.

The Supreme Court In Loco Parentis

By Evelyn Gordon

The court’s outrageous ban on spanking one’s child.


Israel’s Supreme Court is fast making a name for itself as one of the most activist courts in the democratic world.1 But this past winter, the court took its activism to an unprecedented height: It issued a ruling, based on the flimsiest of legal premises, which declared the overwhelming majority of Israeli adults to be criminals. And it did so by intervening not in political or social issues in the public sphere, but in the way that Israeli parents choose to raise their children.

On January 25, 2000, a three-justice panel of the Supreme Court, acting as Israel’s highest appellate court, ruled in the case of Jane Doe v. State of Israel that administering a light slap on your child’s hand or rear constitutes assault under Article 379 of Israel’s criminal code—a provision that carries a jail sentence of two years. Not merely cruel or excessive punishment, the court wrote, but all corporal punishment “is completely unacceptable—a residue of a social-educational outlook that has become obsolete.”2 In the view of the justices who decided this case—President Aharon Barak, Dorit Beinisch and Yitzhak Englard—the matter was clear-cut:

Punishment that causes pain and humiliation does not contribute to the child’s character or education; it infringes on his rights as a human being. It damages his body, his feelings, his dignity and his proper development. It distances us from our aspirations to be a society free of violence. Therefore, the use by parents of corporal punishment… is forbidden today in our society.3

Lest anyone misinterpret this statement as a moral disquisition rather than a legally binding decision, the justices added the following:

There are more than a few parents among us who use non-excessive force towards their children (such as a light slap on the rear or hand) in order to educate and discipline them. Should we say that such parents are criminals?… The appropriate response is that in our current legal, social and educational situation, we cannot make compromises that might endanger the safety and well-being of minors. One must also take into account that we live in a society in which violence is spreading like a plague; “minor” violence, if permitted, is likely to deteriorate into very serious violence. We must not endanger the physical and emotional integrity of a minor by administering any corporal punishment at all. The yardstick must be clear and unequivocal, and the message is that corporal punishment is not permitted.4

In other words, the court asked whether a parent who slaps his child on the hand should be considered a criminal, and explicitly answered in the affirmative.

It is tempting to discount the decision as merely another in a long string of rulings that demonstrate how far removed the justices are from both the tenets of Israeli law and the views of the overwhelming majority of Israelis. One might also argue that since the ruling is unenforceable and will be generally ignored, there is little cause for concern. Yet the Jane Doe case deserves careful attention, for it represents the Supreme Court’s most significant incursion to date into Israelis’ private lives. It also lowers the threshold of legal reasoning that the justices deem necessary to justify radical revisions of Israeli law, overturns an established principle of family law in a manner that opens the door to arbitrary enforcement, and threatens to undermine the authority of the rule of law, as well as of the court itself. Indeed, the ruling on spanking indicates more clearly than any other recent decision how the Supreme Court’s activism threatens the delicate balances on which Israeli democracy depends.

 

 

 

II

 

Given the revolutionary nature of the Jane Doe ruling, one might reasonably have assumed that the case at hand could not be resolved without a decision on the merits of corporal punishment, and that the justices had the soundest of legal justifications for their decision. Yet in fact, the court could easily have ruled without addressing the legality of spanking at all.5 Moreover, its argumentation on this issue strays so far from traditional standards of judicial reasoning that it borders on the spurious.

The case itself was straightforward enough: An appeal by a woman from Ramat Gan who was convicted of assault and abuse of her seven-year-old daughter and her five-year-old son. The Tel Aviv District Court had found that during 1994 and 1995, the mother repeatedly struck her children on the head, hands, back and buttocks, and that she frequently threw shoes at them and beat them with rubber clogs. The abuse of the two children left visible marks that were reported by school personnel; one teacher testified, for example, that the girl had come to school with yellow bruises on her arm, which she said were caused by her mother hitting her with a stick because her room was messy. In one instance, the mother hit her son in the mouth so hard that she knocked out one of his teeth.6 Moreover, both children showed clear signs of emotional damage from the frequent beatings. One teacher reported that the boy would often recoil in fear when she moved towards him, while another teacher observed that, “Sometimes when I would speak to [the girl] and I would happen to raise my hand, she would make defensive motions and would even hide under the table, because she thought I wanted to hit her.”7 Under the weight of this evidence, the district court rejected the mother’s argument that her actions served an educational purpose. The court, wrote Judge Saviona Rotlevy, could not condone such violence, “even when it is dressed up as an ‘educational philosophy.’”8

The Supreme Court could simply have upheld the conviction. The woman in question had clearly exceeded the bounds of the reasonable in disciplining her children, even if moderate corporal punishment were held to be permissible.9 Nonetheless, Justice Dorit Beinisch, who authored the court’s opinion, insisted on discussing the legality of a hypothetical “light slap on the rear or hand” as well. In so doing, she chose to reconsider a precedent that the Supreme Court itself had set in 1953 in Rassi v. Attorney-General of the State of Israel, which had served as an accepted part of Israeli law for nearly half a century.10 In that landmark ruling, which recognized spanking by parents and teachers to be legal, the court had based itself on English law, as Israeli law at that time instructed it to do in the event that no Israeli statute dealt with the case at hand.11 Over time, as Israelis turned against corporal punishment in the schools, the Education Ministry categorically forbade teachers to hit students—a policy endorsed by the Supreme Court in rulings in 1994 and 1998.12 Regarding parents, however, the 1953 precedent was upheld consistently by the Supreme Court—including President Aharon Barak—and had come to be viewed by the legislature, the courts and the legal community as a binding part of Israeli law, even though it was not formally recorded in a statute.13

In explaining her decision to overturn this precedent, Beinisch, with the support of both of her colleagues,14 marshaled no fewer than six independent arguments. Each one would, on its own, have been far too flimsy to justify the court’s conclusion. Considered collectively, they offer a guided tour of the types of untenable arguments favored by the Supreme Court to justify its incursions into judicial lawmaking.

Beinisch’s first line of attack in the verdict is to argue that Israel should look to the practices of other democratic countries. She begins the discussion by dutifully noting that, “It is possible to find a range of approaches in this matter, with the difference among them stemming from ethical, social, educational and moral conceptions that have developed in these different societies over the years.”15 She then explores the practices in Britain, Canada and the United States, where the law explicitly permits moderate parental spanking.16 But all of this is merely a prelude to her laudatory description of the competing approach, as exemplified by Sweden, Finland, Denmark, Norway and Austria. Over the past twenty years, these countries have, according to Beinisch, placed “an emphasis on the right of the child to dignity, to the wholeness of his body and his emotional health,” and have therefore passed legislation “forbidding or strictly limiting parents’ authority to use corporal punishment on their children.”17 From the language she employs, and from subsequent references in the verdict, Beinisch makes it clear that she believes Israel’s place is with the progressive countries that form this second group.



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