Myths about the smacking bill

I’ve seen many claims made about the Crimes (Substituted Section 59) Amendment Bill, often referred to as the smacking bill or anti-smacking bill. More have appeared on Kiwiblog today in discussions about a news report on how the bill has been working – Fewer parents being investigated despite ‘anti-smacking law’.

For example kowtow:

Eight parents prosecuted in the 5 years since the legislation was brought in,seven for smacking the head or face…….

so not one of those cases was a serious “assault”.

In the same period how many children were murdered by a “care giver or guardian”?

The bill was foisted on us on that pretext……hasn’t stopped the dangerous stuff.

And ‘dime’:

the difference being they sold us the anti-smacking law like it was going to stop all violence towards kids. just your typical lefty lie

That’s typical opponent exaggeration.

Sue Bradford’s Third reading speech had no promises of stopping all violence against kids. She said “Law change alone is not enough”.

What we have been simply seeking to do is remove a defence that has allowed some parents to get away with quite badly beating their children and, most significantly, that has stopped police from taking action in many situations of violence against children.

She states one of the primary goals was so “children will finally receive the same legal protection as adults”.

She says more needs doing, and the law change needs monitoring to make sure it works ok.

The full speech makes it clear what was claimed (and it doesn’t claim many things that have been blamed on it):

Bradford, Sue: Crimes (Substituted Section 59) Amendment Bill — Third Reading

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SUE BRADFORD (Green) : I move, That the Crimes (Substituted Section 59) Amendment Bill be now read a third time. Nearly 2 years ago my member’s bill to repeal section 59 of the Crimes Act was drawn from the parliamentary ballot. Although I was certainly well aware of the controversial nature of the issue that the bill deals with, after facing hostile audiences when on various election platforms around the country, little did I realise back then the full extent of the difficulties that were yet to come.

I came to Parliament after many years of working for the rights of unemployed people and beneficiaries, and was very used to our groups and ourselves being seen as outcasts—koretake, blamed, and despised. I was used to being physically assaulted when on street protests and, often enough, arrested as well. However, none of that prepared me for the level of vitriol and for the ugly lies and threats cast at myself and others, simply for standing up for the right of our babies and our children to live lives free from violence.

I thought that in a country that prides itself on being a great place to bring up kids, and where people from all parts of society talk constantly of their love for children, it would be like motherhood and apple pie to work for a law change that benefits children. Instead, the debate over whether to get rid of the defence of reasonable force for the purpose of correction has shown quite starkly that some people believe that the right of parents to legally beat their children is so important that they have stooped to threats of violence and other abhorrent tactics. However, it has in the end been a wonderful thing that despite the ugliness of some aspects of the public discourse, so many members of this Parliament from almost every party have chosen to support my bill in its amended form.

I acknowledge and thank all involved, from all sides of the House, for their support within this outbreak of consensus politics, and I regret, on behalf of Peter Dunne and Judy Turner, that this bill has seen their party break apart because someone called Mr Gordon Copeland is so dedicated to fighting for the right to beat children that he has abandoned his long-term allegiances.

The bill in front of us tonight fulfils my original goal of removing the defence of reasonable force, while at the same time dealing with some of the fears expressed at different times by both the Labour and National caucuses, and by some members of the public. The Labour-led amendment that came out of our select committee consideration of the bill is aimed at reassuring parents that they will not be prosecuted if they use reasonable force when doing things like putting a child in a room for time out, forcibly removing a child from danger, or restraining a child from causing damage to people or property. I am aware that some lawyers believe that this new provision may be misused as a legal defence for having hit a child as part of control, and because of this I believe that its use as a defence in future must be monitored to ensure that it is not used this way in practice.

The second significant amendment to the bill has been the one put forward just 2 weeks ago by Peter Dunne, which was agreed to by both Labour and National through John Key’s leadership. It encapsulates within the bill the long-established police discretion regarding the action they take when deciding whether to prosecute in very minor cases where there is no public interest in proceeding. This new provision simply affirms in law what is standard police practice under their existing prosecution guidelines, but I think it is useful in helping to calm some of the unnecessary fears that have been driven up by the bill’s opponents.

Neither the select committee, myself, nor anyone else supporting this bill has ever intended that all parents who ever lightly or occasionally hit their children should be subject automatically to investigation and police prosecution. What we have been simply seeking to do is remove a defence that has allowed some parents to get away with quite badly beating their children and, most significantly, that has stopped police from taking action in many situations of violence against children.

Some of the most powerful submissions to the select committee came from paediatricians, who talked about the injuries they see constantly and about how most of those injuries are inflicted in the name of child discipline. Only last week we were made all too aware of the case of the 3-year-old Ōtara boy who was killed as a result of beatings inflicted in the name of toilet training. The police officer who led the investigation, Detective Senior Sergeant Richard Middleton, said, among other things: “… what I will say is keep your hands off your kids. Don’t hit them. It’s not on. There’s no need for it.” I think it is a red-letter day when a senior police officer feels able to make such an unequivocal statement in the national media. Police, like paediatricians, see the daily consequences of what happens when people assault their kids just to teach them a lesson.

Some people say that smacking or spanking is not violence. I ask them: “What else is it? If a burly gang member, much larger than you, smacked you in the pub tonight, what would you call that?”. Some people say that the deaths of children like James Whakaruru or the little Ōtara boy have nothing to do with this bill. I say that they have everything to do with it. There is a spectrum of violence used against our babies and children, and one person’s light, occasional tap is another person’s beating or shaking to death—all in the name of so-called correction.

I have been much criticised by the bill’s opponents for my unwillingness to support the early amendment put up by Mr Chester Borrows, which attempted to define the nature and level of force that parents could legitimately use against their kids. I simply reiterate that to support any such definition would make things even worse for children, by having the State define acceptable violence and by entrenching the legal and social concept that it is OK to beat children but it is not OK to beat adults.

It is important that as we finally vote this bill into law we also look forward to what else needs doing. Law change alone is not enough. To be really effective, the bill we are passing tonight needs to be accompanied by a well-planned public information campaign that tells people the intentions and implications of the law in a way that does not make people feel frightened or guilty. The Government also needs to make an ongoing commitment to maintain and extend the SKIP programme, so that strong, clear messages about alternatives to physical discipline are available to all parents around the country.

Funding for community groups that support children, parents, and families needs to be increased. We need research on, and monitoring of, the attitudinal change that I feel sure will result from this new law—as it already has, I think, during the 2 years of public debate. The interpretations of the new law, and its implementation by the courts, police, and Child, Youth and Family, all need to be monitored well. I welcome the 2-year review that was instigated by the Minister David Benson-Pope. I also strongly recommend that the Government works closely with the relevant non-governmental organisations, following the bill’s passage, on an action plan to ensure that the best possible outcomes are achieved for children and families.

In conclusion, I would like to take a moment to thank some of those who have played such a critical role in championing and supporting this bill in getting it to the stage it is at tonight. An enormous number of organisations have worked tirelessly for reform over the last 2 years, including Plunket, Barnardos, Unicef, Save the Children, the Families Commission, the Office of the Children’s Commissioner, EPOCH, Every Child Counts, the Body Shop, the Child Poverty Action Group, Parents Centres, and many, many others. I am sorry I cannot name them all.

Many individuals have also played a key role—people like Beth Wood, the Ritchies in Hamilton, Mike Coleman, Deborah Morris-Travers, Megan Payne, Ian Hassall, Cindy Kiro, Kaye Crowther, Robert Ludbrook, Sonja Hogan, Rhonda Pritchard, and David Kenkel. I salute all of them and apologise to all the many others I do not have time to mention tonight.

I also say a special thanks to the Reverends Anthony Dancer and Margaret Mayman, and to all the other clergy involved in hosting the moving ecumenical service that a number of us attended in the cathedral up the road a couple of weeks ago, for their assistance in mobilising Christians in support of this bill. I also acknowledge the huge amount of work done by the MPs and officials involved in the very long select committee process, including the sterling efforts of our Parliamentary Counsel Office adviser, Elizabeth Grant.

Finally, I say a huge thanks to all the MPs who stood firm in support of this bill during some fairly dark days, including Helen Clark and the Labour caucus, the entire Māori Party caucus, all my own Green Party colleagues, Peter Dunne, Brian Donnelly, Doug Woolerton, and Katherine Rich. Those members are all heroes in their commitment to a vision of a country where children will finally receive the same legal protection as adults. I also acknowledge the lead that John Key took in working to find a way through a seeming impasse, so that his party, too, could lend its full weight to the mana of this bill.

But, in the end, this bill is not about us here at Parliament—or, indeed, about adults at all. It is about our children, and what I believe is their God-given right to grow up secure in the love of their families, valued as equal citizens to the rest of us, and without the constant threat of legalised violence being used against them.

http://www.parliament.nz/en-nz/pb/debates/debates/speeches/48HansS_20070516_00001048/bradford-sue-crimes-substituted-section-59-amendment

That speech should be shown whenever any outlandish claims are made about the bill.

6 Comments

  1. Speeches are all very fine, but the legislation is actually what counts. Sue Bradford has conflated physical discipline with abuse, and is against physical discipline and is against trusting good parents to do the best they can.

    Firstly, it’s always been against the law to beat children. ALWAYS. The Green’s crusade to ban physical discipline, hinged on about a dozen court cases where the judge made questionable decisions on what constituted assault versus discipline. However, when I looked into those cases and decisions, I began to understand why the judges made the calls they did.

    Can you imagine the Greens arguing that David Bain (sorry David, only example that came to mind, not saying you were definitely guilty) got away with murder because murder has been allowed in the previous laws, but now they’ve passed a new law toughening up the definition of murder, Bain can’t get away with it? Laughable.

    Let’s look at the legislation, not the speech:

    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 disruptive 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 the Police have the discretion not to prosecute complaints against a parent of a child or person in the place of a parent of a 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 proceeding with a prosecution.

    Some comments about this act:

    The anti-smacking lobby maintained “reasonable force” was too hard to define, and was one of their justifications for banning it. Yet subsection 1 allows reasonable force in a variety of circumstances. Supposedly, you can use a horse whip on a child providing you are minimising harm to another child, or stopping them from being disruptive. Legally. Not a loophole they care about though, they only want to ban discipline. This sounds ridiculous, but the point the Greens made about the supposedly bad judgements was that the judges were forced to follow a badly worded law. This gives judges the same out.

    Subsection 2 explicitly bans any sort of force for the purposes of correction, or discipline. This is distinct from using “reasonable force” for nearly any other conceivable reason, as per subsection 1. Note that force includes the threat of force (it comes under the assault laws) in the same way you cannot threaten an adult, so why should you be able to threaten your child? A threat might be “I’ll smack you if you continue to pull your sister’s hair”. Force also includes placing a child in timeout against their will. You technically need to ask them if it’s alright to put them in timeout, although they are not old enough to legally consent, so you are still guilty of breaking the law.

    Subsection 3 Makes absolutely sure that we understand discipline (correction) is banned.

    Subsection 4 assures us that even though you are breaking the law should you discipline your child, you probably will not be prosecuted.

    It is my contention that making badly worded laws is the worst kind of law making. This law makes parents are technically guilty if they should even lightly smack their child in discipline or place the child in timeout.

    Now, many people believe parents who smack are guilty of assault. Sue even said shortly after the law change [on radio, no link] “we promise the police will not prosecute parents for minor assaults” Note the use of the term “assault”. They feel completely justified in equating a smack in discipline with assault, and making this action illegal. That’s why we had a referendum, which was ignored. That’s why we are still arguing this point.

    Sue said:
    It is about our children, and what I believe is their God-given right to grow up secure in the love of their families, valued as equal citizens to the rest of us, and without the constant threat of legalised violence being used against them.

    Pretty words, but pulling children out of homes on suspicion of a smack is violence of another sort. And those words actually talk about the “threat” of violence. What is violence? It’s not just physical, it can be mental, and that can have worse effects than smacking. The legislation hasn’t really changed anything in the courts – it just gives the state more power to threaten parents with the removal of children (which would only get to court months if not years later) if some fascist CYF worker or presumptive neighbour lets their biases get away from them.

    • Juries were seen as more of a problem than judges, making some controversial decisions to acquit.

      • Hi Pete, yes – the previous law could have produced bad judgements from judges, but tightening that up would have been easier than the wording above. Then there are judges that will make bad calls. Then there are juries that will buy a heart-felt plea from a person who clearly used excessive force, in anger, rather than gentle correction, without anger. That’s a problem in general with our system – no system is perfect.

        However, the legislation is clearly an ideological position. Nothing allows smacking for the purposes of correction. It requires such action is conflated with abuse. It shouldn’t be.

        • “Nothing allows smacking for the purposes of correction.”

          I think you are wrong on this.

          “It encapsulates within the bill the long-established police discretion regarding the action they take when deciding whether to prosecute in very minor cases where there is no public interest in proceeding.”

          “The Labour-led amendment that came out of our select committee consideration of the bill is aimed at reassuring parents that they will not be prosecuted if they use reasonable force when doing things like putting a child in a room for time out, forcibly removing a child from danger, or restraining a child from causing damage to people or property.”

          I think most of parent’s concerns are addressed in S59, albeit imperfectly.

          I think if parents clearly understood what the legislation allows and doesn’t allow the opposition to it would be substantially reduced.

          I’m not altogether happy with the legislation but not too unhappy with it. It attempts to address a difficult and complex issue.

          I think anything encouraging parents to consider better alternatives to physical punishment is worthwhile. Hurting kids is not helpful, and can damage them, especially when parents lose control – that is one of the biggest dangers, having a habit of (inconsequential) smacking and then losing your temper and walloping.

        • Great analysis. Thanks. I have a better picture of said law.

          Do you think it needs changing or do you think it’s working?

  2. Brown

     /  January 13, 2014

    I think the law says exactly what was intended – to ban smacking and allow prosecution of parents that do.

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