Thursday, April 19, 2007

Not serious

I was right: John Key isn't serious about improving the anti-smacking bill. His demand that Sue Bradford agree to his position before even talking to him makes it clear that rather than seeking to advance the purposes of the bill, he is instead seeking to fundamentally undermine them; he is seeking surrender rather than genuine compromise. And as I said yesterday, there is nothing to compromise over, and no reason to do so. The bill has a majority, and unless there is a dramatic change in the political landscape, is going to pass. Its opponents had better start getting used to the idea.


Keep fighting the good fight I/S.

There is no reason on this green earth to smack/hit a child. Ever. There is no excuse. If you cannot teach and discipline a child without smacking you do not deserve the priviledge of raising one.

As a parent of 3 children I find it offensive how pro-smackers constantly suggest that parenting is so stressful/demanding that smacking one's
offspring is quite acceptable behaviour. It isn't.

Posted by Anonymous : 4/19/2007 01:01:00 PM

I personally find abortion unacceptable behavior. Suppose I offered the same argument as "if you don't like abortion, don't have one", "if you don't want to smack your children, don't smack them"?

Posted by Muerk : 4/19/2007 01:14:00 PM

I wouldn't rule out a backdown by Labour before bill's next reading. Labour want to win the next election, and this bill will be very unpopular if it becomes law. If they judge that the political cost is too great, they may very well back down as they did over the foreshore and seabed issue. Labour gave up on trying to pass it with urgency and adopting it as a government bill; perhaps the next concession will be to allow their MPs a conscience vote. If so, the bill as it is now will probably not pass.

Posted by Anonymous : 4/19/2007 01:29:00 PM

Isn't it true that the bill will make smacking illegal? That's all Key demanded the others acknowledge; whether this result is a good thing or not is another question. They don't have to agree to "his position" about what to do about this fact -- presumably that's what the talking would be for.

Really, I/S, you're stretching the boundaries of intellectual honesty with these last few posts.

Posted by Anonymous : 4/19/2007 03:08:00 PM

I think most people would agree with Key's three main points:

* To prevent violence against children being protected by the defence of reasonable force;

* Not to criminalise good parents who occasionally gave their children a light smack;

* To lower the threshold for what was considered acceptable physical discipline.

Posted by Muerk : 4/19/2007 03:33:00 PM

richard, it's not a fact that the bill will make smacking illegal. Far from it. It's one of the main points of contention in this debate, whether or not the bill will make all smacking illegal. I think it won't and there are legal opinions which back me up. There are also legal opinions which back you up. I think the one fact that is certain is if you give five lawyers a piece of law to interpret they will come up with six different interpretations. Which is one of the reasons we have courts of law, to develop cases that decide between interpretations over time.

But I digress. As does muerk. muerk if this was my blog I'd tell you not everything is related to abortion. But it's not, so I won't.

Posted by Span : 4/19/2007 04:27:00 PM

I agree with you Muerk, particularly on points (1) and (3). On (2), although I personally oppose ALL smacking, and think that parents should learn to discipline and correct behaviour WITHOUT inflicting pain, I would be happy if those who shared my opinion could collectively agree to give up on pushing this point for now. There are far more pressing rights issues facing society than this, and I don't want the election chances of the party I believe can best address these pressing issues to be jeopardised because the public demonises them on this particular issue.

Also, if even half the population thinks a light smack is okay (and I'm aware the 80% figure is bullshit), then pushing through a law which makes light smacking activity illegal, even if such a law isn't fully enforced, seems like too radical a legal change for this day and age. I worry that pushing through such a law would have counterproductive effects - the development of a general antipathy towards law in general and law regarding parenting in particular; a feeling of unfairness that parents are being selectively and arbitrarily prosecuted; or a feeling that there is no clear line for acceptable parenting behaviour. Finally, I dislike the police and have no faith in their ability to not use the comprehensiveness of the bill to their own nefarious means. I'd prefer the law to define what is acceptable and have judges interpret that law, rather than having the law define everything as unacceptable and have some trained monkey in a blue uniform making the big decisions about when and where to uphold that law.

Can I also take this chance to apologise to you on behalf of the various people on this blog that have thrown the labels 'fundy' and 'child beater' in your direction... the level of vitriol on this topic has been pretty phenomenal.

Posted by Anonymous : 4/19/2007 04:45:00 PM

Span, while you're handy, I'm interested in reading these legal opinions... do you have any links at hand??

I've been hoping to read such but been a bit averse to trawling through a million newspaper articles to find citations..


Posted by Anonymous : 4/19/2007 04:47:00 PM

Span, I've heard proponents of the Bill say that it's "merely removing a defence, rather than creating a new crime", but that always struck me as a merely semantic point.

Suppose that someone of minimal discernment brings assault charges against a smacking parent (perhaps because they share I/S's belief that "hitting people is assault [period]"). The parent would no longer have the legal defence of using reasonable force for child discipline. Doesn't that mean they would have to be found guilty?

I don't mean that as a purely rhetorical question; I'm really interested in whether bill proponents dispute this substantive point.

Posted by Anonymous : 4/19/2007 04:48:00 PM

Span, could you please give the legal cites suggesting that stripping away a justification defence isn't equivalent to criminalizing?

Here are some standard cites for the (obvous) view that it is (i.e., Richard's view):

* H.L.A. Hart 1968, Punishment and Responsibility : "[i]n the case of 'justification' what is done is regarded as something which the law does not condemn, or even welcomes" (13-14)
* Paul H. Robinson 1975, A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability, 23 UCLA L. REV. 266: "[t]hough justification is often considered a 'defense', it is more properly viewed as an 'element' of an offense in the sense that no crime can be said to have occurred if the act is justified or, in other words, unless the act was non-justified." (272)
* Mitchell Berman 2003, Justification and Excuse, Law and Morality, 53 Duke L. J. 1: "the distinction between justification and excuse for purposes of taxonomizing criminal law defenses is only this: A justified action is not criminal, whereas an excused defendant has committed a crime but is not punishable" (4); "a justification defense within the criminal law has no necessary connection to the substantive claims of morality but, instead, constitutes an exception to the criminal law offenses in the sense of permitting conduct that an offense by its terms prohibits." (29)

In some jurisdictions this is completely clear because the justification provisions in statutes that have taken up what were originally just common-law defences actually say that the justification makes for noncriminality/exceptionality, e.g. in NY:

S 35.10 Justification; use of physical force generally.
The use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances:
1. A parent, guardian or other person entrusted with the care and supervision of a person under the age of twenty-one or an incompetent person, and a teacher or other person entrusted with the care and supervision of a person under the age of twenty-one for a special purpose, may use physical force....

NY just makes explicit what is implicit in every other common law-based system that uses justification defences.

This blog note has a few more details.

The Key demand does seem to boil down to a demand that Bradford et al. be basically honest. Correspondingly the "nothing to compromise over" note struck by i/s is friggin' hilarious: "No, we have no intention of getting even half-way to the truth" , "Get us to agree beforehand that we should negotiate in good faith, rather than pointlessly equivocate? Outraaaageous!"

Posted by plague : 4/19/2007 05:48:00 PM

One interesting question is "has section 59 ever been used as a defence for reasonable force" (as opposed to unreasonable force)? (let alone the pretrial vetting)

here is one ---
The court of appeal noted
"Assault charge: “There was no justification for treating the incident as involving anything more than a pat on the bottom. Although technically an assault, it did not merit the stigma of a conviction and the fine imposed.”

ie a lower court actually found a person GUILTY for a pat on the bottom under section 59...
R v Hende [1996]

of course we don't know all the facts but do we really think the court gets it wrong ALL the time?


Posted by Anonymous : 4/19/2007 07:14:00 PM

In a hurry, but will come back with more tomorrow or on weekend, but in meantime, here's a link a briefing sheet specifically on why the repeal of s59 won't criminalise parents for light smacking:

The money quote (for my money anyway):
"...for a person to become a criminal a complaint has to be laid, a decision made to prosecute and a conviction secured in court."

Not a legal opinion I readily admit, but put together by a group of agencies who have sought legal advice (as you can see from the legal language used).

Posted by Span : 4/19/2007 08:06:00 PM


It was more about "if you don't agree with smacking your children, then don't smack them". I'm happy for parents to choose to not use light smacking, but why should their beliefs impinge on my parenting?

I mean, it's not as though I am advocating beating children to death.

Posted by Muerk : 4/19/2007 09:09:00 PM


It's a very hot topic, yes. The hard thing is that by using such rhetoric it makes parents who do use light physical punishment become total fans of s59 because there is the fear of trivial complaints being laid.

Whereas perhaps losing s59 might be the best choice to stop abusive parents getting away with unreasonable acts of violence. It seems as though more and more babies are being murdered by those who are supposed to be their greatest protectors and it's just heartbreaking.

I'm ambivalent about the repeal. I don't know where I stand on it. I know that what level of punishment we use should not be a criminal act, but how and where do we draw the line?

In a way I want to say that if I/S really does think I'm beating my children and that we are bad parents, shouldn't he do something about it?

If I knew that someone was beating their child, I would have to report it, otherwise I would be complicit in that abuse. As well as that, I would have to do my best to protect that child, no matter what.

Posted by Muerk : 4/19/2007 09:27:00 PM


The R v Hende [1996] case didn't involve S 59 at all. The point of that case, for some people at least, is that someone without parental disciplining privileges under S 59 was convicted of assault for what would in anyone's books be light smacking, but the Appeals court tossed the conviction as too stigmatizing etc.

That case is sometimes touted as "an illustration of how a Court would consider the prosecution of a minor smacking allegation, if the section 59 defence was unavailable to the defendant." But it sounds like a nightmare to most parents - convicted of assault (up to 2 years in jail) but got off on a piece of Appeals court whimsy (maybe the appeals judges decide differently the next day or if they're just in a bad mood).

Span: The briefing note distinguishes between the action and the person. It says:

"if the Crimes Amendment Bill becomes law, use of force for correction will technically be an offence under the Crimes Act 1961. But for a person to become a criminal a complaint has to be laid, a
decision made to prosecute and a conviction secured in court."

That is, the *action* of a parent using force for correction is an offense/is criminalized, but no particular *person* becomes a criminal unless someone knows they've broken the law and then prosecutorial discretion, competence, jury non-nullification, and so on all kick in to get a conviction. Well, duh!

Note however that the Key demand that Bradford, I/S, etc. take to be outrageous is solidly focussed on the action:

"There's no point in proceeding unless Sue Bradford and Helen Clark will accept that light smacking for the purposes of correction [a.k.a. use of force for correction - see above] will be illegal under their proposals."

So refusing to play ball with Key over this is in fact a straightforward illlustration of the bad faith of Bradford, Clark, et al..

The conclusion of the briefing note is telling:

"In conclusion, parents can be reassured that they are unlikely to be convicted for minor assaults or for restraining a child."

If you smack your child you are at best an unprosecuted minor assaulter of your child and you're taking at least a small risk of becoming much worse.

That's i/s's vision all right - smack and you're a bad parent. Though there's been much lying about this, that's notwhat our law says now. Rather our S 59 justification defence means that as Halsbury’s Laws of England put it:
“An act is not an assault if it is done in the course of the lawful correction of a child by its parent" (and see all the refs/quotes above for more on the theory of that basic framework). Smacking by parents in this sense currently comes pre-approved, i.e., regardless of whather any particular individual does any of it.

I dare say that Key would give up the particular form of his demand for no BS talk if Bradford and Co. would accept that they're writing into the law that anyone who smacks their child is a bad parent (and in principle prosecutable if not in practice proecuted on that basis). Accepting that now every corrective smack will be strictly an assault coming from you the parent just as it would be if you were a corrective-smacking stranger would work too I'm guessing. (You have the same defences -would a stranger's conviction for corrective-smacking be found "too stigmatizing" by the Appeals Court I wonder?)

The truth here can be said in a lot of different ways. Unfortunately the Bradford's and Clark's of the world cannot bring themselves to say any of them.

Posted by plague : 4/20/2007 12:54:00 AM

each level has a different level of reliability - one would hope the court was by far the most reliable.

lets say the police have a situation where there is in the police's limited judgement - a 50% chance someone beat their child within an inch of their life, and a 50% chance it was an accident.
Surely one would want the police to take that to court so the more reliable insitution could check it out? what about 60-40 etc...

I note that there were other parts to that case BUT it was used as an example of S 59 being used in a paper referenced by helen about how bad S 59 is...

The impression I got was that the guy was an asshole and he was convicted of assault as a method to keep him out of the way and not stupifying other children.

"But for a person to become a criminal a complaint has to be laid, a
decision made to prosecute and a conviction secured in court."

does that mean if I killed you I would not be a criminal until I got convicted? I dont think that is how most people use that word.

> "In conclusion, parents can be reassured that they are unlikely to be convicted for minor assaults or for restraining a child."

but is that like "males can be reasured they are unlikely to be convicted for rape" or "unlikely to be convicted for having a P factory" both of which are probably also true

BTW I'll restate I dont plan on ever hiting my child (even lightly) as dicipline because I feel that implies a failure of all better methods.


Posted by Anonymous : 4/20/2007 07:52:00 AM

if Bradford and Co. would accept that they're writing into the law that anyone who smacks their child is a bad parent

I become more opposed to this bill everytime I hear Bradford speak. She insists she doesn't want to criminalise "good parents", I haven't heard her state definitively whether a light smack automatically makes one a "bad parent", who should be criminally prosecuted. I am one of the vast majority of parents who has, occassionally, slapped my child on the hand or bottom, though never as a matter of course. Would Bradford have me convicted of assault, and my children taken?

"Unlikely" is not, to me, a great reassurance where government is concerned.

Posted by Anonymous : 4/20/2007 08:19:00 AM

Well you know what, I've done a fair bit of searching and there don't appear to be any online opinions that I could find (not an exhaustive search I should say), other than the briefing sheet I already linked to. I'm trying to source something from one of the lobby groups supporting repeal, but it's proving more difficult than I had hoped.

But I would note that there has been a certain shifting of the goalposts in this thread. You wanted me to find an opinion saying parents who smack lightly won't be criminalised, but now apparently I am hunting for something that states categorically that the action of light smacking won't be illegal. Assumedly this is because the briefing sheet, which is clearly written with legal advice, provides assurance on the parent not being criminalised angle. (And actually I do find it reassuring because if the police can't find the time and resources to prosecute serious rapes, sexual assaults, and other crimes committed by criminals easily identified by their badge numbers then it seems rather unlikely to me that they will target "good parents" for light smacking).

Posted by Span : 4/22/2007 08:13:00 PM

"I was right: John Key isn't serious about improving the anti-smacking bill."

Still think this I/S?

Or, when John Key said he wanted a compromise, did he actually, I don't know, *want a compromise*?

Posted by Graeme Edgeler : 5/02/2007 07:48:00 PM

Graeme: I think it was true at the time - what he was offering wasn't in any sense a compromise. Interestingly, neither is what he has agreed to. Its simply a restatement of the status quo. An improvement to the political saleability of the bill, but strictly degenerate.

Posted by Idiot/Savant : 5/02/2007 08:07:00 PM