Fizinės bausmės vaikams: baudžiamasis teisinis vertinimas

Abstract

This article deals with the issue of criminal law concerning corporal punishment against children. The core of this issue can be described as follows: the Civil Code provides for the right and obligation of parents to foster, educate and take care of their children. Education means constant and purposeful impact on a child’s mind. The right to bring up a child and responsibility for the same allows parents to take the necessary measures to achieve this goal. It should be noted that, for many years in the past, corporal and dignity abasing punishment of children had been considered an effective method of upbringing. Later, such methods of education were challenged and even condemned. From the modern point of view, corporal punishment must be forbidden due to both physical and mental damage caused by such punishment and ineffectiveness of the same. Majority of countries worldwide allow physical punishment as long as it is moderate and reasonable. In 16 countries (mostly in Europe) corporal punishment has been forbidden. The Lithuanian laws, however, have failed to clearly stipulate whether corporal punishment used against children by their parents can by justified or not. As a result of applying the comparative, logical, systematic and other methods as well as the method of judicial practice analysis, the author of the article arrives at the conclusion that corporal punishment is to be considered a form of physical abuse. Similar to physical abuse, corporal punishment is defined as a dangerous, unlawful, deliberate impact on a child either against his/her will or without his/her consent, which may manifest itself through affecting functions or anatomic integrity of tissues or organs, causing pain, and limiting freedom of movement. Likewise, physical abuse may lead to deprivation of life or freedom, damage of health; it may cause pain or other physical suffering, or a state of helplessness. When providing protection of the rights of children, criminal laws seek to reconcile contradictory interests, such as the child’s right to his/her personal immunity and dignity, on the one hand, and the right of parents to bring up their children and the right to family autonomy, on the other. Some theoreticians prefer the autonomy of a family and, as a result, tolerate reasonable and moderate corporal punishment. The right of parents to punish their children is regarded as a circumstance eliminating parents’ criminal responsibility. The conception of reasonability and moderation is a flexible system giving a lot of space for the court to determine the limits of reasonability. Another theory, though, gives priority to the rights of children and is in favor of prohibiting all and any corporal punishment. It claims that a child is an independent entity enjoying its own independent interests and rights. Moreover, a child is not the property of his/her parents. If the parents fail to fulfill their obligations, misuse their freedom of action or authority of parents and when it endangers or harms the child, then the state authorities must interfere in order to protect that child. The law cannot apply the concept “reasonable,” if it might expose the children’s health and welfare to risk. As far as Lithuania is concerned, the rights of children to health, personal immunity, dignity and protection against corporal punishment are granted by the means of criminal law, although there is no direct provision specifying that corporal punishment against children is forbidden. [...]