FI – 50-58

Greetings all,

David Lane of the Society for the Promotion of Community Standards (SPCS) has written a lengthy article outlining the issues around repeal of Section 59. Have a read of it at:

http://www.spcs.org.nz/article.php?sid=59&PHPSESSID=124a5ea14723357170b8598c82effd8d

Regards,
Craig Smith
National Director
Family Integrity
PO Box 9064
Palmerston North
New Zealand
Fax: (06) 357-4389
Family.Integrity@xtra.co.nz
www.FamilyIntegrity.org.nz

Our Home….Our Castle
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Sue Bradford’s Bill to Repeal s. 59 of Crimes Act 1961 Criminalises all Parents

Press Release 2 August 2005

Bradford’s Repeal of s. 59 Criminalises all Parents

http://www.scoop.co.nz/stories/PO0508/S00033.htm

When asked by TV2’s “Eye to Eye” host, former MP Willie Jackson, “Do you accept [the use of] mild physical discipline [on children]?” Green Party MP Sue Bradford did not answer the question. However, she did make it clear that her long-term legislative goal was to criminalise smacking. “I accept that at this time it’s too soon in this country to criminalise parents who lightly smack their children, therefore I’m simply wanting to repeal existing [legislation].” This evasive yet revealing reply led Jackson to restate the question: “But do you think it’s OK to smack your kids?” Bradford replied. “Personally no, but I’d like to see the day when we no longer use that [light smacking] but I think we have a long way to go. We have a lot of education to do”.

Let’s be clear and unmask the real Ms Bradford. She vehemently denies publicly that she is promoting what the media have dubbed the “anti-smacking bill” and would prefer instead to call it the “anti-hitting” bill, yet she actually wants nanny state to make laws that would criminalise all parents who lightly smack their kids, to enforce parental compliance. If she and her anti-smacking brigade could ensure compliance through education, which they know they cannot do (the anti-smacking campaign has been going since 1995), they have no qualms about forcing legal constraints on parents by way of legislation. What she and her supporters fail to realise is that her bill as drafted, if passed into law, would have the effect of criminalising all parents who not only smack their kids, but also all parents who use any form of “reasonable force” against children, regardless of the circumstances.

Holding down an uncooperative baby so that his or her soiled nappies can be changed and moving an uncooperative kid to a room for “time-out” as a discipline measure, both involve the use of “reasonable force” by parents and caregivers. An Anglican vicar seeking to baptise an infant who is struggling against the ‘indignity’ of a public sprinkling indulges in “reasonable force” against an infant to satisfy the parents desire to complete the sacrament. Many of us have witnessed such acts of ‘defiance’ that require measured ‘violence’ to control. (One wonders how Sue Bradford who is a strong supporter of a woman’s “abortion rights”, sleeps at night, mindful of the brutal violence of state-sanctioned and state-funded abortionstists who have murdered 100,000 innocent unborn children while the current Labour government has been in office).

Ms Bradford’s private members bill – the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill – that repeals section 59 of the Crimes Act 1961, was referred to the Justice and Electoral Committee last week following its first reading. Ms Bradford is no doubt well intentioned in wanting to address the serious problem she calls “the culture of violence” against children in our country. However, the Society believes the repeal of s. 59 will do nothing to address the root causes or shocking symptoms of this violence. Instead it will have a seriously negative impact on many families whose parents seek to and effectively apply good parenting techniques in the discipline of their children.

Ms Bradford and her supporters such as Ms Beth Wood, spokeswoman for UNICEF and “anti-smacking group Epoch (End Physical Punishment of Children), Dr Cindy Kiro, Children’s Commissioner and Kaye Crowther, Plunket president, are determined to remove all legal protections to good parents who choose to smack their kids for serious wrongdoing as a means of discipline. The Explanatory note to the bill states that “the repeal of section 59 ought not revive any old common law justification, excuse or defence [for the use of “reasonable force” including smacking] that the provision may have codified.”

During the first reading of the bill Labour MP John Tamahere, a qualified lawyer, told the house that “as currently drafted,” the bill “criminalises all parents” who use “reasonable force” (such as smacking) in correction and discipline. It actually goes further than this by making a parent a criminal – able to be charged with a technical assault – if they even threaten to use “reasonable force” (such as mild smacking or physical removal) to discipline a child. Neither Bradford nor any of the bill’s supporters have made any attempt to directly refute this serious charge that has been made by many opponents of the bill. They merely avoid the issue by making three spurious claims in response: (1) it is not their intention of the bill to open the way for such parents to be charged and/or prosecuted for smacking their kids. [Note: even though these are the very effects of the law change], (3) “in relation to parents the purpose of the bill is educative, not punative” and (3) the police will not lay charges against parents who smack kids or use “reasonable force” following the repeal of s.59.

In response to the first claim, one must emphasise that what matters is not the intention of bill’s architect, but its legal effects. The legal effect of setting a speed limit for motor vehicles on the open road is to constitute all drivers who go above the limit as law-breakers, who can be prosecuted, convicted and punished for the offence. It was never the intention of lawmakers to treat or consider such offenders as something less than offenders, nor to have law enforcement agents turn a blind eye to offending. If promoters of the Bradford’s bill sincerely believe that all mild smacking of children by parents constitutes “violence,” “assault” and “abuse” against children, as they clearly do; seek to remove the defence clause found in s. 59 and state that their long term goal in its removal is to move to have all parents who smack their kids criminalised; then its understandable that the bill’s opponents find their political posturing and rhetoric so full of “double-speak”. This is sad in view of the fact that the bill’s opponents and supporters are all totally opposed to all forms of real “child abuse” as represented by those tragic cases where offenders have been convicted under present law.

The second claim that the purpose of the bill in relation to parents is “educative rather than punitive” is dishonest. It purposely misleads by its relies on the false premise that there is no justification or benefit whatsoever for physical discipline (e.g. mild smacking) in good parenting. The repeal of s. 59 would be punitive in denying all good parents, who at times may find a need to use “reasonable force” in discipline etc, one of the tools needed in good parenting as well as open the way for them to be charged for the use of such ‘force’. Current evidence suggests that non- abusive smacking for a 2-6 year old is effective for acts of defiance over the options of timeout, reasoning and removing privileges. The 2004 research report of the Children’s Issues Centre at Otago University 2004 states: “occasional physical punishment occurs in many families and may not have long-term negative effects as long as it is used in a climate of warmth and love, where the predominant mode of relating to children is positive”.

The third claim by the bill’s supporters is also false. Police would be duty bound to act once a complaint of “assault” or “child abuse” is laid against a parent or caregiver. It is irrelevant whether the police will prosecute for such a minor offence as mild smacking. What is more relevant is that parents who discipline their children should be allowed to do so without breaking the law.

While it is true that the police work within the guidelines and protocols set out by child abuse teams, before laying charges, these protocols, once s. 59 is repealed, will promote the idea that all physical discipline constitutes “child abuse” and “assault”. Whether or not police lay charges may well depend on the level of pressure exerted by the complainant(s) and/or child advocacy agency/agencies seeking a prosecution. Critics of repeal of s. 59 point out the philosophically-driven, paternalistic zealots opposed to smacking who currently seek to foist their dogmatic views on others by informing parents that smacking constitutes a criminal offence.

At present, when a complaint comes to police, the child abuse the child abuse team/ serious abuse team protocol between police and CYF comes into play. CYF guidelines state:

“Every notification is treated seriously and sensitively and all notifiers treated with respect. Intervention under the CYP&F Act must ensure that the child or young person is protected from harm, but every effort should be made to limit the damage and disruption to the child’s relationship with their family or whanau.”

Section 59 in the Crimes Act 1961 acknowledges the special circumstances involved in the parental task of providing good discipline to children and provides a freedom to parents to use common sense and apply good parenting skills.

Section 59 (Domestic discipline) states: “Every parent of a child and every person in the place of a 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. The reasonableness of the force used is a question of fact.”

National MP Dr Richard Worth was quite right when he stated on “Eye to Eye”, that the repeal of s. 59 will expose all parents and caregivers who use “reasonable force” against their children, to potential prosecution under s. 194(a) of the Act: they would be “liable to imprisonment for a term not exceeding two years” for assaulting any child under the age of 14 years. With the removal of the legal defence under s. 59 all parental actions involving “force” of any kind used will be constituted as acts of “assault” in all circumstances. Dr Worth warned that private prosecution(s) could be lodged by any citizen(s) against any parent(s) or caregiver9s) who they considered to have used “force” against a child/children and the police would have to act on the charge(s).

With s. 59 repealed all those charged would lose the right to have the facts of the case examined by a jury of 12 of their peers to consider the defence of “reasonable force”. They would face being treated in law like any other adult facing a charge of assault against another adult. The unique parental-child relationship consideration would be lost from the law while other defence provisions applying exclusively to adults ‘assaulting’ other adults would remain (eg. s. 60 see below). To be consistent Ms Bradford should be pressing for the repeal of all of these on the grounds of ‘discrimination’! It is ironic that the Children’s Commissioner’s Office agues that the repeal of s. 59 “would remove current discrimination against children” and yet the other statutory defences to “assault” benefiting adults who ‘assault’ other adults remain (e.g. s 60).

The vast majority of New Zealand parents deeply love their children, do all they can to correctly discipline their children so they learn that there are consequences to wrongdoing and abhor all forms of child abuse and violence against children. It is these outstanding loving parents who would be criminalised if Ms Bradford’s bill became law. She and her misguided supporters deliberately conflate the controlled and measured use of smacking with “abuse” and “violence”. By the fallacious substitution of some pejorative noun such as “hitting”, “violence”, “assault” or “abuse” for “smacking”, they have attempted to subvert the use of language. Their linguistically strained rhetoric is dishonest. They fail to make any distinction between forms of smacking that obviously do constitute child abuse (e.g. that which physically harms the child and is delivered in rage by out of control dysfunctional parents, against the will of the child) and that which is a reasonable, punitive and corrective involving willing compliance to the discipline, following full explanation of and admission to wrongdoing by the child.

Children’s Commissioner Dr Cindy Kiro argues that the repeal of s. 59 of the Crimes Act “would mean one group in society could no longer be legally assaulted,” and this provision in law allows for “state sanctioned violence” against children. This claim is fallacious. It is deliberately misleading as it fails to recognise the clear distinction in law between a technical “assault” and an action which is a criminal offence – due to its real nature (a criminal assault for which the offender is or could realistically be convicted after circumstances are taken into full account). The statutory and common-law defences for “assault” recognise these distinctions.

Under the Crimes Act the technical definition is given: “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 reasonable grounds that he has, present ability to effect his purpose; and “to assault” has a corresponding meaning.

Contrary to Dr Cindy Kiro’s assertion, there is nothing in our law that gives a right to “one group in society”, namely parents or caregivers, to legally “assault” (for which a criminal conviction could be served) any other group, including their children, or children under their care. Nor is there a law that allows for or condones children or any other group being “assaulted” by any other group. Ms Kiro deliberately misrepresents the law, conflating an act of “reasonable force,” such as mild smacking applied in discipline, with those truly violent and abusive acts that have led to convictions for (criminal) “assault” under the law. The latter are inhuman acts for which s. 59 offers no real defence to the offender because jurors and judges find distinguishing between crimes of “child abuse” and criminal “assault” as opposed to the actions of parents applying “reasonable force” in circumstances involving discipline and correction, very straight-forward.

Section 59 does allow for a legal defence, albeit one rarely used, in those situations when charges are brought against a parent or caregiver for assaulting their child and the defendant asserts that the force used constituted “reasonable force” in “circumstances” such as those involving parental discipline. It is not a provision in law that legalises parents or caregivers to actually commit harmful violent criminal acts on children that would be actual “assault” (such as have led to criminal convictions). Its intention is to safeguard the rights of parents and caregivers against a charge of ‘assault’ in those rare cases, when the facts of the case can be established to the satisfaction of a 12 member jury that the force applied was “reasonable” and appropriate in the circumstances and did NOT constitute a criminal action involving real harm.

Dr Kiro claims that repeal of s. 59 will simply remove a legal defence that is used when parents seriously assault their children – a defence that is not available in situations of assault against adults, animals or any other group in our society.

However, the Bill’s supporters are absolutely wrong to suggest that s. 59 was put into the Crimes Act so that parents or caregivers who seriously assault their children can take refuge in this provision to give legal support to their criminal actions against children. On the contrary it is there so that serious allegations of assault against parents and caregivers are dealt with in the proper context of the adult-child relationship that may justify a “reasonable” use of “force” in “circumstances” involving for example parental correction and discipline.

S. 59 parallels the provision in law under s. 60 that allows for “the use of force” for specific purposes by aircraft and ship masters or officers against members of the public, including children.

Section 60 says: Discipline on ship or aircraft. The master or officer in command of a ship… or the pilot in command of an aircraft… is justified in using and ordering the use of force for the purpose of maintaining good order and discipline… if he believes on reasonable grounds that the use of force is necessary, and if the force used is reasonable in the circumstances.

NZ Law recognises that Parents, Pilots and Masters need to have the authority and powers of discipline to properly care for their charges, be they children or passengers. The “Repeal Section 59 lobby” wants to remove this authority only from the parents, not from pilots and masters. The repeal lobby appears not to trust parents to come to the same narrow conclusions they hold: that no force at all should be applied to children. Lobby leaders like Sue Bradford MP are quite clear as to their long-term social-engineering goals: they want smacking and all forms of physical discipline abandoned by ALL parents and caregivers, even if it means legislating against it.

A seriously flawed survey reported on in the Dominion Post (27/7/05) carried out by The Littlies Lobby in conjunction with the Childrens Commission, is headlined as providing support for the end of smacking. “Survey supports end to smacking … Child advocates say the findings suggest support for a law change is increasing”.

Such a headline is nonsense. The study involving a self-selecting group of participants only had one question in it that related to smacking and had none dealing with the repeal of s. 59. The finding only showed that 71% of the 1367 readers of “The Tots to Teens” magazine, who chose to take part in the survey, believed that “smacking when they [children] do things wrong” was the least effective way to guide children to behave well. However, this question failed to differentiate between the nature and level of seriousness of the wrongdoing and the commensurate use of smacking as one discipline tool used. Many opponents to the repeal of s. 59 who use smacking sparingly for certain types of “wrongdoing,” would probably agree with the statement that smacking as a discipline measure to deal with ALL or MOST wrongdoing is the least effective way to guide children to behave well.

Plunket president Kaye Crowther is quoted in the Dominion Post as saying: “We’re not talking about smacking. We’re talking about belting and hitting children with implements. In recent times I am aware of at least two cases where [Section 59] has been used as a defence where the child had been really abused.”

When challenged to identify these “two cases” by our Society secretary David Lane (who phoned her on the day of the report), Ms Crowther cited the recent case of a “Timaru woman” who Sue Bradford alluded to on national television programme (“Eye to Eye”) as having assaulted her son using a “horse whip” (it was actually a riding crop). The woman’s lawyer defended her actions in the Timaru District Court under s. 59 of the Crimes Act. Crowther also cited the recent case of a father who used a 4 by 2 wooden plank to ‘discipline’ a child.

Both cases are inadmissible as evidence in support of Sue Bradford’s s. 59 repeal bill. The Timaru woman was acquitted by the jury and the facts of the case when presented without the negative self-serving media spin, established that she had used “reasonable force” in the context of disciplining her son. She was exonerated by the jury after their deliberations that took only one hour and ten minutes. Mrs Crowther may disagree with the opinion of 12 jurors, but she has no right to tour the country spreading malicious lies that the boy “had been really abused”. Those who stand trial in our country for child abuse and who are subsequently acquitted of charges against them, by a jury, should not be derided as “child abusers” in the media by either a Plunket president, an MP like Ms Bradford, or a Commissioner of Children. Such libellous comments made also denigrate the jurors suggesting they were incompetent and supportive of “child abuse”.

The case involving the use of 2 by 4 timber plank resulted in the father being convicted of assault. His lawyer was entitled to seek to use s. 59 as a defence but the facts convinced the jury that real assault rather than discipline by means of “reasonable force”, had in fact taken place. The use of s. 59 as a line of defence is very rare (see below). In this case its use by the defence lawyer was tantamount to clutching at straws.

S. 59 does not need to be repealed on the basis that the lawyers of a few callous child abusers have tried to appeal to it to defend their clients. Considering the very rare situations where some may seek to use it contrary to its clearly defined intentions never makes good law. Repealing s. 59 in order to supposedly close the claimed ‘escape route’ it offers real child abusers, can be compared to trying to crack open a walnut using a sledgehammer. The effect of any repeal would be to disempower good parents from all modes of discipline using reasonable force (e.g. smacking) as parents would be open to charges of criminal action for all uses of force. This is an abrogation of the rights of parents to discipline their children, for whose actions they are accountable for under law.

The ‘anti-smacking brigade’ is intent on imposing their narrow ideological view of the options of discipline that should be open to parents, upon others who believe smacking has a place in disciplining children.

Sue Bradford claims that her bill removes the legal defence for a parent to physically assault their child and ‘reasons’ that just like adults and pets, children should be protected against assault. However, children are already protected against assault under sections 194(a) and 195 of the Crimes Act 1961. The task of government agencies is to promptly bring real child abusers to justice and punish them appropriately, educate parents and caregivers about how to effectively discipline and nurture their children, by supporting agencies that are doing this well, and avoid interfering in the lives of good parents who choose to apply physical discipline where required. “Yes, there are many positive parenting strategies for disciplining children aside from smacking.

The anti-smacking lobby argues that abuse and violence hide behind the provisions of Section 59 of the Crimes Act 1961 and that it constitutes “state sanctioned violence”. The facts do not appear to support this contention. John Hancock, a lawyer who presented a paper for Action for Children and Youth Aotearoa Inc., summarised such cases involving s. 59 in a document titled Parental Corporal Punishment of Children in New Zealand for the UN Committee on the Rights of the Child and dated 28 August 2003. In this document he listed only 18 cases in which Section 59 featured spanning the 13 years from 1990 to 2002.

In 10 of those 18 cases in Hancock’s paper the parent was found guilty of abuse; one needed a re-trial; in one the child was removed; and the parent was justified in the remaining six cases, five of which were trials by jury. In other words, when Section 59 cases came up before the courts, the alleged abuser was found to be guilty 56% of the time, which amounted to less than one case per year. So it appears to be a defence rarely used, and abusers don’t appear to be hiding behind it very well.

The United Nations Convention on the Rights of the Child
Finally, we have those calling for the repeal of s. 59, such as the Children’s Commissioner, claiming that s. 59 “breaches the United Nations Convention on the Rights of the Child, an international commitment that New Zealand ratified in 1993, in allowing discrimination against children, and failing to protect them from all forms of violence.”
The United Nations Committee on the Rights of the Child is the body established under article 43 of the CRC to monitor states’ progress in implementing the convention’s obligations. It has criticised the retention of the right of “corporal punishment” of children in New Zealand legislation under s. 59 (see ref. 2 below). However the NZ legislation does not refer specifically to “corporal punishment” in relation to “domestic discipline”. It only uses the term “reasonable force”. The Convention emphasised the need for the “protection of children from all forms of violence, which includes corporal punishment in the family” and called for “the promotion of non-violent forms of discipline”. It recommended an amendment to existing legislation “to prohibit corporal punishment in the home”. It did not recommend the removal of the statutory defence relating to the use of “reasonable force” by parents in circumstances that did not involve discipline in the home.

The anti-smacking brigade has chosen to misleadingly interpret these CRC treaty to mean that it is opposed to a state’s retention of the rights of parents to use any “reasonable force” in the discipline of their children because it constitutes an abrogation of the rights of children not to be subjected to physical punishment, and thereby is unlawful discriminates against children. That is why there is no mention of “corporal punishment” or “smacking” in Sue Bradford’s bill. If enacted into law as drafted, it would create a legal nonsense by turning all parents who use ANY form of “reasonable force” in carrying out their duties with children, into law breaking criminals (the repeal of s. 59 would expose them to the full force of prosecutions under s. 194(a)).

For the Children’s Commissioner to advance the spurious argument based on “discrimination against children” is a legal nonsense. The law cannot treat all persons in society equally when it comes to domestic discipline or the application of “reasonable force”. Ships’ captains and members of the public seeking to prevent a riot for example are treated differently under the law to ‘ordinary’ citizens when faced with a charge of assault in specific circumstances. They have a statutory defence in law specific to the circumstance and their defined role in physical discipline. Children are not adults. Neither are adults children. Domestic discipline and child rearing duties, by definition must involve some level of “reasonable force” at times (e.g. potty training, changing nappies, putting uncooperative kids to bed). Parents and care-givers are entitled to be protected in law with respect to their use of appropriate and “reasonable discipline”.
The UN Convention’s preamble to its Articles states:

“The States Parties to the present Convention [which came into force 2/9/90],

“Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community…

“Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding,

“Bearing in mind that, as indicated in the Declaration of the Rights of the Child, “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”,

“Taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child…

“Have agreed as follows:”

It is a legal imperative that signatory states afford “the necessary protection and assistance so that [the family] can fully assume its responsibilities within the community”. One of these responsibilities is that of disciplining children by parental and/or caregiver control, correction and punitive action. This of necessity involves some level of “reasonable force” at times. The state assumes these responsibilities by way of “Departments of Correction” or such like that imposes the decisions of the courts issued against lawbreakers. Sovereign states are free to administer appropriate punishment to law-breakers. Governments must acknowledge the reality of the rights of parents to administer loving and appropriate physical discipline and correction to their children and support them in this task. In doing so they must take “due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child”.

Supporters of the repeal of s. 59 of the Crimes Act 1961 such as the Children’s Commissioner argue that s. 59 is in breach of Article 19.

Article 19 of the Convention states

1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

The Crimes Act 1961 seeks to provide protection for children against “all forms of physical or mental violence, injury or abuse.” It provides “the necessary support … for those who have the care of children. etc” in part through s. 59 which sends a clear signal to them that only “reasonable force” can be used when caring for children. There is nothing in the Convention that suggests that any or all “reasonable force” used in the physical discipline of children constitutes the type of “physical violence” outlawed by the convention (e.g. the “abuse” of neglect of physical needs, sexual violence and abuse that is physically, psychologically and spiritually harmful etc.).

References:
1. Convention on the Rights of the Child

2. UN Committee recommendations to the NZ Government on Corporal Punishment. [Source Beth Wood, Advocacy Manager, UNICEF NZ (United Nations Children’s Fund), Wellington]

Corporal punishment

1. The Committee is deeply concerned that despite a review of legislation, the State party has still not amended section 59 of the Crimes Act 1961, which allows parents to use reasonable force to discipline their children. While welcoming the Government’s public education campaign to promote positive, non-violent forms of discipline within the home, the Committee emphasises that the Convention requires the protection of children from all forms of violence, which includes corporal punishment in the family, and which should be accompanied by awareness-raising campaigns on the law and on children’s right to protection.

2. The Committee recommends that the State party:
a) Amend legislation to prohibit corporal punishment in the home;
b) Strengthen public education campaigns and activities aimed at promoting positive, non-violent forms of discipline and respect for children’s right to human dignity and physical integrity, while raising awareness about the negative consequences of corporal punishment.

3. SPCS Press Release 27/7/05. “Dishonesty in Anti-Smacking Brigade”

http://www.scoop.co.nz/stories/PO0507/S00311.htm

http://www.ohchr.org/english/law/crc.htm

2. UN Committee recommendations to the NZ Government on Corporal Punishment. [Source Beth Wood, Advocacy Manager, UNICEF NZ (United Nations Children’s Fund), Wellington]

Corporal punishment

1. The Committee is deeply concerned that despite a review of legislation, the State party has still not amended section 59 of the Crimes Act 1961, which allows parents to use reasonable force to discipline their children. While welcoming the Government’s public education campaign to promote positive, non-violent forms of discipline within the home, the Committee emphasises that the Convention requires the protection of children from all forms of violence, which includes corporal punishment in the family, and which should be accompanied by awareness-raising campaigns on the law and on children’s right to protection.

2. The Committee recommends that the State party:
a) Amend legislation to prohibit corporal punishment in the home;
b) Strengthen public education campaigns and activities aimed at promoting positive, non-violent forms of discipline and respect for children’s right to human dignity and physical integrity, while raising awareness about the negative consequences of corporal punishment.

3. SPCS Press Release 27/7/05. “Dishonesty in Anti-Smacking Brigade”
http://www.scoop.co.nz/stories/PO0507/S00311.htm

Newsletter #51 – Dishonest anti-smackers

Greetings!

Here’s a good article showing the dishonest tactics of the anti-smacking brigade.

http://www.scoop.co.nz/stories/PO0507/S00311.htm

Regards,
Craig Smith
National Director
Family Integrity

Newsletter #52 — Letter from Police Commissioner

Dear Friends,

I received this morning a letter from the office of the Commissioner of Police. It was in reply to this letter I sent to him:

26 July 2005

Rob Robinson
Commissioner of Police
PO Box 3017
Wellington

Dear Mr Robinson,

Should Section 59 of the Crimes Act be repealed, what assurances can you give to the parents of New Zealand that they will not be charged with assault under Section 194(a) of the Crimes Act if they subsequently were to smack their child(ren) on the clothed buttocks with an open hand by way of corrective discipline?

Yours faithfully,

Craig S. Smith
National Director

Here is the reply is from Dr A. Jack, Legal Services, Office of the Commissioner of Police and is on Police letterhead. It says:

11 August 2005

Mr Craig Smith
National Director Family Integrity
PO Box 9064
Palmerston North

Dear Mr Smith,

On behalf of the Commissioner I am writing in reply to your letter of 26 July 2005 concerning Section 59 of the Crimes Act 1961.

As you will be aware, section 59 of the Crimes Act 1961 authorises parents to use force by way of correction towards their children, if the force used is reasonable in the circumstances. If section 59 was repealed in its entirety parents would not be authorised to use reasonable force by way of correction. Having said this, I am advised that parents would still be authorised to use force to prevent harm to their children. For example, if a parent stopped their child from running out onto a busy road or stopped their child from climbing over a balcony on a building.

However, smacking of a child by way of corrective action would be an assault. I am advised that the Police in investigating such cases, as is the case with all assault investigations, would consider the amount of force used in the circumstances before making a decision about whether a prosecution is required in the public interest. An aggravating factor in any such decision may be the fact that a child is generally more vulnerable than an adult.

I trust this matter clarifies this matter for you.

Yours sincerely,
A Jack (Dr)
NM – Legal Services
Office of the Commissioner

Dr Jack has clearly stated that smacking definitely will become an assault should S.59 be repealed. The only questions then are whether smacking episodes come to the attention of police and whether the police will press charges when they do. That is, whenever we smack our children, we will be technically guilty of assault against a child, and will live in constant fear of being charged. Can anyone afford the cost, the trauma, the damage to one’s reputation of a child assault trial, even if you are acquitted? In the meantime CYFs, as they do already, will have removed the child from your family and it is not automatic that CYFs gives the child back.

I submit that this is a very real and very dangerous threat to our freedom to parent our own children according to the dictates of our own consciences. We cannot let it go unchallenged. We do need to lobby against this anyway we can.

Yours faithfully,

Craig Smith
National Director
Family Integrity

Newsletter #53 — Front Page Manawatu Standard

http://www.stuff.co.nz/stuff/manawatustandard/0,2106,3378333a6003,00.html

Look at this page – Front page Evening Standard – lead article

‘Best parents’ could be facing assault charges
15 August 2005

By GRANT MILLER

Any change in the law, to ban the smacking of children by parents, will turn some of the country’s best parents into criminals, says Palmerston North campaigner Craig Smith.

Mr Smith heads the Family Integrity lobby group, which is opposed to the removal of Section 59 from the Crimes Act.

His comments follow confirmation from the Police Commissioner’s office that parents who use “reasonable force” to correct their children’s behaviour could face assault charges if Section 59 of the Crimes Act is removed from the statutes book.

In a letter to Family Integrity, the police legal services department says parents would not be authorised to use reasonable force to discipline their children, though they would still be allowed to use force to rescue a child from the roadside.

“Smacking of a child by way of corrective action would be an assault,” police said.

Police would consider the amount of force used before deciding whether to prosecute.

The comments conflict with those made by Green MP Sue Bradford, who is sponsoring the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill that is before a parliamentary select committee.

Ms Bradford has said it is not her intention to make parents fear being arrested for smacking their children.

She has argued the bill’s aim is to stop the justice system from allowing parents to get away with beating a child with items such as horse whips.

However, Mr Smith said Ms Bradford’s bill to repeal Section 59 is “the most destructive anti-parent legislation we’ve ever seen”.
The maximum penalty for assaulting a child under 14 is two years’ jail, under Section 194(a) of the Crimes Act.

United Future deputy leader Judy Turner said it is ludicrous to suggest the bill would make smacking children a criminal offence and yet parents would not be criminalised for it.

“Since when has law been made on the basis that it won’t be enforced?”
New Zealand Law Society family law section chairman Simon Maude said Section 59 needs to be replaced by a law that clearly states what parents can do to correct their children.

He said the “reasonable force” defence is vague and does not provide for consistency in the courts.

Surveys by the Justice Ministry and others have shown that 70 to 80 percent of respondents agree parents should be allowed by law to smack a child.

But Ms Bradford has argued that New Zealanders’ attitude to child discipline needs to change.

“Frankly, whacking kids is often just lazy parenting. It’s time adults recognised the power they have over the most vulnerable members of society and not only showed self-control themselves, but condemned those around them that physically punish their kids.”

Newsletter #54 — Letters from MPs

Here are two good-news letters from MPs. The first here from the (Labour) Minister of Police re-inforces what the Commissioner for Police said earlier: that if Section 59 is repealed, smacking will be assault.

The second is an email from National’s East Coast Bays MP who says National will dump the Bill to repeal Section 59 if they get into Government.

Regards,

Craig Smith
National Director
Family Integrity

12 August 2005

Mr Craig Smith
Family Integrity

Dear Mr Smith,

Thank you for your letter of 26 July 2005 concerning Section 59 of the Crimes Act 1961. I note that you have written the same letter to the Commissioner of Police and I have seen a copy of his reply to you.

I trust the reply from the Commissioner of Police clarifies this matter for you.

Yours sincerely,

Hon George Hawkins
Minister of Police

—–Original Message—–
From: Murray McCully [mailto:murray.mccully@xtra.co.nz]
Sent: Friday, 19 August 2005 8:08 a.m.
Subject: RE: Ban Smacking?

Craig

Thanks for your email. I voted against this Bill. The Bill is currently at Select Committee. However, the next government will determine if, and if at what point, the Bill is reinstated. If National is elected, the Bill will not be reinstated.

Regards, Murray

Newsletter #56 – Kiwi on US Radio

Dear Friends,

We’ll be on live talk-back radio out of Florida tomorrow, at 2pm or 2:30pm on Thursday 1 September New Zealand time (around 10pm Wednesday 31 Aug Florida time). You can listen to the broadcast on the internet live at:

http://www.TheDavidAllenShow:8000/listen.m3u

The radio station’s website is at:

www.TheDavidAllenShow.com and you’ll see me listed on the upcoming events on the left of the page.

If you have trouble logging on then go to the right hand side of the web site
and click on Listen Live! or try:

www.1320ThePatriot.com

Regards,

Craig Smith
National Director
Family Integrity

Newsletter #57 – Submission on Bill

Greetings!

The Crimes (Abolition of Force as a Justification for Child Discipline)
Amendment Bill, the one to repeal Section 59 and remove from parents the legal
justification for using force — any force — with their children, effectively
outlawing pro-active parenting, is before the Justice and Electoral Select
Committee.

They are receiving submissions on this bill until 28 February 2006, less
than 3 months away.

Here is a list of the Committe members. Lobby them respectfully while
preparing your submission. You need to send 2 copies of your submission to:

Clerk of the Committee Justice and Electoral Committee
Select Committee Office
Parliament Buildings
WELLINGTON
by the 28th of February 2006.

For tips on how to prepare a submission, visit:
http://tinyurl.com/46u2e
I’ll email again with my suggestion for salient points to put into your submission.

Regards,
Craig Smith
National Director
Family Integrity

Justice and Electoral
Crown legal and drafting services, electoral
matters, human rights and justice

Lynne Pillay (Chairperson), Waitakere, Labour
Freepost Parliament, PO Box 18-888, Wellington
Ph. (04) 470-6968, Fax (04) 470-6928
Lynne.pillay@parliament.govt.nz
PO Box
20-239, Glen Eden, Auckland
Ph. (09) 818-6871, Fax. (09) 818-8570

Christopher Finlayson (Deputy Chairperson), List National
Freepost Parliament, PO Box 18-888, Wellington
Ph. (04) 470-6862, Fax (04) 439-6447
Christopher.finlayson@parliament.govt.nz

Hone Harawira, Te Tai Tokerau, Maori
Freepost Parliament, PO Box 18-888, Wellington
Ph. (04) 470-6955 Hone.harawira@parliament.govt.nz

Ann Hartley, Assistant Speaker, List, Labour
Freepost Parliament, PO Box 18-888, Wellington
Ph. (04) 470-6578, Fax (04) 472-7036
Ann.Hartley@parliament.govt.nz
PO Box 34-053, Birkenhead, Auckland
Ph. (09) 419-9644, Fax (09) 419-9645
annhartley@actrix.co.nz

Russell Fairbrother, List Labour
Freepost Parliament, PO Box 18-888, Wellington
Ph. (04) 471-9399, Fax (04) 472-8013
Russell@fairbrother.net.nz
PO Box 339, Napier
Ph. (06) 842-0195, Fax (06) 842-0195

Metiria Turei, Co-Leader Maori Party, Te Tai Hauauru, Maori
Freepost Parliament, PO Box 18-888, Wellington
Ph. (04) 471-9165, Fax (04) 499-7269 Tariana.
Turia@parliament.govt.nz
114 Liverpool St., Whanganui
Ph. (06) 345-4416 Tari.turia@xtra.co.nz
7 Hurley Pl., Palmerston North,
Ph. (06) 356-1915

Nicky Wagner, List, National
Freepost Parliament, PO Box 18-888, Wellington
Ph. (04) 471-6959
Nicky.wagner@parliament.govt.nz

Dr Richard Worth, List, National
Freepost Parliament, PO Box 18-888, Wellington
Ph. (04) 471-9893, Fax. (04) 472-4208
Richard.worth@parliament.govt.nz

Closing date for submissions is 28
February 2006.

Newsletter #58 –Submission ideas

Here are a number of ideas anyone can use as points for a submission to the Justice and Electoral Select Committee. These are the MPs who are going to consider Sue Bradford’s Bill to repeal Section 59 of the Crimes Act, which will not just criminalise smacking, it will make a crime out of ANY use of force with children, including time out or removal of privileges. The Committee have called for submissions from the public and want them in by 28 February 2006.

Submissions do not have to be long and invloved. Short and sharp, making only one point is fine. It is also good to have a conclusion or
recommendation, but not necessary.

Full guidelines on how to make a submission are at:
http://tinyurl.com/46u2e

Please make the effort to send in a submission. I am convinced that this Bill, if passed, will completely strip parents of their authority over their own children. The authority will pass by default to the state.
Regards,
Craig Smith
National Director
Family Integrity

To: Justice and Electoral Select Committee,

We are opposed to the Crimes (Abolition of Force as a Justification for
Child Discipline) Amendment Bill for the following reasons:

1.
Repeal of Section 59 will remove from parents their legal justification in using force with their children. Parents routinely require their children to do certain things and prohibit their children from doing certain things. This is simply a parent’s duty and responsibility. If parents cannot back up these requirements and prohibitions with force, then the parental directives are reduced to mere suggestions that they hope their children will follow. Removing the legal use of force by parents from the parenting tool box will of necessity remove most of the parents’ authority over their own children in exactly the same way that removal of recourse to force by the Police, the courts, the IRD, city councils, etc., would reduce each of these authorities to making suggestions they could not enforce on anyone.

2.
The majority of parents would still feel a moral obligation to enforce their prohibitions and requirements with their children for reasons of ethnicity, national and familial culture, tradition, religious convictions, philosophical commitments, common sense, etc. However, given the very broad legal definition of assault in Section 2 of the Crimes Act (1), repeal of Section 59 will put virtually all acts of force by parents toward their children into the category of assault, turning the vast majority of parents into criminals.

3.
The integrity and cohesion of families becomes an easy
target for subversives who only need to convince children they can complain to any state agent (teachers, social workers, police, etc.), “My parents are using illegal force on me!” if they don’t want to do what their parents say, and the authorities will have to investigate. This can be highly destructive and traumatic to families.

4.
Christian parents are obligated to conform their lives to
the Bible. Many such parents believe the directives on child rearing in the
Bible oblige them to use force in chastisement and rigorous discipline with
their children. These religious convictions would become illegal if Section 59 was repealed, and these parents would be forced into civil disobedience toward a lower authority (Acts of Parliament) in order to be obedient toward a higher authority (the God of the Bible).

5.
Repeal of Section 59 with its prohibition on parental use
of force with their own children would conflict with the NZ Bill of Rights Act guarantees of free exercise of religious beliefs and practices. (2)

6.
The Bill’s stated intention is to reduce parental
authority in regards to the use of force with their own children to the same level “as everyone else” (3). This not only reduces parental authority to near zero (see point 1 above), it also ignores the special duties and
responsibilities expected of parents but not expected of “everyone else” in
the day-to-day training of their own children into habits of discipline,
self-government and positive character qualities.

7.
This Bill to repeal Section 59 is simply an attempt to replace the Biblical Christian world-view of child rearing enshrined in law with a New Age/Secular Humanist world-view of child rearing. Section 59 reflects the Biblical Christian concept of children as being corrupted by original sin that must be disciplined and as possessing hearts full of foolishness that must be driven out with the rod of correction. The government’s job is to allow parents to do these unpleasant tasks as long as they do them responsibly using force that is “reasonable in the circumstances”. The New Age/Secular Humanist concept is that children are basically good or basically neutral and so need little if any discipline, just the freedom to be themselves. The government is seen as having the primacy over parents in determining what is best for children.

8.
Members of Parliament are bound to uphold the Biblical Christian world-view of child rearing, not just because the Bible in Romans 13 gives the government the legitimate power to punish evil doers and reward those who do good (wherein it is obvious that both evil and good are defined by the Bible rather than secular humanist definitions), but also because

a. MPs take office only upon making the following Oath of Allegiance: “I, ……….., swear that I will be faithful and bear true
allegiance to Her Majesty Queen Elizabeth the Second, Her heirs and successors, according to law. So help me God.”

b. Allegiance to the Queen involves the oaths she made at her Coronation, answering as she did in the affirmative questions such as: “Will you to the utmost of your power maintain the Laws of God and the true profession of the Gospel? Will you to the utmost of your power maintain in the United Kingdom the Protestant Reformed Religion established by law?”

c. The prayer opening every session of the NZ
Parliament says, “Almighty God, humbly acknowledging our need for Your
guidance in all things and laying aside all personal and private interest, we beseech Thee to grant that we may conduct the affairs of this House and of our country to the glory of Thy Holy name, the maintainence of true religion and justice, the honour of the Queen and the public welfare, peace and tranquility of New Zealand, through Jesus Christ our Lord. Amen.”

9.
Pro-active parenting will be effectively criminalized
with the repeal of Section 59 and given the wide definition of assault (1).
Since the bill fails to recognise the trainer-trainee, mentor-disciple,
greater-lesser, teacher-student relationship that naturally exists between
parent and child, how could parents ensure the following without the use of
force if the child refused to obey?

a. Being clothed properly for the weather or clothed at all.

b. Eating a balanced diet.

c. Getting adequate rest.

d. Wearing a seat belt in the car and a helmet while cycling.

e. Just getting into the car

f. Accompanying the parent lest the child be left at home alone.

10.
How could parents prohibit the following without the use of force if the child was determined to do it?

a.Drinking, smoking, ingesting or injecting either legal or illegal substances adults can be seen to consume or that the child just wants to try.

b. Watching pornographic and Adult Only rated TV shows and videos.

c. Earning money by prostitution or drug dealing.

d. Wandering off anywhere with anyone at anytime of day or night without telling anyone at home.

e. Keeping company with people likely to be injurious to the child’s well-being.

f. Lying, cheating, stealing.

11.
As it is, Section 59 protects responsible parents in their legitimate use of force to correct and train their children, and it allows for the prosecution of parents who are shown to have used force that was neither reasonable in the circumstances nor for the purpose of correction.
If Section 59 is repealed, parents will have no legal authority to use any
force for any reason with their children. Given the very broad legal definition of assault, all parents will be constantly exposed to the charge of criminal assault under Section 194(a) of the Crimes Act (4). Assurances by the Bill’s promoters that police will exercise “common sense” and not arrest parents every time they are seen to use obvious shows of force are not the least bit comforting as they assume the police will neglect to operate according to the rule and word of the law. (5)

12.
The Bill’s very title is nonsense. It says, “Abolition
of Force as a Justification for Child Discipline”. No one has ever used Force or the concept of Force as a justification or reason why one would discipline a child. Perhaps the Bill’s author, Sue Bradford, meant to say, “Abolition of Force as a Method of Child Discipline.” This nonsense right at the beginning of the Bill plus the disastrous side effects it would cause demonstrate that the Bill was conceived and written in haste and carelessly considered.

13.
If parents did not ensure, by force when necessary, that
their children were fed, clothed, washed and rested properly, but only relied on their children going along with parental suggestions in these areas, the parents could be charged with neglect under Section 152 of the Crimes Act 1961 (6).

14.
Section 59 of the Crimes Act is titled, “Domestic
Discipline”. Repeal of Section 59 would remove “Domestic Discipline” from the law. All parents would be legally disallowed, disempowered, unauthorised from employing discipline because it of necessity involves the use of force to ensure children follow a certain line of behaviour or refrain from a certain line of behaviour.

15.
All parents need to use force in its various forms (obedience to verbal command, physical movement, smacking, intimidation, warning of negative consequences, appeal to family tradition or conscience or culture or religious commitment, withholding privileges, physically restraining, imposing restrictions, time-out, confinement to room, etc.), to bend the reluctant or disobedient child’s will to that of the parents as an essential and inescapable part of fulfilling their parenting esponsibilities. Removal of Section 59 would effectively remove from parents their legal authority to parent effectively, authoritatively and pro-actively because they would no longer be legally authorised to use force (5).

16.
Because there are already laws on the books against
committing violence, injury or abuse against children, the Bill is an attempt to impose a minority philosophical view (that smacking is essentially the same as violence and abuse) on the majority of New Zealanders who do not believe this (7).

Conclusion:
We recommend that this Bill be voted down and not allowed to proceed.
Instead maintain Section 59 of the Crimes Act as it stands, for it is a
brilliant piece of legislation. It protects responsible parents in their
legitimate use of force to correct and train their children, and it allows
proper authorities to pursue cass wherein the use of force is not reasonable in the circumstances nor used for the purpose of correction.

Notes:
1. Section 2 of the Crimes Act 1961: “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 reasonable grounds that he has, present ability to effect his purpose.” Please note that physical contact is not needed to commit assault.

2. New Zealand Bill of Rights Act, 1990, Section 15: “Manifestation of religion and belief – Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.” Section 20: “Rights of minorities – A person who belongs to an ethnic, religious, or linguistic minority in New Zealand shall not be denied the right, in community with other members of that minority, to enjoy the culture, to profess and practise the religion, or to use the language, of that minority.”

3.From the Bill’s Explanatory Note: “The effect of this amendment
is that the statutory protection for use of force by parents and guardians
will be removed. They will now be in the same position as everyone else so far as the use of force against children is concerned.”

4. Crimes Act 1961, Section 194a: “Every one is liable to
imprisonment for a term not exceeding 2 years who assaults any child under the age of 14 years.”

5. Letter from Craig Smith, National Director of Family Integrity,
Palmerston North, 26 July 2005, to Commissioner of Police, Rob Robinson,
Wellington: “Dear Mr Robinson, Should Section 59 of the Crimes Act be
repealed, what assurances can you give to the parents of New Zealand that they will not be charged with assault under Section 194(a) of the Crimes Act if they subsequently were to smack their child(ren) on the clothed buttocks with an open hand by way of corrective discipline?” Reply from Dr A. Jack, Legal Services, Police Commissioner’s Office, 11 August 2005: “Dear Mr Smith, If Section 59 was repealed in its entirety, parents would not be authorised to use reasonable force by way of correction….However, smacking of a child by way of corrective action would be an assault.”

6. Section 152: Duty of parent or guardian to provide
necessaries-(1) Every one who as a parent or person in place of a parent is
under a legal duty to provide necessaries for any child under the age of 16
years, being a child in his actual custody, is criminally responsible for
omitting without lawful excuse to do so, whether the child is helpless or not, if the death of the child is caused, or if his life is endangered or his health permanently injured, by such omission. (2) Every one is liable to imprisonment for a term not exceeding 7 years who, without lawful excuse, neglects the duty specified in this section so that the life of the child is endangered or his health permanently injured by such neglect.