Judicial corporal punishment

Judicial corporal punishment (JCP) is the infliction of corporal punishment as a result of a sentence by a court of law. The punishments include caning, bastinado, birching, whipping, or strapping. The practice was once commonplace in many countries, but over time it has been abolished in most countries, although still remaining a form of legal punishment in some countries including a number of former British colonies and Muslim-majority states.

Corporal punishment in Afghanistan during the days of the Teliban

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Countries where JCP is used
Birching of Anabaptist martyr Ursula, Maastricht, 1570; engraving by Jan Luyken from Martyrs Mirror[1]

The Singaporean official punishment of caning became much discussed around the world in 1994[2] when an American teenager, Michael Fay, was sentenced to six strokes of the cane for vandalism.[3] Like Singapore, Malaysia also has corporal punishment.

Other former British colonies with judicial caning currently on their statute books include Barbados,[4] Botswana,[5] Brunei,[6] Swaziland,[7] Tonga,[8] Trinidad & Tobago,[9] and Zimbabwe.[10]

Many Muslim-majority countries use judicial corporal punishment, such as United Arab Emirates, Qatar, Saudi Arabia,[11] Iran,[12] northern Nigeria,[13] Sudan[14] and Yemen,[15] employ judicial whipping or caning for a range of offences. In Indonesia (Aceh province only) it has recently been introduced for the first time.[16] In April 2020, the Saudi Supreme Court abolished the flogging punishment from its court system. [17][18]

Full list of countries
  Countries with judicial corporal punishment

A list of 29 countries that use lawful, official JCP today is as follows:

  1.  Afghanistan (men and women – whip or cane, no target specified; public or private).[19][20] See Judicial corporal punishment in Afghanistan
  2.  Antigua and Barbuda (boys only – details unclear)[21][22]
  3.  Bahamas (men – cat on bare back; boys – cane on bare buttocks; in private)[23][24]
  4.  Barbados (boys only – details unclear)[4]
  5.  Botswana (males aged 14 to 40 – cane on bare buttocks; in private)[25][26]
  6.  Brunei (men and boys – cane on bare buttocks; in private)[6][27][28] See Caning in Brunei.
  7.  Dominica (boys under 16 – details unclear)[29]
  8.  Ecuador (men and women – traditional indigenous justice)[30]
  9.  Indonesia, Aceh Special Region only (men and women – cane on clothed back; in public)[16][31]
  10.  Iran (men, women, boys, girls – whip or strap, no target specified; public or private)[12] In Iran, they also follow eye for an eye punishment. [32]
  11.  Lesotho (men and boys – details unclear)[33]
  12.  Malaysia (Criminal law: men and boys – cane on bare buttocks; in private).[34] See Caning in Malaysia. *(Sharia law, Muslims only: men and women – cane on clothed back; in private)[35][36]
  13.  Maldives (men and women – details unclear)[37]
  14.  Nigeria (men, women – cane on clothed buttocks or whip on bare back; in public or private.[13][38][39][40]
  15.  Pakistan (men and boys – cane or strap on clothed buttocks; public or private)[41]
  16.  Qatar (men and women – details unclear; in private)[42]
  17.  Saint Kitts and Nevis (boys and men – details unclear)[43][44]
  18.  Saint Vincent and the Grenadines (boys only – cane on bare buttocks)[45]
  19.  Sierra Leone (boys only – cane or birch on bare buttocks)[46]
  20.  Singapore (men and boys – cane on bare buttocks; in private). See Caning in Singapore.
  21.  Somalia (men and women – cane on clothed buttocks)[47]
  22.  Sudan (men, women, boys, girls – whip on clothed back)[14]
  23.  Swaziland (boys only – cane on bare buttocks)[7]
  24.  Tanzania (men and boys – cane on bare buttocks; in private)[48]
  25.  Tonga (men – cat on bare buttocks; boys – birch or cat on bare buttocks)[8]
  26.  Trinidad and Tobago (men only – cat on bare back or birch on bare buttocks; in private)[49]
  27.  Tuvalu (details unclear)[50]
  28.  United Arab Emirates (Muslim men – whip on bare back; Muslim women – whip on clothed back; in private). No longer applied to non-Muslims.[51]
  29.  Yemen (details unclear)[15]

The above list does not include countries where a "blind eye" is sometimes turned to unofficial JCP by local tribes, authorities, etc. including Bangladesh,[52] India and Colombia.[53]

History by country

Egypt

Ancient Egyptians practiced rhinectomy, punishing some offenses by cutting off the criminal's nose. Such criminals were often exiled to locations in Sinai, such as Tjaru and Rhinocorura, whose own name was Greek for "denosed".

Jersey

The last birching sentence in Jersey was carried out in 1966. Birching was abandoned as a policy in 1969 but lingered on the statute books. Obsolete references to corporal punishment were removed from remaining statutes by the Criminal Justice (Miscellaneous Provisions) (No. 2) (Jersey) Law 2007[54]

Guernsey

The last birching sentence was carried out in 1968. The Corporal Punishment (Guernsey) Law, 1957 was finally repealed by the Criminal Justice (Miscellaneous Provisions) (Bailiwick of Guernsey) Law, 2006[55]

Isle of Man

Judicial birching was abolished in the Isle of Man in 2000 following the judgment in Tyrer v. UK by the European Court of Human Rights.[56] The last birching took place in January 1976; the last caning, of a 13-year-old boy convicted of robbing another child of 10p, was the last recorded juvenile case in May 1971.[57]

Netherlands

In 1854 judicial corporal punishment was abolished in the Netherlands with the exception of whipping. Whipping itself was abolished in 1870.

In the Wetboek van Strafrecht, article 9, this kind of punishment is not listed as primary or secondary punishment. Mainly because of human rights and/or human dignity, corporal punishment has been abolished and does not exist at this time.

South Africa

The Constitutional Court decided in 1995 in the case of S v Williams and Others that caning of juveniles was unconstitutional. Although the ruling in S v Williams was limited to the corporal punishment of males under the age of 21, Justice Langa mentioned in dicta that there was a consensus that corporal punishment of adults was also unconstitutional.[58]

The Abolition of Corporal Punishment Act, 1997 abolished judicial corporal punishment.[59][60]

United Kingdom

In the United Kingdom, JCP generally was abolished in 1948;[61] however, it persisted in prisons as a punishment for prisoners committing serious assaults on prison staff (ordered by prison's visiting justices) until it was abolished by s 65 (Abolition of corporal punishment in prison) of the Criminal Justice Act 1967 (the last ever prison flogging was in 1962).[62][63]

United States
Judicial corporal punishment in a women's prison, USA (ca. 1890)

American colonies judicially punished in a variety of forms, including whipping, stocks, the pillory and the ducking stool.[64] In the seventeenth and eighteenth centuries, whipping posts were considered indispensable in American and English towns.[65] Starting in 1776, Gen. George Washington strongly advocated and utilized JCP in the Continental Army, with due process protection, obtaining in 1776 authority from the Continental Congress to impose 100 lashes, more than the previous limit of 39.[66] In his 1778 Bill for Proportioning Crimes and Punishments, Thomas Jefferson provided up to 15 lashes for individuals pretending to witchcraft or prophecy, at the jury's discretion; castration for men guilty of rape, polygamy or sodomy, and a minimum half-inch hole bored in the nose cartilage of women convicted of those sex crimes.[67] In 1781, Washington requested legal authority from the Continental Congress to impose up to 500 lashes, as there was still a punishment gap between 100 lashes and the death penalty.[68] The Founders believed whipping and other forms of corporal punishment effectively promoted pro-social and discouraged anti-social behavior. Two later presidents, Abraham Lincoln and Theodore Roosevelt, advocated judicial corporal punishment as punishment for wife-beating.[69]

In the United States, judicial flogging was last used in 1952 in Delaware when a wife beater got 20 lashes. In Delaware, the criminal code permitted floggings to occur until 1972.[70][71][72] One of the major objections to judicial corporal punishment in the United States was that it was unpleasant to administer.

Judicial corporal punishment has never been held unconstitutional in the United States.[69] In fact, the Fifth Amendment specifically mentions amputation of limbs as a possible sentence for offenders, perhaps referencing Thomas Jefferson's proposed legislation punishing rapists.[69]

Other countries

JCP was removed from the statute book in Canada in 1972,[73] in India in the 1950s, in New Zealand in 1941,[74] and in Australia at various times in the 20th century according to State.[75]

It has been abolished in recent decades in Hong Kong,[76] Jamaica,[77] Kenya,[78] Sri Lanka, and Zambia.[79]

Other countries that were neither former British territories nor Islamic states that have used JCP in the more distant past include China,[80] Germany,[81] South Korea,[82] Sweden[83] and Vietnam.[84]

See also

References
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  2. "What US columnists say about Fay's caning". The Straits Times. Singapore. 8 April 1994. Archived from the original on 20 September 2010. Retrieved 24 September 2010.
  3. Wallis, Charles P. (4 March 1994). "Ohio Youth to be Flogged in Singapore". Los Angeles Times. Retrieved 24 September 2010.
  4. "Barbados: Current legality of corporal punishment". GITEACPOC. February 2009. Archived from the original on 16 September 2020. Retrieved 24 September 2010.
  5. Nomsa, Ndlovu (11 May 2006). "A village choking under crime". Mmegi. Gaborone. Retrieved 24 September 2010.
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  7. Report 2007 for Swaziland Archived 24 June 2009 at the Wayback Machine, Amnesty USA.
  8. "Laws of Tonga, Chapter 18". Retrieved 16 December 2016.
  9. Swamber, Keino (1 June 2006). "Twelve strokes for sex with girl, 12". Trinidad Express. Port of Spain.
  10. "Boy to receive 2 cane strokes". Sunday Mail. Harare. 21 May 2006.
  11. Al-Khereiji, Nourah Abdul (25 May 2008). "Government Must Codify Taaziri Punishment Rules". Arab News. Jeddah/Riyadh.
  12. Iran Country Reports on Human Rights Practices 2004, US Department of State.
  13. Finkel, David (24 November 2002). "Crime and Holy Punishment: In Divided Nigeria, Search for Justice Leads Many to Embrace Islamic Code". The Washington Post.
  14. Sudan Country Reports on Human Rights Practices 2006, US Department of State.
  15. Yemen State Report Archived 20 November 2008 at the Wayback Machine, GITEACPOC, June 2007.
  16. "Aceh gamblers caned in public". BBC News. London. 24 June 2005.
  17. "Saudi Arabia to end flogging as form of punishment - document". Reuters. 24 April 2020. Retrieved 25 April 2020.
  18. "Saudi Arabia to abolish flogging - supreme court". BBC News. 24 April 2020. Retrieved 25 April 2020.
  19. "Afghan charity workers receive lashing, set free". Jakarta Post. Reuters. 8 April 1997.
  20. "Reporters on the Job: Sharia but No Sword". Christian Science Monitor. Boston. 21 February 2006.
  21. Antigua State Report Archived 25 July 2008 at the Wayback Machine, GITEACPOC, February 2009.
  22. Weston, Tahna (15 February 2007). "Court orders 12 lashes for juvenile offenders". Antigua Sun.
  23. Criminal Law (Measures) Act 1991 Archived 2 June 2009 at the Wayback Machine, The Bahamas Laws On-line.
  24. Bahamas Country Reports on Human Rights Practices 2006, US Department of State.
  25. Botswana State Report Archived 3 October 2008 at the Wayback Machine, GITEACPOC, February 2008.
  26. Botswana Country Reports on Human Rights Practices 2004, US Department of State.
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  29. Dominica State Report Archived 3 October 2008 at the Wayback Machine, GITEACPOC, February 2009.
  30. Dra. Mariana Yumbay (21 June 2007). "El ejercicio de la administración de justicia indígena en el Ecuador" (in Spanish). Llacta. Retrieved 24 September 2010.
  31. "Indonesian Couples Caned over Extramarital Affairs". Jakarta Globe. 8 April 2011. Archived from the original on 15 April 2011.
  32. Dehghan, Saeed Kamali (5 March 2015). "Eye for an eye: Iran blinds acid attacker". The Guardian. London. Retrieved 23 January 2020.
  33. Lesotho State Report Archived 27 May 2010 at the Wayback Machine, GITEACPOC, June 2007.
  34. Pudu Prison exhibition, Kuala Lumpur, 1998.
  35. Damis, Aniza (27 June 2005). "The pain is in the shame". New Straits Times. Kuala Lumpur.
  36. Religious corporal punishment in Malaysia, World Corporal Punishment Research.
  37. Evans, Judith (1 June 2008). "Lashings Punishment Resumes". Minivan News. Malé.
  38. Hamid, Ruhi. "Video clips from 'Inside a Sharia Court'", This World, BBC Two, London, 1 October 2007.
  39. "Nigeria State Report". GITEACPOC. April 2014. Archived from the original on 23 December 2014.
  40. "Nigeria: Judicial CP". World Corporal Punishment Research. November 2014.
  41. "Pakistan: Judicial corporal punishment by flogging" at World Corporal Punishment Research. Retrieved 30 May 2009.
  42. Qatar State Report Archived 3 October 2008 at the Wayback Machine, GITEACPOC, December 2008.
  43. St Kitts & Nevis State Report Archived 20 August 2008 at the Wayback Machine, GITEACPOC, February 2009.
  44. Smithen, Corliss (21 February 2006). "Convicted men get strokes, jail sentence". Sun St Kitts. Basseterre.
  45. NGO Initial Report, Saint Vincent and the Grenadines Human Rights Association, January 2002.
  46. Sierra Leone State Report Archived 27 May 2010 at the Wayback Machine, GITEACPOC, June 2008.
  47. Somalia Country Reports on Human Rights Practices 2006, US Department of State.
  48. "United Republic of Tanzania: Current legality of corporal punishment". GITEACPOC. March 2010. Archived from the original on 9 September 2010. Retrieved 24 September 2010.
  49. Heeralal, Darryl (4 June 2005). "Jail, strokes for 'dirty old man'". Trinidad Express. Port of Spain.
  50. Tuvalu Country Reports on Human Rights Practices 2001, US Department of State.
  51. Awad Mustafa (25 April 2007). "Out With The Lash". Xpress. Dubai.
  52. "2005 Country Reports on Human Rights Practices, Bangladesh". U.S. Department of State. 8 March 2006.
  53. "Colombia – Lawfulness of corporal punishment". GITEACPOC. June 2007. Retrieved 24 September 2010.
  54. "Criminal Justice (Miscellaneous Provisions) (No. 2) (Jersey) Law 2007". Retrieved 8 January 2013.
  55. "Criminal Justice (Miscellaneous Provisions) (Bailiwick of Guernsey) Law, 2006". Retrieved 8 January 2013.
  56. "Isle of Man to scrap birch at a stroke". The Guardian. London. 6 March 1993.
  57. "Birching in the Isle of Man 1945 to 1976". World Corporal Punishment Research. March 2018. Retrieved 11 November 2019.
  58. S v Williams and Others [1995] ZACC 6 at para. 10, 1995 (3) SA 632, 1995 (7) BCLR 861 (9 June 1995), Constitutional Court (South Africa)
  59. "Section 13: The abolition of JCP". Judicial Corporal Punishment in South Africa. World Corporal Punishment Research. 2005. Retrieved 1 November 2011.
  60. Abolition of Corporal Punishment Act, 1997.
  61. "Power to order flogging: Abolition approved in Committee". The Times. London. 12 December 1947.
  62. "Criminal justice policy". The National Archives. Retrieved 16 December 2016.
  63. "JUDICIAL AND PRISON FLOGGING AND WHIPPING IN BRITAIN". Retrieved 16 December 2016.
  64. Herbert Arnold Falk, CORPORAL PUNISHMENT – A SOCIAL INTERPRETATION OF ITS THEORY AND PRACTICE IN THE SCHOOLS OF THE UNITED STATES, 22–33 (1941).
  65. Falk, id., 31.
  66. Journals of the Continental Congress, Articles of War – 20 September 1776, Section XVIII – Art. 3: “No person shall be sentenced to suffer death, except in the cases expressly mentioned in the foregoing articles; nor shall more than one hundred lashes be inflicted on any offender, at the discretion of a court-martial.” Articles of War – 30 June 1775, Art. 51 limited JCP to 39 lashes. EUGENE D. GENOVESE, ROLL, JORDAN, ROLL – THE WORLD THE SLAVES MADE 308 (1974).
  67. Jefferson, Thomas. "A Bill for Proportioning Crimes and Punishments §14 (castration; cartilage), §15 (maiming), §24 (witchcraft) (1778)". press-pubs.uchicago.edu.
  68. Geo. Washington to President of Continental Congress, 3 February 1781 available at memory.loc.gov.
  69. J.D. Gleissner, "Prison Overcrowding Cure: Judicial Corporal Punishment of Adults," Vol. 49, Issue No. 4, The Criminal Law Bulletin, (c) Thomson-Reuters/Westlaw(2013).
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  71. "An Ancient Punishment – The Whipping Post Last Used in Cecil in 1940". 2 August 2008. Retrieved 16 December 2016.
  72. The Milwaukee Journal – Mar 3, 1964
  73. The Canadian Prison Strap, World Corporal Punishment Research.
  74. "The Fall and Fall of Corporal Punishment", November 1999 Newsletter, EPOCH New Zealand.
  75. Australia: Judicial CP, World Corporal Punishment Research.
  76. Thomas, Hedley (22 April 1994). "Patten may appeal for clemency on sentence". South China Morning Post. Hong Kong.
  77. "Jamaican court abolishes flogging". CNN. 18 December 1998. Afterwards, in 2000, the UN Human Rights Committee found in case Osbourne v. Jamaica Archived 24 July 2011 at the Wayback Machine, concerning a whipping conducted in 1997, that corporal punishment constituted 'cruel, inhuman and degrading treatment or punishment contrary to article 7 of ICCPR' (Para. 9.1). A similar conclusion was reached in 2002 in case Higginson v. Jamaica No. 792/1998 Archived 12 October 2012 at the Wayback Machine.
  78. Bowry, Pravin (16 September 2003). "Changes in criminal law significant". Daily Nation. Nairobi.
  79. "Parliament supports repeal of corporal punishment". Lusaka. Zana (Zambia News Agency). 13 November 2003.
  80. Xing Bao (9 October 2003). "Citizen Cane". Shanghai Star.
  81. "Judicial and Prison Flogging in Eighteenth- and Nineteenth-century Germany", World Corporal Punishment Research.
  82. Old photographs of judicial floggings in Korea at World Corporal Punishment Research. Retrieved 30 May 2009.
  83. Penal Code 1809 at The Early History of Data Networks. Retrieved 30 May 2009.
  84. "La loi de l'époque" at Les images d'autrefois du Vietnam. Retrieved 30 May 2009.
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