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:
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.”