November 20 is Universal Children’s Day

Guest Post by LAURIE A. GRAY, JD — get free updates of new posts here.

 November 20 is Universal Children’s Day.  The date marks the day the United Nations (“UN”) adopted the Declaration of the Rights of the Child in 1959 and the Convention on the Rights of the Child in 1989.

Within a year of its enactment, 130 nations ratified this treaty guaranteeing certain fundamental human rights to children. Today the UNCRC stands as the most widely ratified human rights treaty in the world. With Somalia and South Sudan ratifying the treaty in 2015, only one nation has refused to stand with the rest of the world to protect children: The United States of America.

This is not merely an oversight on behalf of our governmental leaders. In 1995, the Clinton Administration signed the UNCRC, but the Senate has never ratified it because certain tenets of the treaty grant children rights that they have never enjoyed under our Constitution. When adopted, our Constitution granted certain inalienable rights to all free, white men. It very intentionally treated slaves, women and children as property. Our Constitution has been amended to free the slaves and protect an adult citizen’s right to vote regardless of race or sex, but it has never been amended or interpreted to provide children with any inalienable human rights.

Capital Punishment and Life Sentences for Juveniles

Article 37(a) of the UNCRC states, “Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.” When President Clinton signed the UNCRC, some states still executed young adults for crimes committed before they reached the age of 18.  In 2005, the United States Supreme Court ruled in Roper v. Simmons that the death penalty for those who had committed their crimes before they reached 18 years of age was barred by the Constitution as cruel and unusual punishment under the 8th Amendment. Thus, capital punishment for juveniles no longer impedes ratification of the UNCRC.

Though we no longer execute juveniles for their crimes, the USA is the only member of the UN that still allows juvenile offenders to be sentenced to life in prison with no possibility of ever being released or paroled. In Miller v. Alabama (2012), our Supreme Court held that mandatory life-without-parole sentences for all children 17 or younger are unconstitutional, but the Court did not ban all juvenile life-without-parole sentences for juveniles. Our justices opined that such sentences should be “uncommon” but that locking up a children for life and effectively throwing away the key by sentencing children to die in prison is not inherently unconstitutional. Ratifying the UNCRC would require every one of the United States to stop sentencing children to die in prison.

By ratifying the UNCRC the USA would place itself under the oversight of a UN committee of 18 independent experts who meet in Geneva. This Committee on the Rights of the Child monitors compliance with the treaty and the committee’s interpretation of it. The Committee requires regular reports from each country and then provides “recommendations.” While the Committee has no official enforcement authority to force the USA into compliance, these recommendations carry substantial weight in the international community.

Our Constitutions Protects Parents, Not Children

The Constitution of the United States safeguards only the rights of parents to control their children, not the essential human rights of children as persons. Under our Constitution, adults have the right to be free from arbitrary or unlawful interference with their privacy, family, home, religion, assembly. American children have none of these rights. They are only protected through their parents, and when the government intervenes, it is the parents’ rights that are constitutionally protected. Children have only their parents to protect them.  The government cannot intervene on a child’s behalf until AFTER the child has been abandoned, abused or neglected.

The Constitution of the United States safeguards only the rights of parents to control their children, not the essential human rights of children as persons.

Corporal punishment, now considered cruel and unusual and an assault on the human dignity of an adult, is still acceptable when disciplining children in all 50 States. Our persistent reliance upon corporal punishment would also raise problems if the USA were to ratify the UNCRC. Article 37(a) states, “No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.” As a nation, we would have to acknowledge that punishment that has been deemed torturous, cruel, and inhumane and degrading for adults is equally inappropriate for children. When the USA adopted our Constitution, wives, slaves, military personnel, people in institutions and prisoners were all subject to whippings, stockades, and other forms of corporal punishment. Every adult in the USA is now legally protected from these practices. Yet our children, the smallest and weakest among us, are still afforded no such protection.

In the United States we now acknowledge that corporal punishment inflicted on one’s spouse is a form of domestic violence, but about 70% of parents still cling to the belief that hitting, slapping, and other forms of violence intended to inflict physical pain on a child are appropriate. Despite growing evidence that there are absolutely no long-term benefits to hitting or humiliating children, the abusive treatment of children persists with little or no education provided to parents on more effective means of child discipline.  The old adage “Spare the rod and spoil the child” continues to trump all of the accumulated research demonstrating the ineffectiveness and harm of corporal punishment .

A growing body of research endorsed by pediatric, medical and psychological professionals shows that all forms of corporal punishment  adversely affect children’s cognitive development and create serious long-term risks for increased aggression and depression.

Over the past 35 years, at least 43 nations have outlawed corporal punishment of children entirely, including all of the Scandinavian countries (Sweden in 1979, Finland in 1983, Denmark and Norway in 1987). The bans are designed to act as public education tools, not criminalization of parental behavior. At best, spanking achieves momentary compliance. A growing body of research endorsed by pediatric, medical and psychological professionals shows that all forms of corporal punishment  adversely affect children’s cognitive development and create serious long-term risks for increased aggression and depression. Nevertheless, a majority of adults in the USA still see spanking as an indispensible tool for discipline.

Article 19 of the UNCRC provides, “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…” Corporal punishment is a form of physical violence. Bullying is a form of mental violence. The rate at which children are sexually abused remains a serious issue in our nation, but because we are not a party to the UNCRC, as a sovereign nation we are not presently accountable to anyone for how our we treat our children.

Giving Children a Voice in the Legal System

Certain UNCRC  tenets would also grant children greater participatory rights in the judicial process. Article 3 (1) states, “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

Likewise Article 12(1) would require our legal system to “assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.” Article 12(2) goes on to say, “the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”

…the scales of justice remain heavily tipped against children and in favor of the adults who are legally and morally obligated to protect them.

Our constitution and rules of criminal procedure are designed to protect the rights of criminal defendants above all else. Child victims too often have no voice in our criminal process, which is designed to confront and cross-examine adult accusers, not children. Children, especially young children, are frequently incompetent to testify in court proceedings. Anything they say outside of the courtroom is hearsay and often inadmissible because such statements would violate the accused’s right to confront and cross-examine the child. Through guardians ad litem and child forensic interviewers, we are gradually finding ways to give children a voice in our system and still protect the constitutional rights of parents and criminal defendants. But the scales of justice remain heavily tipped against children and in favor of the adults who are legally and morally obligated to protect them.

Time to Ratify the UNCRC

On National Children’s Day we recognize our children as our country’s most precious asset and our hope for a better world. We cannot continue to wait until they turn 18 to afford them basic human rights and dignity. As an attorney, author, teacher, and child advocate, I am convinced that raising awareness and ratifying the UNCRC is a crucial first step in addressing issues such as child abuse, bullying and human trafficking at the local, national and global levels. It’s time for each of us to take a stand on behalf of our children.

Go to http://childrightscampaign.org/ to learn more and sign a petition asking the President to submit the UNCRC to the Senate for ratification. All of the national resources directed at issues such as bullying, sexual assault and juvenile delinquency are destined to fail until we as a nation stop viewing children as property and start treating them as people.


About Laurie

LAG headshotABC's of Sexual AssaultAn experienced trial attorney and child advocate, Laurie Gray earned her B.A. from Goshen College in 1986 and her J.D. from Indiana University School of Law in 1993. As an attorney, Laurie worked in private practice from 1993-2000 and as a Deputy Prosecutor in Allen County, Indiana, from 2000-2010. Laurie currently works as an adjunct professor of criminal sciences at Indiana Tech and as a bilingual forensic interviewer at her local child advocacy center. She co-wrote The ABC’s of Sexual Assault: Anatomy, “Bunk” and the Courtroom with Sexual Assault Nurse Examiner Michelle Ditton (Socratic Parenting LLC / 2015). She is also the author of A Simple Guide to Socratic Parenting (Luminis Books / 2014) and three award-winning young adult novels.image002

About Ginger

Chance and GK 2013-04-26Raising awareness of the world-wide epidemic of child abuse has become Ginger’s life mission. An impassioned child advocate, trainer, speaker and trained child forensic interviewer, Ginger regularly blogs about child protection issues. Along with her husband John and pets Lexi and Chase, Ginger enjoys traveling, skiing, hiking, brisk mornings, colorful sunsets and just hangin’ at home with “the Pack”.

 

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