Critique of the so-called

‘anti-smacking law’.

Old Section 59:

Every parent of a child and…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.

New Section 59:

Parental Control

(1) Every parent of a child

and every person in the

place of a parent of  the

child is justified in using force

if the force used is reasonable

in the circumstances and is for

the purpose of —

(a) preventing or minimising

harm to the child or another

person; or

(b) preventing the child from

engaging or continuing to

engage in conduct that amounts

to a criminal offence; or

(c) preventing the child from

engaging or continuing to engage

in offensive or disuptive

behaviour; or

(d) performing the normal daily

tasks that are incidental to good

care and parenting.

(2) Nothing in subsection

(1) or in any rule of

common law justifies the

use of force for the

purpose of correction.

(3) Subsection (2) prevails

over subsection (1).

(4) To avoid doubt it is affirmed that police have the discretion not to prosecute complaints against parents of any child, or those standing in place of any 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 pursuing a prosecution.

Analysis:

Subsection 4 is what is known as the ‘Key’ amendment because John Key proposed this amendment as a way, it is claimed, to make the law more acceptable to people and, it is said, to give police discretion in regards to whether they laid a charge or not. Three things regarding this amendment:

1. The use of force to correct a child is said to be an ‘offence’. This term is used twice in the amendment. If one commits an offence which is a criminal offence – which the use of force against a child for the purpose of correction is according to this law – then the person who commits the offence is a criminal. The offence is an offence whether or not anyone knows about it, and regardless of whether or not a charge is made against the offending person for it. (A thief is a thief whether they’re caught and charged or not!)
Consequently, the use of force for the purpose of correction under this law is by definition a criminal offence, and thus anybody who uses any force to correct a child is by definition a criminal. John Key/National acknowledge this in the amendment by the use of the word ‘offence’, and so did not moderate Bradford’s bill in the slightest with the amendment as they claim. Parents are still criminals if they use any force whatsoever for correction of their children, which is precisely what Bradford’s bill did all along without the ammendment.

2. What this amendment did do was to add stupidity to perversity, in that right in the law itself, it was said that under some circumstances the law did not need to be enforced. Whoever heard of making a law which is not meant to be enforced? This is stupid. Why make the law? Laws are meant to be enforced!

3. The amendment says that no prosecution by the police needs to proceed if ‘the offence’ – that is, the use of force for the correction of children – is inconsequential. With all due respect, this also is nonsense. The correction of children is meant to be consequential! It is meant to produce a consequence, a change of behavior. So what this is saying is that if the correction doesn’t correct the child and doesn’t change their behaviour, then you won’t be prosecuted, but if the correction does correct the child and does change their behaviour, as is intended by the correction, you will be prosecuted!

So Nationals claim, as was said to me by a National MP, that the amendment vastly improved the bill, is nonsense.

One of the things that were said ad nauseam by Bradford and supporters up until the passing of the bill, was that ‘reasonable force’ was used as a cover for abuse, a legal means which was used by child abusers who were brought to court, to evade conviction. Over a period of 10 years, 15 or so cases of appeal to Section 59 as a defense were made, and in half of the cases, those charged were found guilty, so the claim by Bradford etc hardly holds. When the old S59 was used in a spurious way in a case – as Bradford and Co falsely implied happened a lot, the court understood this and prosecuted if necessary.

Now regarding ‘reasonable force’:
Force is not defined in this law. Nor is the word ‘physical’ used as descriptive or defining of the force. Nor is the force said to be smacking. The word smacking is not anywhere in the bill.

Force however is defined in the Crimes Act in one place, as found below. This definition was the definition that always defined the ‘force’ in S59 of the Crimes Act. S59 was in the Crimes Act so as to provide parents with exemption from precisely this very definition being applied to them. This exemption was there because the correction of children was understood to be a necessary and indeed a primary role of parenting. With the new S59 having removed the protection parents had from using force for the purpose of correction, this definition below is what now applies to them – without any sort of mitigation – in all those situations where parents apply any force for the purpose of correction.

Crimes Act, Section 2, defines assault thus:

2. Interpretation –

“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.

As can be seen in highlighted sections of the two versions of Section 59 at the top – the old and new, virtually all of the original S59 was included in the new S59. Critically, all the parts of the old S59 that were criticised by Bradford and co as providing the legal grounds for parents to abuse their children, are retained in the new S59! However, in the old S59 there was only one ground allowed for the use of reasonable force – the force was to be for correction, whereas in the new S59 there are four grounds where reasonable force – exactly the same term – is allowed.
And not only were the allowable grounds expanded from one to four, within each of those four there are a myriad of possibilities available for parents to ‘abuse’ their children.
So, if ‘reasonable force’ under the old law gave cover for people to abuse children, the new law has expanded that cover to give a vastly increased number of opportunities for abuse to occur! This shows clearly that it is not ‘force’, nor even ‘reasonable force’, that Bradford etc were against, but correction. They obviously do not want children to be corrected. If you ask why would they not want children corrected, I would say that is a very good question, and I think I know the answer.

Now in regard to Section 1:
Parts (a) through (c) all describe the type of behaviour by children, which parents traditionally would have corrected by the use of force. In other words, in the past, not only would parents have stopped the behaviour occurring, but they would have sought by means of correction to have stopped that behaviour being repeated. Now however, under the new S59, all the parent is allowed to do is to stop the behaviour occurring, but not correct the behaviour so that it does not occur again. Why were the people who voted for this bill, so intent on stopping the correction of behaviour? What do they have against correction?

In regards to part (d), reasonable force is allowed for the performing of the ‘normal daily tasks that are ‘incidental’ to good care and parenting’.
I would suggest that the correction of children is the very opposite of being incidental to good parenting. The term ‘incidental’ means ‘secondary’, ‘of less importance’, ‘of minor consequence’, ‘occurring merely by chance or without intention or calculation’. Thus if I am right in saying that correction is the opposite of being incidental to good parenting, then correction is not secondary but primary, is of more importance rather than of less importance, is of significant consequence as opposed to being of minor consequence, and occurs as a result of intention and calculation, as opposed to resulting from chance or without intention or calculation.

The law thus says that reasonable force is allowed for those parts of parenting which are of little consequence, but not for those parts of parenting which are of great consequence. This is utter madness.

Written by Renton