The Supreme Court In Loco Parentis

By Evelyn Gordon

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

 

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In addition to the breathtaking precedents it sets for poor legal reasoning and judicial lawmaking, the Jane Doe decision also represents a dramatic encroachment into virgin legal territory: The criminalization of commonplace personal behavior that the court holds to be undesirable. And the results are likely to be disastrous, both for family law and for the rule of law more generally.

The most obvious problem with the spanking verdict is that it formally makes criminals of such a large segment of the population—namely, the three-quarters of parents who use corporal punishment on occasion to discipline their children. Previously, most of the court’s activist rulings affected either specific individuals or limited classes of people, and imposed civil restrictions (such as prohibiting someone from serving as minister) rather than criminal liability.

It is tempting to say that this sweeping criminalization of the public does no real harm, since the decision is unenforceable. Indeed, the justices themselves hastened to make this point: “One must not forget… that a parent can make use of the defenses laid down in the penal code, which sets limits on criminal liability.”⁷² In other words, a parent who is accused of having spanked his child may still have a number of defenses to keep him from being put behind bars.

But these defenses provide scant comfort for anyone concerned with the potential consequences of this ruling. The first such defense, according to Beinisch, is that parents who spank their children, just like other suspected criminals, will be able to avoid conviction if they can prove that “the use of force was necessary to protect the child or someone else.”⁷³ This would be difficult to prove, however, since one can usually keep a small child from hurting himself or others merely by restraining him. The purpose of spanking, in the opinion of those who favor its use, is not to prevent a child from sticking a fork into an electrical socket at a given moment, but rather to deter him from doing so at some future time when a parent might not be around.

In the same vein, the court argued that “criminal law contains enough ‘filters’ to prevent minor incidents from entering its purview. For instance, the prosecution has discretion not to put someone on trial if there is a lack of public interest; criminal law also offers the defense of ‘triviality.’”⁷⁴ But this too is less than persuasive, given the court’s own rhetoric against moderate corporal punishment. Once the Supreme Court has ruled that even the lightest slap on the hand “infringes on [the child’s] rights as a human being” and “damages his body, his feelings, his dignity and his proper development”; and once it has ruled that even the mildest of spankings should be considered a criminal act because “we live in a society in which violence is spreading like a plague” and where even “‘minor’ violence, if permitted, is likely to deteriorate into very serious violence”—law-enforcement authorities will be hard-pressed to deem cases brought to their attention to be “lacking in public interest” or too “trivial” to prosecute.

Equally unreassuring is the court’s belief that parents will be protected from prosecution because “an act which a person of ordinary temperament would not bother to complain about does not generally constitute a basis for criminal responsibility.” If, for instance, you accidentally bump into someone on the street, this would not usually result in criminal liability, even though such an act “might seem to fall within the formal confines of the crime of assault.”⁷⁵ But since the court has now made it clear that even moderate spanking causes significant harm to both the victim and society, a person “of ordinary temperament” would be well within his rights to complain about it; consequently, this defense would rarely apply.

Whether anyone is really about to begin turning in parents for occasionally spanking their children is anyone’s guess. What is certain is that any attempt to implement this ruling would, of necessity, be arbitrary. The goal could not be to catch all or even most of the “criminals,” since no one wants to put three-quarters of all Israeli parents in jail. And unless only serious offenders were indicted—in which case existing definitions of assault would have been sufficient—there is no reasonable method of deciding whom to prosecute. Even Deputy Attorney-General Yehudit Karp, herself a strong advocate of banning spanking, warned the Knesset that a blanket prohibition on corporal punishment would lead to “unequal enforcement,” because the impossibility of across-the-board enforcement “will accord wide discretion to the prosecution, and parents will be in a condition of uncertainty in everything connected to the question of when they enter the criminal zone and when they do not.”⁷⁶

The more likely scenario is that the ruling will simply not be enforced. But even so, its consequences for the legal system are far-reaching. The justices themselves acknowledged one such consequence when they wrote: “One might argue that in this ruling, we are issuing a decree that the public will not be able to abide by, since there are more than a few parents among us who use non-excessive force towards their children (such as a light slap on the rear or on the hand) in order to educate and discipline them.”⁷⁷ The court dismissed this objection, but it is in fact a very serious one—because issuing a decree “that the public will not be able to abide by” is a sure way to breed disrespect for the law, and most especially for the court itself. As Dan Meridor observed during the subcommittee debate: “To determine that all parents are criminals all the time, that every day all the parents are criminals—this simply makes a joke of the law.”⁷⁸

Indeed, initial reactions to the verdict by some of its most ardent supporters have suggested that it is unlikely to be taken seriously from a legal standpoint. As Yitzhak Kadman of the National Council for the Welfare of the Child explained:

The Supreme Court does not want to see parents in jail, and neither do we. It does not even want to see parents put on trial for spanking. What we want is for the public to get a clear message from the court: Children and blows do not go together.⁷⁹

When even the court’s supporters claim that a ruling it has issued is not meant to be implemented, its status as a legal authority is in trouble. And the result of such an erosion in the court’s standing is chaos—a brave new world in which both law-enforcement officials and the public at large must guess which of its decisions are intended to be enforced and which are no more than moral exhortations.

Most dangerous of all, however, is the precedent that Jane Doe sets for state intervention in the most intimate realms of human life. Previously, with the exception of a limited number of cases in which the parties to a dispute requested the court’s involvement, the court has sought to stay out of the private realm.⁸⁰ This has never meant that the home was immune from the law: As the court correctly noted, the law views children as human beings with basic human rights, and personal autonomy has never extended to using a child “as a punching bag.”⁸¹ This is why Israel, like most other countries, has laws against parental abuse and assault, and expects its courts to enforce these laws. 

Yet at the same time, respect for personal autonomy demands that legal restrictions on an individual’s private life be kept to the minimum necessary for a functioning society. Indeed, the Supreme Court itself has taken the lead in trying to promote this concept, and respect for personal autonomy lies at the heart of many of its rulings, on subjects ranging from religious pluralism to homosexual rights.⁸² Yet in this case, the court threw its vaunted concern for autonomy to the winds. It is hard to imagine a more personal matter than how one chooses to teach one’s child to do the right thing. The right to educate one’s children according to one’s own understanding is among the most precious rights that a free society grants its members. This is why the overwhelming majority of enlightened states have decided that non-abusive spanking falls into that realm of legitimate personal autonomy where the law has no place.