reservation on article 5 (the right to humane treatment), stating that it “should not be read as prohibiting corporal punishment administered in accordance with the Corporal Punishment Act of Dominica or the Juvenile Offenders Punishment Act”.

The Children and Young Persons Act 1970 does not specifically mention corporal punishment as a way of dealing with juvenile offenders but refers to the Magistrate’s Code of Procedure Act 1961, which allows a magistrate to order the “private whipping” of a male child or young person (art. 100). The Offences Against the Person Act 1873 also provides for “private whipping” (art. 71).

Under examination by the Committee on the Rights of the Child in 2004, the Government reported that Dominica was engaged in consultation on abolition of corporal punishment, but that this would be a long process and in the meantime imposition of corporal punishment was legally regulated.[8] The Child Justice Bill drafted by the OECS in 2007 did not include corporal punishment among permitted sentences though it did not explicitly prohibit it. A 2018 version of the Child Justice Bill  prohibited corporal punishment of children as a sentence for a crime under draft article 69(1), though it did not repeal all of the above legislation: “A sentence of life imprisonment or any form of corporal punishment shall not be imposed on a child”. As of July 2019, the Bill was being finalised by the Cabinet before introduction to Parliament.[9] As at March 2024, the Bill was still under discussion.[10]

In 2019, the Government stated that while legislation allowed for judicial corporal punishment, “there had been no such sentence imposed on a child in the past 20 years” and Dominica “remained committed to updating its legislation related to the rights of children, to reflect current-day realities”.[11]

[1] https://emonewsdm.com/workshop-held-in-dominica-to-garner-support-for-child-justice-bill/ - accessed 28 March 2024

[2] 26 June 2014, A/HRC/27/9, Report of the working group, para. 63

[3] 5 May 2014, A/HRC/WG.6/19/L.7 Advance Unedited Version, Draft report of the working group, paras. 94(31), 94(32) and 94(34); 26 September 2014, A/HRC/27/2, Advance Unedited Version, Report of the Human Rights Council on its twenty-seventh session, para. 381

[4] 9 July 2019, A/HRC/42/9, Report of the Working Group, paras. 124(119), 124(121), 124(124), 124(125), 124(126), 124(127), 124(128), 124(131) and 124(132); 10 September 2019, A/HRC/42/9/Add.1, Report of the Working Group: Addendum

[5] 5 May 2014, A/HRC/WG.6/19/L.7 Advance Unedited Version, Draft report of the working group, paras. 14 and 63

[6] Reported in Dominica News Online, 18 March 2016, http://dominicanewsonline.com/news/homepage/news/educationyouth/ministry-of-education-discusses-future-of-corporal-punishment/, accessed 23 March 2016

[7] 9 July 2019, A/HRC/42/9, Report of the Working Group, para. 31

[8] 10 August 2004, CRC/C/SR.963, Summary record of 963^rd meeting, para. 36

[9] 9 July 2019, A/HRC/42/9, Report of the Working Group, para. 33

[10] https://emonewsdm.com/workshop-held-in-dominica-to-garner-support-for-child-justice-bill/ - accessed 28 March 2024

[11] 9 July 2019, A/HRC/42/9, Report of the Working Group, para. 30

Universal Periodic Review of Dominica’s human rights record

Dominica was examined in the first cycle of the Universal Periodic Review in 2009 (session 6). The following recommendations were made:[1]

“Prohibit corporal punishment of children in all settings (Slovenia), to remove all provisions from laws that allow corporal punishment and explicitly prohibit corporal punishment by law in the family, schools and other institutions (Italy) as a method to discipline children (Chile)”

The Government rejected the recommendations, describing the law in relation to school corporal punishment and stating that there was no intention to reform the law: “Corporal punishment was therefore not applied arbitrarily, and was seen as a measure of last resort for serious offences in the school system. Those who applied corporal punishment were guided by the code developed by the Ministry of Education. Corporal punishment was also used in the family, while there had been a tremendous effort to assist parents in the parenting of children and the use of alternative measures of discipline. Fully aware of the risk of abuse, the Welfare Department of the Ministry of Social Services was constantly engaged with parents and children who had complained of abuse. While recognizing the position taken in the Working Group, Dominica was not prepared to remove corporal punishment from its statute books.”[2]

Examination in the second cycle took place in 2014 (session 19). During the review, the Government confirmed that corporal punishment is lawful in schools, within strict guidelines, but that efforts were being made to discourage its use.[3] The following recommendations were made:[4]

“Take appropriate legislative and administrative measures to combat domestic violence and physical ill-treatment against children, including the prohibition of the practice of corporal punishment (Costa Rica);

“Continue its efforts to promote the rights of the child and work towards the elimination of the use of corporal punishment in school (Maldives);

“Prohibit sentences of corporal punishment for children and life imprisonment of children under the age of 14, under all systems of justice and without exception, to ensure full compliance with international standards (Germany)”

The Government did not clearly accept or reject these recommendations. Its response was to state that measures would be taken to address physical child abuse but no reference was made specifically to corporal punishment.[5]

Third cycle examination took place in 2019 (session 33). The following recommendations were made:[6]

“Combat all forms of abuse against boys, girls and adolescents, eliminating from its domestic legislation the provisions permitting corporal punishment by parents, teachers or legal guardians (Uruguay);

“Strengthen measures to eliminate corporal punishment of boys, girls and adolescents from its national law (Argentina);

“Abolish corporal punishment against children in the justice system (Brazil);

“Repeal legal provisions authorizing corporal punishment of children both in the school and at home (Chile);

“Outlaw all sentences of corporal punishment for children as well as life imprisonment for children under the age of 14. Ensure full compliance with international standards and take adequate measures to stop the persisting child abuse, in particular sexual abuse (Germany);

“Prohibit corporal punishment of children in all settings and take all measures to enforce it in practice (Iceland);

“Make further efforts to ensure the rights of the children are respected, including by taking measures against the use of corporal punishment (Italy)

“Prohibit corporal punishment of children in all settings, as recommended previously (Slovenia);

“Take appropriate steps to prohibit and sanction corporal punishment in early childhood educational institutions (Togo)”

The Government noted the recommendations.[7]

[1] 4 January 2010, A/HRC/13/12, Report of the working group, para. 71(4)

[2] 8 February 2011, A/HRC/13/56, Report of the Human Rights Council on its thirteenth session, paras. 586 and 587

[3] 5 May 2014, A/HRC/WG.6/19/L.7 Advance Unedited Version, Draft report of the working group, paras. 14 and 63

[4] 5 May 2014, A/HRC/WG.6/19/L.7 Advance Unedited Version, Draft report of the working group, paras. 94(31), 94(32) and 94(34)

[5] 26 September 2014, A/HRC/27/2, Advance Unedited Version, Report of the Human Rights Council on its twenty-seventh session, para. 381

[6] 9 July 2019, A/HRC/42/9, Report of the Working Group, paras. 124(119), 124(121), 124(124), 124(125), 124(126), 124(127), 124(128), 124(131) and 124(132)

[7] 10 September 2019, A/HRC/42/9/Add.1, Report of the Working Group: Addendum

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

(30 June 2004, CRC/C/15/Add.238, Concluding observations on initial report, paras. 28, 29, 46 and 48)

“The Committee is deeply concerned at the wide use of corporal punishment in the State party. It also notes with concern that corporal punishment is mentioned in the Education Act of 1997 and that the Magistrate Code of Procedure allows the whipping of a male child or a young person.

“The Committee recommends that the State party:

1. a) remove all provisions from laws that allow corporal punishment and explicitly prohibit corporal punishment by law in the family, schools and other institutions;
2. b) continue the constructive dialogue with political leaders and the judiciary with the aim of abolishing corporal punishment;
3. c) continue to strengthen public education campaigns among community leaders, school administrators and parents about the negative consequences of corporal punishment of children, and promote positive, non-violent forms of discipline as an alternative to corporal punishment;
4. d) establish an effective mechanism, either separate or as a part of a mechanism that includes dealing with child abuse, to receive, monitor and investigate complaints, including intervening where necessary, and ensure that victims of corporal punishment have access to assistance for recovery….

“The Committee is concerned at the lack of juvenile courts and at the fact that children may be sentenced to a penalty at the ‘President’s pleasure’, to life imprisonment and to whipping in private.

“The Committee also recommends that the State party:

1. b) abolish the sentences of whipping and life imprisonment….”

Prevalence/attitudinal research in the last ten years

A study which involved focus group discussions with 403 children aged 6-16 found that only 15% had never been physically punished at home; only 14% had never been physically punished by a teacher. In both homes and schools, the most common object used to hit children was a stick or cane, followed by a strap or belt and then a hand.

(Le Franc, E. R. M. et al (2009), Violence Against Children: An Evaluation of the Protective Environment – Participant Assessment Methodology: A Case Study In Dominica, UNICEF Office for Barbados and the Eastern Caribbean & Government of Dominica)