Smacking Hysteria

The petition to roll back the removal of the defense in law for beating your children is a sort of IQ test and it appears roughly 390,000 people have failed.

The question proposed for the referendum is appropriately wide of the mark:

"Should a smack as part of good parental correction be a criminal offence in New Zealand."

It's hard to see why these people are in such an uproar. Not one parent has been prosecuted for smacking a child since the right to beat your children with impunity was repealed.

The old law said:

Section 59 of the Crimes Act 1961
Domestic discipline
(1) Every parent of a child and every person in the place of a 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.

In practice, this had allowed lip-swelling, eye-blackening, ear-drum popping physical assault (not just smacking) on children. There are no two ways about that. What is not clear is how serious the assault may be before it becomes unreasonable. Many of us will know of families where "a hiding" resulting in significant physical injury to the child is considered to be reasonable by the parent.

Assault on Children is already illegal under Section 194(a)of the Crimes Act and no distinction is made between parents and non-parents:

194. Assault on a child, or by a male on a female---Every one is
liable to imprisonment for a term not exceeding 2 years who---
(a) Assaults any child under the age of 14 years; or
(b) Being a male, assaults any female.
Cf. 1952, No. 43, s. 5

Has anyone ever been prosecuted for "smacking" a child"? No. Just as no adult has been prosecuted for a trivial assault on another adult though these are technically illegal, too.

It's now obvious that physical assaults on children have been illegal since at least 1961 when the original Crimes Act was passed, with Section 59 effectively allowing parents to assault their children - legally - provided the police did not consider the assault to be so excessive as to warrant prosecution. That left parents a lot of room to inflict violence on children with no guidance in law as to what was reasonable.

The new law doesn't actually change this much at all. Certainly not from the perspective of parents who do NOT beat their children.

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.
Subsection (1) was substituted, as from 23 July 1990, by section 28(2) Education Amendment Act 1990 (1990 No 60).
Subsection (3) was inserted, as from 23 July 1990, by section 28(3) Education Amendment Act 1990 (1990 No 60).
Section 59 was substituted, as from 21 June 2007, by section 5 Crimes (Substituted Section 59) Amendment Act 2007 (2007 No 18).

The new law says much the same thing as the old law. It is illegal to assault children. What has changed is the new law makes it clear that force can be used to prevent children from doing things they need to be prevented from doing, but they cannot be gratuitously assaulted for the purpose of correction (punishment). Further, the law explicitly allows the police to ignore inconsequential assaults for children as they already do for adults.

This is essentially the same thing as the old law, but much more clear than the old law. This additional clarity is important, good and useful to parents and the police. It lowers the bar as to what violence and how much violence is acceptable. That IS a good thing.

How any reasonable, informed person could oppose this law change defies understanding. One can only conclude people opposed to it are either unreasonable, uninformed or both. I suspect reasonable people are merely uninformed. Having seen their materials first hand, the "Family First" group and so-called "Kiwi Party", and their fellow travelers, are a primary source of mis-information on this law change.

One would hope that if there were to be a referendum that Kiwis would actually READ the old law and the new law and see for themselves the hysteria whipped up over this law change is unfounded. That hope may be in vain given roughly 50% of Kiwis who state a preference are happy to vote for a party that refuses to reveal its policies. Whatever qualities Kiwis generally may possess, the evidence of recent political polls suggest that where law and politics are concerned, thoughtfulness and curiosity appear to be minority traits.

Just one more example of unfounded beliefs unconnected from what is verifiable and real. The campaign against this new law is just one more trick being played on people made stupid by their own lack of curiosity as to what the new law actually, REALLY says (and means).