The Criminal Liability of the Teacher

Judge Eyad Muhassen Dhamed

---

At seven years old, I was beaten by the teacher of the reading because I delay spelling some words. The hardness of beating did not contribute to learn me the reading and the writing as it did when it left a psychological wound did not heal yet and the memory of the violent scene I have not  forgotten in spite of there are plenty of violent scenes in my memory.

The beating causes a frighten  physical and psychological violence to the students by the teachers, leads to discredit the educational institution and it doesn't come in line with the efforts of the teachers. The key reason for this violence is the right to discipline provided in  Sharia and law. This right represents a green light for the practices of the physical and psychological harm which exercise against the children in the schools.

The right to discipline is a reason of permissibility provided in penal laws for many states among including Iraq. The article (41) paragraph (1^est)  of Iraqi Penal Code stipulates ( no crime when the act is used an established right under the law . if the parents, teachers and their equivalents  discipline the minor , it will be considered the use of the right.)

It is known if the grounds for  the permissibility are available in  the conduct of criminal under punitive text, it brings that act or behavior from the scope of criminalization to the scope of  permissibility and give it legislative capacity. The supporters of this text justify that the reason of the permissibility is bigger than that one is protected by the punitive text which criminalizes the act. The beating by the teacher to the students includes the attack on the interest protected by law which is the interest of the safety of the body . This assault is criminalized by law but it is considered permissible if the interest of discipline and education of the child is bigger  than the safety of the body .However, the physical punishment of the child for the grounds of discipline is nonproductive although all attempts to defend it since it represents the harshest type  of physical abuse. The explanation of the legal text for the permissibility of the discipline right shall not enlarge to include the  beating by the sticks and its consequences which are wounds and the bruises cause serious effects on the students' body since the teacher goes beyond the limits of the right and the ground of the permissibility provided by law and his/her act will be in the framework of the criminal liability. The discretion of the judge will determine whether the teacher  exceeds the right of discipline or he /she is bound by the law. The criminal liability results from  bypassing the limits of right of discipline set by law in particular the beating  causes injury to the student with permanent disability . The teacher will be subject to the legal procedures if the parents of the student file a criminal  complaint. By the way, the legal texts that permissible the right of the discipline is contrary to the basic principles of human rights and the right of  physical and psychological safety so that the legislative authority shall seek to cancel them to ensure the educational environment that is free  from the violent psychological and physical practices.