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Judicial corporal punishment

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Judicial corporal punishment is the infliction of corporal punishment as a result of a sentence imposed on an offender by a court of law, including flagellation (also called flogging or whipping), forced amputations, caning, bastinado, birching, or strapping. Legal corporal punishment is forbidden in most countries, but it still is a form of legal punishment practiced according to the legislations of Brunei,[1] Iran,[1] Libya,[1] the Maldives,[1] Malaysia,[1] Saudi Arabia,[1] Singapore,[1] the United Arab Emirates,[2][1] Yemen,[1] and Qatar,[1] as well as parts of Indonesia (Aceh province)[1] and Nigeria (northern states).[1]

Corporal punishment in Afghanistan in early 2000s

Countries where judicial corporal punishment is used

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Birching of Anabaptist martyr Ursula, Maastricht, 1570; engraving by Jan Luyken from Martyrs Mirror[3]

Singapore's use of caning as a form of judicial corporal punishment became much discussed around the world in 1994[4] when a United States citizen, Michael Fay, was caned for vandalism.[5] Two of Singapore's neighbouring countries, Malaysia and Brunei, also use judicial caning.

Other former British colonies which currently have judicial caning on their statute books include Barbados,[6] Botswana,[7] Brunei,[8] Swaziland,[9] Tonga,[10] Trinidad and Tobago,[11] and Zimbabwe.[12]

Many Muslim-majority territories, including the United Arab Emirates, Saudi Arabia, Qatar, Iran,[13] northern Nigeria,[14] Yemen,[15] and Indonesia's Aceh Province,[16] employ judicial whipping, caning and amputations for a range of offences.

Full list of countries

[edit]
  Countries with judicial corporal punishment

A list of countries that use lawful, official judicial corporal punishment today is as follows:

  1.  Afghanistan.[17][18][19] See Judicial corporal punishment in Afghanistan
  2.  Antigua and Barbuda (flogging)[20][21]
  3.  Bahamas (men – cat on bare back; boys – cane on bare buttocks; in private)[22][23]
  4.  Barbados (boys only – details unclear)[6]
  5.  Botswana (males aged 14 to 40 – cane on bare buttocks; in private)[24][25]
  6.  Brunei (men and boys – cane on bare buttocks; in private)[8][26][27] See Caning in Brunei.
  7.  Dominica (boys under 16 – details unclear)[28]
  8.  Ecuador (men and women – traditional indigenous justice)[29]
  9.  Indonesia, Aceh Special Region only (men and women – cane on clothed back; details unclear)[16][30]
  10.  Iran (men, women, boys, girls – whip or strap, no target specified; public or private);[13] "eye for an eye" punishments are also legal.[31]
  11.  Lesotho (men and boys – details unclear)[32]
  12.  Malaysia (Criminal law: men – cane on bare buttocks; in private, male juveniles - cane on clothed buttocks with a light cane; in courtroom).[33] See Caning in Malaysia. *(Sharia law, Muslims only: men and women – cane on clothed back; in private)[34][35]
  13.  Maldives (men and women – details unclear)[36]
  14.  Nigeria (men, women – cane on clothed buttocks or whip on bare back; in public or private.)[14][37][38][39]
  15.  Pakistan (men and boys – cane or strap on clothed buttocks; public or private)[40]
  16.  Qatar (men and women – details unclear; in private)[41]
  17.  Saudi Arabia: Saudi Arabia has corporal punishment, including forced amputations and flogging, including for child offenders.[42]
  18.  Saint Kitts and Nevis (boys and men – details unclear)[43][44]
  19.  Sierra Leone (boys only – cane or birch on bare buttocks)[45]
  20.  Singapore (men and boys – cane on bare buttocks; in private). See Caning in Singapore.
  21.  Somalia (men and women – cane on clothed buttocks)[46]
  22.  Swaziland (boys only – cane on bare buttocks)[9]
  23.  Tanzania (men and boys – cane on bare buttocks; in private)[47]
  24.  Tonga (men – cat on bare buttocks; boys – birch or cat on bare buttocks)[10]
  25.  Trinidad and Tobago (men only – cat on bare back or birch on bare buttocks; in private)[48]
  26.  Tuvalu (details unclear)[49]
  27.  United Arab Emirates – Legal punishments in the United Arab Emirates include forced amputations and flogging;[50][51][52] "eye for an eye" punishments are also legal.
  28.  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,[53] India and Colombia.[54]

History by country

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Egypt

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The Ancient Egyptians practised rhinectomy, punishing some offenders by cutting off their noses. Such criminals were often exiled to locations in Sinai, such as Tjaru and Rhinocorura.

Netherlands

[edit]

In 1854, all forms of JCP were abolished in the Netherlands with the exception of whipping. Whipping was later 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.

South Africa

[edit]

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.[55]

The Abolition of Corporal Punishment Act, 1997 abolished judicial corporal punishment.[56][57]

United Kingdom

[edit]

In the United Kingdom, judicial corporal punishment generally was abolished in 1948;[58] however, it persisted in prisons as a punishment for prisoners committing serious assaults on prison staff (ordered by visiting justices) until it was abolished by section 65 of the Criminal Justice Act 1967.[59] The last ever prison flogging happened in 1962.[60][61]

Jersey, Guernsey and Isle of Man

[edit]

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.[62]

The last birching sentence in Guernsey 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.[63]

Judicial birching was abolished in the Isle of Man in 1993 following the 1978 judgment in Tyrer v. UK by the European Court of Human Rights.[64] The last birching had taken 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.[65]

United States

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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.[66] In the 17th and 18th centuries, whipping posts were considered indispensable in American and English towns.[67] Starting in 1776, George Washington strongly advocated and utilised judicial corporal punishment 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.[68] 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.[69] 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.[70] 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.[71]

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 until 1972.[72][73][74] One of the major objections to judicial corporal punishment in the United States was that it was unpleasant to administer.[citation needed]

Other countries

[edit]

Judicial corporal punishment was removed from the statute book in Canada in 1972,[75] in India in 1955,[76] in New Zealand in 1941,[77] and in Australia at various times in the 20th century according to state.[78] William John O'Meally was the last person flogged in Australia in Melbourne's Pentridge Prison in 1958.

It has been abolished in recent decades in Hong Kong,[79] Jamaica,[80] Kenya,[81] Sri Lanka,[citation needed] and Zambia.[82]

Other countries that were neither former British territories nor Islamic states that have used JCP in the more distant past include China,[83] Germany,[84] South Korea,[85] Sweden[86] and Vietnam.[87]

See also

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References

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  1. ^ a b c d e f g h i j k l "Judicial corporal punishment for Drug Offences". Harm Reduction International. Retrieved 7 January 2024.
  2. ^ "United Arab Emirates | Global Initiative to End All Corporal Punishment of Children". 3 November 2017. Retrieved 7 January 2024.
  3. ^ "Ursel (d. 1570)". GAMEO. 10 January 2018. Retrieved 16 June 2019.
  4. ^ "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.
  5. ^ Wallis, Charles P. (4 March 1994). "Ohio Youth to be Flogged in Singapore". Los Angeles Times. Retrieved 24 September 2010.
  6. ^ a b "Barbados: Current legality of corporal punishment". GITEACPOC. February 2009. Archived from the original on 16 September 2020. Retrieved 24 September 2010.
  7. ^ Nomsa, Ndlovu (11 May 2006). "A village choking under crime". Mmegi. Gaborone. Retrieved 24 September 2010.
  8. ^ a b "Brunei Country Reports on Human Rights Practices 2004". Country Reports on Human Rights Practices. Bureau of Democracy, Human Rights, and Labor, US Department of State.
  9. ^ a b Report 2007 for Swaziland Archived 24 June 2009 at the Wayback Machine, Amnesty USA.
  10. ^ a b "Laws of Tonga, Chapter 18". Retrieved 16 December 2016.
  11. ^ Swamber, Keino (1 June 2006). "Twelve strokes for sex with girl, 12". Trinidad Express. Port of Spain.
  12. ^ "Boy to receive 2 cane strokes". Sunday Mail. Harare. 21 May 2006.
  13. ^ a b Iran Country Reports on Human Rights Practices 2004, US Department of State.
  14. ^ a b Finkel, David (24 November 2002). "Crime and Holy Punishment: In Divided Nigeria, Search for Justice Leads Many to Embrace Islamic Code". The Washington Post.
  15. ^ a b Yemen State Report Archived 20 November 2008 at the Wayback Machine, GITEACPOC, June 2007.
  16. ^ a b "Aceh gamblers caned in public". BBC News. London. 24 June 2005. Archived from the original on 23 December 2012.
  17. ^ "Afghan charity workers receive lashing, set free". Jakarta Post. Reuters. 8 April 1997.
  18. ^ "Reporters on the Job: Sharia but No Sword". Christian Science Monitor. Boston. 21 February 2006.
  19. ^ "Journalist Mortaza Behboudi back in France after 284 days in Taliban jails". Mediapart. 21 October 2023. Archived from the original on 21 October 2023. Retrieved 22 October 2023.
  20. ^ Antigua State Report Archived 25 July 2008 at the Wayback Machine, GITEACPOC, February 2009.
  21. ^ Weston, Tahna (15 February 2007). "Court orders 12 lashes for juvenile offenders". Antigua Sun.
  22. ^ Criminal Law (Measures) Act 1991 Archived 2 June 2009 at the Wayback Machine, The Bahamas Laws On-line.
  23. ^ Bahamas Country Reports on Human Rights Practices 2006, US Department of State.
  24. ^ Botswana State Report Archived 3 October 2008 at the Wayback Machine, GITEACPOC, February 2008.
  25. ^ Botswana Country Reports on Human Rights Practices 2004, US Department of State.
  26. ^ Mahathir, Helena M.; Kon, James (19 May 2005). "Anti-drugs campaign held in Tutong". Borneo Bulletin. Bandar Seri Begawan.
  27. ^ Brunei State Report Archived 27 May 2010 at the Wayback Machine, GITEACPOC, February 2009.
  28. ^ Dominica State Report Archived 3 October 2008 at the Wayback Machine, GITEACPOC, February 2009.
  29. ^ Dra. Mariana Yumbay (21 June 2007). "El ejercicio de la administración de justicia indígena en el Ecuador" (in Spanish). Llacta. Retrieved 24 September 2010.
  30. ^ "Indonesia's Aceh to Take Caning Indoors after backlash". The Associated Press. 13 April 2018. Retrieved 21 August 2023.
  31. ^ Dehghan, Saeed Kamali (5 March 2015). "Eye for an eye: Iran blinds acid attacker". The Guardian. London. Retrieved 23 January 2020.
  32. ^ Lesotho State Report Archived 27 May 2010 at the Wayback Machine, GITEACPOC, June 2007.
  33. ^ Pudu Prison exhibition, Kuala Lumpur, 1998.
  34. ^ Damis, Aniza (27 June 2005). "The pain is in the shame". New Straits Times. Kuala Lumpur.
  35. ^ "Religious corporal punishment in Malaysia", World Corporal Punishment Research.
  36. ^ Evans, Judith (1 June 2008). "Lashings Punishment Resumes". Minivan News. Malé.
  37. ^ Hamid, Ruhi. "Video clips from 'Inside a Sharia Court'", This World, BBC Two, London, 1 October 2007.
  38. ^ "Nigeria State Report". GITEACPOC. April 2014. Archived from the original on 23 December 2014.
  39. ^ "Nigeria: Judicial CP". World Corporal Punishment Research. November 2014.
  40. ^ "Pakistan: Judicial corporal punishment by flogging". World Corporal Punishment Research. Retrieved 30 May 2009.
  41. ^ "Qatar State Report". GITEACPOC. Archived from the original on 3 October 2008.
  42. ^ "Saudi Arabia | Global Initiative to End All Corporal Punishment of Children". 3 November 2017. Retrieved 7 January 2024.
  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. ^ Sierra Leone State Report Archived 27 May 2010 at the Wayback Machine, GITEACPOC, June 2008.
  46. ^ Somalia Country Reports on Human Rights Practices 2006, US Department of State.
  47. ^ "United Republic of Tanzania: Current legality of corporal punishment". GITEACPOC. March 2010. Archived from the original on 9 September 2010. Retrieved 24 September 2010.
  48. ^ Heeralal, Darryl (4 June 2005). "Jail, strokes for 'dirty old man'". Trinidad Express. Port of Spain.
  49. ^ Tuvalu Country Reports on Human Rights Practices 2001, US Department of State.
  50. ^ "United Arab Emirates – Country Reports on Human Rights Practices". Retrieved 27 October 2015. In February an Indonesian woman convicted of adultery by the Shari'a court in the Emirate of Fujairah, was sentenced to death by stoning after she purportedly insisted on such punishment. The sentence was commuted on appeal to 1 year in prison, followed by deportation. In June 1998, the Shari'a court in Fujairah sentenced three Omani nationals convicted of robbery to have their right hands amputated. The Fujairah prosecutor's office instead commuted the sentence to a term of imprisonment.
  51. ^ "Burglar's hand to be amputated". gulfnews.com. 30 December 2004. Retrieved 3 November 2021.
  52. ^ Awad Mustafa (25 April 2007). "Out With The Lash". Xpress. Dubai.
  53. ^ "2005 Country Reports on Human Rights Practices, Bangladesh". U.S. Department of State. 8 March 2006.
  54. ^ "Colombia – Lawfulness of corporal punishment". GITEACPOC. June 2007. Retrieved 24 September 2010.
  55. ^ 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)
  56. ^ "Section 13: The abolition of JCP". Judicial Corporal Punishment in South Africa. World Corporal Punishment Research. 2005. Retrieved 1 November 2011.
  57. ^ "Abolition of Corporal Punishment Act, 1997" (PDF). Archived from the original (PDF) on 7 October 2011. Retrieved 12 April 2009.
  58. ^ "Power to order flogging: Abolition approved in Committee". The Times. London. 12 December 1947.
  59. ^ "Criminal Justice Act 1967: Section 65", legislation.gov.uk, The National Archives, 27 July 1967, 1967 c. 80 (s. 65), retrieved 6 February 2021
  60. ^ "Criminal justice policy". The National Archives. Retrieved 16 December 2016.
  61. ^ "Judicial and prison flogging and whipping in Britain". World Corporal Punishment Research. Retrieved 16 December 2016.
  62. ^ "Criminal Justice (Miscellaneous Provisions) (No. 2) (Jersey) Law 2007". Retrieved 8 January 2013.
  63. ^ "Criminal Justice (Miscellaneous Provisions) (Bailiwick of Guernsey) Law, 2006". Retrieved 8 January 2013.
  64. ^ "Isle of Man to scrap birch at a stroke". The Guardian. London. 6 March 1993.
  65. ^ "Birching in the Isle of Man 1945 to 1976". World Corporal Punishment Research. March 2018. Retrieved 11 November 2019.
  66. ^ Herbert Arnold Falk, CORPORAL PUNISHMENT – A SOCIAL INTERPRETATION OF ITS THEORY AND PRACTICE IN THE SCHOOLS OF THE UNITED STATES, 22–33 (1941).
  67. ^ Falk, id., 31.
  68. ^ 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).
  69. ^ Jefferson, Thomas. "A Bill for Proportioning Crimes and Punishments §14 (castration; cartilage), §15 (maiming), §24 (witchcraft) (1778)". press-pubs.uchicago.edu.
  70. ^ Geo. Washington to President of Continental Congress, 3 February 1781 available at memory.loc.gov.
  71. ^ J.D. Gleissner, "Prison Overcrowding Cure: Judicial Corporal Punishment of Adults[dead link‍]," Vol. 49, Issue No. 4, The Criminal Law Bulletin, (c) Thomson-Reuters/Westlaw(2013).
  72. ^ "Collecting Delaware Books – Red Hannah – Delaware's Whipping Post". Retrieved 16 December 2016.
  73. ^ "An Ancient Punishment – The Whipping Post Last Used in Cecil in 1940". 2 August 2008. Retrieved 16 December 2016.
  74. ^ "The Milwaukee Journal – Mar 3, 1964".
  75. ^ "The Canadian Prison Strap", World Corporal Punishment Research.
  76. ^ Garg, Rachit (19 December 2022). "Corporal punishment". iPleaders. Retrieved 15 August 2023.
  77. ^ "The Fall and Fall of Corporal Punishment", November 1999 Newsletter, EPOCH New Zealand.
  78. ^ "Australia: Judicial CP", World Corporal Punishment Research.
  79. ^ Thomas, Hedley (22 April 1994). "Patten may appeal for clemency on sentence". South China Morning Post. Hong Kong.
  80. ^ "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.
  81. ^ Bowry, Pravin (16 September 2003). "Changes in criminal law significant". Daily Nation. Nairobi.
  82. ^ "Parliament supports repeal of corporal punishment". Lusaka. Zana (Zambia News Agency). 13 November 2003.
  83. ^ Xing Bao (9 October 2003). "Citizen Cane". Shanghai Star.
  84. ^ "Judicial and Prison Flogging in Eighteenth- and Nineteenth-century Germany", World Corporal Punishment Research.
  85. ^ "Old photographs of judicial floggings in Korea". World Corporal Punishment Research. Retrieved 30 May 2009.
  86. ^ "Penal Code 1809". The Early History of Data Networks. Retrieved 30 May 2009.
  87. ^ "La loi de l'époque". Les images d'autrefois du Vietnam. Retrieved 30 May 2009.
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