In general, intentional assault and battery are qualified as assault in Haitian law. It is the only offense against persons that can be classified among the three categories of offenses. Thus, depending on the circumstances surrounding the commission of the act, the assault can be a contravention, a misdemeanor or a crime according to the provisions of articles 254 to 257 of the Haitian penal code.
In Haiti, there is a practice that tends to use physical and moral violence to punish children in schools. However, not all blows qualify as assault under Haitian law. Consequently, when the assault and battery occurs in a school environment against a child with the intention of punishing him, it is not automatically qualified as assault but as “inhuman treatment”. To achieve the criminal classification of assault, it is necessary to follow a specific procedure established by the law of September 1, 2001.
Thus, article 1 of the law of September 1, 2001 prohibits all inhuman treatment of any nature whatsoever, including corporal punishment against children. The following article defines inhuman treatment as: “any act likely to cause bodily or emotional shock to a child, such as hitting or shoving a child, or inflicting punishment on them likely to harm their personality, through of an object or weapon or the use of excessive physical force.
Indeed, intentionally hitting a child or all forms of violence which can have physical, emotional or psychological consequences on the child are prohibited by law. The obligation is imposed on persons, organizations, educational establishments or children’s homes to whom this law entrusts
responsibilities towards the child as well as all other persons generally called upon to make decisions about him must, during their intervention, treat the child in such a way as to ensure his safety and development.
Therefore, any disciplinary measure taken by an organization, educational establishment or children’s home must be
in the best interests of the child in accordance with the international convention on the rights of the child. In all schools and children’s homes, a code of conduct is required to establish in advance all disciplinary sanctions in the event of violation of said code, the implementation of which is subject to the formation of a disciplinary committee.
Still, disciplinary sanctions must be provided for in a code of conduct which respects the dignity and interests of the child as a human being. To comply with this obligation, the law gives the mission to social agents of the Ministry of National Education to supervise the application of the code of conduct in schools and children’s homes (art 6 of the law).
Now, are there social agents who do this work? the answer is barely being found. In addition, it is imperative for schools to explain and present the rules of the code of conduct to children who have the capacity to understand them. Otherwise, a copy of the code must be given to the child and his parents. In the application of the code, there may be a dispute between parents, students or establishments. At this stage, it is the Ministry of National Education and Vocational Training which has the authority to decide. Therefore, the referral is made by letter or verbal declaration recorded in the said ministry in a register intended for this purpose. The referral is open to the most diligent party. On the other hand, when a punishment inflicted on the child does not comply with the code of conduct, it is the Ministry of Social Affairs and Labor which is competent. Thus, article 9 of the law of September 1 specifies that: “Any report must be recorded in a register for this purpose at said Ministry”.
The Ministry of National Education and Vocational Training may, in the event of serious misconduct by a director, teachers, any employee or any member of school staff, impose the penalty of exclusion of the offender and depending on the seriousness proceed when the establishment closes. In the case of organizations or children’s homes, the decision of exclusion is reserved to the Ministry of Social Affairs and Labor.
To ensure compliance with these principles, a control committee chaired by the director or his representative must be established in all schools, organizations or children’s homes. This commission is responsible for monitoring any sanction that harms the well-being or bodily safety of the child. It must draw up a report to the disciplinary commissions sitting respectively at the Ministries of Social Affairs for organizations for children’s homes or at the Ministry of National Education for educational establishments in order to refer the cases to the competent civil court.
And these offenders, once revoked, will be prosecuted in accordance with the provisions of the Penal Code for common law offenses. For example, if there was intentional assault and battery on the child, they will be judged in accordance with articles 254 to 257 of the Haitian Penal Code. Thus, they could be sentenced to imprisonment of one year to three years if the violence caused illness or incapacity to work. The penalty will be forced labor if the violence, assault and battery caused mutilation, amputation, deprivation of a limb, blindness or loss of an eye or other permanent disabilities. When the aforementioned incriminated acts caused bruises but no illness or incapacity for work, the guilty party will be punished with imprisonment of one month to one year. If the blows were inflicted on the child’s face, the teacher, director or any other person working with the child who committed the act will be punished by imprisonment of six months to two years. Reparations may be requested by the victim or their beneficiaries in accordance with the law.
Ultimately, there is a procedure established by this law before referring a headteacher, a teacher or any other person who works with children to the courts of common law. This procedure is long but aims to protect children against inhuman treatment and to protect professionals in schools and children’s homes against arbitrariness.
Me Lacks-Guvens CADETTE
Lawyer at the Bar of Port-au-Prince
Specialist in public law/public litigation law
Circle of Reflection on Justice
