The Jeff Cumberbatch Column – Violence and Parental Responsibility

Jeff Cumberbatch – Chairman of the FTC and Deputy Dean, Law Faculty, UWI, Cave Hill

We are a people given to indulging in a public orgy of lamentation, mock horror and indignation each time there is a report of some act of violence perpetrated on an individual. Truth to tell however, violence appears to be hardwired into our DNA. That assertion might explain partially why we are so ready to suggest “he/she could only want beating” as an appropriate remedy for some slight or the other, why despite having solemnly ratified an international treaty that provides otherwise, we are so reluctant to abandon the use of violence towards children in the form of corporal punishment, and why cyber images of the wanton after school battery of some hapless child can go “viral” in a period of one afternoon. It is this last that I refer to as school violence.

The dark period of slavery has influenced our cultural traits in more ways than several. Aping the ways of the master might explain why in a nation where most citizens are of blackish hue, some are frequently referred to pejoratively as being “too black”, or ridiculed for the excessive Africanity of their facial features. It has also, according to some, influenced the nature of our current infirmities, the CNCDs, through generations of malnutrition by the consumption of over fatty and too salty foods that were provided for our ancestors. This mimicry might have also extended to the way we treat those who dis’ us in some way either through dis (respect) or dis (obedience). The nature of the master-slave relation back then would not have possibly contemplated an amicable resolution of a similar incident through polite social discourse. Rather, the whip would have been immediately unhung from its nail and the offender punished to within an inch of his or her life…sometimes. Or some other of those inhuman punishments that have been chronicled would certainly have ensued.

There will be those who will disagree with my equation of that cruel conduct with the present day acts of violence we exhibit towards each other and towards infants in school. Of course the one is not the mirror image of the other, but I am not making that point. I am positing rather that our cultural penchant for mimicking the master causes us to react in a similar way to the extent that we are legally free to do so only.

And to the suggestion that the corporal punishment of infant pupils in school is not and cannot be classified as violence, I respond that such a view might be valid only in a context where the concept is itself to be defined by the perpetrator. In other words, we claim that corporal punishment is not violence, because of an amalgam of the apparent intention of the flogger, his or her motive for executing the punishment, the statutory licence to do so and the milieu in which the punishment is carried out. What if we were to define violence through the perspective of the victim as we do in numerous other contexts? To the child is it any less an insult to his or her physical integrity because a teacher is the one carrying it out even if the child has engaged in misconduct?

In law, the tort of battery – the intentional infliction of unlawful force to the person of another requires an element of “hostility” in order for it to be unlawful and thus actionable. Most laypersons would at once assume that this requirement mandates an intention to inflict violence on the part of the batterer. It does not. “Hostile” has been construed to mean simply, “adverse to the interest of the victim” or without his or her implied or express consent. So that an unwanted kiss may be hostile and while being jostled and pulled by the other would-be commuters when engaged in pushing to board the ‘last’ bus might satisfy the element of the intentional application of force to one’s person, there would be no actionable battery since you would be taken to have at least impliedly consented to any force that might have been inflicted on you in such a crush.

As a youngster of about 8 or 9, I saw a young man “beating” his girlfriend. He did not beat her as he might have beaten another male who chose to retaliate; indeed his effort more resembled some exotic dance as he slapped her face ever so gently and occasionally raised his leg to knee her in the groin, all the while with a look of mild embarrassment on his face and ignoring her tearful pleas for him to stop. He never raised his voice above a murmur, he never swung a fist at her…he simply frustrated her interest in physical integrity until she cried. Was this the enigmatic infliction of punishment with love that the protagonists of corporal punishment in schools go on about? Was he violent? Were his actions hostile?

Vicarious parental responsibility

As one expected consequence of the virality and repugnance of the video clip portraying the horrific battery of the young female pupil last week, criminal charges have been laid against the perpetrators. The Honourable Attorney General, Mr Adriel Brathwaite QC, MP has also suggested that there might be another. He is reported to have stated in reaction, “I’ve been championing changing our juvenile legislation to make not just the juvenile accountable, but also the parents accountable…”

This notion of holding the parent accountable for the sins or wrongs of their children is likely to resonate with the self-righteously indignant in our fair land who are quick to condemn pharisaically the failings of other while ignoring the beam in theirs.

As a matter of law however, it will require legislative intervention since the concept of parental vicarious liability is unknown to our common law. According to an article in the New York Times, there has been the enactment of such legislation in some of the states in the US –an Idaho law authorizes courts to require parents to pay detention costs for a juvenile; in West Virginia the parents of a child that has defaced a public building may be held liable for up to $3, 000 in fines; and in Louisiana, parents can be found guilty of improper supervision of a minor and both fined and confined if their child associates with a convicted felon, drug dealer or members of a street gang. Clearly this last is not a true vicarious liability; the parents are themselves in default of their personal duty to supervise the child.

And in fact, Barbados has already legislated similarly. According to section 64B of the Education Act, Cap. 41-

“A pupil who wilfully damages or destroys school property or the property of any person lawfully on the school premises is guilty of an offence and liable on summary conviction to fine of $500, if he is under the age of 16 years, or, if he is 16 years of age or older, to such fine or to imprisonment for 3 months or both.

(2) The Court before which a pupil referred to in subsection (1) is tried may, in accordance with section 120 of the Magistrates Jurisdiction and Procedure Act, order the parent of that pupil to pay compensation for the destruction or damage caused.”

Despite its populist allure, this concept has not been met with acclaim by all those concerned with its administration. “Most of these laws are a complete waste of time”, avers the president of the US National Council on Crime and Delinquency. “It’s country club criminology. It sounds good in the suburbs but it’s an empty threat because if you carry it out you just further endanger and pull apart families…”

This caveat apart, the notion of vicarious parental responsibility is also decidedly unbiblical. According to Deuteronomy 24:16 [KJV]

“The fathers shall not be put to death for the children, neither shall the children be put to death for the fathers: every man shall be put to death for his own sin.”

It would be of interest to hear those Barbadians who advocate strict adherence to Biblical injunction offer their views on the AG’s current proposals.

Second, the imposition of vicarious liability ordinarily requires justification because generally the law punishes an individual for his or her misconduct only. In a case where it may be established that the parent negligently supervised the child as in the Louisiana statute cited above liability should naturally follow.

Are the parents now to be held absolutely liable because their child, notwithstanding their best efforts, indulged in misbehavior causing damage? We should think about it some more.

109 comments

  • @David May 28, 2017 at 10:30 AM “It is amazing how many of you resident in the USA label Barbados as backward yet 30 plus states are open to execute people.”

    Well you know that Americans like to believe that they are an exceptionally good, wise and moral people; but yet they permit children to marry, sometime children as young as 11, 12, and 13 years old. Of course these marriages mostly fail, yet our American friends are in no hurry to forbid them. I guess that these marriages remove the “stain” of illegitimacy that so worries Hal. Of course these marriages mostly fail, yet the state governments are in no hurry to ban them, and the federal government refuses to go nuclear on this matter with the states.

    11 Years Old, a Mom, and Pushed to Marry Her Rapist in Florida

    ‘In fact, more than 167,000 young people age 17 and under married in 38 states between 2000 and 2010, according to a search of available marriage license data by a group called Unchained at Last, which aims to ban child marriage. The search turned up cases of 12-year-old girls married in Alaska, Louisiana and South Carolina, while other states simply had categories of “14 and younger.”

    Unchained at Last was not able to get data for the other states. But it extrapolated that in the entire country, there were almost 250,000 child marriages between 2000 and 2010. Some backing for that estimate comes from the U.S. Census Bureau, which says that at least 57,800 Americans age 15 to 17 reported being in marriages in 2014.

    Among the states with the highest rates of child marriages were Arkansas, Idaho and Kentucky. The number of child marriages has been falling, but every state in America still allows underage girls to marry…Twenty-seven states DO NOT EVEN SET A MINIMUM AGE by statute, according to the Tahirih Justice Center’s Forced Marriage Initiative.”

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  • @ Simple Simon
    The USA is one of the very worse places on earth …by any altruistic measure. However they have been able to to set the global agenda …and have managed to brainwash most of us into thinking that their albino-centric life philosophy is somehow sacrosanct.
    It is more than depressing to listen to otherwise intelligent people default to their failed philosophies wrt matters like education, justice, politics, wealth, race etc…. when ALL the indicators are that this is a failed society on a fast track to self-destruction.

    After enjoying possibly the greatest ever period of economic, scientific, military and industrial success and supremacy in the whole history of mankind – The USA finds itself broke; broken; with a lopsided class structure where 1% owns 90% of all resources; beset with mindless violence; …and led by a globally acknowledged idiot.

    …and yet we have ‘educated’ Bajans who accept their ‘ways’ as the gospel.
    We define ‘success’ in monetary terms..
    We take pride in belittling the idea of a GOD….. and in the concept of absolute righteousness.
    We dismiss centuries old maxims of wisdom – apparently because misguided albinos also referred to these maxims during the 400 years of slavery..
    We have leaders in position of power and influence – CHOOSING to sacrifice honour, pride and nationalism, in favour of personal financial reward….

    Ignorance is bad enough, but it can be excused where those afflicted can RECOGNISE that they do not understand, and that they do NOT know the answers ….. and seek to find them,,

    What is beyond help, is the more common situation where brass bowls REFUSE to see the obvious; refuse to hear the truth; and decide not to even smell the coffee…
    Seeing, they see not, …and hearing, they hear not… and even in smelling (hell) ..they smell not

    We are therefore most likely constrained to continue down the same secular, money-focused, albino-centric line, DESPITE the fact that the results being achieved are trending towards total chaos – …exactly as has happened in those countries which we continue to model and aspire towards..
    BBBBBs

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  • @BushTea May 29, at 10:06 PM re …”The USA is one of the very worse places on earth …by any altruistic measure… It is more than depressing to listen to otherwise intelligent people default to their failed philosophies wrt matters like education, justice, politics, wealth, race etc…. when ALL the indicators are that this is a failed society on a fast track to self-destruction.”————

    That statement is lopsided and dull. It inspires nothing more than the standard crusade to religious proselytizing that booms : the time is nigh. So God’s speed with your screed.

    On the practical side of life…the US is for all real and meaningful purposes 50 different countries. Yes they march to a drum beat called the UNITED States but how can you lump like one piece of coal a nation that stretches from a tropical island in the Pacific ocean to a bone-chilling ice tundra that is Alaska and many time zones, behaviours and climates in between.

    How do you lump this nation where the politics ranges from rabid right-wing, bible thumping zealots who sing from a very similar hymnal as you do to insufferable left-wing fanatics who never saw a ‘progressive agenda’ they would not embrace.

    This nation has done some of the very worst of crimes, period. The nation has yet also stood steadfast at moments to be the best that humanity could offer.

    And of course given half a chance they would impose their will worldwide…but that would mean a lot of your religious diatribes as much as it would mean a lot of LGBT rights and other things you find uncomfortable.

    Yes, it has a middling mark as a bastion of educational achievement in the STEM metrics, reading and English but Americans still fare exceedingly well in technological developments and other areas of intellectial achievement (despite the fact that non-nationals founded some of the most popular systems/platforms).

    I am not shilling for the US, absolutely not. But we need to be real and curtail these rather obtuse remarks about this failing and dysfunctional US hegemony.

    So what if they elected an intellectual buffoon as their leader…so too have many other nations over the years.

    And yes several states have capital punishment on their law books but almost as many do NOT.

    Take the nation for what it is: a complex, multifaceted compilation of people who sing from 50 different hymnals daily even as they conform to a warren of laws that seek to bring them into conformity on issues accepted as constitutionally sacrosanct.

    The damn place is not perfect…but where is besides your BBE paradise.

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  • Dribbler,
    As one of their most dedicated disciples, you would be the very last one that Bushie would expect to understand the gravity of their deceit… you have voted with you proximity to their skirts…
    If you had eyes to see, you would understand that ‘REAL deceit’ does not dress itself in black and wear a mask …while hiding in the shadows….
    ‘Real deceit’ parades itself as ‘right’, and ‘true’ and uplifting, and wear ‘white’….

    The biggest robbers on earth are therefore resident in the all-powerful banks…
    The biggest liars on earth are escounched in global education…
    The worse murderers are called ‘peace-makers’…and the “world’s policemen”…

    The USA, by dint of its material blessings, have taken on the role of being the world’s policemen and the world’s personification of ‘success’…. It has done this, built on a philosophy of albino-centric greed, selfishness and spite, which they call ‘Capitalism’.
    This philosophy is the antithesis of truth, justice and ultimate ‘success’ in this life…. what Bushie likes to call the ‘Community-centric’ attitude.

    By so powerfully enforcing such a flawed – indeed diametrically opposite to the REAL truth – philosophy, the USA has single handedly done more harm to the cause of TRUE global success than any other civilisation that has ever existed.
    This wickedness is amplified by the fact that they can CLEARLY see that the results of their adopted ways ARE NOT WORKING…. yet they continue with their slavish dedication to the materialistic shadows that define their reason d’être.

    Needless to say, you cannot comprehend such thinking, …since your foundational basis for ‘success’ is probably directly related to the size of your bank account. But perhaps even you can now see that there are things in life that are WAY more important and complex than the basic materialistic issues of our physical beings….

    It is like a fella with the potential to become a Gary Sobers… but who concentrates almost totally on the ‘Gary walk’, ‘the collar’, and the immaculate whites….

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  • Hi David could you replace my (Vincent) post on BUs Jeffs post with this….tks

    Image may contain: 1 person, meme and text

    Logical Men

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    1. Money making opportunity?

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    2. millertheanunnaki

      @ Bush TeaMay 30, 2017 at 7:03 AM
      “The USA, by dint of its material blessings, have taken on the role of being the world’s policemen and the world’s personification of ‘success’…. It has done this, built on a philosophy of albino-centric greed, selfishness and spite, which they call ‘Capitalism’.
      This philosophy is the antithesis of truth, justice and ultimate ‘success’ in this life…. what Bushie likes to call the ‘Community-centric’ attitude.”

      Bushie, de pedantic Dribbler has your brass-bowl donkey in a pique of intellectual futility resulting in inevitable ‘defeatism’.

      How can you have your BBE-designed paradise on Earth where the boss engineer and his colleagues (no females included here) threw the template of their perfect creation in the fire of Hell when he banished his ‘first’ sentient prototypes out of the same nirvana and cursed them both until BBE’s kingdom returns to your part of the universe?

      You are dealing with purposely modified weak inferior humans, not godly engineers, banished from your BBE world of pure perfection.

      Who are you to question the works (perfect or imperfect, good or bad) of your perfect BBE?

      Let’s face scientific facts.
      The imperfect boss engineer made a mistake when he cloned his perfect man and turned the modified product into a clitoral magnate of pure pleasurably distracting wickedness, right misogynist Bushie?

      BTW, Bushie, criticisms similar to what you are leveling against the great Satan aka America or the Modern Romans were also aimed against the Old Romans.

      America will fall just as previous great nations fell. What goes around comes around, eventually.

      It’s just a matter of time which even your BBE cannot control.

      Like

    3. @ Miller
      There is now, and never has been, any point in trying to explain integral calculus to morons who are challenged by basic decimals….. It is called ‘casting pearls to swine’….
      So…
      Hall your snout……!! 🙂

      Like

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