Aug 26 2008
My Thoughts on the Anti-Smacking Bill
Some background…
Section 59 of the Crimes Act 1961 stated that parents could use reasonable force to correct their children’s behaviour: “… [the parent] is justified in using force by way of correction towards a child if that force is reasonable in the circumstances."
In 2005, Sue Bradford MP, introduced a bill that repealed Section 59 of the Crimes Act 1961, and the bill was called: “Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill” (but more commonly known as the anti-smacking bill")
In 2007, after some debate, it was decided that Section 59 should be amended instead of repealed and the bill was renamed to: “Crimes (Substituted Section 59) Amendment Act 2007”
The Bill was passed in 2007 with overwhelming support, but only after National leader John Key asked for a compromise to be included that gave police the authority to decide whether to prosecute a parent or not if they feel: “… the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution”
In August 2008, a petition against the bill for was certified by the Clerk of the House as having enough valid signatures to force a citizen initiated referendum. The question that was posed was, “Should a smack as part of good parental correction be a criminal offence in New Zealand?"
Section 59
Section 59 of the Crimes Act 1961 was amended to include four scenarios where “reasonable force” may be used by parents:
- preventing or minimising harm to the child or another person;
- preventing the child from engaging or continuing to engage in conduct that amounts to a criminal offence;
- preventing the child from engaging or continuing to engage in offensive or disruptive behaviour;
- performing the normal daily tasks that are incidental to good care and parenting.
The key statement of the amendment however, is the line following these points which states that “[nothing] … justifies the use of force for the purpose of correction.” So in other words, reasonable force may be used in one of the four scenarios above, but never in a corrective manner.
With the above amendments, the act is fairly unambiguous, however before the act was passed John Key, representing the National Party, managed to negotiate a compromise to the amendment. This compromise gave Police the authority to decide whether to prosecute or not: “… the Police have the discretion not to prosecute complaints against a parent of a child or person in the place of a parent of a child in relation to an offence involving the use of force against a child, where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.”
This compromise brings confusion as there is now an official “grey area” which may bring about inconsistent prosecutions, though this has yet to be proved.
Public Opinion
Public opinion has been polarised on the issue and many organisations representing families and religious groups have complained loudly about the amendment as they feel that they are now being criminalised for what is usually referred to as “loving, parental, correction” of children.
Interestingly, other religious groups and family organisations are applauding the act saying that smacking a child is never acceptable.
Sensationalists
The passionate public opinion has also brought about it’s fair share of sensationalist claims from the public. The most common comment is that which equates smacking a child to abusing or beating children, preferring to use words such as “bash” and “beat.” For example “I am repelled by the very thought of assaulting a child,…” and “Should Child Abuse Be Legal In New Zealand?”
On the other hand, proponents for the referendum claim that parents should have the right to use reasonable force for corrective purposes, usually referred to as “loving parental correction.”
My Opinion
I’m trying to take a sensible view on the matter. In principle, I feel as though I’m responsible enough to smack my daughter to correct her in the right situation and with the right amount of force. I’m not talking about blindly smacking my daughter in a rage as the first resort. I’m also not talking about beating her or bashing her or using a hose pipe or wooden cane or any other weapon on her. Just a light smack on the bum to let her understand that she’s done something wrong.
With the late amendment to the bill, police have discretion to prosecute, so in theory a light smack on the bum may be considered by police to be inconsequential. This is extremely judgemental and it’s quite possible that the police’s discretion could be influenced by the public opinion at the time.
But can I trust others to have the same judgement as me? In recent years in Napier, a jury decided that it was reasonable for a father to hit his eight year old son eight times with a plank of wood which left visible bruises for days afterwards. Another case was in Hamilton where a jury decided it was reasonable for a father to leave red-edged lumps on his daughter’s back after beating her with a hose pipe. These two cases then became the legal benchmark to which other cases were compared to. Clearly this is not right, and I doubt whether any supporter of the referendum would think this way either.
So if this bill is the only way to prevent these acts from happening then I’m behind it 100%.
If this bill is going to prevent child abuse from being legal, then I’m absolutely behind it 100%.
But I can’t help but feel there’s some sort of middle ground required. John Key has already alluded to the fact that perhaps the police shouldn’t prosecute if the offence was inconsequential, so why not make that the law? Why not have a clause saying that reasonable force may be used in corrective situations too?
National MP, Chester Borrows proposed his own amendments which would allow a judge to first decide whether Section 59 can be applied as a defence – this would prevent juries from misapplying the clause. Borrows also proposes that reasonable force be defined as no more than “transitory and trifling discomfort” which would prevent parents inflicting terrible injuries on their children and then claiming it was reasonable force.
The actual referendum itself is fatally flawed in it’s design. The question that will be asked, will more than likely be: “Should a smack as part of good parental correction be a criminal offence in New Zealand?” That question is obviously loaded in favour of those who want the bill overturned. But how else can you ask the question without being bias? The sensationalists would rather the question be: “Do you think child abuse should be legal?”
I don’t think there’s any fair way that the referendum can be worded and as such I’m not even sure I’ll vote either way for it. Despite this long blog post about the topic, it’s not even a passionate subject for me – I just feel as if I need to point out the sensationalists and air my thoughts.
At the end of the day, if the law states that I can’t smack my daughter, I won’t. But if the law says that I can give her a smack on the bum as corrective punishment, then I feel as if I’m responsible enough to know when to do it.
Either way I would never beat my daughter, or cause her any injuries in any, way shape or form – but that has nothing to do with the Crimes Act, it’s just the way I am.
References:
- Referendum to be held on smacking
- Roll on the child-bashing referendum. It will fail. NZ is no longer a nation of child abusers
- Should Child Abuse Be Legal In New Zealand?
- Anti-Smacking Referendum: What’s the Real Issue?
- National to seek amendment to Section 59 bill
- Crimes (Substituted Section 59) Amendment Bill
- Children’s Issues
- Child Discipline Act
- Crimes (Substituted Section 59) Amendment Bill
- Section 59 – the Select Committee’s report
- THE CITIZEN INITIATED REFERENDA ACT 1993
