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    Should New Zealand Ban Smacking?

    By HEF Admin | January 7, 2006

    Green MP Sue Bradford’s Bill, Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill, (for full text see:
    http://www.knowledge-basket.co.nz/gpprint/docs/bills/20052711.txt) now before Parliament, simply proposes the repeal of Section 59 of the Crimes Act 1961.

    Her argument, and that of the entire repeal lobby group, is that parents can mis-treat their children with violence and abuse and hide behind this Section 59 so that they are not charged with criminal assault.

    So what does Section 59 say that makes it so easy for parents to get away with legally abusing their children and subjecting them to violence?

    59.Domestic Discipline –
    (1) Every parent of a child and, subject to subsection (3) of this section, every person in the place of the parent of a child is justified in using force by way of correction towards the child, if the force used is reasonable in the circumstances.
    (2) The reasonableness of the force used is a question of fact.
    (3) Nothing is subsection (1) of this section justifies the use of force towards a child in contravention of Section 139A of the Education Act 1989.

    Please note: Section 59 justifies parents in using a very carefully defined type of force with their children. It must be both reasonable and used for correction. More on that later. First let’s explore the idea of using force itself.

    All parents use force on a daily, routine basis. It is both necessary and unavoidable; otherwise we parents would be charged with neglect. For example, if parents did not force children to eat a balance diet, to dress properly for the weather and the occasion, to brush their teeth, to urinate and defecate and wash their hands properly, to bath and change their clothes and brush their own hair, to go to bed on a regular basis, to stop playing with matches, to stop watching those TV shows and videos, to stop stealing, telling lies, hitting little sister, throwing rocks through windows….if parents were not on top of those things, they would be considered derelict in their duties and responsibilities as parents.

    And yet all of those things require force, specifically forcing the parent’s will upon the child, whether the child agrees or not. The methods of force in the parent’s tool box include restraint (from walking in front of a bus), removal (from in front of the TV and taking them to bed), making them do things (finish their veggies, brush their teeth), doing things to them (dressing), invading their personal space in very intimate ways (bathing and toileting), removing personal liberty (confined to room), removing civil liberty (being grounded), inflicting pain for health reasons (burn off a wart, get an inoculation, drill a tooth) and inflicting pain for behavioural reasons (smacking for acts of rebellion: disobedience, dishonesty, disrespect and destructiveness).

    Section 59 recognises that parents need to use force with their children. But it also recognises that children can be abused and violently mis-treated. So Section 59 puts down two careful restrictions on the use of force by parents with their children: the force must be done “by way of correction” and be “reasonable in the circumstances”. So if a parent is being charged with assaulting his or her child, the motive of the parent is explored: it must not be one of vengeance, anger, frustration or to save face. The context of the forceful event, its duration and intensity, what provoked it, the family history, culture, ethnicity and many other relevant facts are also taken into account.

    True cases of assault, where a child has been treated violently and subjected to physical abuse, stick out like a sore thumb, and the current laws find assailants guilty easily enough. This is the first thing the repeal lobby refuses to see.

    Obviously Section 59 does not justify abuse or violence against children at all; it only justifies reasonable force by way of correction, an everyday, essential part of parenting.…..unless one defines even a tap on the wrist or smack on the bottom as abuse or violence. And this is precisely what the repeal lobby does. It is the second thing they refuse to see: that there is any difference between the ancient practise of parental smacking on the one hand and violent child abuse on the other.

    To them physical force of any description must be classified as violence and abuse and put beyond legal justification. Ideologically they will not allow a distinction to be made between a measured, judicial smack on the backside and the enraged, uncontrolled bashing about the head: both alike are to them unacceptable. This is why they invariably bring up Section 59 when a monstrous act of brutality is committed: James Whakaruru being burned with cigarette butts and beaten to death with a vacuum pipe; Coral Burrows being bashed by the drug crazed “partner” of Coral’s mum; Lillybing being burned and sexually molested and shaken so violently it caused brain heamorrage. The lawyers of these beastly adult criminals didn’t even dream of using Section 59 as a defence.

    The repeal lobby, however, are always quick intimate that they could have used it or might do next time. They claim that these attacks may have or could have started out as a routine smacks and escalated into a hail of deadly blows. They simplistically conflate the two scenarios and declare that smacking or spanking is just the same as beating or bashing, even though the motivations, aims, objectives, methodologies and outcomes (click on link below “Not the Same”) of the two demonstrate that they are not in the same ball park and not even on the same continuum.

    Not the Same

    There is something else the repeal lobby refuses to see. Well, at least they refuse to admit it is a real possibility. The repeal of Section 59 would eventually cause families to descend into total chaos, requiring massive interventions by the state. This is true due to the definition of assault in the Crimes Act, Section 2:

    2. Definition of Assault –
    “Assault” means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on easonable grounds that he has, present ability to effect his purpose; and “to assault” has a corresponding meaning:

    “Physical” force is not required to commit assault. A person only needs to believe he or she is being threatened with an effective means of force for the one making the threat to be guilty of assault.

    If Section 59 is repealed, therefore, all of those tools of force mentioned earlier that parents must use, and do routinely use, will become out of bounds, since no force with a child will any longer be justified in law, and all force with a child will be considered assault. This has been the experience in Sweden:
    Listen to Newstalk ZB Interview
    International investigations into Swedish, child abuse
    Smacking the Parents
    where smacking was banned in 1979. Today parents there are frozen into impotence with the fear of being charged with assault.

    This is the really short-sighted, destructive part of the proposal to repeal Section 59. Clearly the repeal lobby has not thought this through at all, for it will hobble their own personal efforts at being responsible parents.

    What worries me is the frightening possibility that the repeal lobby have thought this through and are happy to see parents reduced to child breeders and carers who will then hand the actual rearing and educating of the children over to the nanny state.

    Topics: NZ Research and Commentary | No Comments »

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