CHILE: Proposed child abuse law falls short of banning corporal punishment

In December, the Chilean Senate’s Commission of the Constitution, Legislation, Justice and Regulations approved the text below to amend article 234 on the physical abuse of children. The amendment, argue child rights advocates, is weak and must stipulate an explicit prohibition on all forms of corporal punishment. Below is the text that is due to be discussed in the Senate in the next few days and a reflection from the Asociación Chilena pro Naciones Unidas (ACHNU).

Approved text: 

Article 3: Presenting the following revisions to article 234 of the Civil Code:

1) Add at the bottom of the first clause and before the separate paragraph, the following: “and in accordance with the law and the Convention on the Rights of the Child. This authority excludes all forms of physical ill-treatment.”

2) Substitute, in the second clause, the sentence “will decree measures to safeguard children”, with: “could enact one or more of the special precautionary measures stipulated in article 71 of law No. 19.968, with reference to the procedure set out in the first paragraph under heading 4 of the same law.”

Article 234 clause 1 establishes that: Parents will have the power to correct their children, provided this poses no harm to their health or development”

Clause 2 establishes that: “If harm should occur, or there is a well founded fear that harm could occur, the judge, on the request of any person or ex officio, will decree measures to safeguard the child without detriment to corresponding sanctions which apply for this offence.

Comment from ACHNU:
 
In the Chilean legal system, the concept of physical abuse of children includes the use of corporal punishment. Although the text approved by the Commission excludes all forms of physical abuse (even though corporal punishment is not mentioned explicitly), expressly prohibiting corporal punishment, as other countries have done, would have a more significant impact on children’s upbringing, rather than using a broad concept like “child abuse”.

It is also important to include all those responsible for children’s personal care, not just parents. A good example is the text of the law that was passed in Uruguay last year:

“It is prohibited for parents and all other persons responsible for the personal care, upbringing, education, treatment and safeguarding of children, whether on a temporary or permanente basis, to use physical punishment or any other type of humiliating, degrading, cruel or inhumane treatment as a form of correcting or displining boys, girls or adolescents.”

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