For the first time in my journey as a law student, I’ve come across something in the statute that I genuinely believe should not exist. It is something that I feel strongly against and I believe that our statute should not have such a provision.
In section 64 of the Women’s Charter 1961 (Women’s Charter), “family violence” means the commission of the following acts:
(a) wilfully or knowingly placing, or attempting to place, a family member in fear of hurt;
(b) causing hurt to a family member by such act which is known or ought to have been known would result in hurt;
(c) wrongfully confining or restraining a family member against his or her will;
(d) causing continual harassment with intent to cause or knowing that it is likely to cause anguish to a family member,
but does not include any force lawfully used in self‑defence, or by way of correction towards a child below 21 years of age
What this means is that if someone commits the acts as listed in (a) to (d) against a family member, they would have been deemed to have committed an act of family violence. Once an act of family violence is established, it avails the victims to the orders in sections 65 and 66 of the Women’s Charter, namely the protection or expedited orders.
However, if an individual commits either of the acts in (a) to (d) but can prove, to the satisfaction of the court, that such force is done by way of correction towards a child below 21 years of age, then that particular act will NOT be deemed to be an act of family violence. This then shuts the door for the victim of such acts to the orders in sections 65 and 66 of the Women’s Charter.
In 1995, Singapore acceded to the United Nations Convention on the Rights of the Child (UNCRC). while this does not mean that Singapore will implement the convention wholesale (this is a whole other topic for another blog post on another day), it does serve as a platform for guidance as to how we go about protecting a child’s basic interest.
Article 19 of the UNCRC states:
1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
The phrase “to protect the child from all forms of physical or mental violence” is in direct contrast to the exception found in section 64 of the Women’s Charter.
In my view, this exception should not exist.
In criminal law, an intentional act of causing hurt to any person would constitute an offence under section 321 of the Penal Code 1871 (Penal Code) and may be punished with imprisonment for up to 3 years and/or a fine of up to $5,000.
In tort, this would amount to an act of battery.
Yet in family law, such an act, if can be proved to the satisfaction of the court that this amounted to a form of “correction”, would not amount to an act of family violence.
Imagine such a scenario:
A man hits an 8-year old boy.
In normal circumstances, that would be an offence under section 321 of the Penal Code and would amount to a tortious act where the boy can claim damages in a civil suit against the man.
However, if the man can prove to the satisfaction of the court two things:
- That the boy is a family member
- That the action is “corrective” in nature
then the act will not amount to an offence and the boy cannot claim damages.
The preamble of the Women’s Charter states this:
“An Act to provide for monogamous marriages and for the solemnisation and registration of such marriages; to amend and consolidate the law relating to divorce, the rights and duties of married persons, the protection of family, the maintenance of wives, incapacitated husbands and children and the punishment of offences against women and girls; and to provide for matters incidental thereto.”
While the Women’s Charter purports to be an act that, among other things, protect children, it is also an avenue for the man in my example, who is a perpetrator of violence against the boy, to avail himself of an exception.
There is overwhelming evidence that hitting children leads to trauma and can do more harm than good (Source: https://www.apa.org/monitor/2012/04/spanking). Yet the argument persists that if you spare the rod, you spoil the child.
Then of course there is the straw man argument that if you don’t beat a misbehaving child, he will end up committing an offence and then the state will do the beating through caning.
There are so many flaws in this argument. For one, to establish a cause for the commission of a crime in a person’s adult years to the lack of physical discipline when a person is a child is almost impossible to establish. What such a statement means is that there is a causal link between one person’s action (or lack of action), in this case the lack of physical beating of the child when he misbehaved, to the result which is that the child grew up to commit an offence. Essentially the statement must actually mean something like this: but for the lack of caning of my child at age 8 years old, he would not have committed the offence he committed when he was 25 years old. Novus actus interveniens anyone???
The absurdity of the cause and effect of such a statement and thinking is mind boggling to me personally.
On a personal note, my parents used force to hit me as a child. Did it help me? Not one bit. I never saw the logic. Not for a single moment.
I have a 25 year old step-daughter and an 8 year old daughter. My wife, who is 9 years my senior, had a difficult time conceiving. My wife gave birth to my daughter when she was 41 years old. We are extremely fortunate to have the family unit that we have and perhaps my daughter being born was the turning point in my life to want to become a community lawyer. My wife and I have never hit each other nor have we hit any of the children. I may be very fortunate to have a good family unit that I can come home to after a long day at work but I do believe that it is something that I have worked on too. My daughter gets on my nerves at times. I do believe that just about all 8-year olds have this innate ability to persist in a series of questioning that can test your patience. Then as she develops her own thinking and she mixes with her friends in school, she slowly but surely will become stubborn and may start to disagree with me on certain things. This presents me with a choice. When she is naughty and stubborn do I use force to put a stop to it or do I take the longer and more tedious route and reason with her. While the former is tempting and presents a possible immediate fix, the latter is the right thing to do. Oh yes, the straw man argument I mentioned above never came to my mind…
So why should we not use force on children? Because it is the right thing to do.
Why do I show displeasure against the exception in section 64 of the Women’s Charter? Because it is the right thing to do.