One of the cases which has sparked calls for changes to Section 59 was the Timaru mother who was acquitted of assaulting her son with a riding crop, after a jury trial. She has put out a You Tube video defending her actions, despite appearing in court a second time for a new charge of alleged assault.
Now some people think those of us who advocate for the Borrows amendment would find the above troubling to our cause. Not at all. The Borrows amendment would categorically have stopped there being an acquittal in the first case. To quote from it:
59(2) The use of force for a purpose specified in any of paragraphs (a) to (e) of subsection (1) is unreasonable if-
(b) it causes or contributes materially to harm that is more than transitory and trifling; or
(c) any weapon, tool, or other implement is used; or
(d) it is inflicted by any means that is cruel, degrading or terrifying
Now this mother asserts her right to use a riding crop and a cane to discipline her son. Regardless of whether or not you agree with her, it is crystal clear that under the Borrows amendment such behaviour would be illegal. There would be no possible defence in court.
Now here is the irony. Under the current Bradford/Clark bill, the mother might still get found not guilty. Because the current bill does not define reasonable force or rule out specifics such as using a weapon, tool or implement. It does ban the use of force for the purpose of correction, but the force used against her son was after he allegedly assaulted or threatened her husband.
Now if we go to the Bradford/Clark bill, they allow defences of:
59(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.
Now the mother would have a arguable defence under paragraphs (a), (b) and (c). She can argue her action was necessary to prevent harm to another person, to stop the son from engaging in criminal assault and to prevent the son from being offensive and disruptive.
Now who knows how a jury would rule, but the case is certainly arguable.
So let us be clear about this. Under the Borrows amendment, the actions in the Timaru case would absolutely be forbidden. Without the Borrows amendment, they might still be found to be legal under the Bradford/Clark bill.