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.