Judicial corporal punishment
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Judicial corporal punishment (JCP) refers to the infliction of corporal punishment as a result of a sentence by a court of law. The punishment can be caning, bastinado, birching, whipping, or strapping. The practice was once commonplace in many countries, but it has now been abolished in most Western countries, but remains an acceptable legal punishment in some Asian, African and Middle Eastern countries. These are mostly either former British colonies (now members of the Commonwealth) such as Malaysia, Singapore and Tanzania, and/or Muslim countries with a system of Islamic (Sharia) law.
History by country
The last birching sentence was carried out in 1966, and abandoned as a policy in 1969 but lingered on the statute books. Obsolete references to corporal punishment were removed from remaining statutes by the Criminal Justice (Miscellaneous Provisions) (No. 2) (Jersey) Law 2007
The last birching sentence was carried out in 1968. The Corporal Punishment (Guernsey) Law, 1957 was finally repealed by the Criminal Justice (Miscellaneous Provisions) (Bailiwick of Guernsey) Law, 2006
Isle of Man
It was abolished in the Isle of Man after the judgment in Tyrer v. UK by the European Court of Human Rights. Judicial birching was abolished in 2000 (a 13-year-old boy, who was convicted of robbing another child of 10p, was the last recorded juvenile case in May 1971)
In 1854 judicial corporal punishment was abolished with the exception of whipping. Whipping itself was abolished in 1870.
In the Wetboek van Strafrecht, article 9, this kind of punishment is not listed as primary or secondary punishment. Mainly because of human rights and/or human dignity, corporal punishment has been abolished and does not exist at this time.
The Constitutional Court decided in 1995 in the case of S v Williams and Others that caning of juveniles was unconstitutional. Although the ruling in S v Williams was limited to the corporal punishment of males under the age of 21, Justice Langa mentioned in dicta that there was a consensus that corporal punishment of adults was also unconstitutional.
In the United Kingdom, JCP generally was abolished in 1948; however, it persisted in prisons as a punishment for prisoners committing serious assaults on prison staff (ordered by prison's visiting justices) until it was abolished by s 65 (Abolition of corporal punishment in prison) of the Criminal Justice Act 1967 (the last ever prison flogging was in 1962).
American colonies judicially punished in a variety of forms, including whipping, stocks, the pillory and the ducking stool. In the seventeenth and eighteenth centuries, whipping posts were considered indispensable in American and English towns. Starting in 1776, Gen. George Washington strongly advocated and utilized JCP in the Continental Army, with due process protection, obtaining in 1776 authority from the Continental Congress to impose 100 lashes, more than the previous limit of 39. In his 1778 Bill for Proportioning Crimes and Punishments, Thomas Jefferson provided up to 15 lashes for witchcraft, at the jury’s discretion; castration for men guilty of rape, polygamy or sodomy, and a minimum half-inch hole bored in the nose cartilage of women convicted of those sex crimes. In 1781, Washington requested legal authority from the Continental Congress to impose up to 500 lashes, as there was still a punishment gap between 100 lashes and the death penalty. The Founders believed whipping and other forms of corporal punishment effectively promoted pro-social and discouraged anti-social behavior.
In the United States judicial flogging was last used in 1952 in Delaware when a wife beater got 20 lashes. In this state the criminal code permitted floggings to occur until 1972. On account of the massive U.S. incarceration rate, traditional judicial corporal punishment is now seriously considered as an alternative and community correctional punishment. Proponents point out that it is mandated in the Bible, Deuteronomy 25:1-3, and was advocated by all four presidents carved into Mt. Rushmore to be used on white (and black) citizens.
Countries where JCP is used
The Singaporean official punishment of caning became much discussed around the world in 1994 when an American teenager, Michael P. Fay, was sentenced to six strokes of the cane for vandalism. Since then, the number of caning sentences handed down each year in Singapore has doubled.
Many countries with an Islamic legal system, such as Iran, northern Nigeria, Saudi Arabia, Sudan and Yemen, employ judicial whipping or caning for a range of offences. In Indonesia (Aceh province only) it has recently been introduced for the first time.
Full list of countries
A list of 33 countries that use lawful, official JCP today is as follows:
- Afghanistan (men and women - whip or cane, no target specified; public or private) see Judicial corporal punishment in Afghanistan
- Antigua and Barbuda (boys only - details unclear)
- Bahamas (men - cat on bare back; boys - cane on bare buttocks; in private)
- Barbados (boys only - details unclear)
- Botswana (males aged 14 to 40 - cane on bare buttocks; in private)
- Brunei (men and boys - cane on bare buttocks; in private)
- Dominica (boys under 16 - details unclear)
- Grenada (men and boys - details unclear)
- Ecuador (men and women - traditional indigenous justice)
- Guyana (men and boys - details unclear)
- Indonesia, Aceh State only (men and women - cane on clothed back; in public)
- Iran (men, women, boys, girls - whip or strap, no target specified; public or private)
- Lesotho (men and boys - details unclear)
- Malaysia (Criminal law: men and boys - cane on bare buttocks; in private). See Caning in Malaysia. * (Sharia law, Muslims only: men and women - cane on clothed back; in private)
- Maldives (men and women - details unclear)
- Nigeria (men, women, boys, girls - cane on clothed buttocks or whip on bare back; in public. Used only in northern states)
- Pakistan (men and boys - cane or strap on clothed buttocks; public or private)
- Qatar (men and women - details unclear; in private)
- Saint Kitts and Nevis (boys and men - details unclear)
- Saint Vincent and the Grenadines (boys only - cane on bare buttocks)
- Saudi Arabia (men and women - whip or cane over clothes, no target specified; public or private)
- Sierra Leone (boys only - cane or birch on bare buttocks)
- Singapore (men and boys - cane on bare buttocks; in private). See Caning in Singapore.
- Somalia (men and women - cane on clothed buttocks)
- Sudan (men, women, boys, girls - whip on clothed back)
- Swaziland (boys only - cane on bare buttocks)
- Tanzania (men and boys - cane on bare buttocks; in private)
- Tonga (men - cat on bare buttocks; boys - birch or cat on bare buttocks)
- Trinidad and Tobago (men only - cat on bare back or birch on bare buttocks; in private)
- Tuvalu (details unclear)
- United Arab Emirates (Muslims only: men - whip on bare back; women - whip on clothed back; public or private)
- Yemen (details unclear)
- Zimbabwe (boys only - cane on bare buttocks; in private)
- Pudu Prison exhibition, Kuala Lumpur, 1998.
- "United Republic of Tanzania: Current legality of corporal punishment". GITEACPOC. March 2010. Retrieved 2010-09-24.
- "Criminal Justice (Miscellaneous Provisions) (No. 2) (Jersey) Law 2007". Retrieved 8 January 2013.
- "Criminal Justice (Miscellaneous Provisions) (Bailiwick of Guernsey) Law, 2006". Retrieved 8 January 2013.
- "Isle of Man to scrap birch at a stroke". The Guardian (London). 6 March 1993.
- S v Williams and Others  ZACC 6 at para. 10, 1995 (3) SA 632, 1995 (7) BCLR 861 (9 June 1995), Constitutional Court (South Africa)
- "Section 13: The abolition of JCP". Judicial Corporal Punishment in South Africa. World Corporal Punishment Research. 2005. Retrieved 1 November 2011.
- Abolition of Corporal Punishment Act, 1997.
- "Power to order flogging: Abolition approved in Committee". The Times (London). 12 December 1947.
- Criminal justice policy
- Judicial corporal punishment in Britain
- Herbert Arnold Falk, CORPORAL PUNISHMENT – A SOCIAL INTERPRETATION OF ITS THEORY AND PRACTICE IN THE SCHOOLS OF THE UNITED STATES, 22–33 (1941).
- Falk, id., 31.
- Journals of the Continental Congress, Articles of War – Sept. 20, 1776, Section XVIII - Art. 3: “No person shall be sentenced to suffer death, except in the cases expressly mentioned in the foregoing articles; nor shall more than one hundred lashes be inflicted on any offender, at the discretion of a court-martial.” Articles of War – June 30, 1775, Art. 51 limited JCP to 39 lashes. EUGENE D. GENOVESE, ROLL, JORDAN, ROLL – THE WORLD THE SLAVES MADE 308 (1974).
- Thomas Jefferson, A Bill for Proportioning Crimes and Punishments §14 (castration; cartilage), §15 (maiming), §24 (witchcraft) (1778) available at http://press-pubs.uchicago.edu/founders/documents/amendVIIIs10.html.
- Geo. Washington to President of Continental Congress, Feb. 3, 1781 available at memory.loc.gov.
- Red Hannah: Delaware's Whipping Post
- An Ancient Punishment – The Whipping Post Last Used in Cecil in 1940
- The Milwaukee Journal - Mar 3, 1964
- John Dewar Gleissner, "Prison Overcrowding Cure: Judicial Corporal Punishment of Adults," Vol. 48, Issue No. 4, The Criminal Law Bulletin Art. 2 (Summer 2013).
- The Canadian Prison Strap, World Corporal Punishment Research.
- "The Fall and Fall of Corporal Punishment", November 1999 Newsletter, EPOCH New Zealand.
- Australia: Judicial CP, World Corporal Punishment Research.
- Thomas, Hedley (22 April 1994). "Patten may appeal for clemency on sentence". South China Morning Post (Hong Kong).
- "Jamaican court abolishes flogging". CNN. 18 December 1998. Afterwards, in 2000, the UN Human Rights Committee found in case Osbourne v. Jamaica, concerning a whipping conducted in 1997, that corporal punishment constituted 'cruel, inhuman and degrading treatment or punishment contrary to article 7 of ICCPR' (Para. 9.1). A similar conclusion was reached in 2002 in case Higginson v. Jamaica No. 792/1998.
- Bowry, Pravin (16 September 2003). "Changes in criminal law significant". Daily Nation (Nairobi).
- "Parliament supports repeal of corporal punishment". Lusaka. Zana (Zambia News Agency). 13 November 2003.
- Xing Bao (9 October 2003). "Citizen Cane". Shanghai Star.
- "Judicial and Prison Flogging in Eighteenth- and Nineteenth-century Germany", World Corporal Punishment Research.
- Old photographs of judicial floggings in Korea at World Corporal Punishment Research. Retrieved 2009-05-30.
- Penal Code 1809 at The Early History of Data Networks. Retrieved 2009-05-30.
- "La loi de l'époque" at Les images d'autrefois du Vietnam. Retrieved 2009-05-30.
- "What US columnists say about Fay's caning". The Straits Times (Singapore). 8 April 1994. Retrieved 2010-09-24.
- Wallis, Charles P. (4 March 1994). "Ohio Youth to be Flogged in Singapore". Los Angeles Times. Retrieved 2010-09-24.
- "Singapore Human Rights Practices, 1994". US Department of State. February 1995. Retrieved 2010-09-24. and "Country Reports on Human Rights Practices, 2007". Bureau of Democracy, Human Rights, and Labor. US Department of State. 11 March 2008. Retrieved 2010-09-24.
- "Barbados: Current legality of corporal punishment". GITEACPOC. February 2009. Retrieved 2010-09-24.
- Nomsa, Ndlovu (11 May 2006). "A village choking under crime". Mmegi (Gaborone). Retrieved 2010-09-24.
- "Brunei Country Reports on Human Rights Practices 2004". US Department of State.
- Report 2007 for Swaziland, Amnesty International.
- Laws of Tonga, Chapter 18.
- Swamber, Keino (1 June 2006). "Twelve strokes for sex with girl, 12". Trinidad Express (Port of Spain).
- "Boy to receive 2 cane strokes". Sunday Mail (Harare). 21 May 2006.
- Iran Country Reports on Human Rights Practices 2004, US Department of State.
- Finkel, David (24 November 2002). "Crime and Holy Punishment: In Divided Nigeria, Search for Justice Leads Many to Embrace Islamic Code". The Washington Post.
- Al-Khereiji, Nourah Abdul (25 May 2008). "Government Must Codify Taaziri Punishment Rules". Arab News (Jeddah/Riyadh).
- Sudan Country Reports on Human Rights Practices 2006, US Department of State.
- Yemen State Report, GITEACPOC, June 2007.
- "Aceh gamblers caned in public". BBC News Online (London). 24 June 2005.
- "Afghan charity workers receive lashing, set free". Jakarta Post. Reuters. 8 April 1997.
- "Reporters on the Job: Sharia but No Sword". Christian Science Monitor (Boston). 21 February 2006.
- Antigua State Report, GITEACPOC, February 2009.
- Weston, Tahna (15 February 2007). "Court orders 12 lashes for juvenile offenders". Antigua Sun.
- Criminal Law (Measures) Act 1991, The Bahamas Laws On-line.
- Bahamas Country Reports on Human Rights Practices 2006, US Department of State.
- Botswana State Report, GITEACPOC, February 2008.
- Botswana Country Reports on Human Rights Practices 2004, US Department of State.
- Mahathir, Helena M.; Kon, James (19 May 2005). "Anti-drugs campaign held in Tutong". Borneo Bulletin (Bandar Seri Begawan).
- Brunei State Report, GITEACPOC, February 2009.
- Dominica State Report, GITEACPOC, February 2009.
- Grenada State Report, GITEACPOC, February 2009.
- Dra. Mariana Yumbay (21 June 2007). "El ejercicio de la administración de justicia indígena en el Ecuador". Llacta. Retrieved 2010-09-24. (Spanish)
- Guyana State Report, GITEACPOC, February 2009.
- "Indonesian Couples Caned over Extramarital Affairs". Jakarta Globe. 8 April 2011.
- Lesotho State Report, GITEACPOC, June 2007.
- Damis, Aniza (27 June 2005). "The pain is in the shame". New Straits Times (Kuala Lumpur).
- Religious corporal punishment in Malaysia, World Corporal Punishment Research.
- Evans, Judith (1 June 2008). "Lashings Punishment Resumes". Minivan News (Malé).
- Hamid, Ruhi. Video clips from "Inside a Sharia Court", This World, BBC Two, London, broadcast 1 October 2007.
- Pakistan: Judicial corporal punishment by flogging at World Corporal Punishment Research. Retrieved 2009-05-30.
- Qatar State Report, GITEACPOC, December 2008.
- St Kitts & Nevis State Report, GITEACPOC, February 2009.
- Smithen, Corliss (21 February 2006). "Convicted men get strokes, jail sentence". Sun St Kitts (Basseterre).
- NGO Initial Report, Saint Vincent and the Grenadines Human Rights Association, January 2002.
- Saudi Arabia Country Reports on Human Rights Practices 2006, US Department of State.
- Sierra Leone State Report, GITEACPOC, June 2008.
- Somalia Country Reports on Human Rights Practices 2006, US Department of State.
- Heeralal, Darryl (4 June 2005). "Jail, strokes for 'dirty old man'". Trinidad Express (Port of Spain).
- Tuvalu Country Reports on Human Rights Practices 2001, US Department of State.
- Awad Mustafa (25 April 2007). "Out With The Lash". Xpress (Dubai).
- Zimbabwe State Report, GITEACPOC, June 2007.
- "2005 Country Reports on Human Rights Practices, Bangladesh". U.S. Department of State. 8 March 2006.
- "Colombia - Lawfulness of corporal punishment". GITEACPOC. June 2007. Retrieved 2010-09-24.