An excellent compromise
Chester Borrows has put forward an amendment to Section 59, which I think will be acceptable to all but the zealots.
He correctly notes that almost evryone wants the same outcomes:
* To send a message that child abuse is wrong
* To stop parents who moderately and seriously assault their children from hiding behind Section 59
* To not criminalise good parents who occasionally smack their children
Borrows also describes the differing approaches as being about whether “protection afforded to parents and children should be enshrined in legislation or left to government agencies to make social policy by way of guidelines.”
He rightfully says laws should be made by Parliament, not by unelected officials, so proposes two amendments to Section 59. They are:
1) Requiring a judge to decide if Section 59 can be applied in the circumstances of the case, and then the jury would decide if the force used was reasonable, providing a filter so juries cannot misapply Section 59 out of sympathy
2) Defining reasonable force as no more than ‘transitory and trifling discomfort’, which drastically lowers the bar on the level of force that can be justified by Section 59
I really like the “transitory and trifling” definition as it is a very significant change to what is allowed. If MPs vote for a repeal instead of this amendment that means they want parents to be prosecuted for applying “transitory and trifling” discipline.
October 12th, 2006 at 9:54 am
“If MPs vote for a repeal instead of this amendment that means they want parents to be prosecuted for applying “transitory and trifling” discipline.”
Hadn’t looked at it that way, it offers MPs a stark choice.
October 12th, 2006 at 10:03 am
I was occasionally smacked as a child. My parents were careful to never do this while they were angry with me, choosing instead to defer the smack or cane until they’d calmed down and I’d had timeout to reflect on my error. When I was smacked I knew I deserved to be punished and learned behavioral boundaries pretty quickly. I believe that I’m a better person for the corrective actions taken by my parents.
As a parent I have occasionally smacked our children although this would probably amount to less than a fraction of a percent of the times for which some kind of disciplinary action was needed. They too have grown into mature and responsible teenagers. How mature and responsible? They know my bank pin number and use my card for agreed purchases and have never abused this. They don’t touch alcohol (despite us having wine at home), can be relied on when their word is given. They play sports and are looked up to by their peers, etc. Am I boasting? Hell yes!!
I want all kids to be protected and nurtured. There is clearly a point at which corporal punishment becomes violent abuse so the pragmatic suggestions by Chester Borrows get my full support.
October 12th, 2006 at 10:07 am
More complete daftness.
What is “transitory and trifling” discipline?
Anyone who has children will tell you that banning a favourite TV show will make some children react as if their throats have been cut.
If restrictions are to be applied they need to be based upon sensible definitions. How about some clear medical guidelines?
The beauty of the current law is that it reflects the state of society at any particular time. If a lawyer can convince the jury that the level of force is not reasonable, then it is not legal (and failure of that is a reflection on the ability of the lawyer, not the law). To make smacking illegal, all that would be needed is for anti-smacking lobbyists to convince enough of the general public that it was unacceptable, and it would naturally flow on into law as juries applied societies perception of acceptability. This means that the law automatically changes to reflect society, no legislation required.
Having failed to convince the public of her stance, Bradford has taken the lazy route- convince the politicians to take controll away from the public.
Enough of wooly PC type definitions. They make bad law. If the Law really needs changing, lets have some clear, sensible definitions that set boundaries that can actually be applied by a parent in a pressure situation.
And since I don’t like the proposed changes, I will state clearly now that I also do not support, advocate or approve of actual physical harm being inflicted on children.
October 12th, 2006 at 10:13 am
The zealots will fight this because if it is included, then they will not be able to do their next step of categorically outlawing physical discipline. They’ll have to get rid of this first. Sue Bradford has said that she would like to completely outlaw smacking eventually.
October 12th, 2006 at 10:17 am
Sue Bradford already thinks people who smack their kids are getting sado-masochistic sexual pleasure from it. Says more about her I think.
October 12th, 2006 at 10:19 am
I tend to agree with Peter S. There will be much head-scratching over how to define transitory and trifling. Will sending a child to its room for several hours be defind as transitory? I wouldn’t have thought so.
October 12th, 2006 at 10:23 am
“Sue Bradford already thinks people who smack their kids are getting sado-masochistic sexual pleasure from it. Says more about her I think”.
She’s also been quoted as saying that pulling a child away from an oncoming vehicle is assault. How can you reason with someone like that?
October 12th, 2006 at 10:37 am
Ross says, “She’s also been quoted as saying that pulling a child away from an oncoming vehicle is assault. How can you reason with someone like that?”
Can you show us the quote? I doubt it. I have made a written and oral submission opposing loopy Bradford’s bill. Having said that we should not use her tactics.
October 12th, 2006 at 10:42 am
From the Listener published last year. An interview with Bruce Ansley.
Section 59 has, says Bradford, “justified a climate of violence…[t]he aim is not to incriminate parents for smacking their children.”
Bradford, however, eventually wants to do exactly that. “I’d like to go that far, but the time is not right yet.”
Meanwhile, the pre-amble to her Bill explicitly states that, by repealing S59, the use of force on their children may open parents up to assault charges. So, if the defence of reasonable force is removed, parents can be arrested and prosecuted for smacking their children?
“Theoretically,” Bradford agrees. But she expects police to turn a blind eye, “just as they do with other assaults”. Such as? Pushing someone out of the way of a car, she says.
October 12th, 2006 at 11:23 am
While this looks good, it’s missing the point.
There is no problem with Section 59 – only a perception of a problem.
Sue Bradford’s bill is extremely dangerous – she has said time and again that parents should not be able to “assault” their children, then turned around and said they should. Radio Rhema challenged her on this morning and she said quite clearly that it should be illegal, but parents should not be arrested.
This proposal will run into the exact same issues as the current law – Judges hearing all the facts will not always please politicians who do not.
Personally, I have a real problem with compromising between a police state, and common law.
As I urge people on my blog, read Michael Drake’s “by Fear and Fallacy” – it’s by far and away the best coverage of the issues I have seen, albeit from a Christian perspective.
October 12th, 2006 at 11:25 am
Fact is you cant legislate to STOP violence against children This is the ambulance at the bottom of the cliff The fence at the top of the cliff is education.If parents cant or wont be educated then you take the children off them and place them in a family where the adults have provede they can be good parents.
I am anti the state but pro protection of innocent children hence this approach, I dont like seeing state agencies getting into citizerns lives but I dont see any other way around protecting children from violent parents.
Section 59 is a storm in a teacup. How many cases come before the Courts each year as a percentage of the number of children in NZ.
This is just another case of Socialists who want to take over control of families.
October 12th, 2006 at 11:39 am
i think Chester Borrows comments are a good midway point between what some fear will happen (if this bill is introduced) and what some parents are getting away with as “reasonable force”.
I dont want to see parents hauled into the courts for smaking their child, but i dont like the idea of parents getting away with severly beating their kids with sticks and other assorted objects.
(for clarity’s sake i would define ‘smack’ as an open hand, as opposed to a closed fist – but i think thats a given)
Hell, i received many a clip round the ear as a child. I cant remember them all, but it would be fair to say that i deserved them all.
but thats all they were, a clip round the ear, not a physical beating. I know the line between the two is very subjective, and very blurred for some, but if the current system is excusing people who have been severly beating their kids then it has to be changed.
October 12th, 2006 at 12:36 pm
She’s also been quoted as saying that pulling a child away from an oncoming vehicle is assault. How can you reason with someone like that?
By listening to what she was actually saying. Bradford was saying that pushing someone out of the way of a car meets the legal definition of assault, and it does — the Crimes Act says nothing about context or motive, only “applying force to the person of another”. She wasn’t saying that such an act is wrong, she was just pointing out that there are already acts which technically qualify as assault, but which are overlooked by the police (as support for her claim that, were S.59 to be repealed, parents wouldn’t be arrested for smacking).
I don’t fully agree with Bradford’s position in all this, but we get nowhere by mis-representing other what other people are saying.
October 12th, 2006 at 1:24 pm
Josh,
It’s reasonable force. Just as if someone enters my home, I can use reasonable force to remove them. Reasonable force might include injuring them if they have a weapon. If a child is about to be run over, it’s reasonable to move them out of the way (unless you want to see them hurt or possibly killed). I should point out that many individuals have been charged (and many acquitted) of using reasonable force. So to say that the police wouldn’t lay charges is not supported by the facts. They already lay charges against adults using reasonable force.
The police have said that smacking would constitute an assault and that they would take the age of a child into account before laying charges. It’s almost certain that police would lay charges against parents that smacked if s59 is repealed.
October 12th, 2006 at 1:47 pm
Section 194(a) of the Crimes Act already outlaws assaulting children under 14 and imposes a maximum two-year prison term on anyone who does. In situations such as these, as in all assault investigations, police already use their discretion and consider the amount of force used before deciding whether to lay charges. I have never heard of a case where a parent has been arrested and charged for lightly smacking a child, and it is ludicrous to suggest this will change if Section 59 is repealed.
October 12th, 2006 at 2:39 pm
“I dont want to see parents hauled into the courts for smacking their child, but i dont like the idea of parents getting away with severely beating their kids with sticks and other assorted objects.”
Name *one* child that has been “severely beaten” with “sticks and other assorted objects” and let off by appealing to section 59.
Please provide relevant links to the full details of the case, including the offence the child committed.
October 12th, 2006 at 3:24 pm
“Section 194(a) of the Crimes Act already outlaws assaulting children under 14 and imposes a maximum two-year prison term on anyone who does…I have never heard of a case where a parent has been arrested and charged for lightly smacking a child, and it is ludicrous to suggest this will change if Section 59 is repealed”.
You don’t get it, do you? Smacking IS NOT assault; it’s reasonable force. Of course you haven’t heard of a parent being arrested for smacking a child because the police know they would be laughed out of court. But the police have stated that smacking will constitute an assault once s59 is repealed. Why would they say such a thing if they don’t intend to prosecute?
There is a simple way to resolve this argument. If a parent is charged with smacking their child, you’d be only too happy to contribute to their legal costs? I didn’t think so.
October 12th, 2006 at 4:09 pm
here we go again..
definitions of the three points of debate on sec 59 debate…
1) those who were hit as children…now hit/have hit their children..
(they also invariably trot out the “didn’t hurt me!..i deserved it!..” mantra/defence of theirs’ and their families actions/history..)
2) those who weren’t hit as children don’t hit their children…
(just meditate on those two facts for a moment..then tell me hitting children is not an inter-generational’learnt’..?..)
3) within a very short time of this debate starting..one of the barking ones will chime in with “it’s all a socialist/commie plot.!..”..)
(c.f. gd..ross..the smaller brian..et.al..)
then of course lucyna from sir humphrey chimes in with her particularly warped logic/worldview..
for a classic example of the workings of that mind..head over to sir humphreys and read her rant on not giving any benefit to solo mothers..(letting them and their children starve/be homeless..?.)
yet…she is also fiercely anti-abortion..
is her mind unable to join those two dots..?
wtf does she think will happen to those babies who are conceived..?..that they will fecken evaporate or something…?
go read that..then discount anything else she may say..
she really is ‘barking’..eh..?
phil(whoar.co.nz)
October 12th, 2006 at 4:52 pm
The proposal of Borrows will lead to extensive and expensive test cases most funded by the taxpayer as transitory and trifling are legally defined. In that respect Bradfords suggestion of repealing the defence makes more sense. Section 59 has been there for almost a hundred years and all the case law has been established. It is simple and judgement is left to 12 ordinary commonsense New Zealanders, thats the way it should be.
October 12th, 2006 at 4:56 pm
Ross said: “The police have said that smacking would constitute an assault and that they would take the age of a child into account before laying charges. It’s almost certain that police would lay charges against parents that smacked if s59 is repealed.”
Utter bullshit. Police opinion states that police investigating complaints of assault against children, “as is the case with all assault investigations, would consider the amount of force used in the circumstances before making a decision about whether prosecution is required in the public interest”.
The police legal opinion also says that police would not prosecute parents who used physical force when they remove their children from danger.
aladin
October 12th, 2006 at 7:00 pm
Phil – ever heard of adoption?
Aladin – every hear of CYPS?
October 12th, 2006 at 7:27 pm
um..yes ‘washingone’..i have heard of adoption..
your point..?
phil(whoar.co.nz)
October 13th, 2006 at 9:06 am
Aladin,
I’m beginning to think you were dropped on your head at birth.
The following opinion comes from the Office of the Police Commissioner and was written last year.
“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…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”.
What part of that don’t you understand?
So because a child is generally more vulnerable than an adult, a parent that smacks a young child would face the serious possibility of being charged. Of course, if you believe that the Police Commissioner has got it wrong and that smacking should not be deemed an assault, I’m sure you will advise him of his error.
October 13th, 2006 at 9:22 pm
From Ross: “An aggravating factor in any such decision may be the fact that a child is generally more vulnerable than an adult”.
More vulnerable? Well that’s a good reason to repeal sect.59 dont you think?
BTW, why do you think so many organisations support the repeal: UNICEF, Plunket, Save the Children, Barnardos, United Nations, EPOCH, Auckland City Council, to name but a few.
aladin
June 12th, 2007 at 2:08 pm
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