The Supreme Court In Loco Parentis

By Evelyn Gordon

The court’s outrageous ban on spanking one’s child.

This argument is flawed in a number of respects. To begin with, the court ignored a crucial difference between these five countries and Israel: All of their parliaments have passed legislation explicitly outlawing corporal punishment, while Israel’s Knesset has not.¹⁸ Secondly, contrary to what Beinisch’s description seems to imply, the five countries she cites constitute a nearly exhaustive list of all the democracies that have prohibited parental spanking, whereas 76 of the world’s 84 democratic countries have chosen not to interfere with parents’ prerogatives to use moderate spanking in disciplining their children.¹⁹ It is far from obvious that Israel, with its largely traditionalist attitudes towards family life, should be bucking the internationally accepted approach on how to govern the relationship between parents and children in order to model itself on a handful of European states that have become the world’s hothouse for experiments in radical social norms and legislation.

Yet even if Scandinavia were to be the model of choice for Israeli family law, there is little in the experience of these countries to support an act of judicial revolution such as the Jane Doe decision. The governments of Austria and the Scandinavian states—unlike the Israeli court—were careful not to turn corporal punishment into a criminal offense overnight. Instead, they employed a gradual, consensus-building process, seeking first to change public attitudes and practices, later institutionalizing this change through legislation, and even then declaring spanking a civil rather than a criminal offense.² Sweden, which in 1979 became the first country to ban spanking by parents, did so only after a fourteen-year campaign in which successive governments carried out massive public education efforts to inform parents concerning alternative methods of discipline, while the parliament gradually amended family law to place increasing restrictions on corporal punishment. When this process began in 1965, 53 percent of Swedish parents considered occasional physical punishment to be necessary in raising children. Six years later, this number had dropped to 35 percent, and it continued to decline until the law’s passage in 1979.²¹ Thus the legislature’s nearly unanimous vote to ban corporal punishment (only 6 of 265 legislators voted against the law) reflected a broad and growing consensus in Swedish society.²²

Having presented a distorted image of the practices in the democratic world, Beinisch then turned to the circumstances of Israeli society, noting that

The question of whether corporal punishment of children is legitimate is to a great extent influenced by one’s social-moral worldview. These worldviews are susceptible to changes in accordance with social and cultural developments; what seemed good and right in the past can seem to be not so in the present.²³ 

The implication of this statement, which Beinisch articulates more explicitly later in the verdict, is that the “social-moral worldview” in Israel had turned decisively against allowing parents to spank their children.²⁴ Yet the only proof offered for this is that the Supreme Court itself had changed its position, by twice ruling against corporal punishment in the schools during the 1990s. The court’s arguments for a ban in those cases, wrote Beinisch, “are in my opinion appropriate concerning parents as well, despite the differences.”²⁵ 

One would expect an argument of this nature to be supported by evidence showing that just as the attitude towards spanking in the schools had changed in society as a whole, the attitude towards parental spanking had also changed among the public at large, and not only among the justices.²⁶ Incredibly, the verdict offers none. The court failed to cite any polls about the attitudes of the Israeli public, nor did it cite works on child-rearing by Israeli professionals—though both of these possible indicators of Israelis’ “social-moral worldview” on spanking are readily available. With regard to expert opinion, the court did not merely sidestep the fact that many Israeli professionals endorse the use of spanking under certain circumstances.27 It even ignored those Israeli experts who support its position—choosing instead to demonstrate Israelis’ “social-moral worldview” by citing works that had been written in English for American and British parents. And its attitude towards survey data was equally dismissive. Only three weeks before the Jane Doe verdict was issued, the daily Yedi’ot Aharonot published a poll showing that 57 percent of Jewish Israelis believe that it is or at least “might be” appropriate to spank a child on occasion for educational purposes.²⁸ And in a 1996 study, 75 percent of Israeli parents acknowledged that they punish their children by spanking them at least occasionally.²⁹

One cannot even be charitable and assume that the justices were unaware of this reality. The verdict made it clear that they had knowingly chosen to flout the majority view.³⁰ As court President Aharon Barak later explained in a speech defending the verdict: “We do not make decisions according to statistics of public opinion. The court must give expression to the deep viewpoints of history, and not to hysteria.”³¹

Having failed to demonstrate fundamental changes in the subjective views of Israelis, Beinisch and her colleagues then turn their attention to the social sciences in an effort to provide an objective basis for their decision. “Psychological and educational research studies,” Beinisch writes, “show that punishment by parents that causes their children pain or humiliation is undesirable and is even liable to cause damage.”³² After surveying a small number of articles and books that support this claim, she concludes: “The court cannot, and has no right to, close its eyes to societal developments and to the lessons derived from educational and psychological research, which have completely changed attitudes towards the use of corporal punishment for educational purposes.”³³

Yet the justices then proceeded to do precisely that—closing their eyes to all evidence that might contradict their conclusion. As anyone familiar with the state of current research on corporal punishment knows, the results in this field are far from unequivocal.34 Though it is true that many leading educators and psychologists argue against corporal punishment by parents, a number of important studies have been published in recent years demonstrating that non-abusive spanking is a highly effective method of discipline, which helps children to become better behaved and less violent.³⁵ In February 1996, for example, the American Academy of Pediatrics held a conference to examine the effects of corporal punishment, and published the presentations in a special issue of its prestigious journal Pediatrics.³⁶ Perhaps the most important of the reports was that of Robert E. Larzelere, who conducted a comprehensive review of 166 studies on spanking that had been published during the previous two decades. After rejecting those that had not undergone peer review or that contained serious methodological flaws—such as lumping child abuse together with mild punishment—Larzelere was left with thirty-five studies that met his standards. Of these, the number showing favorable outcomes from spanking—children who were better behaved and less violent—turned out to be roughly equal to the number that demonstrated detrimental results.³⁷ Moreover, “the studies with stronger internal validity tended to find beneficial outcomes,” even compared to other effective methods of discipline, such as time-outs, firm verbal rebukes, and reasoning.³⁸ Similarly, in 1997, the highly regarded Archives of Pediatrics and Adolescent Medicine published a study by psychologist Marjorie Lindner Gunnoe, which tracked 1,100 boys and girls over a five-year period and found that children ages four to seven who had been spanked were involved in fewer fights at school—leading the author to conclude that “for most children, claims that spanking teaches aggression seem unfounded.”³⁹

These studies alone are not sufficient to prove that corporal punishment is a desirable educational tool. What they do show, however, is that the experts have not reached a consensus, and that anyone seeking to base a legal decision on the existence of a consensus is doing so in disregard of the evidence. As Larzelere noted, “The most important finding of the review is that there are not enough quality studies that document detrimental outcomes of non-abusive physical punishment to support advice or policies against this age-old parental practice.”⁴⁰