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Judicial corporal punishment (JCP) refers to the infliction of corporal punishment as a result of a sentence by a court of law. The punishment can be caning, bastinado, birching, whipping, or strapping. The practice was once commonplace in many countries, but it has now been abolished in most Western countries, but remains an acceptable legal punishment in some Asian, African and Middle Eastern countries.
Corporal punishment is common in United Arab Emirates, Qatar, Saudi Arabia, Afghanistan and former British colonies (now members of the Commonwealth) such as Malaysia,[1] Singapore and Tanzania.[2]
The Singaporean official punishment of caning became much discussed around the world in 1994[3] when an American teenager, Michael P. Fay, was sentenced to six strokes of the cane for vandalism.[4] Since then, the number of caning sentences handed down each year in Singapore has doubled.[5]
Other former British colonies with judicial caning currently on their statute books include Barbados,[6] Botswana,[7] Brunei,[8] Swaziland,[9] Tonga,[10] Trinidad & Tobago,[11] and Zimbabwe.[12]
Many Muslim-majority countries use judicial corporal punishment, such as United Arab Emirates, Qatar, Saudi Arabia,[13] Iran,[14] northern Nigeria,[15] Sudan[16] and Yemen,[17] employ judicial whipping or caning for a range of offences. In Indonesia (Aceh province only) it has recently been introduced for the first time.[18]
A list of 33 countries that use lawful, official JCP today is as follows:
The above list does not include countries where a "blind ebye" is sometimes turned to unofficial JCP by local tribes, authorities, etc. including Bangladesh,[51] and Colombia.[52]
The last birching sentence was carried out in 1966, and 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[53]
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 The Corporal Punishment (Guernsey) Law, 1957 was finally repealed by the Criminal Justice (Miscellaneous Provisions) (Bailiwick of Guernsey) Law, 2006[54]
It was abolished in the Isle of Man after the judgment in Tyrer v. UK by the European Court of Human Rights.[55] Judicial birching was abolished in 2000 (a 13-year-old boy, who was convicted of robbing another child of 10p, was the last recorded juvenile case in May 1971)[56]
In 1854 judicial corporal punishment was abolished 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.
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.[57]
The Abolition of Corporal Punishment Act, 1997 abolished judicial corporal punishment.[58][59]
In the United Kingdom, JCP generally was abolished in 1948;[60] 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).[61][62]
American colonies judicially punished in a variety of forms, including whipping, stocks, the pillory and the ducking stool.[63] In the seventeenth and eighteenth centuries, whipping posts were considered indispensable in American and English towns.[64] Starting in 1776, Gen. 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.[65] In his 1778 Bill for Proportioning Crimes and Punishments, Thomas Jefferson provided up to 15 lashes for witchcraft, 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.[66] 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.[67] 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.[68]
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.[69][70][71] One of the major objections to judicial corporal punishment in the United States was that it was unpleasant to administer.
It was removed from the statute book in Canada in 1972,[72] in India in the 1950s, in New Zealand in 1941,[73] and in Australia at various times in the 20th century according to State.[74]
It has been abolished in recent decades in Hong Kong,[75] Jamaica,[76] Kenya,[77] Sri Lanka, and Zambia.[78]
Other countries that were neither former British territories nor Islamic states that have used JCP in the more distant past include China,[79] Germany,[80] Korea,[81] Sweden[82] and Vietnam.[83]