Should a smack as part of good parental correction be a criminal offence?

I wrote this post mainly for Larvatus Prodeo, where it is cross-posted.

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

Incoherent question, isn’t it? Nevertheless, that’s the question that New Zealanders are answering in a citizens initiated referendum. The referendum is being conducted by postal ballot, and it closes at noon (NZ time!) on Tuesday 25 August.

Since 1993, New Zealand has allowed citizens to initiate referendums, on any question that can be answered either “Yes” or “No.” But it takes a fair amount of work to get a referendum underway. The organisers of a referendum have to first propose a question to the Clerk of the House of Representatives. The Clerk is allowed to rework the question, but only to ensure that it can be answered with a “Yes” or a “No.” Once the question has been approved, the organisers have 12 months to gather support for having a referendum, by getting 10% of the voters on the electoral role to sign a petition to that effect, within 12 months of the question being approved. Given that there are about 3 million people on the electoral roll, anyone organising a petition now has to come up with about 300,000 signatures. So far, only four petitions have crossed the 10% hurdle.

1995: Should the number of professional firefighters employed full time in the New Zealand Fire Service be reduced below the number employed on 1 January 1995?. Result – 88% voted no. This referendum petition got its 10% of votes very quickly, by the clever tactic of standing uniformed firefighters on street corners, clipboards in hand. The pollies ignored the result.

1999: Should the size of the House of Representatives be reduced from 120 members to 99 members? Result – 81.5% voted yes. The pollies ignored the result, of course.

1999: Should there be a reform of our justice system placing greater emphasis on the needs of victims, providing restitution and compensation for them and imposing minimum sentences and hard labour for all serious violent offences? Result – 92% voted yes. This was a laughably incoherent question; it was impossible to support the first clause without also supporting longer prison sentences. The pollies didn’t quite ignore this question. There was no reform of the justice system, but they’ve done a bit of work on victim support. And they’ve gone hardball on prison sentences, catering to the credulous consumers of crime-porn news who think that crime in New Zealand is increasing all the time. It isn’t, but shamefully, New Zealand has an incarceration rate second only to the United States’ rate among OECD nations, (though to be fair to New Zealand, its rate is far more like the rates in the United Kingdom and Australia than the US rate).

For the record, I voted “No” on all of those questions.

And this year’s question, right up there at the top of this post.

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

There’s history behind this question. Section 59 of the Crimes Act had provided a defence against assault charges. A parent who assaulted her or his children could claim that she or he was using “reasonable force for the purpose of correction.” What constituted “reasonable force” was left up to juries to decide, with the result that some parents were found not guilty of assaults that involved using rubber hoses, bamboo canes and horse whips. [link] There was a long-running low key campaign for the repeal of section 59, but eventually, in 2005, Green Party MP Sue Bradford’s bill for repeal came before the house as a member’s bill. Partway through the legislative process, the ruling Labour party adopted the bill. The bill was extensively debated up and down the country, with those in favour of the bill arguing that all citizens, including children, should be entitled to the protection of the law, and that some appalling cases of assault against children (see above) had been discharged using the defence. Notably, virtually all the organisations in New Zealand that work with children supported the bill. Those against the bill, and in favour of the defence remaining in the Crimes Act, argued that this was just the nanny state interfering with home life, that parents had a god-given right to hit children, that police officers would spend all their time staling parents and entering private homes to keep an eye on the treatment of children, and that the sky would fall in. Eventually, the Leader of the Opposition (John Key, now Prime Minister), proposed a set of amendments which Prime Minister Helen Clark, the Labour Party and the Green Party agreed to. Section 59 now reads:

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.

The bill passed in May 2007, with 113 votes in support, and just 7 against. The critical change that brought the National party over to supporting the bill was the new section 59(4), urging the police to use discretion. So the first cases that were brought under the new law were watched very, very carefully. To the delight of the anti-bill/pro-smacking campaign, led by the curiously named Family First (they really should cross out the letter “r” in their name), one of the earliest cases was a prosecution against a dad who had allegedly ear-flicked his kids. Family First director Bob McCoskie was astounded that the dad had been charged, and proclaimed that it was a test case for the law. [link] But when all the details came out, it turned out that the father had punched his four year old son in the face. He had managed to do this right in front of a police station. He was found guilty, and sentenced to do an anger management course. To me, that looks like the amended law working as it should. Family First continue to be aggrieved by the law, and they claim that it is not working, but the data to date suggest that it is working perfectly. All of which makes the referendum pointless.

I think the question is utterly incoherent. I don’t think there is a possible world in which “good parental correction” and “smacking” go together. Hitting a child means that parents have failed, not as parents overall, but in that particular instance. It represents the parent’s loss of control, the parent’s anger winning, the parent failing to calm down, walk away, and in general, be the grown-up they are supposed to be. As a parent myself, I know there are many, many ways to discipline a child without resorting to physical violence. (In our house, it’s usually the sitting chair; the child is asked to sit on a chair, in the family room, until she calms down, usually for no more than five minutes. The clock starts again upon movement or talking. It works – everyone gets some time-out, including the adults, but no-one is removed or isolated. We also use the chocolate frog technique.)

At this stage, it seems that about 85% of New Zealanders will ignore both the evidence and the incoherence, and vote “No.”

And what our pollies will do about it? Prime Minister John Key, who seems to have all the moral fibre of a blancmange, says that ah.. well… hmmm… what are the focus groups saying… yess… well… I won’t be casting a vote! How’s that for leadership? Alas, the leader of the opposition is doing the same. [link] Shame on both their houses, I say. Shame for not voting to ensure that the smallest citizens of New Zealand are entitled to the same protections in law as any other New Zealander, and shame on them for not even having the courage to have an opinion on the matter. In any case, both leaders think that the law is working well, so there is no need for a change. [link] So this is set to be yet another referendum result that the politicians will ignore. What point then in having citizens initiated referendums at all?

As for me, yet again it seems that I’m going to be in the minority. I’m voting “Yes.”

For the curious, sites for the Yes campaign and the No campaign.

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19 responses to “Should a smack as part of good parental correction be a criminal offence?

  1. Like you I voted no in the previous referendums (referenda?).

    This time I’ve voted no again. I don’t think smacking is a good thing to do and this law still allows it for the reasons given in 1 a to d without defining “reasonable” which was part of the problem with the old law.

    In spite of the qualifier about police discretion it also risks criminalising parents who lightly smack a child. Smacking isn’t a good way to discipline children but parenting is difficult, parents are human and they should not be criminalised – or at risk of being criminialised – for administering a light smack.

  2. My preferred position is outright repeal of section 59. I think that citizens and residents who happen to be children should be entitled to the same protection in law as citizens and residents who happen to be adults.

    Parents aren’t being criminalised for administering a light smack, any more than any adult is criminalised for pushing another adult, or grabbing another adult to pull her out of the way of a car, or pulling her back from a hot flame, or whatever. Sure, all those things can be charged as assaults, but as a matter of practice, they are not, or if they are, then it’s because the perpetrator is a regular police customer, so it’s part of a pattern behaviour. Furthermore, I don’t see adults walking around in fear of being charged for such behaviour. So I think that argument is somewhat specious.

    I really don’t understand why more conservative people are comfortable with the government intruding into family life this way. The special protection of section 59 is very much an intrusion into what goes on in families. Anyone who thinks that the government should stay out of personal relationships ought to support the outright repeal of section 59.

  3. It is bizarre that the most right-wing of Christian people, who resent the government’s right to do just about anything, including taxing them, are voting no on this. I have them among my close family, and they can’t see the irony at all.

    On the victim support thing, it’s really incredible how much support my daughter in NZ has received over the death of her father. Apart from her statements being presented to the court she has received assistance that has included offers of a 100 km ride to the trial of the man who killed him (he is charged with dangerous use of a motor vehicle occasioning death), baby sitting, counselling, and even financial assistance for various matters to do with the trial.

  4. With you on the ‘yes’ vote. Ok, it’s daft and a little pointless. But it’s also a mini ‘culture-war’ and I know which side I want to support.

  5. Hitting a child means that parents have failed, not as parents overall, but in that particular instance. It represents the parent’s loss of control, the parent’s anger winning, the parent failing to calm down, walk away, and in general, be the grown-up they are supposed to be.

    I agree with you on your statement, but the law says smacking a child for correction, whether through belief or through temporary loss of control, is not just bad, but so serious that society must formally punish you !

    Doing something unlawful is a very serious thing that causes those caught up a lot of problems (one of which is to be recorded along with murderers and rapist as criminals). Are they really that bad (understanding that the laws of assault still stand . . . even though police discretion meant they were often not applied).

    I believe society can get into real trouble when the government changes the law against the will of the majority. All of the comments supporting making smacking for correction a criminal offence apply equally to the case to ban the sale of alcoholic drinks (drinking is bad, hurts people, etc) . . . but we saw in the past the widespread imposition and rejection of prohibition lead to a more lawless and unhappy society.

    The reality is there are many bad things that parents can do to their children that, IMO, are much more serious than an occasional smack for correction including: constant provision of junk food; excessive reliance on childcare while both parents work; and not properly supporting the education of a child. I am sure others will have other items (which may include, not going to church; no exercising, etc.) which also go to show there are nearly as many opinions of what constitutes good parenting as there are parents.

    And lets add to the hypocrisy of this law the fact that those few really bad parents who turn up occasionally having badly beaten or seriously neglected their child are usually 1) linked to other criminal behaviours such as gangs and drugs; 2) known to the authorities (being on a waitlist for support) and 3) not going to be impacted by the anti-smacking law in the slightest !

    I believe this referendum is important because it checks if the official legal view is also the democratic view. Assuming the referendum numbers are as predicted, the democratic answer to whether smacking should be a criminal offence is NO.

  6. Tony, would women have been granted the right to vote if the democratic view of the time had prevailed? Sometimes policy makers have to lead rather than follow public opinion. Thus does social progress occur. The sky didn’t fall in when corporal punishment in schools was phased out, and it’s not going to fall in if we keep this law the same

  7. I voted yes. This is my first referendum and I’m gutted it was such a stupid question.

    But I’m glad I got to vote in a referendum anyway.

    Even though the results will (quite rightly) be ignored.

    So ummm “What point then in having citizens initiated referendums at all?”

    Umm none? I would be massively pissed off if John Key listened to a bunch of fundies and repealed a law that was obviously working.

  8. Like you Deborah, I am a Yes voter.

    The issues with section 59 start with the fact that it was enacted as part of the Crimes Act 1961 and we now, some 48 years later, measure ourselves and our society very differently.

    The next problem is that our laws are made by one organisation (Parliament) and applied by another (the Courts). So the rules of nearly 50 years ago laid down in law have been slowly subverted by 5 decades of case law. I do not think that the intention of the courts was to open the door to the types of abuse detailed in your post but in the courts defence each judge must have regard for previous court rulings.

    Good system usually and flexible too but seems to have failed us in the case of section 59.

    The next problem is the word “reasonable”. As I understand it, there are two tests of “reasonable” in law. The first is subjective -how did you feel at the time and under those circumstances? The second is objective -how would a reasonable person feel at the time and under those circumstances? There is a well founded reluctance to define “reasonable” in any law due to the large amount of legitimate defences that use it. The easiest example being using force (up to and including deadly force) in an assault situation.

    The last problem is that defence lawyers found out that a section 59 defence worked better on juries than it did on judges so any charge of assault on a child laid under the crimes act was laid “indictably with right of trial” and any lawyer worth their salt elected jury trial with the result being some appalling case law. I have personal knowledge of assaults on children being laid as common assaults under the summary offences act to get around the section 59 defence by keeping the charge in front of a judge only but any serious assault ends up being under the crimes act.

    As mentioned our system of two bodies to separately make and apply laws and the building up of a body of court rulings to guide our justice system is usually very good, flexible and robust but seems to have failed badly in the case of section 59.

    I also think that the section 59 amendments are bad law and would like to see, just occasionally, some quality, principled leadership from the pollies.

  9. Because of the cumulative nature of the law all us colonies inherited from Mother England, it makes more sense to assess a law that is already in place according to how it is working than to all possible interpretations. Our lawbooks are riddled with ludicrous laws, but if they are not causing trouble, changing them is expensive and pointless. It also suffers from the law of unintended consequences. Law is not cut and dried, often when a law in changed or newly enacted, no-one knows how it will be applied and how it will work until it is brought before the courts a few times.

    Sounds to me like NZ has a law which is working well, even if its specific wording is troublesome to some people, so from a purely pragmatic point of view, changing it risks tipping the balance either way towards unfavourable consequences.

    Philosophically I agree with Deborah, you don’t need to hit kids. I think I may have slapped at hands a few times in my kids’ lives (when I have lost it – it’s a failure, not a recommendation), but smacking really isn’t necessary.

    Besides, watch one parent hit a child and say “Don’t hit” simultaneously and the stupidity is blinding.

  10. It would be better for the sake of the argument if you could include definitions and the differences between smack, hit, assault, and other relevant terminologies. The referendum only states the word ‘smack’.
    At the end of the day , politicians still count their success, job retention and future in terms of votes. The citizens of any democratic system, should not only practice free speech, but also should still be the ones to make or erase any laws affecting their society and themselves. It’s good that you’re practicing your right.
    I just hope that the majority of the voters have enough insight and substance behind their votes.

  11. Pingback: Parents who smack children should take some time to read some developmental psychology « The Dunedin School

  12. My father was beaten by his father, as were his siblings. They hated “the old man”, he scarred them in ways that left no visible marks. As my father approached death, he was filled with anxiety still, a rigid body forever trying to protect itself from harm. I know where my vote would be if I was in NZ. And my father – he never, ever hit me, nor did he smack me, nor did he shout at me. He just left me with an awareness of the lifelong scars he carried within.

  13. My father was beaten by his father, as were his siblings.

    I am very sorry for the experience that your father suffered.

    However, while these things happened then, the sadest aspect of your story is the extent to which they happen now. . . to other children . . . even after DECADES of supposed improvements in support services, education and, yes, the law.

    Pray tell me, as is implied by your comment, do you really think that, had the anti-smacking law been in place when your father was growing up, things would have turned out differently ? I think not based on what is happening now.

    Reality is the next genreation of children is being beaten up right now . . . with this law in place. The problem (such as outlined in “Once were warriors”) is difficult as will be the solution.

    But I am sure that supporters of the law will still sleep more easily because, useless as it is in tackling the real problems of child abuse, you will say “at least I did something”.

  14. That’s incredibly patronising. I don’t regard it as “at least I did something” at all. I simply see it as ensuring that our smallest citizens have the same rights as other citizens. It’s a much a point about equality as anything else, and seeing children as citizens, not possessions. I would rather see section 59 repealed altogether, but what we’ve got now is at least a step in the direction that I think the law should go in.

  15. Absolutely Deborah – we must look after the little people (first five years approach, etc). I took a deep breath before I submitted my comments – far too personal but I felt that the discussion had moved too far from the reality of the subject. The discussion of law, culture wars is wonderful and part of the process – just don’t move too far from the “frontline”. And Tony, if my father had grown up in more socially advanced times, he would at least have had the protection of child welfare agencies. Abuse has always existed and always will – the difference is that today we talk about it and pass laws to protect our most vulnerable.

  16. The preliminary results are in: 54% turnout (not bad for a referendum), of whom 87.6% want to be able to hit kids. Just 11.81% voted “Yes.” The remainder were spoiled votes. [link]

    Sigh.

  17. Extra loud sigh from Brooklyn, Wellington.

  18. I don’t think a smack is the best way to as you say “correct.” What smacking does however do, is it can sometimes knock sense back into somebody. Being a criminal offence-HAH! NO WAY! First of all, let’s revisit what a “Criminal offence,” really is. Most traditional dictionaries define a criminal offence as breaking a law, which causes injury to the public. However, referencing perhaps the standards that we all should live by: The Ten Commandments. The Ten Commandments has no mention of smacking or the sort.