With Justice Minister Ayelet Shaked’s initiative, announced Wednesday, to fine or negate certain monetary benefits related to children for Palestinian parents whose young offspring are convicted of certain rock-throwing crimes, many will ask if fathers can be punished for the sins of their sons.
The question is straightforward: How can parents be penalized, monetarily or otherwise, for actions that they did not commit and may even oppose, just because their children, who may be rebelling against parental authority, broke the law? Also, if parents can be penalized for their children’s rock-throwing, does that mean the state may get into the business of penalizing parents when their children are involved with alcohol, drugs, gang activity and other illegal activities that certain teens engage in? Does this law place Israel outside the framework of what other democratic nations do? While views on the issue are split, some experts say that the above questions miss most of the real points.
Col. (res.) Aharon Mishnayot, former head of the military court system in the West Bank started by noting that the issue is not a novel one.
Rather, he said Shaked’s iniative has substantial precedent.
He cited a 1991 High Court of Justice ruling approving a 1988 emergency law during the first intifada to deal with Palestinian children under the age of 12 for rock throwing and other illegal disturbances of the peace by imposing certain monetary penalties for the children’s actions.
The legislation was different in that it did not extend to Jerusalem, as the current law would, and applied to children under the minimum criminal age of 12, but the principle of imposing an essentially civil penalty on parents to get them to work harder at keeping their children out of trouble was the same.
In that 1991 decision, the high court reviewed a variety of countries – the US, UK, France and others – that have a variety of laws, though not identical to the Israeli one, placing responsibility for the actions of minor children on their parents.
In other words, even if Israel’s law is unique, other countries have employed similar principles.
Next Mishnayot took aim at the basic question of fairness of placing blame on parents for their children’s actions.
He emphasized that the 1991 decision upheld that law as constitutional because it had a “process for balancing various considerations, including giving parents a hearing and the ability to get their money back if the court was convinced that the child acted against the parents’ efforts.”
Seen from this perspective, Mishnayot said that the 1988 law was “not draconian,” nor would the principles of Shaked’s new law be, as it also allows parents a hearing to avoid the fine by showing they made efforts to prevent their children from committing crimes.
He added that placing the burden of proof on the parent to show that they acted responsibly makes sense once their child has already broken the law as long as the parents have a chance to defend themselves.
Professor Emmanuel Gross said that he remembers the IDF imposing such fines on Palestinian parents for their children’s illegal actions as far back as when he worked as an assistant to an IDF judge in Nablus in 1977.
He said the only unique issue here was extending the rule to Israeli law in general (importantly covering Jerusalem, where many recent disturbances have occurred.) Honing in on what he said was a key distinction, Gross said that it might be problematic if the thrust of the new law was the government “punishing parents for their children’s deeds.”
Rather, Gross said what is permitted is “holding parents responsible for not doing their responsibility of keeping” their child out of trouble.
Gross compared the extension of responsibility for another’s conduct to other cases where someone can be sued for civil damages for negligence, including where corporations can be sued for vicarious liability for the conduct of a driver who gets in a car accident.
Addressing another key issue, that extending responsibility to parents for their children’s stone throwing could have implications for other cases of minors breaking laws, Gross said that there was another key distinction.
He noted that “throwing stones and Molotov cocktails endanger lives,” whereas other cases like making loud noises at night, taking drugs and consuming alcohol are not as dangerous generally (even though they can become deadly when combined with other conduct, such as driving under the influence.) Both Gross and Mishanyot noted there is a large difference between placing essentially a civil monetary fine on the parents for their children’s actions and failing in “their responsibility as parents,” and holding them criminally responsible, which would be problematic.
Most importantly, Mishnayot stated that his experience as a judge overseeing rock throwing cases convinced him “this could be effective,” since it encourages parents to be more responsible in situations where they have been lax, but does not “impose it in a manner which they cannot fulfill,” giving them an out if they tried to keep their children out of trouble.
Further, Mishnayot preferred fining parents over sending their children to jail, as this enhances the possibility of rehabilitating the child, whereas jail can decrease that possibility.
The former chief judge added that later provisions of the emergency regulations dealing with West Bank Palestinians between the ages of 12-18, the same age covered by Shaked’s new proposed law, included similar civil monetary fines for parents for their children’s illegal actions.
Of course, Mishnayot and Gross do not represent all views.
The Association for Civil Rights in Israel reject fining parents, stating it constitutes “improper collective punishment used to illegally abuse the rights of minors and their parents, and that it is against the spirit of the Juvenile Law, which seeks to rehabilitate and integrate minors back into society and not place harsh punishments on them.”
ACRI also implied that the tenets of the law depart from basic principles of criminal law – punishing individuals only for their own actions.
The Public Defender was asked for comment, but had not responded by press time and it was not clear that it had a position on the issue.
Ultimately, it appears that even though the Shaked initiative may face opposition, its supporters have substantial precedent and grounds to push it through.