PsychologicalReports, 1991, 68, 1043-1046. O Psychological Reports 1991
T H E INJUSTICE O F NONJUDICIAL REMEDIES TO ADDRESS CHILDHOOD VIOLENCE ' J. C. BENNETT Texas Tech University School of Law Summary.-The hypothesis that nonjudicial remedies such as mediation, negotiation, and "fair fightingn are effective tools for use in dealing with childhood violence has enjoyed some speculation in recent years. This work evaluates the hypothesis that such methods are unjust to the victims of such violence and that these methods must be abandoned in favor of appropriate punishment For aggressors.
Violence among adults outside sports and war is generally considered deviant behavior. Even fighting to which all participants consent is deemed criminal activity, although in some jurisdictions it is not a civil wrong. Violence against those who have not consented is considered battery, both a tort and a crime unless its perpetrator merely uses reasonable force to defend himself or others against what he reasonably believes to be imminent battery. Among children battery is also legally a civil and criminal wrong. However few children are prosecuted for it, as they are "judgment proof," having no money to pay an award of damages. But children are not d o w e d the same protection against violence as adults. Even when the child's police force-caretakers, defined here as "adults in charge of children having the authority to direct substantially the children's behavior and reasonably expect to be obeyed, especially parents, teachers, and babysittersH-see battery occurring among children, they generally either do not intervene or merely treat the behavior as an annoyance, something not to be taken very seriously.
Punishment versus Nonjudicial Remedies Some theorists of late do not approve of punishing childhood aggressors, preferring nonjudicial remedies such as negotiation, mediation, and "fair fighting." Conn (1989) urges that students be discouraged from dwelling on "who started the conflict, who's to blame, and who has reasons or excuses" (p. 21), advocating instead a mediation process between aggressor and victim. Schmidt and Freeman (1987) place the burden of stopping the aggression on the victim, a process akin to blaming the victim for the hurt he feels; victims are to "stress the other person's name as a sign of respect" (p. 42) and then mediate or engage in fair fighting. Prutzman, Stern, Burger, and Bodenhamer (1988) wish children to "affirm" each other, for "the more
'Address corres ondence to J. C. Bennett, U.P. 708B, 1001 University Avenue, Lubbock, TX 79401. The autior gratehlly acknowledges the helpful assistance of Patricia M e n , M.L.S., of Amarillo, Texas.
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we affirm others and ourselves, the easier [creating positive feelings] becomes, and the more affirmed we feel" (p. 59). They advocate the use of skits, puppetry, role playing, utopian picture drawing, fairy tale writing, and the like, so children can "work together on problems and develop a sense of cohesiveness" (p. 63). To reduce conflict one must create "a positive learning experience rather than [an atmosphere where children] contend to prove who's right" (p. 11). Such practices, however, are inherently unjust. While it does not happen in adult society as it should, if the State takes such an interest in a behavior as to sanction it, the State must take responsibility for prosecuting its disobedience. Where a criminal or civil wrong has been committed nonjudicial remedies are most inappropriate; one need only imagine demanding a rape victim to mediate and compromise to reach a peaceful settlement with the rapist. Aslung a victim of an established wrong to work with the wrongdoer is to abdicate the government's proper responsibilities. The same is true of the parental government. Inflicting an appropriate punishment on an aggressor tells h s victim and any onlookers that suffering is not something the v~ctimshould have had to have undergone, that it is unjust. Punishment of the assailant must not be denied the victim in favor of any sort of assistance or mercy for the aggressor. To deny the victim this is to impute the violence shown him from the aggressor to the caretaker. If appropriate punishment is inflicted for the wrong, each child will have an active experience of justice rather than a passive one merely read about in social studies classes as happening to adults. Specifically, requiring a victim of violence to deal in any way with his assailant subjects him to a further victimization: being singled out for painful discussions, having to use his own energy and time to resolve a situation in which he was abused. If, indeed, he has to any extent provoked an attack, he must be punished to the extent that he provoked it, but his assailant cannot be excused from blame for physical aggression unless he was acting only in self-defense. Under usual rules of mediation a mediator has no authority to impose a solution. Fair fighting is merely a free-for-all form of mediation. Among children these lead not to justice or reasonable solutions but to tyranny by the more articulate, more able to arouse pity, or the better liar among the opposing parties. Children have neither the knowledge of justice nor the capacity to reason that a competent caretaker should have. Particularly when very young, they must be told what is right and wrong and what is fair and unfair; such distinctions must be imposed on them and they must be required to behave in such a way. This is the very essence of discipline. Mediation among those who have not the requisite knowledge of justice is -
-
NONJUDICIAL REMEDIES FOR CHILDHOOD VIOLENCE
1045
merely an extension of a "might makes right" society, the situation the caretaker is trying to avoid. Blame, the catalyst of punishment, must be assigned to those who deserve it. Mediation is an effort to avoid blame. As in adult society, nonjudicial remedies should be used only when violations of the law are not involved. An objection that children will not develop social skills, responsibility, or independence if subjected to constant adult supervision is without foundation. Independence does not mean anarchy, which is encouraged by such permissiveness; one must be taught how to act responsibly within the limits of prosocial behavior. Society entails strict rules which people must obey to rise out of anarchy. Through proper teaching and supervision anarchy should give way to some measure of decent behavior. As the likelihood that group of children can function civilly without supervision increases, the supervision may be gradually removed. There are many areas in which children may develop self-reliance, but their physical safety, for the above reasons, can hardly be one of them. If the above objection is accepted, we might reasonably require ill children to read medical literature and treat themselves. The society of children must be subject to the same type of government as that of adults-when civil authorities (caretakers) cannot or do not enforce the stated rules, martial law, including the use in schools of armed security guards, if necessary, must be imposed. To advocate anything less is to abandon children to the whims of each others' injustice. When children prove they can behave civilly, the security guards may be removed with the proviso that their reinstatement can be achieved at a moment's notice if behavior deteriorates. Another potential objection is that identifying the aggressor in a fight is often difficult. If this happens, then the children have not been correctly supervised, and the caretaker must accept responsibility for the fight. Punishment should not be inflicted unless the aggressor and his wrongful behavior are correctly identified, for the danger of punishng the victim is great, but closer supervision should certainly be imposed. The rules have been broken, and order must be forcefully restored. A third possible objection is that intervening on behalf of a victim will make some children "angels" and others "devils" (Schacter & Stone, 1987), or, in schools, that the victim will be made a "teacher's pet." But these are different things entirely. A "judge's pet," for example, is not created in a wife whose battering husband is incarcerated for his crime. "Special" or "pet" children result from caretakers' irrational actions towards them; there is a vast difference between protecting a child's right to safety and encouraging him to dote on the caretaker. If Schacter and Stone can instruct caretakers on the proper reaction to violence, they can surely instruct on the proper reaction to children who attempt to snatch power using ingratiating
1046
J. C. BENNETT
methods. When such behavior begins, the caretaker must assure the child that all children get equal protection from violence and that after the aggressor is punished he wdl be on the same level as all others.
Conclusions This author is convinced that such nonjudicial remedies are not primar-
ily intended to benefit children but to relieve the caretaker of the need to act affirmatively on the victim's behalf. The remedies are too convenient, too great an attempt to avoid reality, to be taken seriously. C o r n (1989) unwittingly illustrates this objective, advocating that adults be taken completely out of the picture in favor of student mediators, which "save the teacher a lot of valuable time" (p. 21). The task of raising children is not one in which expedience or convenience should be a consideration. While nonjudicial remedies appear to attack the problem of chddhood violence in a loving manner, they may actually harm the victim of that violence more than his aggressor has. Research is needed into solutions which assist each child. REFERENCES CONN,E. J. R. (1989) Conflict management techniques for kindergarten through fourth grade. Murray, KY: Murray State Univer. College of Education, Research Colloquia on Issues in Education. (ERIC Document Reproduction Service No. ED 313 116) PRUTZMAN, P., STERN,L., BURGER,M. L., & BODENHAMER, G. (1988) The friendly classroom for a small planet: a handbook on creative approaches to living and problem solving for children. Philadelphia, PA: New Society. SCHACTER, F. F., & STONE,R. K. (1987) Comparing and contrasting siblings: defining the self. Journal of Children in Contemporary Society, 19(SpringlSumrner), 55-75. SCHMIDT,F., & FRIEDMAN,A. (1987) Strategies for resolving classroom conflicts. Learning, 15(February), 40-42.
Accepted May 9, 1991.
T H E INJUSTICE O F NONJUDICIAL REMEDIES TO ADDRESS CHILDHOOD VIOLENCE ' J. C. BENNETT Texas Tech University School of Law Summary.-The hypothesis that nonjudicial remedies such as mediation, negotiation, and "fair fightingn are effective tools for use in dealing with childhood violence has enjoyed some speculation in recent years. This work evaluates the hypothesis that such methods are unjust to the victims of such violence and that these methods must be abandoned in favor of appropriate punishment For aggressors.
Violence among adults outside sports and war is generally considered deviant behavior. Even fighting to which all participants consent is deemed criminal activity, although in some jurisdictions it is not a civil wrong. Violence against those who have not consented is considered battery, both a tort and a crime unless its perpetrator merely uses reasonable force to defend himself or others against what he reasonably believes to be imminent battery. Among children battery is also legally a civil and criminal wrong. However few children are prosecuted for it, as they are "judgment proof," having no money to pay an award of damages. But children are not d o w e d the same protection against violence as adults. Even when the child's police force-caretakers, defined here as "adults in charge of children having the authority to direct substantially the children's behavior and reasonably expect to be obeyed, especially parents, teachers, and babysittersH-see battery occurring among children, they generally either do not intervene or merely treat the behavior as an annoyance, something not to be taken very seriously.
Punishment versus Nonjudicial Remedies Some theorists of late do not approve of punishing childhood aggressors, preferring nonjudicial remedies such as negotiation, mediation, and "fair fighting." Conn (1989) urges that students be discouraged from dwelling on "who started the conflict, who's to blame, and who has reasons or excuses" (p. 21), advocating instead a mediation process between aggressor and victim. Schmidt and Freeman (1987) place the burden of stopping the aggression on the victim, a process akin to blaming the victim for the hurt he feels; victims are to "stress the other person's name as a sign of respect" (p. 42) and then mediate or engage in fair fighting. Prutzman, Stern, Burger, and Bodenhamer (1988) wish children to "affirm" each other, for "the more
'Address corres ondence to J. C. Bennett, U.P. 708B, 1001 University Avenue, Lubbock, TX 79401. The autior gratehlly acknowledges the helpful assistance of Patricia M e n , M.L.S., of Amarillo, Texas.
1044
J. C. BENNETT
we affirm others and ourselves, the easier [creating positive feelings] becomes, and the more affirmed we feel" (p. 59). They advocate the use of skits, puppetry, role playing, utopian picture drawing, fairy tale writing, and the like, so children can "work together on problems and develop a sense of cohesiveness" (p. 63). To reduce conflict one must create "a positive learning experience rather than [an atmosphere where children] contend to prove who's right" (p. 11). Such practices, however, are inherently unjust. While it does not happen in adult society as it should, if the State takes such an interest in a behavior as to sanction it, the State must take responsibility for prosecuting its disobedience. Where a criminal or civil wrong has been committed nonjudicial remedies are most inappropriate; one need only imagine demanding a rape victim to mediate and compromise to reach a peaceful settlement with the rapist. Aslung a victim of an established wrong to work with the wrongdoer is to abdicate the government's proper responsibilities. The same is true of the parental government. Inflicting an appropriate punishment on an aggressor tells h s victim and any onlookers that suffering is not something the v~ctimshould have had to have undergone, that it is unjust. Punishment of the assailant must not be denied the victim in favor of any sort of assistance or mercy for the aggressor. To deny the victim this is to impute the violence shown him from the aggressor to the caretaker. If appropriate punishment is inflicted for the wrong, each child will have an active experience of justice rather than a passive one merely read about in social studies classes as happening to adults. Specifically, requiring a victim of violence to deal in any way with his assailant subjects him to a further victimization: being singled out for painful discussions, having to use his own energy and time to resolve a situation in which he was abused. If, indeed, he has to any extent provoked an attack, he must be punished to the extent that he provoked it, but his assailant cannot be excused from blame for physical aggression unless he was acting only in self-defense. Under usual rules of mediation a mediator has no authority to impose a solution. Fair fighting is merely a free-for-all form of mediation. Among children these lead not to justice or reasonable solutions but to tyranny by the more articulate, more able to arouse pity, or the better liar among the opposing parties. Children have neither the knowledge of justice nor the capacity to reason that a competent caretaker should have. Particularly when very young, they must be told what is right and wrong and what is fair and unfair; such distinctions must be imposed on them and they must be required to behave in such a way. This is the very essence of discipline. Mediation among those who have not the requisite knowledge of justice is -
-
NONJUDICIAL REMEDIES FOR CHILDHOOD VIOLENCE
1045
merely an extension of a "might makes right" society, the situation the caretaker is trying to avoid. Blame, the catalyst of punishment, must be assigned to those who deserve it. Mediation is an effort to avoid blame. As in adult society, nonjudicial remedies should be used only when violations of the law are not involved. An objection that children will not develop social skills, responsibility, or independence if subjected to constant adult supervision is without foundation. Independence does not mean anarchy, which is encouraged by such permissiveness; one must be taught how to act responsibly within the limits of prosocial behavior. Society entails strict rules which people must obey to rise out of anarchy. Through proper teaching and supervision anarchy should give way to some measure of decent behavior. As the likelihood that group of children can function civilly without supervision increases, the supervision may be gradually removed. There are many areas in which children may develop self-reliance, but their physical safety, for the above reasons, can hardly be one of them. If the above objection is accepted, we might reasonably require ill children to read medical literature and treat themselves. The society of children must be subject to the same type of government as that of adults-when civil authorities (caretakers) cannot or do not enforce the stated rules, martial law, including the use in schools of armed security guards, if necessary, must be imposed. To advocate anything less is to abandon children to the whims of each others' injustice. When children prove they can behave civilly, the security guards may be removed with the proviso that their reinstatement can be achieved at a moment's notice if behavior deteriorates. Another potential objection is that identifying the aggressor in a fight is often difficult. If this happens, then the children have not been correctly supervised, and the caretaker must accept responsibility for the fight. Punishment should not be inflicted unless the aggressor and his wrongful behavior are correctly identified, for the danger of punishng the victim is great, but closer supervision should certainly be imposed. The rules have been broken, and order must be forcefully restored. A third possible objection is that intervening on behalf of a victim will make some children "angels" and others "devils" (Schacter & Stone, 1987), or, in schools, that the victim will be made a "teacher's pet." But these are different things entirely. A "judge's pet," for example, is not created in a wife whose battering husband is incarcerated for his crime. "Special" or "pet" children result from caretakers' irrational actions towards them; there is a vast difference between protecting a child's right to safety and encouraging him to dote on the caretaker. If Schacter and Stone can instruct caretakers on the proper reaction to violence, they can surely instruct on the proper reaction to children who attempt to snatch power using ingratiating
1046
J. C. BENNETT
methods. When such behavior begins, the caretaker must assure the child that all children get equal protection from violence and that after the aggressor is punished he wdl be on the same level as all others.
Conclusions This author is convinced that such nonjudicial remedies are not primar-
ily intended to benefit children but to relieve the caretaker of the need to act affirmatively on the victim's behalf. The remedies are too convenient, too great an attempt to avoid reality, to be taken seriously. C o r n (1989) unwittingly illustrates this objective, advocating that adults be taken completely out of the picture in favor of student mediators, which "save the teacher a lot of valuable time" (p. 21). The task of raising children is not one in which expedience or convenience should be a consideration. While nonjudicial remedies appear to attack the problem of chddhood violence in a loving manner, they may actually harm the victim of that violence more than his aggressor has. Research is needed into solutions which assist each child. REFERENCES CONN,E. J. R. (1989) Conflict management techniques for kindergarten through fourth grade. Murray, KY: Murray State Univer. College of Education, Research Colloquia on Issues in Education. (ERIC Document Reproduction Service No. ED 313 116) PRUTZMAN, P., STERN,L., BURGER,M. L., & BODENHAMER, G. (1988) The friendly classroom for a small planet: a handbook on creative approaches to living and problem solving for children. Philadelphia, PA: New Society. SCHACTER, F. F., & STONE,R. K. (1987) Comparing and contrasting siblings: defining the self. Journal of Children in Contemporary Society, 19(SpringlSumrner), 55-75. SCHMIDT,F., & FRIEDMAN,A. (1987) Strategies for resolving classroom conflicts. Learning, 15(February), 40-42.
Accepted May 9, 1991.
