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The Science and Statistics Behind Spanking Suggest that Laws Allowing Corporal Punishment are in the Best Interests of the Child


Abstract and Figures

Anti-spanking laws are proposed and passed with the hope that they will create a "cultural spillover" of non-violence, and a society that does not need correction. While such lawmaking may seem harmless, even commendable, the empirical data indicate that a spanking ban is a grave mistake. With spanking bans have come increased rates of child abuse, aggressive parenting, and youth violence. Criminal records suggest that children raised under a spanking ban are much more likely to be involved in crime than other children. Accordingly, almost thirty years after Sweden became the world's first country to ban spanking, six out of ten Swedish children now feel vulnerable at school, and just as many have been victims of youth violence. Perhaps it is no surprise that the methodologically sound research suggests that spanking is not harmful, and is often more helpful than other common discipline methods. On average, spanking seems to reduce aggression, defiance, and antisocial behavior better than mental punishments like timeout, reasoning, privilege removal, threats, verbal power assertion, ignoring, love withdrawal, or diverting. Indeed, the most friendly, stable, and competent children tend to come from "authoritative" families -- families that raise children with love, firm guidance, and at least occasional spanking. Nevertheless, spanking's successes are largely ignored. Many philosophically oppose corporal punishment and praise spanking bans, but few honestly consider the entire body of child discipline statistics. Therefore, in this rapidly changing area of the law that lies at the heart of our children's education and future, only one side of the story is being told.
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Jason M. Fuller
I. Introduction........................................................................244
II. Background: The Movement to Gradually Eliminate
Spanking in the Home........................................................249
A. The Movement to Change Public Opinion ...................249
B. How Foreign Governments Are Gradually
Outlawing Corporal Punishment.................................252
C. The U.N. Convention on the Rights of the Child Is
Being Used to Abolish Spanking Worldwide.............256
D. America Is Following the Incremental Path that
Leads to a Ban on Spanking in the Home...................259
III. The Problems Associated with Anti-Spanking Laws: A
Look at the First Country to Ban All Physical
Discipline ...........................................................................264
A. A Little Less Spanking, A Lot More Child Abuse .......266
B. A Little Less Spanking, A Lot More Teen Violence ....271
C. Reflecting on Sweden’s Spanking Ban: More Harm
than Good....................................................................274
J.D. Candidate 2009, The University of Akron School of Law; Symposium Editor, Akron Law
Review; B.A. 2004, The Ohio State University, Phi Beta Kappa. For his indispensable research and
comments, I thank Dr. Robert E. Larzelere. For her help with Swedish information and translation,
I thank Attorney Ruby Harrold-Claesson. Please direct questions to
244 AKRON LAW REVIEW [42:243
IV. Misleading Research and Media Coverage Virtually
Monopolize the Spanking Debate......................................277
A. The Research “Should Be Closely Examined for
Evidence of Bias”........................................................278
B. “The Methodological Flaws in the Cited Evidence
Are of Concern” ..........................................................281
C. “Avoid the Insidious Evils of . . . Propaganda
Favoring Particular Points of View”...........................292
D. “Risk . . . Alone Is Insufficient to Support
Regulation” Because “It Is Always a Doubtful
Course, to Argue Against the Use or Existence of a
Power, from the Possibility of Its Abuse”...................305
V. The Most Comprehensive Child Development Study
Validates the Body of Research that Suggests Spanking
Is Harmless.........................................................................306
A. Sound Research Indicates that Physical Discipline
Does Not Inherently Harm Children...........................309
B. Sound Research Indicates that Children with the
Highest Optimism, Academic Achievement, and
Self-Esteem Have Been Spanked................................311
VI. Conclusion .........................................................................315
In 2005, a group of thirteen-year-old Swedish boys began
terrorizing a family by threatening to kill the family’s son, forcing the
mother’s car off the road and ripping open her rear door, publicly
humiliating them, damaging and stealing their property, emptying and
sabotaging their mailbox, brandishing planks at them, and surrounding
them with weapons.1 Over the next two years, the harassment became
so intolerable that the father shot at the group of teens, killing one.2
Were such a killing to occur in the U.S., the popular reaction would
have been, “How can we prevent this from happening again?”3 In
1. Murder Suspect’s Family Speak Out, THE LOCAL: SWEDENS NEWS IN ENGLISH, Oct. 8,
2007, available at (reporting the family’s harassment at the
hand of thirteen-year-old moped riders).
2. Teenage Boy Shot Dead, THE LOCAL: SWEDENS NEWS IN ENGLISH, Oct. 6, 2007,
available at
3. Cf., e.g., Pat Wingert, How to Prevent a Tragedy, NEWSWEEK, Dec. 31, 2007-Jan. 7,
2008 (discussing the Apr. 16, 2007 Va. Tech. shootings).
Sweden, however, youth violence and aggression has gotten so out-of-
control that the reaction was, “Shoot another [one].”4 Sadly, many
policymakers fail to realize how Swedish laws have contributed to
growing youth violence, and consequently, to public resentment of
Swedish youths.
In 1979, Sweden started an international trend by becoming the first
country to ban spanking.5 Since then, twenty-three more countries have
outlawed it.6 The European Committee of Social Rights currently is
urging all forty-five of its member nations to ban corporal punishment.7
In 2007 alone, the Netherlands, New Zealand, Portugal, Uruguay,
Venezuela, Spain, and Chile each enacted laws forbidding parents from
using physical discipline.8 In that same year, California and
Massachusetts also introduced legislation to ban spanking.9
Anti-spanking laws are proposed and passed with the hope that they
will create a “cultural spillover” of non-violence, and a society that does
not need correction.10 For instance, when Italy’s Supreme Court
4. See Dödsskjutningen splittrar Rödeby [Lethal Shooting Divides Rodeby], NYHETER
FRÂN SVERIGES RADIO EKOT, Oct. 12, 2007, available at
bin/ekot/artikel.asp?artikel=1652116 (“Bland vissa är förståelsen för pappan som dödade den 15-
årige pojken stor. Flera dagar den här veckan har Rödebyskolans personal fått plocka ner lappar
från skolan där det stått bland annat ‘Skjut en mopedist till.’” [“Among some, there is great
understanding for the father who killed the 15-year-old boy. Several days this week Rodeby school
staff has had to take down signs from the school that said, among other things, ‘Shoot another
moped rider.’”]).
5. See U.N. Children’s Fund (UNICEF), Children and Violence, 7, INNOCENTI DIGEST NO.
2 (Sept. 1997) [hereinafter U.N., Children and Violence] (“In 1979, Sweden became the first
country to ban all physical punishment of children.”).
6. See EPOCH-Worldwide, Legal reforms: Corporal punishment of children in the family
(2008), available at (listing twenty-four
countries that have banned spanking: Sweden (1979), Finland (1983), Norway (1987), Austria
(1989), Cyprus (1994), Denmark (1997), Latvia (1998), Croatia (1999), Israel (1999), Germany
(2000), Bulgaria (2000), Iceland (2003), Romania (2004), Ukraine (2004), Hungary (2004), Greece
(2006), Netherlands (2007), New Zealand (2007), Portugal (2007), Uruguay (2007), Venezuela
(2007), Spain (2007), Chile (2007), and Costa Rica (2008)).
7. U.N. Children’s Fund (UNICEF), A League Table of Child Maltreatment Deaths in Rich
Nations, 28, INNOCENTI REP. CARD NO. 5 (Sept. 2003) [hereinafter U.N., League Table] (“Europe’s
Social Rights Committee is pushing its 45 member countries [to legislate against spanking] whether
at school . . . in the home or elsewhere.”).
8. See supra note 6 and accompanying text.
9. Assem.B. 755, Reg. Sess. (Cal. 2007) (proposing to ban physical discipline using an
implement); H.B. 3922 (Mass. 2007) (proposing to ban corporal punishment).
10. See, e.g., Murray A. Straus, New Theory and Old Canards about Family Violence
Research, 38 SOC. PROBLEMS 180 (1991) (espousing the Cultural Spillover theory); U.N., Children
and Violence, supra note 5, at 7 (“[I]n 1996, Italy’s Supreme Court . . . declared unlawful any use of
violence for educational purposes within the family or in schools, affirming that ‘the very
246 AKRON LAW REVIEW [42:243
declared spanking unlawful, it said the very expression “correction of
children” was both “culturally anachronistic and historically outdated.”11
While such lawmaking may seem harmless, even commendable,
the empirical data indicate that a spanking ban is a grave mistake. With
spanking bans have come increased rates of child abuse, aggressive
parenting, and youth violence.12 Indeed, criminal records suggest that
children raised under a spanking ban are much more likely to be
involved in crime than other children.13
This makes sense. To function well in society, children need to
learn that misbehavior has negative consequences.14 But not every child
learns this the same way.15 If one child learns best about misbehavior
through physical punishment, he should receive a spanking. If another
expression correction of children . . . expresses a view of child-rearing that is both culturally
anachronistic and historically outdated.’”).
11. See id.
12. See, e.g., Sweden’s rate of child abuse has risen almost six times since the spanking ban.
See, e.g., U. Wittrock, Barnmisshandel I Kriminalstatstiken 1981-1991 [Violent Crimes Against
Children in Criminal Statistics, 1981-1991], KR Info. 7 (1992) (Swed.), available at [hereinafter Wittrock, 1981-1991]; U.
Wittrock, Barnmisshandel, 1984-1994 [Violent Crimes Against Children, 1984-1994], KR Info. 1-6
(1995) (Swed.), available at
[hereinafter Wittrock, 1984-1994] (collectively showing the rates of indoor abuses when the
perpetrator personally knows the child 0-6 years old rising every year, from 99 in 1981 to 583 in
1994). Sweden’s rate of juvenile assaults has risen more than seven times since the spanking ban in
1979. See id. (collectively showing assaults by juveniles under fifteen on their peers rose from 93 in
THAN GOOD 14 (2004) (saying “the incidents requiring medical attention doubled for 16-20 year-
olds. The latter trend suggests that the average victimization incident is getting more severe and not
less severe . . . . Their rates of physical child abuse and criminal assaults by minors against minors
have increased at least five- or six-fold since the smacking [i.e., spanking] ban.”); infra Part III.
13. See, e.g., supra note 12 and accompanying text; infra Part III.B-C.
PARENTING 140-41 (2006) (saying that negative consequences for misbehavior help children
understand what their limits are, cause them not to test those limits as often, and greatly reduce their
frequency of misbehavior).
15. See, e.g., Robert E. Larzelere & Brett R. Kuhn, Comparing Child Outcomes of Physical
Punishment and Alternative Disciplinary Tactics: A Meta-Analysis, 8 CLINICAL CHILD & FAM.
PSYCHOL. REV. 1, 32 (2005) [hereinafter Larzelere, Meta-Analysis] (“Disciplinary tactics with
equivalent effectiveness overall may each show superior effectiveness for some children in some
situations. Indeed, the barrier method, the most effective disciplinary tactic in this meta-analysis,
was ineffective with some children, and a child-determined release from time-out, a relatively
ineffective disciplinary tactic, was effective for some clinically oppositional children. When one
disciplinary tactic is not working, parents would benefit from having a range of effective
alternatives to turn to . . . .”) (citations omitted).
learns this best through mental punishment,16 she should get a timeout.
To keep any helpful discipline method from a child may restrict his
ability to mature, and could make him an unnecessary burden on society.
Yet many people want to deprive children of spanking, even though
the most sound research suggests it is not harmful, and is often more
helpful than other common discipline methods.17 On average, spanking
16. The terms “mental punishment” and “mental discipline” are synonymous with “non-
physical punishment” and “non-physical discipline.” Just as physical punishment is intended to
distress a child through physical pain, mental punishment is intended to distress a child through
mental pain.
17. See, e.g., Larzelere, Meta-Analysis, supra note 15, at 4 (surveying every child discipline
study between 1979 and 2005 that analyzed: (1) spanking and at least one mental discipline tactic
using similar research methods; (2) children that were, on average, less than thirteen years old when
disciplined; and (3) at least one child outcome. This meta-analysis compares outcomes of physical
and mental discipline methods, and finds that outcomes rarely favor mental discipline methods,
whereas customary spanking typically reduces noncompliance or antisocial behavior more than
mental discipline methods); Mark W. Roberts & S.W. Powers, Adjusting Chair Timeout
Enforcement Procedures for Oppositional Children, 21 BEHAV. THERAPY 257 (1990) (showing
spanking to be beneficial in enforcing timeout); Elizabeth Oddone Paolucci & Claudio Violato, A
Meta-Analysis of the Published Research on the Affective, Cognitive, and Behavioral Effects of
Corporal Punishment, 138 J. PSYCHOL. 197 (2004) (concluding that “corporal punishment does not
substantially increase the risk to youth of developing affective, cognitive, or behavioral
pathologies”); Robert E. Larzelere & G.L. Smith, Controlled Longitudinal Effects of Five
Disciplinary Tactics on Antisocial Behavior, Presentation at the annual meeting of the American
Psychological Association, D.C. (Aug. 2000) [hereinafter Larzelere, APA] (replicating Dr. Straus’
strongest causal evidence against customary spanking, but showing the same apparently detrimental
outcomes of all four types of nonphysical punishment and for taking a child to a psychiatrist); Jodi
Polaha, Robert E. Larzelere, Steven K. Shapiro & Gregory S. Pettit, Physical Discipline and Child
Behavior Problems: A Study of Ethnic Group Differences, 4 PARENTING SCI. & PRAC. 339 (2004)
(finding that, when the child outcome is based on a source of information other than the parent,
physical discipline reduces aggression in African-American men and rarely increases aggression);
Robert E. Larzelere, A Review of the Outcomes of Parental Use of Nonabusive or Customary
Physical Punishment, 98 PEDIATRICS 824, 827 (1996) [hereinafter Larzelere, Review] (reporting
that, for older children, grounding was more beneficial than spanking; however, for younger
children, spanking was more effective than nine other common punishments—including timeout,
physical restraint, reasoning, and nonphysical punishment); M. Chapman & C. Zahn-Waxler, Young
Children’s Compliance and Noncompliance to Parental Discipline in a Natural Setting, 5 INTL J.
BEHAV. DEV. 81 (1982) (showing conditional spanking to be more effective than reasoning or
verbal prohibition when dealing with noncompliance); S. COOPERSMITH, THE ANTECEDENTS OF
SELF-ESTEEM (1967) (showing that even severe or predominate physical punishment is more
beneficial than love withdrawal for developing self-esteem and aspirations); D.P. Crowne, L.K.
Conn, D. Marlowe & C.N. Edwards, Some Developmental Antecedents of Level of Aspiration, 37 J.
PERSONALITY 73 (1969) (showing the same as COOPERSMITH, supra); Robert E. Larzelere, P.R.
Sather, W.N. Schneider, D.B. Larson & P.L. Pike, Punishment Enhances Reasoning’s Effectiveness
as a Disciplinary Response to Toddlers, 60 J. MARRIAGE & FAM. 388 (1998) (showing that even
severe or predominate physical punishment is more beneficial than reasoning for children who are
antisocial or have a need for power); Robert E. Larzelere, P.R. Sather, W.N. Schneider, D.B. Larson
& P.L. Pike, The Effects of Discipline Responses in Delaying Toddler Misbehavior Recurrences, 18
CHILD & FAM. BEHAV. THERAPY 35 (1996) (showing that conditional spanking is more effective
248 AKRON LAW REVIEW [42:243
seems to reduce aggression, defiance, and antisocial behavior better than
mental punishments like timeout, reasoning, privilege removal, threats,
verbal power assertion, ignoring, love withdrawal, or diverting.18
than reasoning alone when dealing with noncompliance, that conditional spanking stopped defiance
much better than ignoring, and that conditional spanking is more effective than reasoning alone to
control a child’s aggression); H. Lytton, Correlates of Compliance and the Rudiments of Conscience
in Two-year-old Boys, 9 CAN. J. BEHAV. SCI. 242 (1977) (showing customary spanking to be more
beneficial than verbal punishment, love withdrawal, or psychological punishment to gain
compliance or to positively affect the conscience); D.C. McClelland & D.A. Pilon, Sources of Adult
Motives in Patterns of Parent Behavior in Early Childhood, 44 J. PERSONALITY & SOC. PSYCHOL.
564 (1983) (showing that even severe or predominate physical punishment is more beneficial than
reasoning or privilege removal for children who are antisocial or have a need for power. Also
showing that such physical punishment is more effective than love withdrawal to deal with
aggression or a need for power); K.L. Ritchie, Maternal Behaviors and Cognitions During
Discipline Episodes, 35 DEV. PSYCHOL. 580 (1999) (showing conditional spanking to be more
effective than reasoning when dealing with defiance. Also showing that spanking stops defiance
more effectively than threats, verbal power assertion, timeout, privilege removal, ignoring, restraint,
or physical power assertion); R.R. Sears, Relation of Early Socialization Experiences to Aggression
in Middle Childhood, 63 J. ABNORMAL & SOC. PSYCHOL. 466 (1961) (showing that even severe or
predominate physical punishment is more beneficial than privilege removal for aggressive children
or children with a need for power); Murray A. Straus & V.E. Mouradian, Impulsive Corporal
Punishment by Mothers and Antisocial Behavior and Impulsiveness of Children, 16 BEHAV. SCI. &
LAW 353 (1998) [hereinafter Straus, Impulsive] (showing that conditional spanking is more
beneficial than reasoning or nonphysical punishment to improve antisocial impulsivity, and that
even severe or predominate physical punishment is more beneficial than reasoning or nonphysical
punishment to deal with antisocial or impulsive behavior); F.S. Tennant, R. Detels & V. Clark,
Some Childhood Antecedents of Drug and Alcohol Abuse, 102 AM. J. EPIDEMIOLOGY 377 (1975)
(showing customary spanking to be more beneficial than non-contact punishment to reduce
aggression or substance abuse); D.G. Watson, Parenting Styles and Child Behavior, Doctoral
dissertation, State University of New York at Buffalo, 50 DISSERTATION ABSTRACTS INTL 3181
(1989) (showing customary spanking to be more beneficial than privilege removal to improve
antisocial behavior or to reduce alcohol usage. Also showing that customary spanking is more
positively associated to academic achievement than privilege removal); M.R. YARROW, J.D.
CAMPBELL & R.V. BURTON, CHILD REARING (1968) (showing conditional spanking is more
effective than reasoning, isolation, love withdrawal, isolation, diverting, or scolding to control a
child’s aggression); C. Zahn-Waxler, M. Radke-Yarrow & R. King, Prosocial Initiations Toward
Victims of Distress, 50 CHILD DEV. 319 (1979) (showing that even severe or predominate physical
punishment is more beneficial than verbal prohibition for developing prosocial behavior).
18. See, e.g., Larzelere, Meta-Analysis, supra note 15, at 20 tbl. IV, 22 tbl. V, 24 tbl. VI
(showing spanking to be better at controlling aggression than mental punishments like timeout,
reasoning, scolding, “non-contact” punishment, privilege removal, love withdrawal, or diverting.
Also showing that calm and controlled spanking and spanking in response to defiance is uniformly
more beneficial than other punishments); id. at 27 (saying “all types of physical punishment were
associated with lower rates of antisocial behavior than were alternative disciplinary tactics.”)
(emphasis in original); id. at 1 (finding that conditional spanking reduced noncompliance and
antisocial behavior in more than ten of thirteen mental punishments, and was equivalent to the other
three); Larzelere, Review, supra note 17, at 827 (finding that, for young children, spanking was
more beneficial than all seven alternative discipline responses—physical restraint, a child-
determined release from time out, reasoning without punishment, punishment without reasoning,
Nevertheless, spanking’s successes are largely ignored. Many
philosophically oppose corporal punishment and praise spanking bans,
but few honestly consider the entire body of child discipline statistics.19
Therefore, in this rapidly changing area of the law that lies at the heart of
our children’s education and future, only one side of the story is being
told.20 This paper helps expose that other side. And if we continue to
ignore that side, our children may be the ones that suffer.
Spanking is a discipline method defined as striking a child on the
buttocks or extremities “without inflicting physical injury” and with the
intent to modify behavior.21
A. The Movement to Change Public Opinion
Many people think Dr. Benjamin Spock started the anti-spanking
movement in the 1940s.22 This is not really true. Dr. Spock did not
discipline responses other than punishment or reasoning, ignoring, and love withdrawal. For older
children, grounding was the only alternative discipline response that had more beneficial outcomes
than did physical punishment. But even for older children, spanking had more beneficial effects
than nonphysical punishment and verbal put-downs.)
19. See, e.g., Susan H. Bitensky, Spare the Rod, Embrace Our Humanity, 31 U. MICH. J.L.
REFORM 353, 361 (1998) (discussing various European spanking bans before 1998) (“Of the six
countries that have enacted statues prohibiting all corporal punishment of children, four countries
have lived with these laws for ten years or more.”). Ms. Bitensky then suggested, without
discussing any criminal statistics, that such longevity was a positive sign. Id.
20. See, e.g., Murray A. Straus, Corporal Punishment by Parents, 8 VA. J. SOC. POLY & L.
7, 60 (2000) [hereinafter Straus, Corporal Punishment] (saying “[a] society that brings up children
by nonviolent methods is likely to be less violent, healthier, and wealthier.” Although he mentioned
Sweden as an example, he never mentioned the rise in crime.); Judge Leonard P. Edwards, Corporal
Punishment and the Legal System, 36 SANTA CLARA L. REV. 983, 1021 (a U.S. judge relying only
on anti-spanking research to propose that it “should be illegal to use corporal punishment on all
children under five years of age.”).
21. E.g., Diana Baumrind, Ph.D., Inst. of Human Dev., Univ. of Cal., Berkeley, Does
Causally Relevant Research Support a Blanket Injunction Against Disciplinary Spanking by
Parents?, Invited Address at the 109th Annual Convention of the American Psychological
Association 1 (Aug. 24, 2001) [hereinafter Baumrind, Causally Relevant Research] (“[T]he term
‘spanking’ [refers] to striking the child on the buttocks or extremities with an open hand without
inflicting physical injury with the intention to modify behavior.”) (citing S. Friedman & S.K.
Schonberg, Consensus Statements, 98 PEDIATRICS 853 (1996)) (emphasis in original).
22. See, e.g., Daniel Costello, Spanking Makes a Comeback: Tired of Spoiling the Child,
Parents Stop Sparing the Rod; Dr. Dobson vs. Dr. Spock, WALL ST. J., June 9, 2000, at W1 (saying
the notion that children are too fragile to spank “took hold after World War[ ] II as Benjamin Spock,
250 AKRON LAW REVIEW [42:243
oppose corporal punishment until the late 1980s—the twilight of his
life.23 For most of his career, he believed physical discipline could be
helpful, depending on the parent’s temperament.24
What Dr. Spock did urge since the 1940s was a parenting
philosophy that balanced firm and consistent discipline with love.25 This
was a wise response to the prevailing childrearing advice from the 1920s
that mothers were not to express love toward their children.26
By the 1950s, young parents increasingly relied on childrearing
professionals like Dr. Spock to understand how to raise children.27 Dr.
Spock opposed such reliance, saying:
In the 20th century parents have been persuaded that the only
people who know for sure how children should be managed are the
child psychiatrists, psychologists, teachers, social workers and
pediatricians—like myself. This is a cruel deprivation that we
the influential pediatrician, began warning that corporal punishment can traumatize children and
trigger more aggressive behavior.”).
23. Compare BENJAMIN SPOCK, M.D., DR. SPOCK ON PARENTING 151-52 (1988) (saying that
in earlier decades and earlier editions of Baby and Child Care, he never opposed spanking, but now
he had changed his position), with Eric Pace, Benjamin Spock, World’s Pediatrician, Dies at 94,
N.Y. TIMES, Mar. 17, 1998, at Obituary.
24. See, e.g., Benjamin Spock, M.D., What I Said in February About Raising Children—And
What I Did Not Say, REDBOOK, June 1974, at 31 (“[W]hen I gave talks about child rearing, at least
one of the reporters attending a press conference would ask immediately whether I believed in
spanking children—as if this were by far the most crucial issue in child care. I would have to
disappoint him by discussing all the other more important factors that go into good behavior, such
as the child’s love of parents, wanting to be like the parents, the clarity and consistency of the
parents’ leadership. Even when the question about spanking was repeated, I’d have to say that it
depended on whether the spanking parent was generally kind and devoted or merely expressing ill
temper that had little to do with the child’s behavior.”).
25. See, e.g., id.; Benjamin Spock, M.D., How Not to Bring Up a Bratty Child, REDBOOK,
Feb. 1974, at 29 [hereinafter Spock, Bratty Child] (“Inability to be firm is . . . the commonest
problem of parents in America today.”).
26. Compare id. at 29 (“I’ve never considered myself even remotely a permissivist. . . .
There might have been a slight excuse for such an interpretation when the first edition was
published, in 1946. Pediatrics advice was generally quite rigid then . . . I was one of the first
pediatricians to advocate a reasonable respect for individual differences in babies’ readiness.”),
with, e.g., J.B. WATSON, PSYCHOLOGICAL CARE OF INFANT AND CHILD (1928) (advocating
strictness and even warning mothers about the “dangers” of expressing love toward their children).
27. See, e.g., Lynn Rosellini & Anna Mulrine, When to Spank: For Decades, Parenting
Experts Have Said Spanking Irreparably Harms Kids. But a Close Look at the Research
Suggests Otherwise, U.S. NEWS & WORLD REP., Apr. 13, 1998, available at (“But by the early 1950s, young couples
increasingly began to look to child-rearing ‘experts’—authors like Benjamin Spock, whose manual
Baby and Child Care counseled against the punitive child-raising practices of earlier generations.
Spock, a believer in firm and consistent parenting, did not rule out spanking in his book’s early
professionals have imposed on mothers and fathers. . . . We didn’t
realize, until it was too late, how our know-it-all attitude was
undermining the self-assurance of parents.
. . . And because this is a forward-looking, innovative country, there
has always been less respect for the wisdom of the older generation.28
Nevertheless, childrearing professionals in the 1970s and 80s began
using their influence to press an intensely child-centered view of the
family—swinging the pendulum from the detached view of the 1920s to
virtually the opposite extreme.29 One of the more popular child-centered
books, Thomas Gordon’s Parent Effectiveness Training, said parents
should treat children like “a friend or a spouse.”30 Such authors thought
spanking may promote aggression, and a few now are trying to stop all
punishments, even mental punishments like timeout.31
Today, the most influential spanking opponent is probably Dr.
Murray Straus of the University of New Hampshire.32 Dr. Straus thinks
physical discipline can doom children to major, and often life-long,
social psychological problems,” like crime and mental illness.33 While
28. Spock, Bratty Child, supra note 25, at 31.
29. See, e.g., id.; Rosellini, supra note 27 (revealing that psychologists and child-
development authorities during the 1970s and 80s advocated “a new, child-centered view of family.
The locus of power should shift, these experts seemed to suggest, so that kids are equal members of
the household.”); see, e.g., WATSON, supra note 26 and accompanying text.
30. See, e.g., Rosellini, supra note 27 (saying Thomas Gordon’s 1970 best-seller, Parent
Effectiveness Training, advised parents to stop punishing kids and to start treating them “much as
we treat a friend or a spouse”).
31. See, e.g., id. (reporting that many writers during the 1970s and 80s warned that strict
parenting, and particularly punishments like spanking, could promote aggression and discourage
children from cooperating with others) (“More recently, writers like Nancy Samalin and Barbara
Coloroso counseled an end to punishment altogether.”).
32. See, e.g., id. (reporting that Dr. Straus’ Beating the Devil Out of Them “seemed to solidify
the antispanking consensus”); MARY ANN LAMANNA & AGNES RIEDMANN, MARRIAGES &
FAMILIES: MAKING CHOICES IN A DIVERSE SOCIETY 314 (2005) (“A leading domestic violence
researcher, sociologist Murray Straus (1996, 1999a), advises parents never to hit children of any age
under any circumstances.”). Dr. Straus is “Professor of Sociology and founder and Co-Director of
the Family Research Laboratory, University of New Hampshire (since 1968).” Dr. Straus’
Biographical Summary, available at He “[p]reviously
taught at the Universities of Minnesota, Cornell, Wisconsin, Washington State, York (England)
Bombay (India), and the University of Ceylon (now Sri Lanka).” Id. He is a recipient of the Ernest
W. Burgess Award of the National Council of Family Relations (1977), the Distinguished
Contribution Award, New Hampshire Psychological Society (1992), and the Research Career
Achievement Award, American Professional Society on the Abuse of Children (1994). Id.
33. See, e.g., Straus, Corporal Punishment, supra note 20, at 9 (saying his longitudinal
research shows that spanking “is associated with an increased risk of the child experiencing major,
and often life-long, social and psychological problems. . . . such as delinquency and adult crime,
low educational attainment, physical assaults on spouses, and mental illness.”); id. at 53 (suggesting
252 AKRON LAW REVIEW [42:243
spanking opponents have gained much support over the past few
decades, public support for physical discipline is still relatively high
(around eighty percent).34 Indeed, a growing number of parents that
were never spanked themselves are beginning to spank their children.35
B. How Foreign Governments Are Gradually Outlawing Corporal
While most people support corporal punishment in the home, those
who oppose it have done a remarkable job chipping away at its legality.
For decades, spanking opponents have been influencing government
officials around the world to abolish spanking gradually.36 The trend has
been to outlaw physical discipline in schools and institutions, and then
whittle away its scope in the home.37
This is typically a slow, incremental process that allows each little
spanking restriction to seem innocuous to much of the public.38 As
notices on birth certificates saying, “WARNING: SPANKING HAS BEEN DETERMINED TO BE
DENISE A. DONNELLY, BEATING THE DEVIL OUT OF THEM xx (2001); Rosellini, supra note 27
(saying Dr. Straus concluded spanking “can doom a child to a lifetime of difficulties ranging from
juvenile delinquency to depression, sexual hangups, limited job prospects, and lowered earnings.”).
34. See, e.g., Clifton P. Flynn, Regional Differences in Attitudes Toward Corporal
Punishment, 56 J. MARRIAGE & FAM. 314, 314 (1994) (“The data indicate that the vast majority of
Americans favor the physical punishment of children. In 1986, a National Opinion Research Center
survey found that 84% of Americans either agreed or strongly agreed that ‘it is sometimes necessary
to discipline a child with a good, hard spanking.’”) (citations omitted).
35. See, e.g., Costello, supra note 22 (“[S]panking is making a comeback. A growing
number of parents—many of whom were never spanked themselves—are shunning the experts,
defying disapproving friends and neighbors, and giving their kids a slap on the bottom, the hand or
the leg.”).
36. See, e.g., supra note 6 and accompanying text; Edwards, supra note 20 and
at (listing the 113 countries that have
banned spanking in schools).
GLOBAL PROGRESS, available at (follow
“Global progress” hyperlink; then follow the online global tables) (showing that, internationally,
spanking bans tend to occur first in schools and institutions, and lastly in the home).
(saying the 1979 Swedish spanking ban “represents the end of a series of legislative reforms
spanning 50 years which were aimed at making the rejection of corporal punishment increasingly
explicit in the law.” Indicating further that the gradual restrictions were not opposed by the public.),
with, e.g., K.A. Ziegert, The Swedish Prohibition of Corporal Punishment: A Preliminary Report,
45 J. MARRIAGE & FAM. 917, 921 (1983) (reporting that in 1965, 53% of Swedes agreed that a child
“has to be given corporal punishment from time to time”).
restrictions become more commonplace, it becomes easier to turn public
opinion against spanking.39 Ultimately, this ends in a total ban of
physical discipline, even in the home.40
This counter-majoritarian phenomenon is what led Sweden to
become the first country to completely ban spanking.41 In 1928, the
Swedish government prohibited physical discipline in secondary schools
through an amendment to the Education Act.42 In 1957, it removed the
corporal punishment defense from the Penal Code, thus allowing courts
to equate criminal assault with spanking by caregivers.43 By 1960,
physical discipline was officially abolished in all child care institutions
and reform schools.44
The government enacted these restrictions with the expectation that
“Swedes would now understand that corporal punishment was no longer
an acceptable practice.”45 Even so, by 1965, over half the Swedish
population still thought children needed an occasional spanking.46 The
next year, despite majority support for physical discipline, the
39. See, e.g., id. at 7-8 (reporting that the Swedish government’s increasing restrictions on
corporal punishment were “intended to alter attitudes toward the use of physical force of children.”);
ERICA R. MEINERS, RIGHT TO BE HOSTILE 171 (2007) (“Corporal punishment such as caning or
paddling, even though it is still practiced in private and parochial schools, and is not banned in all
school districts, is a rarity. Yet, the United States and parts of Australia are still among the ‘thirty-
five industrialized countries who do not ban this disciplinary technique.’ Starting in 1970, by 2005
over half of the states abolished corporal punishment in schools. The disuse of corporal punishment
in schools in the United States has been a slow process transpiring at the local and state levels, and
there is still little consistency, or agreement, on this practice as some districts have banned it, while
the state permits it. Yet, although the practice is still disputed in the United States, public polls
clearly indicate that the majority of parents are not in support of schools possessing the right to
engage in corporal punishment.”) (citations omitted).
40. See, e.g., supra note 37 and accompanying text.
41. See, e.g., DURRANT, supra note 38, at 7 (giving a history of the 1979 spanking ban); 6
kap. 1 para. 2 fûm ôrûm âldrabalken [Swedish Children and Parents Code ch. 6, 1, ¶ 2] (Swedish
Ministry of Justice trans.) (Swed.), in PETER NEWELL, CHILDREN ARE PEOPLE TOO: THE CASE
AGAINST PHYSICAL PUNISHMENT 73 (1989) (“The parent or guardian shall exercise necessary
supervision in accordance with the child’s age and other circumstances. The child may not be
subjected to physical punishment or other injurious or humiliating treatment.”); Straus, Corporal
Punishment, supra note 20, at 54 (“The Swedish legislation was initially greeted with derision and
42. See, e.g., DURRANT, supra note 38, at 7.
43. See, e.g., id.
44. See, e.g., id.
45. See, e.g., id. (after delineating the above restrictions, saying, “It was expected that
Swedes would now understand that corporal punishment was no longer an acceptable practice.”).
46. See supra note 38 and accompanying text.
254 AKRON LAW REVIEW [42:243
government removed from the Parents’ Code an explicit authorization of
spanking by parents, while not expressly banning it.47
Over the next fourteen years, the Swedish government conducted a
massive advertising campaign against corporal punishment, and in favor
of mental punishment.48 In 1977, the Minister of Justice created a
Commission on Children’s Rights to further review and modify the
Parents’ Code.49 Within a year, the Commission unanimously proposed
an explicit spanking ban.50 By 1978, public support for spanking had
dropped to twenty-six percent.51 Nevertheless, ninety-eight percent of
Parliament voted to ban all spanking in 1979.52
Immediately after the ban, the Swedish government again
campaigned against physical discipline, this time through “the most
expensive pamphlet distribution yet conducted in Sweden.”53 A sixteen-
page tract entitled “Can you bring up children successfully without
spanking and smacking?” went to all parents with young children.54 It
was translated into all immigrant languages, and coincided with anti-
spanking advertisements on everyone’s milk cartons.55 Sweden also
tried to teach its citizens how to raise children using only mental
47. See, e.g., DURRANT, supra note 38, at 7.
48. See, e.g., Evelyn Gordon, The Supreme Court In Loco Parentis, in AZURE: IDEAS FOR
THE JEWISH NATION 55 (Winter 2001), available at
asp?ID=30&member_Id= (“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
49. See, e.g., DURRANT, supra note 38, at 7.
50. See, e.g., id.
51. See Ziegert, supra note 38, at 921 (saying that, by 1979, 26% of Swedes thought corporal
punishment was necessary “from time to time”).
52. See, e.g., DURRANT, supra note 38, at 7.
53. See, e.g., U.N., League Table, supra note 7, at 24 (saying the new spanking ban was not a
“stand-alone measure but the symbolic centrepiece of a public education campaign.”).
54. See, e.g., id. (“A 16-page pamphlet ‘Can you bring up children successfully without
spanking and smacking?’ – was sent to all parents with young children.”); DURRANT, supra note 38,
at 7-8 (saying this was “the most expensive pamphlet distribution yet conducted in Sweden.”).
55. See, e.g., DURRANT, supra note 38, at 8 (saying that the pamphlet was translated into
“[a]ll major immigrant languages . . . . In addition, information about the law was printed on milk
cartons for two months, in order to have information about the law present at mealtimes, when
parents and children are together, so that families could discuss the issue. As a result of these
measures, by 1981 99 per cent of Swedes knew about the law—a level of knowledge unmatched in
any other study of knowledge about law in industrialised societies.”).
punishments through “responsible parenthood” classes—classes that
remain part of Swedish education to this day.56
Whether by legislation or Supreme Court ruling, twenty-three other
countries have similarly abolished spanking,57 including Finland,58
Norway,59 Germany,60 Italy,61 and Israel.62 For example, Denmark
passed a law to discourage spanking in the home, and then twelve years
later banned it altogether.63 Austria likewise repealed an explicit
56. See, e.g., U.N., League Table, supra note 7, at 24 (“Non-violent ways of bringing up
children also entered the syllabus in ‘responsible parenthood’ lessons that are a part of Swedish
education at all levels.”).
57. See, e.g., supra note 6 and accompanying text (listing twenty-three countries, but not
Italy’s judge-made ban); Gordon, supra note 48, at 76 n.22 (“In the other countries that imposed a
ban, there was a similar pattern. Denmark, for example, passed a law in 1985 substantially
restricting spanking by parents, and twelve years later amended that law to make the ban absolute.”)
(citing Bitensky, supra note 19, at 371-73).
58. Laki lapsen huollosta ja tapaamisoikeudesta, 1 luku, 1, 3 mom. [Finnish Child Custody
and Right of Access Act, ch. 1, 1, subsec. 3] (Finnish Dep’t of Legislation, Ministry of Justice
trans.) (saying a child “shall be brought up with understanding, security and gentleness. He shall
not be subdued, corporally punished or otherwise humiliated.”). This vote was unanimous.
Bitensky, supra note 19, at 368 n. 53. The lack of controversy may have been because the
prohibition was only one part of a comprehensive overhaul of children’s law that diverted public
attention through other controversial measures in the reform legislation. See NEWELL, supra note
41, at 86-87.
59. Endring I 1987 av barnelovenes 30, 3. ledd (Lov av 6.feb. 1987 nr 11 om endring I
barneloven 30) [Norwegian Parent and Child Act art. 30, 3, as amended by the Amending Act no.
11, Feb. 6, 1987] (Finn Erik Engzelius trans.) (“The child shall not be exposed to physical violence
or to treatment which can threaten his physical or mental health.”).
60. See U.N., League Table, supra note 7, at 23 (saying the new legislation written into the
Bürgerliches Gesetzbuch (civil law), and ratified Nov. 2000, prohibits “the physical punishment of
61. Cambria, Cass., sez VI, 18 marzo 1996, [Supreme Court of Cassation, 6th Penal Sec.,
Mar. 18, 1996], Foro It. II 1996, 407 (Italy) (Triangle Translation trans.) (on file with U. MICH. J.L.
REFORM), at 4 (announcing as a new juridical principal that “the use of violence for educational
purposes can no longer be considered lawful.”).
62. Plonit v. State (CA 4596/98), Jan. 25, 2000, Isr. S.Ct., at ¶¶ 29-30 (holding that “the use
of corporal punishment . . . is forbidden today in our society. 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
hand) in order to educate and discipline them . . . . We must not endanger the physical and
emotional integrity of a minor by administering any corporal punishment at all. The yardstick must
be clear and unequivocal, and the message is that corporal punishment is not permitted.”) (also
saying physical punishment “distances us from our aspirations to be a society free from violence”).
63. Compare Lov nr. 387 af 14. juni 1995 om foraeldremyndighed og samvaer, jf. 2, stk. 2
[Danish Act on Parental Custody and Conviviality no. 387, 2, subsec. 2 (June 14, 1995)] (revision
of 1985 law) (Kromann & Mûm ûnter trans.), in NEWELL, supra note 41, at 91 (“Parental custody
implies the obligation to protect the child against physical and psychological violence and against
other harmful treatment.”), with Lov nr. 416 om aendring af lov om foraeldremyndighed og samvaer
1 [Danish Act to Amend the Act on Parental Custody and Conviviality no. 416 1] (Kromann &
256 AKRON LAW REVIEW [42:243
authorization of spanking twelve years before outlawing it completely.64
New Zealand joined this group in 2007, criminalizing virtually every
form of physical restraint such that a parent cannot even take her child’s
hand to bring him where he does not want to go.65
C. The U.N. Convention on the Rights of the Child Is Being Used to
Abolish Spanking Worldwide
Many countries have felt compelled to ban spanking since 1989,
when the United Nations wrote the Convention on the Rights of the
Child (the “Convention”)—a “treaty” that has been ratified by all U.N.
member nations except the U.S. and Somalia.66 The U.N. has made
Mûm ûnter trans.) (“The child has the right to care and security. It shall be treated with respect for
personality and may not be subjected to corporal punishment or any other offensive treatment.”).
64. See, e.g., Bitensky, supra note 19, at 376 (“In 1977, Austria repealed an explicit
authorization of parents to corporally punish their children. Austrian civil law experts believed that
this repeal meant that all parental corporal punishment of children had been forbidden except to
restrain a child in an emergency situation. However, other experts disagreed that the repeal had had
such an effect, and the 1989 express prohibition was, in part, a response to this confusion; it was
hoped that the 1989 reform would produce consistency in judicial decisions on this issue.”); 146a
ABGB [Austrian Civil Code 146a] (Berlitz Translation Services trans.) (“The minor child must
follow the parents’ orders. In their orders and in the implementation thereof, parents must consider
the age, development and personality of the child; the use of force and infliction of physical or
psychological harm are not permitted.”).
65. See Amendment Act 2007, 2007 S.N.Z. No. 59(2)-(3) (“(2) Nothing in subsection (1) or
in any rule of common law justifies the use of force for the purpose of correction. (3) Subsection
(2) prevails over subsection (1).”); Most Extreme Anti-Smacking Law in World, SCOOP INDEP.
NEWS (May 13, 2007), available at
[hereinafter Most Extreme Law] (saying New Zealand criminally punishes anyone that treats her
child in a way that she would not publicly treat her neighbor. Because an adult would not pull
another adult where he does not want to go, a parent cannot do that to her child.).
66. Compare Convention on the Rights of the Child, G.A. Res. 44/25, Preamble, U.N.
GAOR, 61st plen. mtg., U.N. Doc. A/RES/44/25 (Nov. 20, 1989) [hereinafter Convention]
(“Bearing in mind that the peoples of the United Nations have, in the Charter, reaffirmed their faith
in fundamental human rights and in the dignity and worth of the human person . . . .”), with, e.g.,
U.N., League Table, supra note 7, at 3 (“Several more countries are close to introducing similar
measures. If and when these countries move to bring in the necessary legislation, they will be
showing the world that they are taking their obligations under the Convention on the Rights of the
Child seriously, and strengthening the message that the goal of ending violence towards children in
all its forms can be advanced by every parent in every country and that a culture of non-violence
towards children can and should be built from the ground up.”); U.N. Comm. on the Rights of the
Child, Concluding Observations: United Kingdom of Great Britain and Northern Ireland, ¶¶ 35-38,
U.N. Doc. CRC/C/15/Add.188 (Oct. 9, 2002) [hereinafter Concluding Observations: U.K.]
(criticizing Great Britain for allowing spanking and urging it to prohibit “reasonable chastisement”).
Indeed, the U.N. has clearly and consistently called for the banning of spanking. See, e.g., U.N.
Comm. on the Rights of the Child, Concluding Observations: Canada, ¶¶ 4-5, U.N. Doc.
CRC/C/15/Add.215 (Oct. 27, 2003). See Mary Ann Mason, The U.S. and the International
clear that it intends to use the Convention to prohibit all forms of
physical discipline everywhere, even within families.67
The U.N. monitors compliance with the Convention through the
ten-person Committee on the Rights of the Child.68 This committee
interprets the Convention and instructs nations how better to comply
with its tenets.69 Additionally, each ratifying country must regularly
report to the committee to describe how it is upholding the treaty.70
In most nations, the Convention can only be used to make
“suggestions and general recommendations.”71 However, the U.S.
Constitution honors treaties as binding over both state and federal law.72
Children’s Rights Crusade: Leader or Laggard?, 38 J. SOC. HIST. 955, 955 (July 1, 2005) (saying
“all the U.N. member countries have ratified this treaty, with the notable exceptions of Somalia and
the United States”).
67. See, e.g., U.N., Children and Violence, supra note 5, at 2-3 (“Leading this trend is the
Committee on the Rights of the Child, the international monitoring body for the convention, which
has consistently challenged laws that permit any physical punishment of children, recommending
clear legal reform and educational programmes.”); U.N., League Table, supra note 7, at 31 (“The
United Nations Committee on the Rights of the Child has no doubts on the issue. It has called on all
governments to prohibit all forms of physical punishment, including within the family, the
education system, child care institutions, and the judicial system.”).
68. Convention, supra note 66, at art. 44 2 (requiring that reports made to the committee
“shall indicate factors and difficulties, if any, affecting the degree of fulfillment of the obligations
under the present Convention. Reports shall also contain sufficient information to provide the
Committee with a comprehensive understanding of the implementation of the Convention in the
country concerned.”); id. at art. 43 (establishing that the committee “shall consist of ten experts of
high moral standing and recognized competence in the field covered by this Convention. The
members of the Committee shall be elected by States Parties . . . .”).
69. Id. at art. 45(d) (saying that the committee “may make suggestions and general
recommendations based on information received pursuant to articles 44 and 45 of the present
Convention. Such suggestions and general recommendations shall be transmitted to any State Party
70. Id. at art. 44 ¶ 1(b) (requiring each nation to “submit to the Committee, through the
Secretary-General of the United Nations, reports on the measure they have adopted” every five
71. See supra note 69 and accompanying text.
72. See U.S. CONST. art. VI, § 2 (stating that “all Treaties made, or which shall be made,
under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in
every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the
contrary notwithstanding”). But see Reid v. Covert, 354 U.S. 1, 16-17 (1957) (“There is nothing in
[Article VI] which intimates that treaties and laws enacted pursuant to them do not have to comply
with the provisions of the Constitution. Nor is there anything in the debates which accompanied the
drafting and ratification of the Constitution which even suggests such a result.”). While there are
several arguments as to why the Convention contradicts the Constitution, that subject is not
addressed in this paper.
258 AKRON LAW REVIEW [42:243
Therefore, if America were to ratify the Convention, it could have
tremendous influence over U.S. family law.73
For instance, the Convention could be used so that every U.S. child
has access to virtually anyone and anything he wants, regardless of
moral turpitude.74 It could be used to hinder a parent from choosing
where her child goes to school.75 And, almost certainly, it would be
used to insist on a U.S. spanking ban.76
Currently, the U.N. is urging America to ratify the Convention “as
a matter of priority.”77 However, U.S. courts have already begun using
73. See, e.g., ABA Center on Children and the Law & Defence for Children International,
Children’s Rights in America: United Nations Conventions on the Rights of the Child Compared
with United States Law, at 35 (Cynthia Price Cohen & Howard Davidson eds., 1990) (saying that
when a country adopts the Convention, the U.N. “requires a State Party to take positive measures,
legislative and otherwise, to make sure that the [child’s] right can be effectively exercised”). Note
that Howard Price is director of the ABA Committee on Children in the Law and Cynthia Price
Cohen is a member of the Ad Hoc Non-Governmental Group on the Drafting of the Convention on
the Rights of the Child.
74. See Convention, supra note 66, at art. 17 (requiring that the member government
“recognize the important function performed by the mass media and shall ensure that the child has
access to information and material from a diversity of national and international sources”); id. at art.
13 ¶ 1 (saying “[t]he child shall have the right to freedom of expression”); id. at art. 14 ¶ 1 (obliging
the member government to “respect the right of the child to freedom of thought, conscience and
religion”); id. at art. 15 (requiring that the member government “recognize the rights of the child to
freedom of association and to freedom of peaceful assembly” and that “[n]o restriction may be
placed on the exercise of these rights other that those imposed in conformity with the law and which
are necessary in a democratic society in the interest of national security or public safety, public
order (ordre public), the protection of public health or morals, or the protection of the rights and
freedoms of others”); id. at art. 16 ¶ 1 (“No child shall be subjected to arbitrary or unlawful
interference with his or her privacy.”).
75. Compare, Concluding Observations: U.K., supra note 66, at ¶¶ 15, 29, 52 (saying the
committee is concerned that English parents can control where their children attend school and how
they act at home), with Convention, supra note 66, at art. 12 ¶ 1 (“State Parties shall assure to the
child who is capable of forming his or her own views the right to express those views freely in all
matters affecting the child.”).
76. See, e.g., supra note 67 and accompanying text; COUNCIL OF EUROPE, ELIMINATING
CORPORAL PUNISHMENT 87 (2007) (“The human rights obligations of member states require that
their domestic law prohibits all corporal punishment and other degrading or humiliating treatment or
punishment of children. . . . In common-law countries, any common-law defence (defences
developed by court decision, like the ‘reasonable punishment’ defence in English law) should also
(1996) (“On 7 June 1995, the Daily Telegraph reported that a call for the reintroduction of flogging
of young offenders who commit violent crimes was defeated in the House of Commons by a vote of
153 to 58. . . . [T]he report . . . could also have argued that it would have contravened the United
Nations Convention on the Rights of the Child which the UK ratified in 1991.”) (citation omitted).
77. See, e.g., G.A. Res. S-27/2, ¶ 29, U.N. GAOR, 27th Spec. Sess., U.N. Doc. A/RES/S-
27/2, A World Fit for Children (May 10, 2002) (urging “all countries to consider, as a matter of
priority, signing and ratifying or acceding to the Convention on the Rights of the Child”). While the
U.N. urges “all countries” to ratify the Convention, only two U.N. countries have not done so:
it as persuasive authority, under the doctrine of “customary international
law.”78 The Supreme Court also has used the Convention when
determining whether a minor may get the death penalty.79 Thus,
regardless of whether the U.S. ratifies the Convention, its philosophies
are influencing American law.80
D. America Is Following the Incremental Path that Leads to a Ban on
Spanking in the Home
Laws in the U.S. have always allowed parents to use discipline
methods that meet the special needs of their children, including
spanking.81 At the same time, those laws prohibit physical and mental
child abuse.82
Somalia (which does not have a standing government) and the U.S. Compare Mason, supra note
66, with William Foreman, 3 Chinese Navy Ships Leave for Somalia, CHICAGO SUN-TIMES, Dec 25,
2008, available at,w-china-navy-pirates-somolia-
122608.article# (saying Somalia “has not had a functioning government since warlords overthrew a
dictator in 1991 and then turned on each other.”). Thus, the above plea was directed at the U.S.
78. See, e.g., Nicholson v. Williams, 203 F.Supp.2d 153, 234 (E.D.N.Y. 2002) (saying,
somewhat misleadingly with regard to the U.S.’s stance on the Convention, “the Convention on the
Rights of the Child (CRC), which the United States has signed and which some courts have found to
be evidence of customary international law binding on United States courts.”).
79. Roper v. Simmons, 543 U.S. 551, 576 (2005) (“Article 37 of the United Nations
Convention on the Rights of the Child, which every country in the world has ratified save for the
United States and Somalia, contains an express prohibition on capital punishment for crimes
committed by juveniles under 18.”).
80. Compare Press Release, U.N. Comm. on the Rights of the Child, Committee on Rights of
Child to Hold Tenth Session at Geneva 30 Oct.-17 November, U.N. Doc. HR/4197 (Oct. 24, 1995)
(saying the U.S. is not a part to the Convention), with, e.g., Roper v. Simmons, 543 U.S. 551, 554,
576 (2005) (considering the Convention, and then saying the “overwhelming weight of international
opinion against the juvenile death penalty [is] not controlling [in the U.S., but] does provide
respected and significant confirmation for [the Court’s determination that the penalty is
disproportionate punishment for offenders under 18].”).
81. See ALA. CODE §§ 13a-3-24(1) (1977), 13A-13-6(b) (1977); ALASKA STAT. §
11.81.430(a)(1) (1993); ARIZ. REV. STAT. ANN. § 13-403(1) (1978); ARK. CODE ANN. §§ 5-2-
605(1) (West 2007), 9-27-303(B) (West 2007); CAL. PENAL CODE §§ 11165.4 (West 1987),
11165.6 (West 2007); CAL.WELF. & INST. CODE § 300(a) (West 2005); COLO. REV. STAT. §§ 18-1-
703(1)(a) (West 1981), 19-1-103(1)(b) (West 2008); CONN. GEN. STAT. ANN. § 53a-18 (West
1992); DEL. CODE. ANN. tit. 11, § 468 (1995); D.C. CODE § 16-2301(23)(B) (2007); FLA. STAT. §
39.01(2) (West 2008); GA. CODE. ANN. §§ 16-3-20(3) (West 1999), 19-7-5(b)(3)(A) (West 2006),
19-15-1(3)(A) (West 2001), 49-5-180(5)(A)( West 1996); HAW. REV. STAT. § 703-309(1) (2001);
IDAHO CODE § 16-2002 (2005); 325 ILL. COMP. STAT. 5/3 (West 2008); IND. CODE ANN. § 31-34-1-
15 (West 2008); IOWA CODE § 726.6 (West 2007); KAN. STAT. ANN. § 21-3609 (1995); KY. REV.
STAT. ANN. § 503.110(1) (West 1982); LA. REV. STAT. ANN. § 14:18(4) (2007); ME. REV. STAT.
ANN. tit. 17-A, §§ 106(1) (2007), 554(1)(B-1) (2005); MD. CODE. ANN. FAM. LAW § 4-501(b)(2)
(2006); MASS. GEN. LAWS ch. 111 § 72F (West 1998); MICH. COMP. LAWS ANN. § 750.136(b)
(West 2004); MINN. STAT. §§ 609.377(1) (West 2000), 609.379 (West 1999); MISS. CODE ANN. §§
260 AKRON LAW REVIEW [42:243
43-21-105(m) (West 2005), 97-5-39(2)(a) (West 2005); MO. REV. STAT. § 210.110(1) (West 2005),
563.061 (West 1979); MONT. CODE ANN. §§ 45-3-107 (1973), 41-3-102(19) (2005); NEB. REV.
STAT. §§ 28-710 (2005), 28-1413 (1988), 28-1414 (1975); NEV. REV. STAT. §§ 128.013 (West
2001), 432B.150 (West 1985); N.H. REV. STAT. ANN. § 627:6(I) (2002); N.J. STAT. ANN. §§ 2C:3-8
(West 1979), 2C: 3-9 (West 1981), 9:6-1 (West 1987), 9:6-8.9 (West 1987); N.M. STAT. §§ 32A-4-2
(West 1999), 30-6-1 (West 2005); N.Y. PENAL LAW § 35.10(1) (McKinney 2004); N.Y. FAM. CT.
ACT § 1012(f)(1)(B) (McKinney 2006); N.C. GEN. STAT. § 7B-101(1) (West 2005); N.D. CENT.
CODE §§ 12.1-05-05(1) (1999), 50-25.1-02 (2007); OHIO REV. CODE ANN. § 2151.05 (West 1975),
2151.031(B) (West 1989), 2919.22; 21 (West 2006); OKLA. STAT. ANN. tit. 21 § 844 (West 1963);
OKLA. STAT. ANN. tit. 10 § 7115 (West 2008); OR. REV. STAT. § 161.205(1) (West 1981); 18 PA.
STAT. ANN. § 509(1) (West 1992); 23 PA. STAT. ANN. § 6302(c) (West 1999); R.I. GEN. LAWS §§
11-9-5.3 (2001), 40-11-2(1)(i) (2006); S.C. CODE ANN. § 20-7-490(3)(a) (2002); S.D. CODIFIED
LAWS §§ 22-18-5 (2005), 26-10-1 (2008); TENN. CODE ANN. §§ 39-15-401 (West 2008); TEX. FAM.
CODE ANN. § 261.001(1)(C) (Vernon 2007); TEX. PENAL CODE ANN. § 9.61 (Vernon 1994); UTAH
CODE ANN. § 76-2-401(1)(c) (2000); WASH. REV. CODE §§ 9A.16.100 (West 1986), 26.44.015
(West 2005); WIS. STAT. ANN. § 939.45 (West 2005); WYO. STAT. ANN. §§ 6-2-503(b) (1998), 14-
3-202 (2007).
82. See ALA. CODE §§ 26-14-1 (1993), 26-14-2 (1975); ALASKA STAT. §§ 47.17.010 (1990),
47.17.290 (2000); ARIZ. REV. STAT. ANN. §§ 13-3620 (2003), 13-3623(2006), 8-201 (2003); ARK.
CODE ANN. §§ 12-12-501 (West 2003), 12-12-503 (West 2007); CAL. PENAL CODE §§ 11164 (West
2000), 11165.4-11165.6 (West 1987), 11166.05 (West 2004); COLO. REV. STAT. §§ 19-1-103 (West
2008), 19-3-100.5 (West 1998), 19-3-301 (West 1987), 19-3-302 (West 1987); CONN. GEN. STAT.
ANN. §§ 17a-100 (West 1996), 46b-120 (West 2007); DEL. CODE. ANN. tit. 16, § 901 (1997); D.C.
CODE § 4-1301.02 (2007); FLA. STAT. §§ 39.201 (West 2008), 39.202 (West 2006), 39.205 (West
2008), 39.01(2) (West 2008); GA. CODE. ANN. § 19-7-5 (West 2006), 19-7-4 (West 1933); HAW.
REV. STAT. § 350-1 (1988); IDAHO CODE § 16-1601 (2003), 16-1602 (2007); 325 ILL. COMP. STAT.
5/1 (West 1975), 5/3 (West 2008); IND. CODE ANN. §§ 31-33-1-1 (West 2005), 31-33-22-3 (West
2005), 31-9-2-14 (West 2007), 31-34-1-2 (West 2007), 31-33-22-1 (West 1997); IOWA CODE §§
232.67 (West 1998), 232.68 (West 2008); KAN. STAT. ANN. §§ 38-2201 (2006), 38-2202 (2006);
KY. REV. STAT. ANN. §§ 620.010 (West 1987), 620.990 (West 2008), 600.020 (West 2008); LA.
REV. STAT. ANN. § 14:403 (1992); LA. CHILD. CODE ANN. arts. 603 (2008), 609 (1993); ME. REV.
STAT. ANN. tit. 22 §§ 4002 (2007), 4011 (2007), 4009 (1979); MD. CODE. ANN. FAM. LAW § 5-701
(2006); MASS. GEN. LAWS chs. 119 § 51A (West 2008), 119 § 21(West 2008); MICH. COMP. LAWS
ANN. §§ 722.621 (West 1975), 722.622 (West 2005), 722.623 (West 2008), 722.633 (West 2002);
MINN. STAT. §§ 626.556 (West 2007), 626.5572 (West 2008); MISS. CODE ANN. § 43-21-353 (West
2007), 43-21-105 (West 2005); MO. REV. STAT. § 210.110 (West 2005); MONT. CODE ANN. §§ 41-
3-101 (2003), 41-3-102 (2005), 41-3-201 (2007); NEB. REV. STAT. §§ 28-707 (2006), 28-710
(2005), 28-717 (2005); NEV. REV. STAT. §§ 432B.010 (West 1995), 432B.020 (West 2004),
432B.070 (West 1985), 432B.090 (West 1997); N.H. REV. STAT. ANN. §§ 169-C:3 (2008), 169-
C:29 (1979); N.J. STAT. ANN. §§ 9:6-8.8 (West 1999), 9:6-8.9 (West 1987); N.M. STAT. §§ 32A-4-1
(West 1993), 32A-4-2 (West 1999); N.Y. SOC. SERVICES. §§ 411 (McKinney 1973), 412 (McKinney
2006), 428 (McKinney 1973); N.C. GEN. STAT. §§ 7B-100 (West 2003), 7B-101 (West 2005); N.D.
CENT. CODE §§ 50-25.1-01 (1995), 50-25.1-02 (2007); OHIO REV. CODE ANN. §§ 2151.011 (West
2006), 2921.14 (West 1991), 2151.421 (West 2008); OKLA. STAT. ANN. tit. 10 §§ 7102-7105 (West
2008); OR. REV. STAT. § 419B.005-100 (West 2005); 23 PA. STAT. ANN. § 6303 (West 2007); R.I.
GEN. LAWS §§ 40-11-1 (1976), 40-11-2 (2006); S.C. CODE ANN. §§ 20-7-480 (1997), 20-7-490
(2002); S.D. CODIFIED LAWS §§ 26-8A-1 (1991), 26-8A-2 (2008); TENN. CODE ANN. §§ 37-1-401
(West 1996), 37-1-402 (West 1977); TEX. FAM. CODE ANN. § 261.001 (Vernon 2007); UTAH CODE
ANN. §§ 62A-4a-401 (2008), 62A-4a-402 (2008); VT. STAT. ANN. tit. 33, § 4911 (2008); VA. CODE
ANN. §§ 63.2-1501 (West 2002), 63.2-100 (West 2008); WASH. REV. CODE §§ 26.44.010 (1999),
While states restrict the force with which a parent uses a physical or
mental discipline method, they do not abolish the method itself. For
example, states restrict the force of timeout to deter a parent from, say,
locking her child in a room for days without food;83 but states don’t
outlaw the use of timeout entirely. They restrict excessive child labor,
like working sixteen-hour days in a coal mine;84 but they don’t ban a
child from cleaning his room.
Likewise, most states hold that “corporal punishment by a parent is
not per se child abuse.”85 They do say, however, that a parent cannot use
“punishment which would exceed ‘that properly required for disciplining
purposes’ or which would extend beyond the bounds of moderation.”86
Accordingly, states do not ban parents from physically disciplining
children within the bounds of moderation and reason.87
Yet, for decades now, America has been going down the same
gradual path toward a total spanking ban that other countries have.88 In
1977, the Supreme Court upheld the use of corporal punishment in
schools.89 But since then, twenty-one states and counting have outlawed
it expressly.90 Even where physical discipline is still legal, more and
26.44.020 (2008); W. VA. CODE ANN. §§ 49-6A-1 (West 1977), 49-1-1 (West 1999), 49-1-3 (West
2007); WIS. STAT. ANN. §§ 48.981 (West 2008), 48.01 (West 2008), 48.02 (West 2008); WYO.
STAT. ANN. §§ 14-3-201 (2005), 14-3-202 (2007).
83. See, e.g., Hill v. State, 881 S.W.2d 897 (Tex. Ct. App. 1994) (affirming a conviction of
appellants that put a boy through extreme confinement).
84. See, e.g., Humphrey v. Virginian Ry. Co., 54 S.E.2d 204, 211 (W. Va. 1949) (quoting
“Barnes’ Code, 1923, Chapter 15H, Section 72, which provided that ‘no child under the age of
sixteen years shall be employed, permitted, or suffered to work in any mine, quarry, tunnel or
85. Brown v. Brown, 68 S.W.3d 316, 322 (Ark. App. 2002). See also, e.g., In re Welfare of
Children of N.F., 749 N.W.2d 802, 810 (Minn. 2008) (“We are unwilling to establish a bright-line
rule that the infliction of any pain constitutes either physical injury or physical abuse, because to do
so would effectively prohibit all corporal punishment of children by their parents.”); Hildreth v.
Iowa Dep’t of Human Servs., 550 N.W.2d. 157, 158-59 (Iowa 1996) (reversing an administrative
ruling that a father had abused his eight-year-old by spanking her three times with a wooden spoon,
causing red marks).
86. See, e.g., Bowers v. State, 389 A.2d 341, 348 (Md. 1978).
87. See, e.g., Carpenter v. Commw. 44 S.E.2d 419, 423 (Va. 1947) (recognizing that
“[c]ourts are agreed that a parent has the right to administer such reasonable and timely punishment
as may be necessary to correct faults in his growing children”); State v. Arnold, 543 N.W.2d 600,
603 (Iowa 1996) (saying “parents have a right to inflict corporal punishment on their child, but that
right is restricted by moderation and reasonableness”).
88. Cf. supra Part II.B.
89. Ingraham v. Wright, 430 U.S. 651 (1977).
90. See CAL. EDUC. CODE §§ 49000 (West 1986); 49001 (West 1986); DEL. CODE. ANN. tit.
14, § 702(b) (2003); HAW. REV. STAT. § 302A-1141 (1996); IOWA CODE § 280.21 (West 1998);
MD. CODE. ANN. EDUC. LAW § 7-306(a) (1996); MASS. GEN. LAWS ch. 71 § 37G (West 2000);
262 AKRON LAW REVIEW [42:243
more schools themselves are either prohibiting it outright, or seldom
using it at all.91
Now, “even among adults who spank their own child, 67 percent
say grade-school teachers should not be permitted to spank children at
MICH. COMP. LAWS ANN. § 380.1312(3) (West 2001); MINN. STAT. § 121A.58 (West 1998);
MONT. CODE ANN. § 20-4-302(3) (1991); NEB. REV. STAT. § 79-295 (2006); NEV. REV. STAT. §
392.4633 (West 1993); N.J. STAT. ANN. § 18A:6-1 (West 1968); N.D. CENT. CODE § 15.1-19-02(1)
(1995); N.Y. COMP. CODES R. & REGS. tit. 8, § 19.5 (2007); OR. REV. STAT. § 339.250(12) (West
2001); VT. STAT. ANN. tit. 16, § 1161a(c) (2003); VA. CODE ANN. § 22.1-279.1 (West 1995);
WASH. REV. CODE § 28A.150.300 (2006); W. VA. CODE ANN. § 18A-5-1(e) (West 2008); WIS.
STAT. ANN. § 118.31 (West 2000).
Most other states have kept spanking in schools legal, often with regulation, while a few
states have left the issue rather nebulous. See ALA. CODE § 16-1-24.1(g) (1994); ALASKA STAT. §§
14.33.120(a)(4) (2008); 11.81.430(a)(2) (1978); ARIZ. REV. STAT. ANN. § 15-843(B)(2) (2007);
ARK. CODE ANN. § 6-18-505(c)(1) (West 1994). Compare CONN. GEN. STAT. ANN. § 53a-18(6)
(1992) (allowing “reasonable physical force”), with Sansone v. Bechtel, 429 A.2d 820, 822 (Conn.
1980) (“[T]he teacher is authorized to use reasonable means to compel a disobedient pupil to
comply with his orders including the use of corporal punishment.”) (citation omitted). See FLA.
STAT. § 1003.32(1)(k) (West 2003); GA. CODE. ANN. § 20-2-730 (West 1964); IDAHO CODE § 33-
1224 (1963). Compare 105 ILL. COMP. STAT. 5/24-24 (disallowing “slapping, paddling or
prolonged maintenance of students in physically painful positions”), with People v. Ball, 317
N.E.2d 54, 56 (Ill. 1974) (“We fully recognize the desirability and indeed the absolute necessity that
teachers be able to maintain discipline in the schools, including reasonable use of corporal
punishment.”). See KAN. STAT. ANN. § 161.180 (1990); LA. REV. STAT. ANN. §§ 223 (1988), 416.1
(2004). Compare ME. REV. STAT. ANN. tit. 17-A § 106(2) (allowing teachers to use “a reasonable
degree of force”), with Patterson v. Nutter, 7 A. 273, 275 (Me. 1886) (“[T]he teacher is not to be
held liable on the ground of the excess of punishment, unless the punishment is clearly excessive . .
. .”). See MISS. CODE ANN. § 37-11-57 (West 1997); MO. REV. STAT. § 160.261 (West 2008); N.H.
REV. STAT. ANN. § 627:6(II)(a), (IV) (2008); N.M. STAT. § 22-5-4.3(B) (West 1993); N.C. GEN.
STAT. §§ 115C-390 (West 1991), 115C-391 (West 2008); OHIO REV. CODE ANN. § 3319.41 (West
1996). But see H.B. 406 (Ohio 2008) (proposing to ban spanking in schools). See OKLA. STAT.
ANN. tit. 70 § 24-100.4(B) (West 2008); 22 PA. CODE § 12.5(b) (2005); S.C. CODE ANN. § 59-63-
260 (1973); S.D. CODIFIED LAWS § 13-32-2 (1990); TENN. CODE ANN. § 49-6-4103 (West 1979);
UTAH CODE ANN. § 53A-11-802 (1992) (prohibiting corporal punishment “unless written
permission has been given by the student’s parent or guardian . . .”).
91. See, e.g., MEINERS, supra note 39 and accompanying text; Dennis Randall,
States with Corporal Punishment in School, FAMILYEDUCATION, available at (say-
ing every school board in Rhode Island has banned corporal punishment); FLORIDA DEPARTMENT
Jan. 2008, available at (showing incidents of
corporal punishment in Florida schools dropping from 24,198 in 1991-92 to 5,245 in 2006-07);
Tracy M. Neal, Whatever Happened to Paddling in Schools: ‘Board of Education’ Pretty Much
Retired, THE BENTON COUNTY DAILY RECORD, Dec. 1, 2008 (saying Arkansas schools rarely use
corporal punishment, although it is legal).
school.”92 At the same time, many Americans think “lack of discipline”
has become the biggest problem in public education.93
While physical discipline has been going extinct in schools, it has
also been abolished in virtually every institution, daycare facility, and
foster home throughout the country.94 Social workers are even being
trained to think that spanking in the home is harmful and should be
stopped.95 They are being taught to advocate against physical discipline
both publicly and on private home visits.96
92. See, e.g., Most Say Spanking’s OK by Parents But Not by Grade-School Teachers, ABC
NEWS, Nov. 8, 2002, available at
93. See, e.g., School Poll, THE WASHINGTON TIMES, Aug. 28, 1995, at A-2.
94. See, e.g., EPOCH-USA, U.S. Progress in Ending Physical Punishment of Children in
Schools, Institutions, Foster Care, Day Care and Families, July 2008, available at (saying physical discipline is banned
by law or regulation in the family day cares of forty-seven states, general day cares of forty-eight
states, group homes and institutions of forty-four states, and foster homes of forty-nine states); CAL.
HEALTH & SAFETY CODE § 1531.5 (West 1986); IOWA CODE § 234.40 (West 1992); KY. REV.
STAT. ANN. § 199.896(18) (West 1987); N.C. GEN. STAT. § 110-101.1 (West 1997); JAMES W.
TRENT JR., INVENTING THE FEEBLE MIND 118 (1995) (“By 1910, most other superintendents also
opposed corporal punishment . . . . [A] director of research, Henry H. Goddard, had insisted: ‘In
this Institution the slightest approach to corporal punishment is followed by immediate
RESEARCH REVIEW 49-50 (1994) (“[T]he National Association of Social Workers has openly taken
a firm position against parental use of physical punishment, declaring that all physical punishment
of children has some harmful effects and should be stopped (NASW 1989).”); MYLES J. KELLEHER,
SOCIAL PROBLEMS IN A FREE SOCIETY 124 (2004) (“Today’s legal definition of ‘physical abuse’
covers the gamut of actions from the original concern over battering or ‘beating up’ children to
corporal punishment, and even spankings that result in reddening of the buttocks.”).
96. Compare, e.g., supra note 95 and accompanying text (showing that social workers are
taught that spanking is wrong), and HELPING IN CHILD PROTECTIVE SERVICES: A COMPETENCY-
BASED CASEWORK HANDBOOK 519 (Charmaine R. Brittain, MSW, PhD & Deborah Esquibel Hunt,
LCSW, PhD eds., 2004) (“Some abusing parents mistakenly believe that corporal punishment is the
only way to discipline children, and some child development specialists believe that almost all
parents must occasionally resort to corporal punishment to discipline or train children. Other
professionals believe that corporal punishment is never advisable.”), with ALFRED KADUSHIN &
(“You are a worker in a protective service unit. In response to a report of child abuse you are
visiting a family of immigrants. The mother readily admits that she has used a belt to discipline her
5-year-old son. She says that she is following the teacher of her culture that says, ‘You have to use
corporal punishment if you expect a child to grow up straight.’ What would you say?” The manual
leaves the answer open for class discussion.), and MARY EDNA HELFER, RUTH S. KEMPE &
RICHARD D. KRUGMAN, THE BATTERED CHILD 579 (5th ed. 1999) (saying their [p]rimary” means
of preventing child abuse comprises “[e]fforts aimed at whole population groups, addressing the
underlying or societal causes of child abuse (for example . . . acceptance of corporal punishment as
a form of discipline . . .”) (emphasis in original).
264 AKRON LAW REVIEW [42:243
We have come to the point that some legislators feel comfortable
proposing an explicit ban on spanking in the home.97 In January 2007,
for example, a California legislator proposed a bill that contained a total
ban on spanking children under four years old.98 Within one month,
public outcry forced the removal of the ban from the bill; but the
legislator countered by inserting a rebuttable presumption that “physical
pain or mental suffering” is “unjustifiable” when caused by spanking.99
In May 2007, the California Assembly Appropriations Committee
rejected the bill entirely because it lacked support.100 Even so, the
legislator introduced yet another proposal to criminalize spanking, this
time with a penalty of up to one year in prison and termination of the
parent-child relationship.101
Such actions show that opposition to spanking is gaining more and
more influence in America. Thus, it is important to consider whether the
reasons for that opposition are valid. Just because spanking is often
couched in terms like “torture” and “abuse” does not mean such
language is appropriate.102 Just because some think physical discipline
violates human rights does not mean this view is correct or well
reasoned.103 Indeed, the idea that spanking is harmful is contradicted by
much of the research, and by the data on existing spanking bans.
Of the two dozen countries that have totally outlawed spanking,
Sweden was the first.104 Historically, Sweden has been remarkably non-
97. See, e.g., H.B. 3922 (Mass. 2007) (proposing to ban corporal punishment everywhere).
98. E.g., Jennifer Steinhauer, A Proposal to Ban Spanking Sparks Debate, N.Y. TIMES, Jan.
21, 2007, at National (reporting a proposal “that California become the first state in the nation to
make spanking of children 3 years old and under a misdemeanor.”).
99. See Assem.B. 755, Reg. Sess. (Cal. 2007).
100. See Jim Sanders, Spanking Bill Rejected, THE SACRAMENTO BEE, June 1, 2007, at A4.
101. See Assem.B. 2943, Reg. Sess. (Cal. 2008).
102. See, e.g., Convention, supra note 66, at art. 37(a) (forbidding “torture”); id. at art. 19 ¶ 1
(requiring “measures to protect the child from all forms of . . . abuse [and] maltreatment . . . .”);
Concluding Observations: U.K., supra note 66, at ¶¶ 15, 29, 52 (consistently using the terms
“torture” and “abuse” and saying physical discipline qualifies as “physical abuse”).
103. See, e.g., U.N. Comm. on the Rights of the Child, Report on the Seventh Session, Geneva,
26 Sept.-14 Oct. 1994, 63, U.N. Doc. CRC/C/34 (Nov. 8, 1994) (“In the framework of its mandate,
the Committee [of Ten] has paid particular attention to the child’s right to physical integrity. In the
same spirit, it has stressed that corporal punishment of children is incompatible with the Convention
and has often proposed the revision of existing legislation . . . .”).
104. See supra note 6 and accompanying text.
violent.105 Still, many people welcomed Sweden’s 1979 spanking ban as
a much-needed law to reduce child abuse.106
In many respects, Sweden is an ideal laboratory to study spanking
bans.107 Sweden knew its legislation was groundbreaking, and therefore
has implemented many programs to support the ban.108 Also,
researchers have been collecting extensive data on the law’s effects.109
Accordingly, Sweden has been the subject of to the most comprehensive
and widely discussed spanking ban study to date.110
Many think Sweden’s efforts to stop spanking have been
successful—the world’s role model for childrearing.111 But a generation
now has grown up under Sweden’s spanking ban, and the results are not
so promising.112
105. See U.N., League Table, supra note 7, at 9 fig. 5 (showing one child maltreatment death
annually per 100,000 children between 1971-75. This was the eleventh lowest rate among rich
nations.); LARZELERE, supra note 12, at 4 (“Sweden has historically been a very non-violent
country, especially compared to the United States.”).
106. See, e.g., Warren W. Deley, Physical Punishment of Children: Sweden and the U.S.A., 19
J. COMP. FAM. STUD. 419 (1988); Ziegert, supra note 38 (both welcoming the Swedish ban).
107. See Robert E. Larzelere, Differentiating Evidence from Advocacy in Evaluating Sweden’s
Spanking Ban, July 2005, at 1 [hereinafter Larzelere, Differentiating], available at (“Sweden has more relevant evidence
available from their country than any other country that has banned spanking.”).
108. See supra note 53 and accompanying text.
109. See, e.g., Deley, supra note 106; C. Pritchard, Children’s Homicide as an Indicator of
Effective Child Protection: A Comparative Study of Western European Statistics, 22 BRIT. J. SOC.
WORK 663 (1992); Joan S. Solheim, A Cross-cultural Examination of Use of Corporal Punishment
on Children: A Focus on Sweden and the United States, 6 CHILD ABUSE & NEGLECT 147 (1982);
Murray A. Straus & R.J. Gelles, Societal Change and Change in Family Violence from 1975 to
1985 as Revealed by the National Surveys, 48 J. MARRIAGE & FAM. 465 (1986); supra note 107 and
accompanying text.
110. See, e.g., U.N., League Table, supra note 7, at 24-25 (discussing Sweden’s laws,
attitudes, legal cases, progress, and problems. The discussion on Sweden is one of only three
highlights of countries in the entire report and is about twice as long as the two others—Germany
(at 23) and Italy (at 30).); supra note 107 and accompanying text.
111. See, e.g., Adrienne A. Haeuser, Reducing Violence Towards U.S. Children: Transferring
Positive Innovations from Sweden (1988) (unpublished manuscript, on file at Univ. of Wis.-
Milwaukee, Sch. of Soc. Welfare & Univ. Outreach, Milwaukee) at 48 (“Sweden’s success with the
ban on parental use of physical punishment may both encourage and enlighten a U.S. journey
toward a public education campaign to discourage parental use of physical punishment.”).
112. See, e.g., John S. Lyons & Robert E. Larzelere, Where Is Evidence That Non-Abusive
Corporal Punishment Increases Aggression?, Presentation at the XXVI International Congress of
Psychology, Montreal, (Aug. 18, 1996) (“[T]he effects of the Swedish anti-spanking law seem to
have had exactly the opposite effect of its intention . . . .”).
266 AKRON LAW REVIEW [42:243
A. A Little Less Spanking, A Lot More Child Abuse
In the thirty years since the Swedish spanking ban, the prevalence
of physical discipline has decreased only slightly; but its frequency has
dropped such that those who are spanked are spanked only once or twice
in their lives.113 Nevertheless, many more Swedish children now endure
helpless, explosive, and counterproductive parenting.114
Professor Adrienne Haeuser of the University of Wisconsin-
Milwaukee took two professional trips to Sweden: the first in 1981 and
the second in 1988.115 While there, she interviewed parents and
government personnel throughout Sweden.116 Professor Haeuser
explicitly wanted to “promote positive visibility of,” and gain U.S.
support for, Sweden’s spanking ban.117
Two years after the ban, she discovered that parents had not yet
found constructive alternatives to physical discipline.118 Instead, most
parents resorted to “yelling and screaming at their children, and some
believed this was equally, perhaps more, destructive.”119
113. See SCB Statistics Sweden, Spanking and Other Forms of Physical Punishment: A Study
of Adults’ and Middle School Students’ Opinions, Experience and Knowledge, at Demography, the
Family and Children 1.2 (1996) [hereinafter Statistics Sweden] (summarizing that the prevalence
and frequency of physical punishment dropped dramatically before the spanking ban, but only
slightly thereafter); Larzelere, Differentiating, supra note 107, at 4 (saying that, in the vast majority
of cases, children were spanked only once or twice); LARZELERE, supra note 12, at 6-7 (In a 1994-
95 survey, 34% of respondents agreed partly or fully with the statement: “Mild or moderate physical
punishment is sometimes necessary as a child rearing method, but should be carefully considered
and not the result of anger.” 22% were “in principle against all forms of physical punishment, but
can use such punishment if upset enough.” 11% were “positively inclined to . . . physical
114. See generally Wittrock, 1981-1991, supra note 12; Wittrock, 1984-1994, supra note 12
and accompanying text.
115. See Haeuser, supra note 111, at ii (saying that she traveled across Sweden in 1981 and
1988 to determine the effects of the 1979 spanking ban).
116. See id. at 4 (saying that she interviewed about seventy parents, government personnel,
health professionals, and teachers).
117. See id. at 2 (wanting to “promote positive visibility of this Swedish law in the U.S. and
garner U.S. support for the possibility of promoting U.S. parenting norms which avoid physical
118. See id. at 22 (saying that parents and professionals agreed that, in 1981, parents had not
found “constructive alternatives” to physical punishment). Instead, most parents simply overlooked
misbehavior. See id. at 23 (“What by American standards would clearly be misbehavior or an
unreasonable demand is often patiently tolerated or overlooked.”).
119. See id. at 22.
By her second trip, many Swedish parents immobilized their child
by grabbing his upper arms firmly, sometimes painfully.120 While the
child was immobilized, the parent made eye contact with him and talked
to him about changing his behavior.121 Thus, even when mental
punishments are emphasized heavily, many parents still seem to have
difficulty controlling their children without physical intervention.122
Indeed, without corporal punishment, Swedish parents resort to
more physical restraint and angry yelling than U.S. parents, and also use
timeout much less.123 As the following account from a New Zealand
lawyer-mother indicates, making a child sit—whether in a timeout chair
or a car seat—becomes more difficult with a ban on spanking (there
called “smacking”):
Smacking my son was a parenting strategy of last resort and was
immediately effective when dealing with defiance and dangerous
situations. I’ve never smacked in anger and never without issuing a
final warning first. I’m a text-book smacker. . . .
120. See id. (saying that in 1988 “nearly all parents reported that when necessary, a parent
holds a child still by firmly grasping the upper arms”); id. at 22 (“A few parents agreed with some
professionals that occasionally the immobilizing arm hold might be slightly painful but they do not
define this as physical punishment since the intent is to get the child’s attention.”). Note that New
Zealand’s spanking ban does not allow even the Swedish immobilization technique. See Most
Extreme Law, supra note 65 and accompanying text. Instead, New Zealand criminally punishes
anyone that treats her child in a way that she would not publicly treat her neighbor. Id.
121. See Haeuser, supra note 111, at ii (“This includes stopping unwanted behavior by
immobilizing a child through a firm hold on the child’s arms and insisting on eye contact during
discussion. Most parents believe it is important to discuss feelings; the child should know the
parent is angry and why. Some parents admit discussion may escalate to yelling.”).
122. See id. at 26 (saying a few parents used “mild physical force, perhaps giving a quick
shake or pulling on a lock of hair, to get a child’s attention.” One father reported spanking his “very
aggressive son” once or twice a year, but did so because a “good smack says more than hours of talk
. . . .”).
123. See, e.g., Kerstin Palmerus & Sandra Scarr, How Parents Discipline Young Children:
Cultural Comparisons and Individual Differences, Paper Presented at the Biennial Conference of the
Society for Research in Child Development, Indianapolis, Ind. (1995) (reporting that, compared to
U.S. parents, Swedish parents use much less physical punishment, but they also report somewhat
less use of reasoning, much less use of timeout, and more use of physical restraint and coercive
verbal admonitions); cf. Den A. Trumbull, M.D. and S. DuBose Ravenel, M.D., Spare the Rod?
New Research Challenges Spanking Critics, 9 FAM. POLY 5 (Oct., 1996) (saying a spanking ban
would not eliminate explosive scenarios) (“When effective spanking is removed from a parent’s
disciplinary repertoire, he or she is left with nagging, begging, belittling, and yelling, once the
primary disciplinary measures—such as time-out and logical consequences—have failed. By
contrast, if proper spanking is proactively used in conjunction with other disciplinary measures,
better control of the particularly defiant child can be achieved, and moments of exasperation are less
likely to occur.”).
268 AKRON LAW REVIEW [42:243
But now, with my precious Portia, aged 2 years 8 months, my tool
box is looking a little empty.
“No,” she says. “I won’t put my seat belt back on.” Try reasoning,
Aunty Sue B suggests. “If we crash, you’ll get hurt.”
“No, I didn’t.”
Try praising the good behaviour, says Aunty Cindy K.
“Mummy loves it when you wear your seatbelt.”
“No! I love Daddy!”
Wait out the bad behaviour, advises Aunty Dianne L.
Good idea until my phone rings: “Hello Sacha, are you coming to
get your son from school today? It’s 5:30pm and the cleaners are
going home.”
“Not yet,” I reply. “Just wearing Portia down, should be there by
. . . .
The problem for me is that I love the law and the democratic
process. As a lawyer, I understand the benefits of obeying the law and
the potential consequences of disregarding it. I want to parent within
the law and I want to be able to use smacking as one of many parenting
. . . .
Sue Bradford told us that we had to stop treating our children as
property. They are people too, with their own minds and their own
rights. Illuminating stuff. But the police officer who pulled me over
and asked why my child was wandering willy-nilly around the
backseat didn’t buy it. I am apparently totally responsible for her well-
being and behaviour, but not to be trusted when it comes to making
parenting decisions about how to develop her sense of right and
Without physical reinforcement like spanking, such exchanges
become increasingly frustrating and common.125 As Dr. Spock
observed, “[t]he wear and tear on the parents from this kind of low-key
battling is painful and exhausting, [and] only invites more demands and
124. Sacha Coburn, Smack on the Hand Worth Time in Jail, NEW ZEALAND HERALD, Feb. 26,
2008, at National.
125. See, e.g., Roberts, supra note 17 (showing that an effective disciplinary enforcement such
as nonabusive spanking is essential for defiant two- to six-year-olds to cooperate with timeout,
which in turn was necessary for their parents to regain normal levels of cooperation from them).
126. See Spock, Bratty Child, supra note 25; id. at 29 (after describing a similarly wearing
child discipline battle, saying that the “parent looks dismayed and gives in promptly. . . . [M]ost
To avoid this downward spiral, clinical researchers have found only
one punishment to be as effective as spanking to get a child to comply
with timeout: barricading him in a small room with a piece of plywood
across the door.127 However, a barricade may be entirely impractical in
a natural setting due to lack of space or time.128 Thus, parents generally
prefer spanking to enforce timeout.129
Without physical discipline, many Swedish children simply are left
to their own misbehavior.130 This has come at a grave cost. Now
physical force is more often used abusively, when parents get “upset
enough.”131 Since the spanking ban, although the Swedish population
has remained relatively stable, child abuse rates have increased by over
five-hundred percent, as shown in the following tables.132
parents who are submissive to their children don’t realize clearly that they have this problem at
all—they just find their children difficult and tiring to manage.”).
127. See, e.g., Roberts, supra note 17 (reporting results from four randomized clinical studies
of defiant children two to six years old. These studies examined which enforcement procedures
were effective at making defiant children comply with timeout. The new “barrier method” (placing
the child in a small room while holding a piece of plywood across the open door) worked when a
two-swat spank did not, and a two-swat spank worked when the barricade did not.).
128. See, e.g., Diana Baumrind, Robert E. Larzelere, Philip A. Cowan, Ordinary Physical
Punishment: Is It Harmful? Comment on Gershoff, 128 PSYCHOL. BULL. 580, 586 (2002)
[hereinafter, Baumrind, Ordinary Physical Punishment] (“It remains to be studied whether parents
can and will use an alternative back-up such as a barrier with a defiant child, especially in homes
where space and time are limited.”); cf. Palmerus, supra note 123 and accompanying text.
129. E.g., Roberts, supra note 17 (finding mothers of defiant two- to six-year-old children
preferred a “two-swat” back-up rather than a barrier or restraint back-up to enforce timeout).
130. See, e.g., Haeuser, supra note 111, at 23 (saying that Swedish parents routinely
overlooked misbehavior shortly after the spanking ban).
131. See, e.g., Statistics Sweden, supra note 113 and accompanying text.
132. The population has remained relatively stable over the past thirty years, increasing from
8,323,033 in 1981 to 8,861,426 in 1999—an increase of just over six percent, a far cry from the
several hundred percent increases in youth violence and child abuse. SCB Statistics
Sweden, Swedish Population (in one-year groups) 1860-2007, available atängd1860-2007eng.xls.
270 AKRON LAW REVIEW [42:243
Table 3.1: In-Home Abuse of
Children 0-6 Years Old
in Sweden133
Table 3.2: General Abuse of
Children 0-6 Years Old
in Sweden134
Indoor Abuses
of a Known
All Abuses
by Police
1981 99 1981 196
1982 98 1982 187
1983 96 1983 167
1984 127 1984 222
1985 128 1985 236
1986 122 1986 211
1987 153 1987 264
1988 142 1988 266
1989 184 1989 365
1990 248 1990 437
1991 304 1991 517
1992 378 1992 603
1993 407 1993 642
1994 583 1994 838
1995 560 1995 824
1996 1996 825*
1997 1997 820*
1998 1998 810*
1999 622 1999 879
One year after the spanking ban, not only were Swedish parents
resorting to pushing, grabbing, and shoving more than U.S. parents, but
133. Wittrock, 1981-1991, supra note 12; Wittrock, 1984-1994, supra note 12 (it seems there
are no pre-1981 tables); Staffan Janson, Barn och misshandel: En rapport om kroppslig bestraffning
och annan misshandel i Sverige vid slutet av 1900-talet [Children and Physical Abuse: A Report
About Corporal Punishment and Other Physical Abuse in Sweden at the End of the 20th Century],
18 STATENS OFFENTLIGA UTREDNINGAR [SOU] 35 tbl. 2 (2001) (Swed.) (providing data from only
1990, 1994, 1995, and 1999). Janson’s compilation seems to be the most recent available.
134. Wittrock, 1981-1991, supra note 12; Wittrock, 1984-1994, supra note 12; Janson, supra
note 133 and accompanying text; id. at 34 diag. 2 (conveying data from 1996-98 by bar graph only).
Data from 1996-98 (indicated by “*” above) is approximated from Janson’s bar graph.
they were also beating their children twice as often.135 By 1988, rates of
physical child abuse in Sweden had risen to three times the U.S. rate.136
Moreover, from 1979 to 1994, Swedish children under seven endured an
almost six-fold increase in physical abuse.137
Accordingly, many Swedes do not believe the spanking ban has
reduced child abuse.138 Indeed, researchers are now realizing that
permissive parents are the most likely to resort to injurious, “explosive
attacks of rage.”139 Such parents apparently become violent because
they feel they can “neither control the child’s behavior nor tolerate its
effect upon themselves.”140
B. A Little Less Spanking, A Lot More Teen Violence
In recent years, Sweden has seen a wave of youth violence:141
“hooliganism, excessive [celebrations], acts of violence with racist and
135. See, e.g., Richard J. Gelles & Ake W. Edfeldt, Violence towards Children in the United
States and Sweden, 10 CHILD ABUSE & NEGLECT 501, 506 (1986) (reporting their study of
thousands of Swedish and American parents. Gelles and Edfeldt found that 0.4% of Swedish
parents “threatened with a weapon” and “used a weapon” against their children, compared to 0.2%
in the U.S., and that “Swedish parents report more pushing, grabbing or shoving than American
parents . . . and double the rate of beating children . . . .”); LARZELERE, supra note 12, at 12-13
(after examining the Gelles-Edfeldt survey regarding the difference between telephone interviews
versus face-to-face interviews, saying that “the fairest and most conservative” estimate was that the
Swedish rate of beating children was 49 percent higher in 1980 than comparable American rates).
136. Compare Haeuser, supra note 111, at 34 (showing that the 1988 physical child abuse rate,
as reported to Swedish police, was 6.5 per 1,000 children) (“Since the Swedish police data omits
child abuse cases known to social services but not warranting police intervention, the actual
Swedish incidence rate is probably higher” than in the U.S.), with Lyons, supra note 112 (showing
the 1987 U.S. child abuse rate, when limited to physical abuse known to police or sheriffs, was only
2.2 per 1000) (citing National Center on Child Abuse and Neglect, Executive Summary, Study of
National Incidence and Prevalence of Child Abuse and Neglect, (1987) (U.S.)).
137. See, e.g., supra note 133 and accompanying text (showing that, by 1999, child abuse
leveled out at about six times as many cases as in 1981).
138. See, e.g., Haeuser, supra note 111, at iii (suggesting that most, if not all, Swedes believe
the spanking ban has not reduced the incidence of child abuse); tbls. 3.1-3.2, supra.
139. See, e.g., Lyons, supra note 112 (saying “permissive parents were the most likely to
report ‘explosive attacks of rage in which they inflicted more pain or injury upon the child than they
had intended . . . . Permissive parents apparently became violent because they felt that they could
neither control the child’s behavior nor tolerate its effect upon themselves.’ Permissive parents used
spanking less than did either authoritative or authoritarian parents. So it could be that the
prohibition of all spanking eliminates a type of mild spanking that prevents further escalation of
aggression . . . .”) (citation omitted).
140. See, e.g., id.
141. See, e.g., H. von Hofer, Criminal Violence and Youth in Sweden in a Long-term
Perspective, Presentation at the Tenth Workshop for Juvenile Criminology, Siena 1 (1995) (“In light
272 AKRON LAW REVIEW [42:243
xenophobic motives, squatters’ actions, street fights between politically
opposed groups, violence at school, and recurrent [tumults] between
[gangs,] skinheads and groups of young female ‘kickers.’”142
By the 1990s, Sweden’s “growing propensity for violence” finally
prompted two comprehensive studies of teen violence.143 These studies
have revealed that violence in Sweden now starts young. Since Sweden
banned spanking, toddlers and young children have begun hitting their
parents often.144 Indeed, the more a child has grown up under the
spanking ban, the more likely he is to be violent, as indicated by the
following table.145
Table 3.3: Frequency of Criminal Assaults Against 7- to 14-year-old
Children in Sweden146
Age of
# of 1984 Suspects/
(Birth Year)
# of 1994 Suspects/
(Birth Year) % Increase
Under 15 116 (1970+) 718 (1980+) 519
15-19 107 (1965-69) 354 (1975-79) 231
20-24 12 (1960-64) 28 (1970-74) 133
25-29 19 (1955-59) 29 (1965-69) 53
30-39 68 (1945-54) 151 (1955-64) 122
40-49 47 (1935-44) 116 (1945-54) 147
50+ 25 (< 1935) 57 (< 1945) 128
of this, it seems difficult to deny that the Swedish society in recent years has been hit by a wave of
juvenile violence.”).
142. See, e.g., von Hofer, supra note 141 (describing the rising concern over youth violence).
143. See, e.g., Larzelere, Differentiating, supra note 107, at 7 (“At least two studies in Sweden
were initiated in the 1990s because of societal concerns about increasing youth violence. One
rationale for one study was that ‘There is also much evidence that our [Swedish] society has a
growing propensity for violence.’”).
144. See, e.g., Haeuser, supra note 111, at 25 (“In 1988 I rather repeatedly saw a kind of
parent child interaction in public as well as private which I had not observed at all in 1981.
Toddlers and young children for whatever reason often hit their parents, not so hard to inflict pain
but continuously enough to be clearly annoying.”).
145. See, e.g., Wittrock, 1981-1991, supra note 12; Wittrock, 1984-1994, supra note 12, at tbl.
1 (collectively showing that the youths raised after the spanking ban are more likely to perpetrate
assault); LARZELERE, supra note 12, at 9 (saying “the largest increases occurred for perpetrators
under 15 years of age, who were born after the ban on smacking. The second largest percentage
increase occurred for 15-19 year-old perpetrators, who were aged 0-4 when the law was passed.”).
146. Wittrock, 1984-1994, supra note 12 and accompanying text. More recent compilations
do not contain an “Age of Suspect” breakdown, but they do suggest that youth violence is still
rising. See Janson, supra note 133 (reporting that outdoor assaults by people unacquainted with a
seven- to fourteen-year-old victim rose from 848 in 1994 to 1147 by 1999).
Swedish teen violence skyrocketed in the early 1990s, when
children that had grown up entirely under the spanking ban first became
teenagers.147 Preadolescents and teenagers under fifteen started
becoming even more violent toward their peers.148 By 1994, the number
of youth criminal assaults had increased by six times the 1984 rate (see
Table 3.3, above).
Youth violence rates have been soaring even though Sweden has
conducted national campaigns to stop it since the mid-1980s.149 These
campaigns have required, for example, that school officials report any
fighting immediately to the police.150 By 2000, however, the Swedish
government said there has been “no tendency to a decrease in bullying at
school or in leisure time during the last twenty years.”151
Not only is there no decrease, but the assaults are getting more
severe.152 For instance, the rate of sixteen- to twenty-year-old victims
that require medical attention has doubled.153 Without physical
discipline, many youths seem to act violently because they don’t
understand when to stop dangerous behavior—they don’t understand
how to deal with limits.154
147. See, e.g., LARZELERE, supra note 12, at 13-14 (“Children whose preschool years from 2-6
were entirely under the ban on smacking first became teenagers in 1990.”) (Also saying crime
statistics “increased relatively little during the 1980s and then increased sharply at an accelerating
rate in the 1990s . . . From 1984-1989 the average annual increase in assaults by minors against
minors was 3.4%. From 1990-1994, the average annual increase was 17.9%.”).
148. See, e.g., Wittrock, 1984-1994, supra note 12.
149. See, e.g., Susan P. Limber & Maury M. Nation, Bullying Among Children and Youth,
JUV. JUST. BULL. (Apr. 1998), available at
(“The first and best-known intervention to reduce bullying among school children was launched by
Olweus in Norway and Sweden in the early 1980s.”).
150. See, e.g., Joan Durrant, Evaluating the Success of Sweden’s Corporal Punishment Ban,
23 CHILD ABUSE & NEGLECT 435, 445 (1999) (“Indeed, a recent campaign against bullying in
Sweden has resulted in school bans on all forms of aggressive behaviour; principals now routinely
report to the police any instances brought to their attention . . . .”).
151. U.N., League Table, supra note 7, at 24.
152. See, e.g., von Hofer, supra note 141.
153. See, e.g., id.
154. Cf., e.g., Peter Sandström, Barn och ungdom har förlorat känslan för var gränsen går.
“Oskyldiga lekar” kan urarta i allt grövre våld [Children and Youngsters Have Lost the Feeling for
Limits. “Innocent Games” Can Turn into Severe Violence] (Swed.), available at (reporting, based on the findings of
Finnish psychologist Vappu Viemerö, that Swedish children have lost their sense of limits, and
hypothesizing that such loss is attributable to television).
274 AKRON LAW REVIEW [42:243
C. Reflecting on Sweden’s Spanking Ban: More Harm than Good
Since the spanking ban, most Swedish children no longer think they
should be punished at all for their misbehavior, not even by
grounding.155 About half of them even think their parents don’t have a
right to withhold their allowance.156 Having left so many children
effectively unrestrained, Sweden’s spanking ban has failed to meet its
expectations.157 Whereas its proponents hoped for a “cultural spillover”
of nonviolent values, the ban seems to have backfired.158
Some may suspect that the increases in child abuse and youth
violence are due to changes in reporting procedures, definitions of abuse,
or generational attitudes. But such factors fail to give the full account.159
First, each survey comparing the U.S. and Sweden used the same
standards to achieve an accurate comparison.160 Yet, such surveys
reveal that child abuse rates in Sweden have risen more than in countries
like the U.S.161
Second, the rate of teenage victims who need medical attention has
increased, a change that is unaffected by different reporting procedures
or definitions of abuse.162
155. See Janson, supra note 133, at 58 (saying the percentage of Swedish children who think
their parents have the right to use any kind of disciplinary enforcement continues to fall. By 2000,
only thirty-one percent of ten- to twelve-year-olds thought parents had the right to ground them, and
only fifty-three percent thought parents had the right to withhold their allowance.).
156. See, e.g., id.
157. See, e.g., Diana Baumrind, The Discipline Controversy Revisited, 45 FAM. RELATIONS
405, 412 (1996) [hereinafter Baumrind, Discipline Controversy] (saying that the “ban against
spanking and a nonconfrontational and lenient approach to childrearing has not reduced abusive
violence by children brought up under the aga law.”).
158. Compare, supra note 10 and accompanying text, with, e.g., Baumrind, Discipline
Controversy, supra note 157 at 412 (“The marked increase in youth-on-youth violence suggests that
the ban on corporal punishment in Sweden has not resulted in cultural spillover of the adult
culture’s nonviolent values to a segment of the youth.”); Lyons, supra note 112 and accompanying
text; supra note 12 and accompanying text.
159. See, e.g., Larzelere, Differentiating, supra note 107, at 9 (saying changes in what gets
reported to the police may, but doubting that they do, account for the statistical differences).
160. See, e.g., Gelles, supra note 135 and accompanying text (the 1981 study using Dr. Straus’
Conflict Tactics Scale to survey both countries); supra note 136 and accompanying text (the 1988
studies relying on the same definitions to study police records from both countries).
161. See, e.g., Lyons, supra note 112 (reviewing all available evidence in English which found
no evidence that any measure of physical child abuse had decreased as a result of the spanking ban.
Two studies by spanking opponents reported some Swedish child abuse rates that were from two to
five times higher than comparable U.S. rates.).
162. See, e.g., von Hofer, supra note 141 (showing that from 1984-94, twice as many sixteen-
to twenty-year-old victims needed medical attention, although the rate of victims remained stable).
Third, if changes in reporting procedures artificially inflated
Sweden’s rates of violence, those rates should have increased
remarkably once Sweden implemented social programs like its anti-
bullying campaign.163 But that didn’t happen. Sweden started such
programs in the early 1980s, but teenage assault rates didn’t rise
remarkably until the early 1990s—the same time that children who grew
up entirely under the spanking ban became teenagers.164
Sweden’s problems with youth violence cannot just be explained
away. It has gotten so out-of-hand that even international travel
organizations are warning their customers to avoid Swedish children:
There are two dominant international guidebooks that many young
people use when they travel. One is Lonely Planet and the other is
Rough Guide. The latter is more complete, more detailed and its latest
edition was published only recently in Scandinavia.
Rough Guide takes pleasure in rating countries. They have a top-
ten list and they have a bottom-ten list.
On the top-ten list you will find Gamla Stan (the Old City) and the
Ice cave in Joukkasjärvi.
The interesting thing about this new edition is however the bottom-
ten list. . . .
163. See, e.g., LARZELERE, supra note 12, at 13-14 (saying “the timing and suddenness of the
increase does not support a reporting interpretation. Durrant implies that the ban on smacking and
the 1982 changes in social services had the commendable purpose of enhancing an early warning
system for violence before it got more serious. That would suggest a sharp increase during the
1980s. If this was in fact preventative, then criminal statistics for physical child abuse and assaults
by minors should level off or decrease subsequently. However, both statistics increased relatively
little during the 1980s and then increase sharply at an accelerating rate in the 1990s.”).
164. See, e.g., Limber, supra note 149 (saying that the anti-bullying campaign began in the
early 1980s); Larzelere, Differentiating, supra note 107, at 7 (rejecting the idea that the dramatic
increase in teenage criminal assaults is due to police enforcement of anti-bullying measures in
schools. “One way to corroborate the effect of the anti-bullying campaign on criminal statistics
would be to identify the year the campaign was initiated, which should correspond with a sharp
increase in criminal assault statistics, hopefully followed by a reduction thereafter.”); supra note
147 and accompanying text. Note that, in the late 1960s, the Swedish tax and benefit system
changed to assume that every adult was responsible to support himself. See, e.g., Haeuser, supra
note 111, at 10 (citing B. WISTRAND, SWEDISH WOMEN ON THE MOVE (1981), at 18). Thus, by
1975—just four years before Sweden banned spanking—the system had forced virtually all Swedish
parents to work outside the home. E.g., Siv Westerberg, Lawyer, Med. Dr., The Folly of Sweden’s
State Controlled Families, Presentation Before the Family Education Trust, London (June 19, 1999)
(saying the system “that forces every woman to be away from her home and children all day, was
completed around 1975”). It may be, therefore, that teenage assault rates rose remarkably in the
early 1990s in part because that is generally when children that had grown up with comparatively
less parental interaction became teenagers. However, because the parental involvement shift began
over a decade before the spanking shift, we cannot correlate decreased parental involvement and
increased youth violence as neatly as we can decreased spanking and increased youth violence.
276 AKRON LAW REVIEW [42:243
Rough Guide’s conclusion is that the very worst with Scandinavia
is Swedish children. Swedish children are at the top of the bottom
Perhaps this is why Swedish support for spanking seems to be
rising.166 The spanking ban appears to have harmed more children than
it has saved.167 As one lawyer-mother put it, “Children who are
violently abused in their homes are no more protected than they were
before the law change. But my own daughter is undoubtedly a victim
too and our whole family suffers the consequences of her strong sense of
Countries like Sweden, with historically low violence levels (at
least before the ban), may have room to endure the problems that have
come with its spanking ban; but countries like the U.S. cannot.169 The
medical, emotional, and governmental costs of a six-fold increase in
child abuse and youth violence would be staggering.
165. Roger Lord, Barnen skämmer ut Sverige [The Children are Embarrassing Sweden],
REDACTEUR EMERITUS, July 4, 2005 (Swed.).
166. Compare Ziegert, supra note 38 (saying, in 1979, 26% thought spanking was sometimes
necessary), with LARZELERE, supra note 12, at 6-8 (saying, in 1995, 34% think spanking is
sometimes necessary). There is some disagreement about this figure because the survey used
between 1965-1981 was discontinued and the new survey did not have the exact same questions.
Id. at 6-7. The most similar survey questions reveal this increase. Id. But see U.N., League Table,
supra note 7, at 24 (“A generation ago, 55 per cent of Swedes supported the use of physical
punishment. Today support has fallen to just over 10 per cent.”).
167. See, e.g., LARZELERE, supra note 12 and accompanying text.
168. Coburn, supra note 124.
169. See, e.g., LARZELERE, supra note 12, at 15 (“As one of the least violent countries in the
world, perhaps Sweden can afford a six-fold increase in criminal assaults by minors against minors.
Most countries cannot . . . .”).
[W]e are witnessing the emergence of a subculture of . . . social
scientists, who are no more qualified or equipped to practice statistics
than law or medicine, yet who nonetheless do practice it among their
circles of nonstatisticians.170
Despite the sad problems with the Swedish spanking ban, many
policymakers still think spanking bans are good.171 This is mainly
because spanking opponents have used misleading research to justify
their position and make frightening claims—like the outlandish claim
that spanking compels people to support international bombing raids.172
Ideally, child discipline researchers would compare the behaviors
of an “experimental” group against a “control” group.173 They would
track, say, similarly situated children, some of whom receive spankings,
and some of whom do not. Whether one group turns out better indicates
whether spanking is helpful, harmful, or insignificant.174 However,
170. Diana Baumrind, Specious Causal Attributions in the Social Sciences: The Reformulated
Stepping-Stone Theory of Heroin Use as Exemplar, 45 J. PERSONALITY & SOC. PSYCHOL. 1289,
1295-96 (1983) [hereinafter Baumrind, Specious Causal Attributions] (quoting R.F. Ling, Review of
Correlation and Causation, 77 J. AM. STAT. ASSOC. 489-91 (1982)).
171. See, e.g., Edwards, supra note 20, at 1021 (an American judge proposing a spanking
172. See, e.g., Rosellini, supra note 27 (“Straus went even further, asserting that spanking
helps foster punitive social attitudes, such as support for bombing raids to punish countries that
support terrorists. If parents stop spanking, Straus said on ABC-TV news last year, ‘we’ll have . . .
lower costs to deal with crime and with mental illness.’”).
CHILD ABUSE IN AMERICA 124-25 (1996) (“Questions such as these are best resolved
methodologically by a random assignment of subjects to experimental and control groups. . . .
Despite the inherent difficulties of experimental studies, such a study is not impossible in social
policy. Traditionally, they have been the standard design for biomedical research. Virtually every
federal agency that is responsible for the health of Americans uses experimental research methods
before clearing new medical and pharmaceutical products for public use. Even in social welfare,
experimental methods have been used successfully to understand better difficult questions about
human behavior. Since the mid-1980s, for example, the Manpower Demonstration Research
Corporation has established a national reputation by using experimental methods to evaluate
workfare programs designed to determine if mothers on Aid to Families of Dependent Children
could be expected to work.”).
174. Cf., e.g., id. at 124 (“Over time the experimental subjects should fare better if the
interventions is having the desired effect.”).
278 AKRON LAW REVIEW [42:243
many researchers avoid such empirical methods, and instead find other
ways to promote their philosophy.175
A. The Research “Should Be Closely Examined for Evidence of Bias”176
The art of junk science is to brush away just enough detail to reach
desired conclusions, while preserving enough to maintain an aura of
authoritative science.177
People tend to adopt a viewpoint based on their feelings, and then
search for logic that supports that viewpoint.178 So, it’s not surprising
175. Cf., e.g., Murray A. Straus & Carrie L. Yodanis, Corporal Punishment by Parents, 2 U.
CHI. L. SCH. ROUNDTABLE 36-37 (1995) [hereinafter Straus, ROUNDTABLE] (admitting that a
clinical population is “obviously essential” for research intended to evaluate the effects of a
treatment method; but rejecting the use of such a sample because of his philosophy that spanking is
violent and all violence should be avoided); STRAUS, supra note 33, at 190-92 (proposing his own
spank-free communities, rather than observing the use of spanking); COSTIN, supra note 173, at 124
(“Many social researchers, however, prefer to use survey methods through which they attempt to
simulate experimental and control groups by identifying comparable similarities and differences
between groups of subjects. There are several reasons for this preference for surveys over
controlled observational methods. For one, they are cheaper and avoid the programmatic
rearrangements required by experimental designs. For another, they avoid the moral questions
involved in assigning one client to an experimental treatment while diverting another to a control
group that is deprived of experimental exposure. . . . The major deficiency of survey research—a
deficit that is so significant that experimental designs are always preferred if they can be fielded at
all—is that there are always extraneous variables that can be posited to explain the difference
between groups but that have not been accounted for in the survey design. This is not to say that
survey research has no value. On the contrary, nonexperimental research methods are useful in
identifying patterns that may be helpful in developing theory and formulating experimental
studies.”). For an introduction to possible motives behind misleading science, see generally
social, economic, and political forces that elicit or support flawed science and sustain it in the face
of overwhelming contrary evidence).
176. Albemarle Paper Co. v. Moody, 422 U.S. 405, 432-33 n.30 (1975).
TECHNIQUES 203-04 (2000) (“Most clients believe in a cognitive fallacy, a fallacy that pollutes the
clarity of their thinking. It’s called finding the good reason’. . . . The fallacy may be defined as:
‘Defending a position by picking the most favorable sounding argument, rather than choosing the
most logical or rational one.’ More simply it means that clients feel first and reason second . . . .
They simply make up the logic to support their emotions. Their feelings do the driving; their logic
hitchhikes along for the ride.
Finding the good reason is a very damaging fallacy. It destroys perception of the truth
and implies that one side is correct while the other side is worthless. But the most damaging thing
about this fallacy is that clients stop looking for the truth at all. Instead, they spend their time
searching for the most convincing way to show that they are right. This leaves little time and less
energy to find out whether they were right in the first place.
that if someone feels spanking is wrong, he will tend to perform or
interpret research to support that feeling; and likewise with someone
who feels spanking is right.179
Accordingly, many spanking opponents begin their research with a
conclusion, not a hypothesis.180 For instance, Dr. Murray Straus admits
that his goal is to prove that spanking, “by itself, has harmful
psychological side effects for children and hurts society as a whole.”181
Moreover, a review of the spanking research suggests that eighty-three
percent of the corporal punishment articles in clinical and psychosocial
journals are “merely opinion-driven editorials, reviews or commentaries,
devoid of new empirical findings.”182
When scientists begin their research having already formed a
conclusion, it’s more likely that their bias “will be confirmed, not
amended or rejected by the ensuing evidence.”183 Indeed, spanking
opponents have been known to design studies that peculiarly suit their
bias; they have been known to address problems with their research only
The fallacy . . . can create a personal holocaust that permanently destroys the client’s life.
Finding the best reasons for symptoms protects those symptoms from changing. It’s like building a
wall around the pathology so that nothing can reach it. An addict who has an excuse to snort
cocaine will keep on using . . . a married partner who keeps blaming his or her spouse will end up
with a broken marriage. Finding the good reason locks problems in place and keeps people from
solving them.”) (emphasis in original).
179. See, e.g., Erica Goode, Findings Give Some Support to Advocates of Spanking, N.Y.
TIMES, Aug. 25, 2001 (quoting Dr. Straus as saying, “as in many scientific debates, each side tended
to marshal the evidence that supported its view.”).
180. See, e.g., STRAUS, supra note 33, at xx (“the assumption that guided this research is that
corporal punishment, by itself, has harmful psychological side effects for children and hurts the
society as a whole”); Trumbull, supra note 123 (describing a review that found 83 percent of the
132 identified articles published in clinical and psychosocial journals were merely opinion-driven
editorials, reviews or commentaries, devoid of new empirical findings. “[M]ost of the empirical
studies were methodologically flawed by grouping the impact of abuse with spanking. The best
studies demonstrated beneficial, not detrimental, effects of spanking in certain situations.”) (citing
Dr. John S. Lyons, Rachel L. Anderson & Dr. David B. Larson, The Use and Effects of Physical
Punishment in the Home: A Systematic Review, Presentation to the Sec. on Bio-Ethics of the Am.
Acad. of Pediatrics (Nov. 2, 1993)).
181. Id. (saying the problems likely to beset a spanked child “range from attacks on siblings to
juvenile delinquency, wife beating, depression, distorted sexual behavior, to lower occupational
success and income”).
182. See, e.g., Trumbull, supra note 180 and accompanying text; Trumbull, supra note 123.
183. Baumrind, Causally Relevant Research, supra note 21, at 14 (“When a scientist begins
his or her research with an already formed conclusion, as Straus does, it is likely that the initial bias
will be confirmed, not amended or rejected by the ensuing evidence.”).
280 AKRON LAW REVIEW [42:243
in endnotes that fewer people read; and they have been known to simply
not report data that are inconsistent with their hypothesis.184
These practices are “incompatible” with scientific standards.185
Therefore, we should not sit idly by and accept a researcher’s
recommendations about our children’s education and future.186 Some
researchers seem to “emulate political spin doctors by selectively
reporting [their] findings or refusing to abandon pre-judgement when
faced with ‘equivocal or inconsistent evidence.’”187 If we really want to
serve the best interests of the child, we must work hard—we must
investigate how any given study was conducted, how its results were
reported, and whether such reporting was truthful.
(1998), available at [hereinafter
LARZELERE, COMBINING LOVE] (reporting data from one of Dr. Straus’ studies, which data Dr.
Straus omitted from the publication of that study. “Relatedly, Straus (personal communication) has
reported that, in three of the five cohorts in Straus et al. (1997), the outcomes of spanking frequency
depended upon the initial level of the child’s antisocial behavior. Spanking frequency reduced
antisocial behavior in the most antisocial children, but increased it in the least antisocial children.
This is consistent with the idea that contingent punishment is particularly important for turning
around the misbehavior of disruptive children, but that parents should be resorting more often to
gentler tactics such as reasoning with better behaved children.”); STRAUS, supra note 33, at 285
n.6.2 (“We also could not directly test the part of the model that deals with escalation from the use
of corporal punishment such as spanking and slapping.”); id. at 150 (explaining a study by LaVoie
that described an experiment where children were punished for their misbehavior either by a
punishment of a loud noise or by such punishments as timeout. The loud noise was supposed to
represent spanking. The children initially modified their behavior more quickly for the loud noise,
but in the long-run the timeout was more effective. Then, Dr. Straus extrapolates from this story
that spanking may initially be more effective, but in the long-run it is not.). The problem with this
story is that a loud noise is not a spanking. It may be deafening, but it is not a spanking.
185. E.g., Diana Baumrind, Ph.D., Univ. Cal., Berkeley, Letter to Robert Larzelere, Ph.D.,
Univ. Neb. Med. Ctr. (Dec. 1, 1998), available at
baumrind.htm [hereinafter Baumrind, Letter] (“When value commitments include (as Straus says
his does) willingness to ‘ignore equivocal or inconsistent evidence’ or to put a ‘spin’ on one’s
representation of one’s own findings then one’s deep value commitments are indeed incompatible
with objective science. To quote Straus, when one ‘knows their theory is right’ one ‘(up to a certain
point) may ignore equivocal or inconsistent findings.’ Why bother to collect data at all when one
knows from the start one’s theory is right?”).
186. See, e.g., Trumbull, supra note 180 and accompanying text; Trumbull, supra note 123.
For an introduction to how misleading science affects our legal system, see HUBER, supra note 177
at 1-8, 137-47 (discussing how junk science has gained status in the modern court system).
187. See Baumrind, Letter, supra note 185.
B. “The Methodological Flaws in the Cited Evidence Are of Concern”188
Scientists are beginning to realize that many of the
recommendations about spanking are based on methodologically
flawed” research.189 For example, Dr. Robert E. Larzelere, a
professional methodologist from Oklahoma State University, published
a comprehensive review of the spanking studies that had been published
by 1996.190 Dr. Larzelere filtered out research that was
methodologically poor, like research that did not pass peer-review or
failed to separate abuse from physical discipline.191 Of 166 studies, only
thirty-five were methodologically sound; and overall, those thirty-five
did not reveal any convincing evidence that corporal punishment harms
Instead, methodologically sound studies that distinguish abuse from
physical discipline tend to indicate that spanking is not harmful, and is
188. Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 205 (1997).
189. See, e.g., Trumbull, supra note 180 and accompanying text; Trumbull, supra note 123.
190. Larzelere, Review, supra note 17, at 824 (describing several of the methods he used to
find all of the articles possible, such as “a computer search of PsychLit and Medline, a search of the
relevant references in the articles found in the computer search, and an author search for all authors
with more than one relevant article.”). Much of Dr. Larzelere’s research can be found at
191. Id. (“The first selection criterion for inclusion in this review was publication in a peer-
reviewed journal. Second, a study had to include at least one measure of nonabusive or customary
physical punishment by parents. This excluded findings about punitiveness broadly defined and
measures of physical punishment dominated by severity or abusiveness.”); see Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993) (“[S]ubmission to the scrutiny of the
scientific community is a component of ‘good science,’ in part because it increases the likelihood
that substantive flaws in methodology will be detected.”) (citing J. ZIMAN, RELIABLE KNOWLEDGE:
Good Is Peer Review?, 321 NEW ENG. J. MED. 827 (1989)).
192. Larzelere, Review, supra note 17, at 824 (saying that, of the 166 relevant articles, thirty-
five met the criteria. Of the thirty-five, “9 articles (26%) found predominantly beneficial child
outcomes associated with nonabusive or customary physical punishment, 12 articles (34%) found
predominantly detrimental outcomes, and the other 14 articles (40%) found neutral outcomes, ie,
neither beneficial nor detrimental outcomes.”). Remarkably, all of the clinical and sequential
studies found predominately beneficial child outcomes from spanking, the prospective studies
usually found neutral outcomes, and the retrospective studies usually found detrimental outcomes
(retrospective studies being statistically the weakest study type). Id.; see, e.g., Baumrind, Specious
Causal Attributions, supra note 170, at 1293 (“Since Radke-Yarrow’s (1963) relentlessly critical
examination of the validity of retrospective reports by parents, of their own and of their children’s
behavior, this method of studying parent-child interaction has fallen into disrepute.”) (citing M.
Radke-Yarrow, Problems of Methods in Parent-Child Research, 34 CHILD DEV., 215-226 (1963));
K.A., Ericsson & H.H. Simon, Verbal Reports as Data, 4 PSYCHOL. REV., 59-66 (1980) (showing
little confidence can be placed in reports drawing on long-term memory).
282 AKRON LAW REVIEW [42:243
even helpful in various contexts.193 Such studies reveal that the effects
of spanking do not depend on the use of spanking itself, but on factors
like the overall parenting style, the child’s age, the cultural meaning of
spanking, and the accompanying use of explanation and reason.194 By
contrast, many methodologically flawed studies restrict research
methods to obtain only expected or misleading results, as the following
sections explain.195
1. “Two Vastly Different Remedies with Vastly Different
Consequences”196: Spanking Does Not Lead to Abuse Any
More than Credit Cards Lead to Bankruptcy
Many spanking studies do not distinguish a mild swat on the rear
from, say, a violent beating with a strap.197 If the violent strapping
produces any harm, that’s enough for some researchers to attribute that
harm to spanking.198 For instance, Dr. Elizabeth Gershoff of the
193. See, e.g., Larzelere, Review, supra note 17, at 827 (“Those studies that excluded abuse
from their measures of physical punishment were more likely to find predominantly beneficial
outcomes. Of 11 studies with such exclusions, 6 (55%) had beneficial outcomes, 4 (36%) showed
neutral outcomes, and only 1 (9%) had detrimental outcomes.”).
194. See, e.g., Larzelere, Review, supra note 17, at 827 (“Parents who obtained better
outcomes associated with physical punishment were positively involved with their child, had child-
oriented motivations for using spanking rather than parent-oriented motivations, did not increase
their children’s fear of parental discipline, followed through with their warnings, and cooperated
with each other in discipline responsibilities. They did not use verbal put-downs, and they changed
their main discipline method to grounding when their children got older.”).
195. See, e.g., Goode, supra note 179 and accompanying text. Compare STRAUS, supra note
33, at 230 (saying the Conflict Tactics Scale can be used “to partial out physical abuse in a
statistical analysis or to remove abused children from the sample in order to avoid confounding
corporal punishment with physical abuse”), with Baumrind, Ordinary Physical Punishment, supra
note 128, at 581 (saying that, although Dr. Straus admits that it is proper to exclude abuse cases
when studying normative discipline, he rarely does so).
196. Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962).
197. See, e.g., Rosellini, supra note 27 (“Other studies failed to distinguish between one or
two taps on the rear end of a preschooler and, say, beating a child with a strap. One 1977 study of
427 third graders who were reinterviewed 10 years later found that those who had been punished
more also were more likely than others to push, shove, or start fights over nothing. But
‘punishment’ was defined as including everything from nonphysical disciplinary steps like
reasoning with children or isolating them, to slapping their faces, washing their mouths out with
soap, or spanking them until they cried.”).
198. See, e.g., id.; Baumrind, Ordinary Physical Punishment, supra note 128, at 581-82
(“Almost two thirds (65.4%) of the 52 aggression composite studies used overly severe [corporal
punishment]. . . . This problem of overly severe (and overbroad) [corporal punishment] can best be
illustrated with quotes from Gershoff’s primary studies. The following descriptions were used to
describe at least part of their definition of [corporal punishment]: ‘slapped on face, head, and ears’
and ‘shook’; ‘severity of punishment for aggression to parents’; ‘throwing something at the child’
University of Michigan claimed that physical punishment is linked to
harmful outcomes.199 However, most of the research she analyzed made
that link by studying severe punishments like boxing the ears and
Linking such severe punishments to a negative behavior like
aggression does not prove that spanking is linked to negative
behavior.201 Even the U.N. admits that this unwillingness to distinguish
abuse from physical discipline makes some spanking studies look
Nevertheless, many researchers try to justify such flawed
methodology through a purely philosophical argument. They insist that
and ‘severe, strict, often physical’ as contrasted with ‘nonrestrictive, mostly positive guidance,’;
usage of ‘switch, belt, razor strap, paddle, buggy whip, boxing ears’; and ‘hit with belt, stick’. In all
of these five studies, an effect size could have been based on a [corporal punishment] measure that
did not include such overly severe components of [corporal punishment]. For example, Mahoney et
al. (2000) presented separate data for six tactics included in the revised Conflict Tactics Scale’s
[corporal punishment] measure. The corresponding effect sizes (d) ranged from 0.08 for ‘spanked
bottom with bare hand’ to 0.58 for ‘slapped on face, head, and ears.’ In other studies, effect sizes
could only be based on [corporal punishment] measures contaminated by overly severe components.
Examples include ‘slaps in the face’ and ‘beating with a stick, a belt, etc.’; ‘slap him in the face’ and
‘wash out his mouth with soap’; ‘How often were you beaten by your mother (father)?’; ‘kicked,
bit, or hit you with a fist,’ causing ‘bruises or cuts,’ and six more violent items; ‘rough handling,
shaking’; ‘mom (dad) was a violent or physically abusive person’; and ‘severe punishment, parents
very angry or hostile, beatings, . . . “Punished him so he wouldn’t forget it.”’ In at least one other
primary study in the meta-analyses, a large majority of those who were physically punished were
also physically abused. In Lester’s (1991) study of inmate records, 49% of those who had
attempted suicide had been physically punished by their fathers, but almost as many (44%) had been
physically abused. Therefore, it would appear that only 5% of the inmates were physically punished
without being abused.”) (citations omitted).
199. Elizabeth T. Gershoff, Parental Corporal Punishment and Associated Child Behaviors
and Experiences: A Meta-Analytic and Theoretical Review, 128 PSYCHOL. BULL. 539, 549 (2002)
(drawing as her primary conclusion that, although spanking improves compliance, it “is associated
with 10 undesirable constructs”). Gershoff admits in her meta-analysis that she cannot establish that
spanking causes undesirable effects. Id. at 551. However, she consistently uses terms like link and
associate in such a way that a lay audience could think spanking causes undesirable effects. See,
e.g., id. at 549. Such terms are slippery enough that, if pressed, Dr. Gershoff could retreat to her
acknowledgement that she cannot prove causation.
200. See, e.g., supra note 198 and accompanying test (overviewing some of the studies
included in Dr. Gershoff’s meta-analysis).
201. See, e.g., U.N., League Table, supra note 7, at 29 (“Links between regular and severe
abuse as a child and, say, depression or aggression in later life does not prove that all physical
punishment is likely to produce the same result.”).
202. Id. (“Should research look for the likely long-term consequences of only severe and
regular physical punishment, or should it include physical punishment that is light and infrequent?
Unwillingness to draw a distinction between the two on the grounds discussed earlier – that all
hitting of children is abuse and that the only effective line is between violence and non-violence –
has sometimes left research findings looking ridiculous.”).
284 AKRON LAW REVIEW [42:243
spanking is on the same “continuum” as abuse, and therefore parents
who spank somehow “transform” into parents that abuse.203 Yet they
virtually admit that they just made up this continuum theory.204 For
instance, Dr. Straus supports the continuum theory in the body of his
book, but admits in the endnotes that he couldn’t test it: “We also could
not directly test the part of the model that deals with escalation from the
use of corporal punishment.”205
The objective research does not support the continuum theory.
Research that discriminates between abuse and physical discipline
indicates that you cannot predict that a child will have behavior
problems simply because his parents use spanking.206
Instead, such research suggests that abusive parents tend to share
peculiar personality types.207 They tend to have explosive anger and
impulsive responses to frustration, as well as an extreme need to control
203. See, e.g., Gershoff, supra note 199, at 553 (finding that her research “supports the notion
that corporal punishment and physical abuse are two points along a continuum . . . . The task for
researchers is to determine the exact conditions under which corporal punishment is transformed
into abuse.”). Even the research behind the continuum theory makes no sense. Such research
typically compares “no” corporal punishment with “lots” of corporal punishment, but excludes
moderate corporal punishment. See, e.g., Straus, Corporal Punishment, supra note 20, at 51
(calling Table 1 “How Much Could Ending Corporal Punishment Decrease Psychological and
Social Problems?” On the chart he has two measures: those who have experienced “High” corporal
punishment and those that have experienced “None.” Then, he shows the percentage difference
between the likelihood of being depressed, for example.). Dr. Straus uses such percentages to say
that society will improve if it bans spanking. But these comparisons merely prove that abuse or
borderline abuse causes problems.
204. See, e.g., STRAUS , supra note 33, at 285 n.6.2 (“We also could not directly test the part of
the model that deals with escalation from the use of corporal punishment such as spanking . . . .”).
205. Compare id. with id. at 13 (claiming that “most cases of physical abuse are the end point
of a continuum that began with corporal punishment and got out of hand.”).
206. See, e.g., Annette Mahoney, William O. Donnelly, Terri Lewis & Carri Maynard, Mother
and Father Self-Reports of Corporal Punishment and Severe Physical Aggression Toward Clinic-
Referred Youth, 29 J. CLINICAL CHILD PSYCHOL. 266 (2000) (distinguishing the outcomes of
various types of corporal punishment, from open-handed spanking to beating up a child. The type
most consistently associated with later clinical referrals was “slapped on face, head, and ears.
Types that never predicted increased rates of clinical referrals of preschoolers or pre-adolescents
included: “[s]panked bottom with bare hand,” “[s]lapped hand, arm, or leg,” “[h]it on bottom with
hard object,” and “[p]inched.”).
207. See, e.g., Baumrind, Ordinary Physical Punishment, supra note 128, at 585 (saying
abusive parents are “likely to share a distinctive set of attributes”); David A. Wolfe, Child-Abusive
Parents: An Empirical Review and Analysis, 97 PSYCHOL. BULL. 462 (1985) (finding that abusive
parents are more angry, depressed and impulsive, and emphasize punishment as the predominant
means of discipline. In abusive families, there is less interaction and the mothers display more
negative than positive behavior. The etiology of abusive parenting is multifactorial with emphasis
on the personalities involved, and cannot be simply explained by a parent’s use of spanking.).
and intimidate.208 Also, physically abusive parents tend to engage in
unusually high levels of verbal abuse and inconsistent discipline.209
Most parents, by contrast, draw a clear line between abuse and
reasonable physical discipline.210 Accordingly, there’s a great divide
between parents that spank and parents that abuse; and there’s no
substantial in-between group (which there should be if spanking led to
abuse on a continuum).211 In general, parents either spank responsibly,
or they cause injury.212 These vastly different practices have vastly
different results—causing injury is harmful, whereas spanking is either
neutral or helpful, depending on the context.213 Because of this
qualitative difference, most pediatricians reject the idea that spanking
inherently leads to abuse.214
208. E.g., Baumrind, Ordinary Physical Punishment, supra note 128, at 585 (“Abusive parents
are more likely to be hyperreactive to negative stimuli and to have an extreme need to control their
children. Their punishment is less contingent on the child’s behavior than on their own inner
209. See, e.g., id. (“Thus, in a study of affluent, well-educated families, those parents whose
recourse to physical punishment was excessively severe and frequent also engaged in significantly
more negative interactions of other kinds including verbal abuse, being significantly less warm,
supportive and consistent, and themselves exhibiting more internalizing and externalizing problem
behavior.”); Baumrind, Causally Relevant Research, supra note 21, at 9 (saying Authoritarian-
Directive parents were more likely to use overly severe physical discipline).
210. See, e.g., U.N., League Table, supra note 7, at 28 (“For most parents, there is a clear line
between the kind of violence they would consider to be ‘reasonable chastisement’ and the kind of
violence which they would regard as ‘abuse.’”).
211. See, e.g., id. at 13 (saying studies in the U.S., Canada, and the U.K. revealed that most
child abuse deaths contained “no evidence of a pattern of escalating violence”) (emphasis in
UNITED KINGDOM 97 (2000) (“There appeared to be a divide between the families where children
were hit with implements or often hit to a level which caused lasting pain, bruising or other injury,
and those where occasional slaps occurred which rarely or never had lasting effects. There was no
substantial bridging group in which smacking was regular but not severe, which we would have
expected to find if escalation were a common phenomenon.”); supra note 210 and accompanying
212. See, e.g., id. (“In general it seems that parents either hit children rarely and lightly, or
they do it to cause serious hurt.”).
213. See, e.g., Dr. Leonard D. Eron, Theories of Aggression: From Drives to Cognitions, in
AGGRESSIVE BEHAVIOR, CURRENT PERSPECTIVES 3 (L.R. Huesmann ed., 1994) (After a decade of
longitudinally studying children beginning when the children were in third grade, Dr. Eron found no
association between punishment (including spanking) and later aggression. “[U]pon follow-up 10
years after the original data collection, we found that punishment of aggressive acts at the earlier
age was no longer related to current aggression, and instead, other variables like parental nurturance
and children’s identification with their parents were more important in predicting later
214. E.g., Kristin White, Where Pediatricians Stand on Spanking, PEDIATRIC MGMT. 11 (Sept.
1993) (saying more than seventy percent of pediatricians reject the idea that spanking leads to
286 AKRON LAW REVIEW [42:243
Even philosophically, the continuum theory makes no sense.215 It’s
like saying credit cards lead to bankruptcy because buying on credit is
on the same continuum as going bankrupt—as though the mere existence
of a credit card compels a person to lose control of his sense of
responsible debt.216 In reality, credit cards are valuable, efficient, and do
not lead to bankruptcy if used responsibly. That’s why few clamor to
ban them. Similarly, spanking should remain legal because it is
valuable, efficient, and its mere existence does not compel escalation to
2. “The Test Is Too Narrow”218
Many child discipline researchers are so strongly opposed to
spanking that they refuse to study it clinically, or in successful
contexts.219 Thus, in narrowly tailoring most of their research to
contexts in which spanking is unsuccessful, and narrowly tailoring their
research methods to exclude clinical studies, they ignore a lot of the
FALLACY-FREE ARGUMENTS (1980) (exposing a fallacy, known as the domino fallacy, that rejects
the notion of a continuum).
216. See, e.g., Larzelere, Meta-Analysis, supra note 15, at 31 (rejecting the positive association
between physical punishment and physical abuse because it “necessarily follows from defining all
physical abuse as instances of physical punishment (100% of abusers then used physical punishment
compared to a lower percentage of non-abusers)”). Aside from that correlation, the linkage is based
on the domino fallacy, which holds that any step in an undesirable direction (e.g., spanking or
buying on credit) is always undesirable because it increases the possibility of its undesirable
extreme (abuse or bankruptcy)) (citations omitted).
217. See, e.g., Larzelere, Differentiating, supra note 107, at 9 (“Dr. Diana Baumrind’s (1973)
authoritative parenting, which combines nurturance, good communication, and firm control, has
consistently been associated with optimal child outcomes. Firm control was enforced at least
occasionally with spanking in all Baumrind’s original authoritative families.”).
218. Crawford v. Wash., 541 U.S. 36, 60 (2004).
219. See, e.g., supra note 175 and accompanying text.
220. Compare supra note 175 and accompanying text, with, e.g., Larzelere, Review, supra
note 17, at 824 (“First, the studies with stronger internal validity tended to find beneficial outcomes.
All six (100%) of the clinical treatment studies (including four randomized field studies and both
(100%) of the sequential studies showed predominantly beneficial outcomes associated with
customary or nonabusive physical punishment. Three (30%) of the 10 prospective longitudinal
studies found predominantly detrimental outcomes, whereas the other 7 (70%) prospective studies
found neutral outcomes. Nine (53%) of the 17 retrospective studies found predominantly
detrimental outcomes, 7 (41%) found predominantly neutral outcomes, and 1 (6%) found
predominantly beneficial outcomes.”).
For example, Dr. Straus often focuses on theoretical models and
surveys of adults that were spanked as teenagers.221 While it is true that
spanking teenagers can be worse than mentally punishing them,
spanking young children almost never is.222
Even on the rare occasion that Dr. Straus studied preteens, he only
focused on six- to nine-year-olds that were spanked an average of 156
times a year.223 That’s up to thirteen times the normal rate.224 Parents
who physically discipline rarely spank their nine-year-old more than
once a month.225 With such an unnatural sample, it’s no wonder Dr.
Straus’ was able to associate corporal punishment with antisocial
behavior.226 Many nine-year-olds that are spanked 156 times a year may
simply be more prone to behavior problems, regardless of the type of
punishment they get.227
When researchers ignore preexisting conditions (like a child’s
preexisting misbehavior), they erroneously associate spanking with
harmful effects.228 This is known as the “intervention selection bias.”229
221. E.g., Straus, ROUNDTABLE, supra note 175, at 36-37 (mentioning his surveys of
teenagers, which found links to spousal assault and abusing one’s child later in life, then
generalizing such links to all spanking); STRAUS, supra note 33 (referring often to his theoretical
models and surveys of teenagers).
222. E.g., Larzelere, Review, supra note 17, at 827 (finding grounding less detrimental than
spanking for teens, but for young children, spanking was more beneficial than nine common
disciplines, including timeout and reasoning).
223. Rosellini, supra note 27 (“His research indicated that frequent spanking (three or more
times a week) of children 6 to 9 years old, tracked over a period of two years, increased a child’s
antisocial behavior, measured in activities like cheating, bullying, or lying.”);
CRITIQUE] (“The only thing that Straus et al. (1997) have proven is that spanking 6- to 9-year-olds
at the rate of 156 times a year has a small, but detrimental effect (accounting for 1.3% of subsequent
variation in anti-social behavior). Most children spanked from 1 to 25 times annually were in their
most-improved group . . . .”).
224. See, e.g., Baumrind, Discipline Controversy, supra note 157, at 409 (saying that, by age
nine, only one-third of the parents spanked their children as often as once a month).
225. See, e.g., id.
226. See, e.g., supra note 223 and accompanying text.
227. See, e.g., Baumrind, Ordinary Physical Punishment, supra note 128, at 585 (“A child
who is not dispositionally compliant, however, is likely also to be less malleable and therefore likely
to require more forceful parental intervention . . . .”).
228. See, e.g., Robert E. Larzelere, Ph.D., Univ. Neb. Med. Ctr., The Difficulty of Making
Valid Causal Inferences from Passive Longitudinal Designs, Presentation at Univ. Cal., Berkeley on
Inferring Causality from Longitudinal Studies (Mar. 21, 2003), available at [hereinafter Larzelere, The Difficulty] (saying the intervention
selection bias is an explanation that, if ignored, can lead to incorrect conclusions about corrective
interventions. For instance, the association between mental health treatment and subsequent
288 AKRON LAW REVIEW [42:243
Consider, for example, chemotherapy. If doctors evaluate
chemotherapy like some researchers evaluate spanking (by ignoring a
patient’s preexisting cancer), doctors would never prescribe the
treatment.230 Chemotherapy is associated with a much greater “risk” of
future cancer; not because it causes future cancer, but because it’s an
intervention used to help an already cancerous person.231 A patient’s
future cancer is not necessarily a harmful effect of chemotherapy, but
rather the result of her preexisting cancer problems. Likewise, the future
misbehavior of a naturally defiant child is not necessarily the result of
spanking, but rather the result of his preexisting behavior problems. 232
The standard by which many researchers analyze physical
discipline is peculiarly unfair. It’s like saying chemotherapy is always
harmful unless it makes the cancer-prone patient just as healthy as a
normal person, or healthier.233 This standard is clearly too limited. Most
people would consider chemotherapy helpful if it makes any progress in
eliminating cancer, regardless of how the patient compares to a normal
person.234 Likewise, spanking is helpful if it makes the child’s behavior
better than before.235
Yet many researchers analyze an already defiant child, and then
insist that spanking him was harmful unless it made him behave just as
well as a normal child, or better.236 Such a standard only measures
suicides in youth indicates that such treatment predicts a substantially increased risk of suicide—
14.3 times as high a risk.).
229. See, e.g., id.; Robert E. Larzelere, Brett R. Kuhn, & Byron Johnson, The Intervention
Selection Bias: An Under-Recognized Confound in Intervention Research, 130 PSYCHOL. BULL. 289
230. See, e.g., Larzelere, The Difficulty, supra note 228 (discussing the intervention selection
bias as applied to cancer treatment).
231. See, e.g., Larzelere, Meta-Analysis, supra note 15, at 2 (“Patients who received radiation
treatment last year are more likely to experience cancer-related symptoms this year than those who
did not receive (or need) radiation treatment.”).
232. See, e.g., Larzelere, The Difficulty, supra note 228 (saying, in general, corrective
interventions tend to be associated with future detrimental outcomes, because professionals use
corrective interventions more for those with a poor prognosis. “This applies to corrective
interventions in medicine (e.g., radiation treatment, hospitalization), education (Head Start), clinical
psychology (marital counseling, suicide treatment), and parenting (power assertive discipline,
homework assistance).”).
233. See, e.g., id. (saying cancer treatment looks detrimental unless researchers control for it
accurately, and analogizing such treatment to research that claims spanking is “detrimental”).
234. See, e.g., id.
235. See, e.g., id. (rejecting the intervention selection bias, and saying intervention like
spanking is beneficial if it causes improvement).
236. See, e.g., id. (citing studies that find spanking detrimental because researcher had not
adequately controlled to initial levels of misbehavior).
whether spanking is perfect, not whether it’s helpful.237 (Indeed, on the
sole occasion that Dr. Straus analyzed physical and mental punishments
using the same standards, physical punishment performed best).238
If researchers studied chemotherapy like they do spanking, only
four percent of chemotherapy studies would consider the preexistence or
severity of cancer.239 Once researchers abandon the intervention
selection bias and adequately control for initial misbehavior, all uniquely
harmful effects from spanking disappear.240
Thus, scientists who recognize the intervention selection bias
believe that the body of evidence does not support “a categorical
injunction against any use of disciplinary spanking.”241 Instead, it seems
237. See, e.g., id. (saying that, if a corrective intervention were perfect, its recipients would
score as well as those who never had problems. Most “correlations only indicate that the corrective
intervention fell short of perfection, but they do not discriminate between effective and
counterproductive interventions.”).
238. Compare Straus, Impulsive, supra note 17, at 357-59 (asking parents in the study
questions about how often they punished with various disciplines, including spanking, grounding,
privilege removal, allowance removal, and sending children to their room), with Larzelere, Meta-
Analysis, supra note 15, at 32 (“Larzelere and Smith (2000), however, took advantage of the fact
that the longitudinal cohort analyzed by Straus, Sugarman, and Giles-Sims (1997) also included
parallel questions about four alternative tactics. When analyzed in the same manner that they
analyzed spanking, the four alternative disciplinary tactics also predicted higher subsequent
antisocial behavior, significantly so for grounding, marginally for privilege removal and allowance
removal, and non-significantly for sending children to their room.”).
239. See, e.g., Larzelere, Meta-Analysis, supra note 15, at 3 (“Suppose radiation treatment
were studied in the same way that researchers have investigated physical punishment. Borrowing
statistics from Gershoff’s thorough meta-analysis, two-thirds (65%) of studies of radiation treatment
would have included excessive dosages of radiation, 58% would have been cross-sectional studies,
and only 4% would have taken into consideration the presence or severity of cancer.”) (citations
240. See, e.g., Larzelere, APA, supra note 17 and accompanying text (also saying all
apparently detrimental effects disappeared after controlling more completely for pre-existing child
241. Baumrind, Letter, supra note 185 (“To support a categorical injunction against any use of
disciplinary spanking Straus would have to show that the harmful outcomes he claims occur on
average also occur in each case, or at least apply to each cell in the matrix. The association between
disciplinary spanking and each harmful child outcome could not be moderated by any such factors
as age of child, cultural meaning to the child and parent of mild [spanking], overall parenting style,
or concomitant use of explanation and reason. If associations were so moderated, Straus would
have to qualify his conclusions by reference to the appropriate moderating factors. Furthermore, the
hypothesized moderating factors would have to be measured reliably and validly-or their possible
effects (for example, of such covariates as parental warmth, reasoning, and nurturance) would
remain unknown. Since Straus’s argument singles out [spanking], he would have to conduct similar
analyses using alternative methods of punishment as independent variables to show that they have a
less pernicious effect than [spanking]. A proper test of Straus’s blanket injunction theory requires
pairwise contrasts on his 7-interval [spanking] measure as well as tests for each of the theoretically
meaningful cells in his matrix. In view of the small effect size associated with his continuous
290 AKRON LAW REVIEW [42:243
that spanking bans increase the risk of child abuse because they
eliminate age-appropriate nonabusive spanking that helps parents
enforce milder disciplinary tactics.”242
3. “Correlation Is Not Causation”243
Certain British villagers observed that the more unmarried people
they had, the fewer mice they had.244 From this correlation, they
convinced themselves that being married causes mice infestation.245
Thus, the village elders focused on increasing their single population;
that is, of course, until they realized that single people simply owned
more cats than everyone else, and cats eat mice.246 Once they
understood the true cause of mouse reduction, the village elders focused
on raising the population of cats rather than single people.247
Many spanking researchers still are trying to “increase the single
population” because they restrict their study methods to yield only
correlations, not causation.248 Some researchers interview mothers about
measure of [spanking] it is unlikely that Straus’s blanket injunction against disciplinary use of mild
spanking would be supported by such analyses.”).
242. Larzelere, Meta-Analysis, supra note 15, at 31 (“Research has yet to show that a ban on
spanking reduces the subsequent rate of physical abuse by parents. Along with other possibilities, it
may be that a spanking ban eliminates the kind of age-appropriate nonabusive spanking that helps
parents enforce milder disciplinary tactics, thereby increasing the risk of escalating disciplinary
interactions.”) (citing Robert E. Larzelere & Byron Johnson, Evaluations of the Effects of Sweden’s
Spanking Ban on Physical Child Abuse Rates: A Literature Review, 85 PSYCHOL. REP. 381 (1999)).
243. Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135, 174 (2003) (Kennedy, J., dissenting).
244. Baumrind, Specious Causal Attributions, supra note 170, at 1296-97 (“The number of
never-married persons in certain British villages is highly inversely correlated with the number of
field mice in the surrounding meadows.”).
245. Id. (“Marital status of humans was considered an established cause of field mice by the
village elders . . . .”).
246. Id. (“[U]ntil the mechanisms of transmission were finally surmised: Never-married
persons bring with them a disproportionate number of cats relative to the rest of the village populace
and cats consume field mice.”) (emphasis in original).
247. Id. (“With the generative mechanisms understood, village elders could concentrate their
attention on increasing the population of cats rather than the proportion of never-married persons.
Note that although the correlation between marital status and incidence of field mice is not a joint
effect caused by incidence of cats and is therefore a true association (i.e., incidence of cats is an
intervening variable and not a prior variable), the explanation that marital status is a cause of
incidence of field mice is at best trivial, whereas the generative explanation that cats consume mice
is valuable.”) (emphasis in original).
248. See, e.g., Straus, ROUNDTABLE, supra note 175, at 44. The frequent associations between
being spanked as a teenager and future problems are strictly correlative issues, not causal.
Larzelere, supra note 216, at 2 (saying “[t]he spanking controversy persists largely because of
pervasive methodological problems,” like correlational research).
how often they spank and how often their children misbehave.249 Then
they hunt for a relationship between the frequency of spanking and the
child’s misbehavior.250 Other researchers retrospectively interview
adults decades after their childhood to see whether they were spanked
and how often.251 Then they try to link the spanking with whatever
negative behaviors the adult may have, like depression or aggression.252
Ever since the time of Aristotle, people have known that just
because two behaviors are correlated does not mean one behavior causes
the other.253 Even if retrospective studies could control for someone’s
inaccurate memory, they cannot tell whether spanking causes adverse
effects, or whether something else does (like someone’s temperament or
genetics).254 Likewise, merely interviewing a mother cannot determine
whether spanking causes her child’s misbehavior, or whether her child’s
misbehavior prompts the spanking.255 Because most spanking
researchers discover nothing more than correlations, they typically
concede that spanking “cannot be identified definitively as the cause” of
negative child behaviors.256
A methodology that relies heavily on correlations—which is
common in child discipline research—can be used to claim almost
249. See, e.g., Straus,