Family Integrity

Tag: Reasonable Force

  • Police admit they may prosecute for smacking cases initially considered “reasonable force in the circumstances”

    FROM:

    http://www.big-news.blogspot.com/

    Police admit they may prosecute for smacking cases initially considered “reasonable force in the circumstances”

    Police have not ruled out prosecuting a parent who lightly – and with reasonable force – smacks their child, despite proponents of a law change on smacking saying it will never happen.

    Prior to 2007, if a parent was taken to court because they smacked their child, they were able to use a defence of reasonable force – and if that corrective action was minor, they would be acquitted. Currently,should that same parent be taken to court for the same action, that parent could have a criminal conviction as there is currently no defence in law for actions undertaken for the purpose of correction.

    Proponents of the law change say Police will not prosecute light smackers. Police, on the other hand, say it may well happen, adding the younger the child is, the more likely it is to happen. Police cannot say if a smacking prosecution – and there have been a few lately – would be of a kind that could have been successfully defended under the old law. As it happens one case in the last quarter was discharged without conviction, meaning Police thought it in the best interest to prosecute, but the court did not. One parent was prosecuted in July 2008 and subsequently convicted for smacking. That parent may well not have a criminal record had she been charged just over two years ago.

    This means that a smacker has been convicted under the new legislation. Yet the legislation has not prevented one child from being abused.

    However some events that are prosecuted as “minor acts of physical discipline” would generally be seen as outside what is considered reasonable in the circumstances. It is now the job of the police to determine this. However, police do not preclude reasonable smackers being charged for assault under a minor act of physical discipline either; all such prosecutions have progressed through the court system or the offenders are on bail.

    The way that Police are applying discretion is confirmation that Parliament has abdicated its responsibility in lawmaking. We do not elect a parliament to pass policy via an Act of parliament. Not only does parliament want police to do its job – make law – in deciding to use factors outside legislation in decisions to prosecute, parliament wants Police to do the courts job,in deciding what is reasonable in the circumstances under the guise of “no public interest to prosecute”. However, only for correction. In case of smacking for other purposes a reasonable force defence can be raised.

    If police get it wrong on correction, there is nothing the accused can do about it other than appeal.

    Labels:

    posted by Dave at 5:31 PM

  • Bradford Encourages Parents to Carry On Smacking

    From:

    http://christiannews.co.nz/2008/bradford-encourages-parents-to-carry-on-smacking/

    Bradford Encourages Parents to

    Carry On Smacking

    In a stunning turnaround, Green MP Sue Bradford has told parents that smacking is not a criminal offence and implied that groups like Barnardos, Plunket, Every Child Counts and politicians who have said that the aim of the law was to ban parents physically punishing their children are misleading the public.

    In a media release from the Green party today, Bradford says ‘smacking has never been a criminal offence, and still isn’t.’

    Yet only last year, she told Newstalk ZB ‘it is already illegal to smack children but her bill removes a defence of reasonable force for the purpose of correction.’

    And in the original 2003 media release from the Green party launching her amendment to section 59, it is entitled “Greens draw up their own anti-smacking bill” http://www.greens.org.nz/node/12844

    “Sue Bradford is confused by her own law,” says Bob McCoskrie, National Director of Family First NZ, “and is misrepresenting the real effect and purpose of the anti-smacking law. She believes smacking is assault, yet more than 80% of NZ’ers continue to disagree.”

    “Otherwise, we can only conclude that she is telling parents to carry on smacking and if investigated by police or CYF, parents should tell them that they don’t understand the law and to get lost. Yet parents are getting referred to CYF and the police by schools, neighbours, social workers, even their own kids, for light smacking.”

    “If the politicians who designed the law are confused, where does that put parents who are simply trying to raise good kids without breaking the law,” says Mr McCoskrie.

    Family First NZ continues to call on the politicians to change the law so that it clearly states that non-abusive smacking is not a crime (as wanted by 86% of NZ’ers according to today’s NZ Herald poll), and to then tackle the real causes of child abuse.

    To comment go to: http://christiannews.co.nz/2008/bradford-encourages-parents-to-carry-on-smacking/

  • Critique of the so-called ‘anti-smacking law’

    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

  • Section 59 old and new

    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.

  • The Repeal of Parental Authority and Turning Parents into Criminals

    The Repeal of Parental Authority and Turning Parents into Criminals

    This pamphlet will first look at Section 59; then at the Bill; then at what might be called the “Unintended Consequences” of the Bill; then finally make some recommendations.

    When we changed websites these brochures were lost in the change. Sorry this was not picked up until now. We have been asked to put these back on our website. This brochure was written half way through the Section 59 debate.

  • Queensland – Laws a legal minefield: lawyer

    http://www.brisbanetimes.com.au/news/queensland/antismacking-laws-a-legal-minefield-lawyer/2008/06/30/1214677902879.html

    Laws a legal minefield: lawyer

    Christine Kellett | June 30, 2008 – 11:59AM

    Anti-smacking laws to punish Queensland parents who used “excessive force” to discipline their children could be too hard to prosecute, a lawyer has warned.

    Moves by the Labor Party to toughen its stance on smacking were made at its state conference earlier this month, with suggestions the practice would eventually be outlawed.

    But Brisbane lawyer Michael Bosscher, of criminal defence firm Ryan and Bosscher, said changes to the Criminal Code to make smacking illegal would be a legal minefield and would cause more problems than they solved.

    He cited the example of New Zealand, where anti-smacking legislation had sparked a public backlash and had prompted calls for a referendum.

    “It is amazing to think Queensland is considering going down this path when New Zealand is trying to reverse its decision,” Mr Bosscher said.

    “Our laws already provide the option to prosecute parents who abuse their children.

    The move comes after shocking cases of children being abandoned outside casinos and hotels in South East Queensland while their parents socialised hit the headlines earlier this year.

    Mr Bosscher said said practical difficulties would arise when police, lawyers and the courts tried to prosecute parents who smacked.

    “The real danger with new laws is how you interpret and enforce them and there is a risk of zealous authorities prosecuting parents for minor smacks that would traditionally be seen as just part of parenting.

    “There’s this nanny state mentality here where the state government is imposing draconian laws upon families, in theory to protect children. However if you start prosecuting parents for smacking children, the potential to destroy families and therefore hurt children, is enormous.

    “Anti-smacking laws would be a controversial issue to prosecute in the courts because one police officers definition of excessively hard smacking could be radically different from another officers view.

    Mr Bosscher said Queensland laws currently allowed parents to use “reasonable force” to discipline their children.

    “A change to the Criminal Code is not needed. The law already has provision to prosecute parents- or any person- who inflicts serious, grievous or bodily harm on a child,” he said.

    “What they are really talking about is changing the law to brand parents as criminals. This is wrong and is not needed in Queensland.”