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By Rex Ahdar and James Allan
This is an edited version of an article from The New Zealand Law Review [2001]. The complete article is available from NZEDF.
Section 59 of the Crimes Act 1961 currently permits parents to administer moderate corporal punishment to correct their children’s misbehaviour. Various groups contend that corporal punishment should be abolished. It is, they charge, ineffective, if not harmful. They invoke the United Nations Convention on the Rights of the Child in support. Rex Ahdar and James Allan argue that the abolitionists’ case is decidedly weak. The arguments for banning corporal punishment are philosophically suspect, linguistically strained and not supported by the rather limited research evidence. The authors conclude that the present law on parental smacking should remain.
1 The Present Law
The common law has long recognised the right of parental corporal punishment. Blackstone observed a parent “may lawfully correct the child, being under age, in a reasonable manner”. Courts have understood such correction to include moderate physical punishment. New Zealand codified the common law right of physical chastisement in 1893, the modern encapsulation being section 59 of the Crimes Act 1961:
59. Domestic Discipline—(1) Every parent of a child and, subject to subsection (3) of this section, every person in the place of the 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.
(2) The reasonableness of the force used is a question of fact.
(3) Nothing in subsection (1) of this section justifies the use of force towards a child in contravention of section 139A of the Education Act 1989.
The term “justified” in section 59 is defined in section 2(1) of the Crimes Act as meaning, in relation to a person, “not guilty of an offence and not liable to any civil proceeding”. Thus, parents who come within the section’s terms are protected against criminal prosecutions for child assault.
2 Impetus For Abolition — If in Doubt Appeal to a Convention
There has been a groundswell of support for abolition from academics and various child-oriented organisations such as Child, Youth and Family Services (formerly CYPS), the Ministry of Youth Affairs, the Office for the Commissioner for Children, the Youth Law Project, and the New Zealand branch of EPOCH (End Physical Punishment of Children), as well as from the United Nations Committee on the Rights of the Child, and from judges sensitive to criticism for ignoring what are said to be international obligations requiring the abolition of the parental right of corporal punishment. In short there is a growing “Wellington worldview” (our term for this self-styled elite’s consensus of opinion) that favours abolition. However, public opinion in New Zealand still supports corporal punishment of children. As long as that remains the case, there is no democratic basis on which to hang the Wellington worldview.
Abolition in New Zealand would, require more than simply repealing section 59 of the Crimes Act. Parents could still, by virtue of section 20 of the Act, claim immunity from suit under the common law defence. A specific statutory prohibition upon parental physical punishment would be needed. One reform would be for the statutory immunity in section 59 to be repealed. The common law defence would remain while—following the Scandinavian example—a major educational campaign would endeavour to change parental opinion. Such a campaign, as we shall see, is underway. Finally, subject to the success of such a campaign, a specific enactment outlawing parental punishment would be passed. The scope for prosecutions of recalcitrant parents would exist but could be mitigated by the consent of the Solicitor-General being a precondition to criminal proceedings.
Whether public opinion will be swayed by an anti-smacking campaign remains an open question. “Anglo-Saxon culture”, lamented Caldwell, “places far more emphasis on the infliction of pain on children as a means of behavioural control than do other European societies.” Moreover, Maori and Pacific Island parents are strongly in favour of corporal punishment. Surveys consistently show a high level of public support for corporal punishment. A 1993 survey revealed that:
New Zealanders still approved of corporal punishment in the home, with 87% of New Zealanders believing that “in certain circumstances it is all right for a parent to smack a child” … Although smacking with the hand is still both approved and used as a standard parental response to the misbehaviour of children of all ages, anything more severe is no longer part of the repertoire of most parents or the experience of most children.
Certainly severe smacking is in decline and alternative methods of discipline seem clearly to have increased in popularity. Nonetheless, support for sparingly-used, “moderate” smacking persists. Indeed, one poll in 1997 found 56 per cent of the people polled wished that corporal punishment be reintroduced into schools for serious misbehaviour. The “dark stain on New Zealand child rearing” of smacking, as Professors James and Jane Ritchie tendentiously put it, appears to be valued by a significant proportion—a clear majority—of New Zealand parents.
No doubt as a response to this persistent and continuing support for smacking, the Child, Youth and Family Services (CYFS) (prior to October 1999, the Children, Young Persons and Their Families Service) has undertaken an extensive “educational” campaign in recent years. The Government amended the CYPFA in December 1994, imposing a new duty upon the Director-General of Social Welfare to “promote, by education and publicity … awareness of child abuse [and] the unacceptability of child abuse”. A “Breaking the Cycle” campaign was begun in May 1995, in which child abuse was interpreted to include legal smacking. Stage four of this “social marketing” strategy was the “Alternatives to Smacking” campaign launched in September 1998.
CYFS literature argues that smacking is outdated and ineffective. It is a form of violence imposed by larger people on smaller people that is undesirable; further, “it can lead to emotional and physical damage” which is most regrettable as there are, according to them, effective alternatives to smacking. CYFS says it is not trying to “demonise smackers”, nor does it expressly assert that smacking in itself is child abuse—although its language is, at times, most charitably characterised as equivocal. Its main thesis is that physical punishment is morally wrong, ineffective and can all too readily degenerate into physical abuse. Accordingly, the abolitionists conclude it is better to abolish hitting altogether. CYFS appears to favour a change in the law and it invokes the CRC in support:
Some people have called for smacking to be outlawed. That’s of course a decision for politicians to make. However, a simple law change won’t necessarily stop people smacking. What CYPFS is concentrating on is showing people there are better alternatives and that smacking can be harmful, in the hope that people will give up smacking voluntarily. Although smacking isn’t illegal, New Zealand is a signatory to the United Nations Convention on the Rights of the Child. This convention aims to protect children from all forms of physical and mental violence. CYPFS’s campaign is being conducted in this spirit.
This taxpayer-funded campaign for abolition has, as yet, won few converts. Most seem to pay scant attention although the public reaction from some conservative Christians was as swift as it was predictable. A beleaguered Rev Graham Capill denounced the “Alternatives” initiative as “an attack on parenting”. It was, he believed, a part of a “cunning Government ploy” to implement the CRC and to soften up the public for the eventual repeal of section 59 of the Crimes Act. That section, he believed, already gave children adequate protection against violence. Moreover, to remove section 59:
is to dictate to parents how they should train their children, and the Government has no right to do that. In pursuing this agenda many cultural and religious sensitivities may well be offended … To … portray all physical discipline as violent disregards cultural and religious sensitivity.
One Christian parent, Hamilton businessman Philip Holdway-Davis, who had attracted media criticism in 1997 for defending smacking, promulgated his own alternative to the CYFS campaign. He read the international evidence as showing no decline at all in child abuse in those nations that banned smacking. Also supporting the retention of s 59 were libertarian-minded members of the public who resented the type of “meddlesome busy-body” or “ink monitor” intrusiveness represented by CYFS’s attempts at social engineering.
In December 1999 Roger McLay, the Commissioner for Children, entered the debate by calling for an end to smacking or “belting” (as he tendentiously termed it). McLay said he believed it was time for New Zealand to emulate those European nations that had abolished the legality of corporal punishment. Also, the Youth Affairs Minister in the current Labour/Alliance government, Laila Harre, supports a change in the law to this effect. The Commissioner for Children repeated his call for abolition in August 2000. According to him the “most dynamic influential act New Zealand society could take about child abuse” would be to repeal section 59 of the Crimes Act. A spokesman for the Social Services and Employment Minister, Steve Maharey, said, however, that banning smacking was not a government priority. McLay repeated his call for the repeal of the section at the child abuse conference held at Parliament in October 2000.
Enough has been said to give the reader a taste of from where, and from whom, the impetus for making smacking illegal is coming. But the abolitionists have one further weapon, the CRC. This treaty, which the then government moved to ratify and accept in 1993 without any indication it planned to take that step and, of course, without any need for Parliament’s approval, is proving to be a very useful weapon in the armoury of those who seek abolition of “smacking”.
The United Nations Committee on the Rights of the Child—the body established under article 43 of the CRC to monitor states’ progress in implementing the Convention’s obligations—has criticised the continued retention of the right of corporal punishment of children in New Zealand legislation.
The Committee on the Rights of the Child has consistently maintained that corporal punishment is in violation of the Convention. In a statement issued on 15 September 1995 it observed:
The Committee is disturbed about the reports it has received on the physical and sexual abuse of children. In this connection, the Committee is worried about the national legal provisions dealing with reasonable chastisement within the family. The imprecise nature of the expression of reasonable chastisement as contained in these legal provisions may pave the way for it to be interpreted in a subjective and arbitrary manner. Thus, the Committee is concerned that legislative and other measures relating to the physical integrity of children do not appear to be compatible with the provisions and principles of the Convention.
The primary article upon which this view is based is art 19(1):
States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
Also relevant is article 24(3) which declares: “States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.”
By contrast, the Minister of Youth Affairs, at least in 1994, considered the right of parental corporal punishment to be compatible with the aims and objectives of the Convention. The then Minister, Roger McLay, argued that the application of force was justifiable in certain circumstances. Moreover, parental responsibilities to provide “appropriate direction and guidance” to children were recognised by article 5 of the CRC. Secondly, the Minister drew a clear distinction between physical abuse, which article 19 is designed to address, and physical punishment. When physical discipline goes too far and becomes excessive, it becomes unreasonable force and parents lose their statutory protection. At this point (when the boundary is overstepped) art 19 becomes relevant. Thus, he argued, section 59 protected children from unreasonable discipline from their parents. The Minister’s denial of any intention to repeal s 59 in 1994 was important for another reason. It was made against the background of a move by the Office of the Commissioner for Children to have smacking defined as “violence” for the purposes of the Domestic Violence Bill. This move failed and the Domestic Violence Act 1995 when passed made no reference to the disciplining of children.
3 Whose Paternalism?
Abolitionists, those who seek to make illegal the smacking of children, are paternalists. They think they know what is best for children, and not just their own children but all children. Smacking, they believe, is a wrong done to any child. Parents who smack their children, those who use reasonable force to correct behaviour, are also paternalists. They too think they know what is best for children, though their paternalism (at least in terms of practical effects) extends only to their own children. Competing paternalistic claims—claims about what is best for some or all children—lie at the core of the debate between retentionists and abolitionists of corporal punishment.
So what is paternalism? Something is described as paternalistic when it is imposed on others for their benefit, rather than the for benefit of those doing the imposing. In the context of this paper, then, an adult’s action is paternalistic when it is aimed at the child’s own good. The defining test and characteristic of paternalism is whether the particular action (here, the sort of punishment administered) is motivated by a belief that that action would be for the benefit of the person so affected, namely the child.
Notice a few things about paternalism. Essentially it is condescending; it consists of the out-and-out belief that we know better than you what is good for you. Paternalism involves, then, an attitude hostile to the idea that each person knows what is best for himself or herself. Of course, depending upon the particular factual circumstances and other people under consideration, we are all paternalists in this condescending sense. At some point each of us, even the most deferential to others liberal or libertarian, is prepared to say he or she knows better than another what is good for that other. Sometimes we are even prepared to enforce that paternalistic assessment. It is all a question of where each of us draws the line. Jeremy Bentham thought the vast preponderance of individuals were, on average and over time, the best judges of their own happiness. However, he did not think everyone was the best such judge.
The most obvious counter-examples to the principle that, on average, over time, most individuals will do better at achieving happiness and furthering well-being for themselves than some other person would do for them, are children and insane people. Even the most committed libertarian will think—when it comes to diet, television watching, wearing of seat belts and myriad other matters—that he knows what is better for his seven-year-old son than the son does himself. In some matters we are all overtly paternalistic, in other words, and prepared to enforce our views on others. Paternalism, whatever the connotations of the word itself, is certainly not an indefensible notion in all circumstances, as applied to all others. Sometimes person A will know what is best for person B better than person B herself.
That said, the range of situations in which such condescending paternalistic claims hold true (on average, over time and allowing for the costs of imposing views on others ) is, in our view, fairly limited. It is not that the notion that I know better than you what will further your welfare is always false or indefensible. Rather, the point is that experience indicates that as a rule it is usually false. There are classes of exception to this generalisation though, and a main one involves children. Paternalistic claims to knowing what is best for children have much more initial plausibility than paternalistic claims generally.
4 The Failure of the Abolitionists’ Arguments—Rhetoric, Fallacies, and Overblown Sentimentality
A Where there’s a right, there’s a way
Firstly, let us eliminate the semantic abolitionist argument which tries to force this debate into the language of rights. The idea here is to contrast (i) “I have a right to smack” with (ii) “I have a right not to be smacked”. By forcing the issue into the framework of rights the abolitionist gains a hefty advantage. Rights are typically understood as entitlements, and (ii) fits much more easily into this mould than (i). However, not all moral and legal debate is best understood in terms of rights. However much contemporary argument is moving (or has moved) that way, the language of rights can be over-utilized and over-extended. The bald claim that there is somewhere, somehow, some pre-existing, non-legal right not to be smacked is essentially incredible and begs all the important questions at issue. In our view the debate over smacking is not well understood, nor are the competing claims best presented and debated, in terms of rights.
B Deliberate conflation of smacking with abuse and violence
From the beginning, the concept [of child abuse] has had built into it an assumption that reasonable chastisement, punishment that involves deliberately hurting and humiliating children, is acceptable. The definition of child abuse, in both common and professional usage, has condoned an arbitrary, and quite high, level of physical and mental violence to children…
The equation of smacking with abuse and violence is common, as the above quotation from Peter Newell, the United Kingdom director of EPOCH, shows. Here is more of the same from a 1998 CYFS paper. It laments “that a majority of people in New Zealand society do not define hitting children as an act of violence or aggression”. Then it continues by asserting that “smacking children is about hitting and humiliating them. Whether we are talking about ‘a little smack’ or ‘a good spanking’, hitting children is a form of violence.” We could quote example after example of this sort of fallacious substitution of some pejorative noun or other including “hitting”, “violence” and “abuse”) for smacking. Instead, let us be clear that this debate cannot—or should not—be won simply by choosing the linguistic high ground. Whether smacking is a species of physical abuse or illegal violence cannot be determined by the noun used to describe it. Of course smacking does involve hitting. That is what corporal punishment is—a bodily punishment. But that, alone, does not make it abusive or illegitimate, unless one assumes all hitting is abusive or illegitimate. We do not think that assumption can be maintained. Parents who smack sensibly do not aim to injure or maim, nor does their force exceed a certain, non-injurious limit. As The Times of London put it:
Those who sadistically abuse their children should not be spared the full force of the courts’ punishment. But it is grotesque to conflate the smack of the concerned parent with the violence of the irresponsible adult.
By substituting “abuse” and other words for smacking, and assuming without argument that the latter constitutes the former, abolitionists have sought to advance their cause. It is a ploy long on fallacy and short on substance.
C Slippery, slippery slopes—smacking leads inexorably to abuse
When the blurring of the line between smacking and abuse ploy fails, many abolitionists next resort to asserting that smacking inevitably leads to abuse. However, the escalation thesis (or “slippery slope”, depending on which metaphor you prefer) is not borne out by any hard evidence. David Benatar comments:
Clearly there are instances of abuse and of abusive physical punishment. But that is insufficient to demonstrate even a correlation between corporal punishment and abuse, and a fortiori a causal relationship.
Put bluntly, the most abolitionists can legitimately claim is that the research here is inconclusive. Consider the much-vaunted Swedish experience. The ban on parental smacking in that nation did not result in a decrease in the rate of child abuse. Swedish parents were found in one study, conducted a year after the prohibition was passed, seriously to abuse their children as much as American parents. Our point is that a clear empirical link between smacking and child abuse (in any non-tautological sense) is lacking.
D If at first you don’t succeed, claim that smacking is ineffective and harmfull
The next tactic abolitionists employ involves asserting that the research evidence points to the ineffectiveness and even detrimental effects of smacking. “The consensus of research findings”, contends one New Zealand advocate, “agrees that no kind of punishment is effective in changing children’s behaviour, and that smacking simply leads to increased use of aggression by both adult and child.” Peter Newell of EPOCH maintains:
There are mountains of research papers on the potential and actual ill-effects of physical punishment and deliberate humiliation in childhood, the dangers of “accidental” injury, the link with the development of violent attitudes and actions in childhood and later life, the escalation to more serious abuse etc. There are no papers detailing positive effects of hitting children, because it teaches children absolutely nothing positive. It is a potent lesson in bad behaviour.
A “consensus of research findings” and “mountains of papers” tell us that smacking is harmful? The reality, we submit, is much more equivocal and complex. Of course we do not claim to be social scientists. Still, we are able to read the relevant literature and our understanding of that literature is that the abolitionists’ bold claims are unwarranted.
Firstly, there is a relative paucity of studies measuring the consequences of smacking. One American review of the research literature on corporal punishment found that 83 per cent of the 132 identified articles in clinical and psychosocial journals were merely opinion-driven editorials, reviews or commentaries, devoid of new empirical findings. Robert Larzelere in his 1996 review for the conference on corporal punishment at the American Academy of Pediatrics, excluded all but 35 of 166 potentially relevant empirical articles—the bulk being culled due to reliance upon cross-sectional data or because they utilised a definition of corporal punishment that included unreasonably harsh or what amounted to outright abusive measures of punishment.
The explanation for the sparsity of studies is not mysterious. It is difficult (“even impossible” ) to evaluate accurately the effects of smacking upon subsequent behaviour. The methodological challenges are well known. To disentangle the effect of one variable (smacking) from the myriad of other confounding factors that may contribute to later adult aggression is no light task. The “gold standard” for determining causal relationships is apparently the randomised trial: children would be randomly assigned to experimental conditions in which they were smacked or not smacked. Researchers agree, however, that this type of experimental study raises too many awkward ethical problems.
Secondly, the empirical studies that have been done are divided on the effects of smacking. Larzelere’s 1996 review ascertained that, of the 35 studies that qualified:
Altogether, 9 articles (26%) found predominantly beneficial child outcomes associated with nonabusive or customary physical punishment, 12 articles (34%) found predominantly detrimental outcomes, and the other 14 articles (40%) found neutral outcomes, ie, neither beneficial nor detrimental outcomes.
Some researchers nevertheless are adamant that corporal punishment is linked to violence and anti-social behaviour. Murray Strauss, for example, a leading researcher of the abolitionist persuasion, persistently argues the link is “truly remarkable”, likening it to the relationship between smoking and lung cancer. The analogy, however, is a false one. As Baumrind rejoins:
Correlation does not establish cause. The generative model of causality refers to the claim that the cause produces the effect, and is not merely associated with the effect. A generative model of causation at a minimum must establish that the association between corporal punishment and a specific negative outcome in a given population is consistent, strong, specific, temporally prior, and theoretically coherent. The claim that smoking tobacco causes cancer is valid not only because 87% of lung cancers are linked to the use of tobacco, but more critically because the generative mechanism by which smoking increases the risk of pulmonary and coronary artery disease and stroke is known, and seldom disputed scientifically. By contrast, as this conference demonstrates, there is no expert consensus that spanking is a generative cause of negative outcomes in children and adults.
Thirdly, reflecting the lack of consensus in the studies, researchers are divided as to whether more research is needed before firm public policy measures are implemented. On the one hand, there are those like Leonard Eron who claim researchers must tell the public that smacking is “ineffective as a disciplinary tool and often has serious psychological and physical consequences”. On the other hand, other researchers are far more cautious. Larzelere concluded:
The most important finding of the review is that there are not enough quality studies that document detrimental outcomes of nonabusive physical punishment to support advice or policies against the age-old parental practice. … More quality research is needed on nonabusive physical punishment.
This lack of empirical support leads some abolitionists to be impatient with the empirical debate, urging that the effectiveness of smacking is beside the point: the issue rather “is about the morality in a supposedly enlightened world of inflicting pain on children”. Of course once the issue is framed as purely a moral one, it is less obvious why the abolitionists’ paternalistic preferences (minority preferences at that) should enjoy the backing of the criminal law.
Fourthly, the ideological dimension to social science research cannot be overlooked. Indeed, it is de rigeur to note this. In Richard Posner’s words: “where you end up may depend on where you start out from, even if, were it not for having started where you did, a different end point would be better”. In a debate such as this it is quite likely that participants largely see, and in turn find, what they wish to.
Finally, we wonder how much of the research literature is grounded in pure advocacy and next to no science. This is the view of Kenneth Polite:
Although there has been much emotional debate over the consequences and sequelle of corporal punishment, empirical investigation into the issue has been limited. Despite the relative dearth of data, there has been growing consensus, particularly within white middle-class circles that any form of corporal punishment is immoral and harmful to the health and emotional well-being of children. This position, undergirded as it is by legitimate concerns about inappropriate modeling, societal violence and potential child abuse, has had tremendous sociopolitical impact. Consequently, the child rearing practices of those who might be defined as the cultural other have been relegated to the realm of the immoral and the criminal, despite the fact the current status of the empirical debate might be more accurately described as a diatribe.
E Smacking teaches children that violence can solve problems
Abolitionists commonly argue that parental smacking teaches children “that aggression is an appropriate way to resolve difficult situations”. Violence, it is said, is never a legitimate means of problem solving. We should refrain from teaching the moral rightness of hitting.
Firstly, we would reiterate that smacking is not “violence” or “aggression” unless tautologically defined as such.
Secondly, this is really too crude an argument. All punishments send messages. Does “time out” convey the message that restricting liberty and “false imprisonment” are the right way to deal with someone who displeases us? Does deducting pocket money teach that fining people gets results? Does restricting television watching, cancelling outings or removing other privileges teach that withdrawal of civil liberties brings compliance? As Benatar argues, “the smacking sends the wrong message” objection proves too much.
Thirdly, precisely what lesson is being conveyed? Abolitionists assert that children learn that “violence” brings results. We would argue, however, that children may take a quite different lesson from smacking. Benatar explains that the smacking teaches violence objection:
takes too crude a view of human psychology and the message that punishment can impart. There is all the difference in the world between legitimate authorities — the judiciary, parents, or teachers — using punitive powers responsibly to punish wrongdoing, and children or private citizens going around beating each other… There is a vast moral difference here and there is no reason why children should not learn about it… To suggest that children and others cannot extract this message, but only the cruder version that the objection [smacking teaches violence brings results] suggests, is to underestimate the expressive function of punishment and people’s ability to comprehend it.
Some research literature bears this out. When force is exerted in the context of love and for the child’s betterment, children will not necessarily construe it as overbearing or demeaning. The context is crucial. Baumrind explains:
The effects of parents’ disciplinary methods are mediated by children’s perception of their legitimacy. Reasoning with a child helps to legitimate parental authority, but to be maximally effective when a child disobeys, reasoning must be backed up periodically by consequences.
It is not a matter of smacking by itself but the setting in which it occurs and the meaning the children ascribe to it. To the extent children perceive smacking as a legitimate expression of parental authority it does not foster aggression, according to one recent study. Another found (unsurprisingly) the degree of parental support and involvement, not the smacking by itself, was the principal indicator of negative adolescent outcomes.
F Children have as much right to physical integrity as adults
Abolitionists charge that children have as much right not to be hit as adults. Children should not be the odd ones out: “If children are to have the status they deserve, as individual people, it is their right to physical and personal integrity—to protection from all forms of inter-personal violence—which must be upheld. This is not demanding extra protection, or special laws—merely the protection that the rest of us take for granted.” By preserving s 59, they allege, we are sending “a clear message that the protection of children’s rights and dignity is accorded lower status than that of the adult members of our society”.
But notice how this argument conveniently, for this purpose, assumes that children and adults are identical—the former being simply smaller versions of the latter. It is a neat and useful device by the abolitionist camp, most of whom would see themselves as children’s rights advocates. Of course the underlying claim itself, that adults and children are in identical positions as regards status—or perhaps moral status—is highly contestable, and in no way self-evident. The abolitionists themselves overwhelmingly argue for different treatment, based presumably on different status, when it comes to capacity (for example, to enter into contracts, to refuse medical treatment, to give their consent to participate in research, and so on) and to knowing what is in their own best interests (for example, watching pornography, choosing a religious education, getting a basic level of sex education).
Children’s rights advocates appear to turn on and off their paternalism as the situation suits. At times we hear that children are different from adults, that they need extra guidance and attention and even that they cannot be considered fully autonomous. Then, when it comes to smacking, we hear from them that children are identical to adults.
Likewise, if children have some purported right not to be hit, do they not also have some equivalent right not to be subject to false imprisonment and not to have their civil liberties withdrawn (see section E above)?
This degree of elasticity, this room to manoeuvre, is not particularly surprising when arguments are couched in the language of rights which themselves are vague and amorphous. Quite simply, it is far from clear what a “right to physical integrity” is meant to encompass. Worse, once such an indeterminate—but highly emotive—sentiment is given any specific content, it is far from clear where such an entitlement or rule is thought to originate. Have we all been taken to have subscribed to some version of Kantian transcendentalism at its most mystical?
Rather than debate ethereal moral foundations, let us descend back to earth. Smacking, as we define it, is not equivalent to abuse, nor does it include physical injury, maiming, brutality or violence (in its normal, pejorative sense). Nor is it obviously illegitimate. Everyone but children’s rights theorists seem to grasp this, even children themselves. Baumrind comments:
Children readily understand that the rights and responsibilities of children and parents are complementary, not identical. Just as children do not assume that they are required to go to work because their parents do, they do not assume that being spanked by their parents entitles them to aggress offensively against their peers.
G Smacking is never necessary and there are better alternatives
This is, of course, a central plank in the CYFS strategy we outlined in the second part of this paper. Corporal punishment is, in their view, a “negative” form of discipline; “communication” and other forms of “positive” discipline are superior means to inculcate good behaviour in children.
Our brief response is that there is no empirical basis for such a sweeping, general claim. Certainly the research literature cannot be said to indicate that smacking is less effective than time-out, targeted deprivations, or other non-smacking responses. Then, of course, there is the point we made above about the overweeningly paternalistic nature of self-styled “experts” and bureaucrats thinking they know how best to deal with all misbehaving children in all circumstances.
H Smacking is not permitted under the CRC
As we detailed earlier, the United Nations Committee on the Rights of the Child considers this to be so (though we agree with those who hold that the Committee’s view is not determinative ). As we noted above, there is nothing in the travaux préparatoires to the Convention to indicate that the signatories intended to outlaw corporal punishment. Moreover, on a plain, natural reading of art 19 the Committee’s view seems suspect. Corporal punishment is not mentioned. To say smacking is a species of “physical violence, injury, or abuse” is to conflate two distinct phenomena. Of course, it is no particular surprise that the small, self-selecting body of people that makes up the Committee would seek to interpret the CRC in a most “activist”, dare we say “politically correct” way. To be blunt, their interpretation is not the one New Zealand signed up to (though this matters little to abolitionists).
Moreover, even if smacking were not permitted under the Convention, the CRC is not the last word on the issue. A reservation preserving s 59 is, in theory, allowed. New Zealand could, moreover, sit tight and weather the displeasure of the Committee (as other nations do). New Zealand ought to decide for itself whether smacking should be abolished, rather than supinely yielding to an international convention that is being used (and arguably illegitimately used at that) by a minority few to attempt to defeat democratic wishes.
Conclusion
The case for retaining the legality of parental smacking in New Zealand is strong. The abolitionists’ case is weak, the more so given the moral certainty with which it is put. Each argument is, on its own, weak, and cumulatively they are no better: there is no “the whole is better than the sum of its parts” type argument to which the abolitionists can appeal. Put bluntly, their arguments do not gain any strength in numbers, nor by strident repetition.
The most likely response to this defence of smacking is to be accused of indifference to what seems to be a worsening level of child abuse in New Zealand. Such a response is, fallacious. We do not here defend child abuse. We defend smacking; we stand fully behind smacking administered by loving parents who wish their children to have happy lives—parents who seek to rear their children so that they will respect their fellow citizens and will give due weight to the claims of legitimate authority. We believe such parents are much better placed to discipline their children effectively (and in such a way that those children will be the better for it) than are government bureaucrats, politicians, sociologists, self-styled children’s “experts”, or even the eminent few who sit on the United Nations Committee on the Rights of the Child.
It needs repeating that what the abolitionists propose is to criminalise the conduct of the majority. This is suspect at the best of times when there is solid evidence of the waywardness of the majority’s conduct. But when it comes to smacking, that evidence is lacking. The move to criminalise the actions of the majority rests on the sentiments of moral superiority of the influential and active minority. This insubstantial foundation cannot be disguised by assurances that prosecutions will be rare.
We defend the status quo—parents ought to be legally permitted to administer moderate corporal punishment for the purpose of correction. The research literature does not contradict the age-old child rearing intuition that smacking is beneficial. Used sparingly, as a back-up for other disciplinary measures, administered with due warnings and at an appropriate age, and when set within the context of loving parents, smacking is easily defensible. Section 59 should be retained.
Rex Ahdar, Associate Professor, Faculty of Law, University of Otago, LL.B.(Hons)(1982); LL.M. (1985)(Canterbury); Ph. D. (Otago)(2000). Barrister and Solicitor of the High Court of New Zealand (1984).
James Allan, Professor of Law, University of Queensland, B.A., LL..B., Queen’s University, Canada, 1982, 85; LL..M., London School of Economics, 1986; Ph.D., University of Hong Kong, 1994; Barrister and Solicitor, Upper Canada, 1988.
References:
Blackstone’s Commentaries 452, quoted in the leading New Zealand article on this topic: Caldwell, “Parental Physical Punishment and the Law” (1989) 13 NZULR 370, 371.
Section 68 of the Criminal Code 1893.
Section 59 was amended by s 28 of the Education Amendment Act 1990 to remove the statutory immunity for teachers and child care workers. Section 28(1) inserted a new s 139A into the Education Act 1989, prohibiting corporal punishment in early childhood centres and registered schools. Section 28(2)(3) amended s 59 of the Crimes Act to give it its current wording.
See Caldwell, “Parental Physical Punishment and the Law” (1989) 13 NZULR 370, 372.
See, eg, Caldwell, “Parental Physical Punishment and the Law” (1989) 13 NZULR 370; Urlich, “Physical Discipline in the Home” (1994) 7 Auckland UL Rev 851; Ludbrook, “Corporal Punishment: The Last Days of an Uncivilised Institution?” (1998) 40 Youth L Rev 6. The leading proponents of the abolition of child corporal punishment in New Zealand are Waikato University psychologists (and spouses) Professors James and Jane Ritchie. Amongst their many books are Spare the Rod (1981) and Violence in New Zealand (2nd ed, 1993).
The Ministry of Youth Affairs funded a speaking tour by Peter Newell, a leading abolitionist, in November and December 1999.
See Maxwell, “Physical Punishment in the Home in New Zealand” Office of the Commissioner for Children, Occasional Paper No 2, September 1993.
See, eg, Parker, “Repeal of Section 59 of the Crimes Act” (1994) 25 Youth L Rev 11; Gilbert, “Section 59 Crimes Act 1961 and the UN Convention on the Rights of the Child 1989 … the beat goes on” (1994) 26 Youth L Rev 15.
The point of this paper is to argue that the merits of the debate also favour the status quo. Of course neither the lack of democratic legitimacy nor the weaknesses of its supporting arguments may be enough to see the Wellington worldview defeated.
Caldwell, “Parental Physical Punishment and the Law” (1989) 13 NZULR 370, 372.
Caldwell, “Parental Physical Punishment and the Law” (1989) 13 NZULR 370. 387.
Ibid at 387. One wonders on what basis this claim is made and whether by “European societies” Caldwell includes Greece, Spain, Switzerland, Poland, indeed Russia and Turkey—or just a handpicked group of northern European, mostly Scandinavian countries.
See Ritchie, “The Social Context of Child Abuse in New Zealand” in Child Abuse: Report of the National Symposium held in Dunedin (1979) and other studies cited by Caldwell, ibid at 383, note 84. A 1993 survey by Maxwell showed “a tendency for both Maori and Pacific Island families to endorse the use of hitting and thrashing more often than Pakeha, but the difference was not significant”: “Physical Punishment in the Home in New Zealand” Office of the Commissioner for Children, Occasional Paper No 2, September 1993, at 10–11.
Maxwell, ibid at 16.
“Spare the rod, spoil the child” Otago Daily Times, 30 December 1997, p 1.
Their characterisation at the 1999 Plunket Society national conference: “Smacking a “dark stain”” Otago Daily Times, 26 March 1999, p 17.
Section 7(2)(ba) of the CYPFA 1989, inserted by s 4(1) of the CYPF Amendment Act 1994.
See Hall and Stannard, “Social Marketing as a tool to stop child abuse” (1997) 8 Social Work Now 5. We are grateful to Sue Stannard for this article and CYPS materials on the campaign.
“Breaking the Cycle: Questions and Answers on Smacking”, CYPS Press Release, September 1998. See also “Breaking the Cycle: Rationale—Smacking Children: Attitudes and Alternatives”, CYPS Press Release, September 1998, and “There are no Superparents,” CYPS booklet (undated).
“Breaking the Cycle: Questions and Answers on Smacking”, ibid.
The undated CYPS booklet, “There are no Superparents”, at 16, comments: “Physical abuse can also occur when discipline, like smacking, gets out of control. That’s why non-violent ways of teaching your children how to behave are best.” “Breaking the Cycle: Rationale—Smacking Children: Attitudes and Alternatives”, CYPS Press Release, September 1998, quotes with approval researchers who contend that smacking children “is about hitting and humiliating them” and that “hitting children is a form of violence”.
Judith Karp is quoted in “Breaking the Cycle: Rationale—Smacking Children: Attitudes and Alternatives”, ibid, as having demonstrated that “what may begin as physical chastisement can frequently cross the ambiguous line between intended punishment and unintended abuse”. Her research purportedly “shows that over half the reported incidents of abuse began as physical punishment”.
“Breaking the Cycle: Questions and Answers on Smacking”, CYPS Press Release, September 1998 (original emphasis).
“An attack on parenting” Challenge Weekly, 29 September 1998, p 3.
Holdway-Davis had personally funded and marketed a safe-smack video: see Gill, “To smack or not to smack” Evening Post, 18 November 1997, p 7. He was pilloried as a lunatic “bible-basher” and “fundamentalist” in one column: Boock, “Strapping the real sin?” Otago Daily Times, 6 November 1997, p 9.
Philip Holdway-Davis, “The anti-smacking campaign” Challenge Weekly, 10 November 1998, p 10.
Ibid. In other words, the use of corporal punishment goes down but not the incidence of child abuse.
See, eg, Rawle, “Get those ink monitors out of our lives” Otago Daily Times, 31 October 1998, (letter).
“Smacking should be illegal: Commissioner” Otago Daily Times, 15 December 1999, p 2. Here is another example of conflating smacking and child abuse, and using the latter to condemn the former.
Ibid.
“No smacking ban plan” Otago Daily Times, 14 August 2000, p 4.
Ibid.
“McLay wants an end to smacking of children” Otago Daily Times, 30 October 2000, p 2.
Quoted in Durrant and Olsen, “Parenting and Public Policy: Contextualizing the Swedish Corporal Punishment Ban” (1997) 19 J Social Welfare and Family Law 443, 457.
The Minister’s arguments are contained in a letter responding to a query from the Youth Law Project. The letter is reproduced in Parker, “Repeal of Section 59 of the Crimes Act” (1994) 25 Youth L Rev 11. Roger McLay is currently the Commissioner for Children and he seems to have experienced a Damascene conversion since 1994: see text, above note 29. For a helpful discussion of whether s 59 breaches the CRC, including the Minister’s defence, see Richard P McLeod, “The United Nations Convention on the Rights of the Child: Implications for Domestic Law”, LLM Research Paper, Victoria University of Wellington, 1995, 21.
McLeod, ibid.
See Bentham, An Introduction to the Principles of Morals and Legislation (Burns and Hart ed, 1970). See too Halevy, The Growth of Philosophical Radicalism (Kelley ed, 1972) 309 ff, and West, “The Other Utilitarians” in Bix (ed), Analyzing Law (1998).
The point is not just that each of us is more likely to know what is best for ourselves better than any other person—however intelligent, sensitive, socially attuned, psychologically perceptive, or well-read up on social studies that other may be. The point is also that there are costs in imposing views on others, including: (a) finding reliable experts who can know what is best for others better than they can with enough regularity; (b) guarding against bureaucratic over-reach; (c) allowing for the anger and frustration of those who will not now have it their own way and do not like being treated this way; (d) paying to administer the imposition process; and more.
As John Stuart Mill recognised in On Liberty (1859; annotated by Spitz, 1975) 11: “It is, perhaps hardly necessary to say that this doctrine [liberty of action provided there is no harm caused to others] is meant to apply only to human beings in the maturity of their faculties. We are not speaking of children, or of young persons below the age which the law may fix as that of manhood or womanhood.”
With this caveat, that the validity of paternalistic claims about knowing what is best for children appears more or less to vary inversely with the child’s age.
See, eg, Bagaric, “In Defence of a Utilitarian Theory of Punishment: Punishing the Innocent and the Compatibility of Utilitarianism and Rights” (1999) 24 Australian Journal of Legal Philosophy 95.
See Bagaric, ibid from 99, and Sumner, The Moral Foundation of Rights (1987) 1.
Newell, “Why We Must Stop Hitting Children” in Bainham and Pearl (eds), Frontiers of Family Law (2nd ed, 1995) 245.
“Breaking the Cycle: Rationale—Smacking Children: Attitudes and Alternatives”, CYPS Press Release, September 1988, 1.
Ibid. See also Thompson, “Smacking Children: Attitudes and Alternatives” Social Work Now, May 2000, p 39.
Editorial, “Rod and Rights: Courts should not usurp the judgment of parents” The Times, 24 September 1998, p 23. The editorial was in response to the European Court of Justice decision, A v United Kingdom (Human Rights: Punishment of Child) [1998] 2 FLR 959 (stepfather who severely beat his nine-year-old stepson with a garden cane on more than one occasion violated art 3 of the European Convention dealing with inhuman or degrading treatment or punishment).
See Nelson, Letter to the editor, (1995) 96 Pediatrics 793.
See, eg, Urlich, “Physical Discipline in the Home” (1994) 7 Auckland UL Rev 851, 854. Ritchie and Ritchie, Spare the Rod (1981) 62, claim: “No-one knows how much parental punishment should be regarded as child abuse and how much as just ‘normal’ but there is common agreement that 90 per cent of what are regarded as child abuse cases are committed by parents who simply went too far.” (emphasis added)
Benatar, “Corporal Punishment” (1998) 24 Social Theory and Practice 237, 240.
Gelles and Edfeldt, “Violence towards children in the United States and Sweden” (1986) 10 Child Abuse and Neglect 501. See also Nelson, above note 47; Benatar, ibid; and Lyons and Larzelere, “Where is the Evidence that Non-Abusive Corporal Punishment Increases Aggression?”
http://people.biola.edu/faculty/paulp/sweden.html.
Lawrence Wissow and Debra Roter of Johns Hopkins University acknowledge that “a definitive link [between corporal punishment in the home and child abuse] has yet to be established. Thus the failure of Swedish corporal punishment laws to reduce the incidence of physical abuse is disappointing, but in no way is it a justification for spanking.” Letter to the editor, (1995) 96 Pediatrics 794. For the latest studies see the contrasting conclusions of Durrant, “Evaluating the success of Sweden’s corporal punishment ban” (1999) 5 Child Abuse and Neglect 435 with Lazelere, “Child Abuse in Sweden”, available at http://people.biola.edu/faculty/paulp/sweden2.html
Thompson, “Smacking Children: Attitudes and Alternatives”, Social Work Now, May 2000, p 41. See also the CYPS Press Release, “Breaking the Cycle: Rationale—Smacking Children: Attitudes and Alternatives”, September 1998, section 5 (“Does smacking work?”). Both papers cite, among others, Judith Karp, “Protecting Children’s Human Dignity: The Convention on the Rights of the Child”, an unpublished seminar paper presented at Children Are Unbeatable! Ending All Physical Punishment in Europe, Barcelona, October 1997.
Newell, “Why We Must Stop Hitting Children” in Bainham and Pearl (eds), Frontiers of Family Law (2nd ed, 1995) 245, 247.
One psychiatrist at the symposium on corporal punishment in 1996 convened by the American Academy of Pediatrics admitted: “For a number of us at this conference who have concluded on the basis of the substantial literature and their own empirical data that punishment is a serious risk for poor child and adult outcome, the relative sparsity of studies that provide unambiguous evidence of negative effects of spanking specifically, and corporal punishment as compared with noncorporal punishment, comes as a shock.” Cohen, “How Can Generative Theories of the Effects of Punishment be Tested?” (1996) 98(4) Pediatrics 834, 834.
Lyons, Anderson and Larson, “The Use and Effects of Physical Punishment in the Home: A Systematic Review”, presentation to the Section on Bio-Ethics of the American Academy of Pediatrics, annual meeting, 2 November 1993. This presentation is quoted in Trumbull and Ravenel, “Spare the Rod? New Research Challenges Spanking Critics”, available at:
http://www.frc.org/iss/par/content.cfm?get=visit.
Larzelere, “A Review of the Outcomes of Parental Use of Nonabusive or Customary Physical Punishment” (1996) 98(4) Pediatrics 824, 824. Interestingly, Judge Moss in Re I, T, M and J [2000] NZFLR 1089, 1101, adopted certain guidelines on “spanking” promulgated by the American Academy of Pediatrics.
Cohen, “How Can Generative Theories of the Effects of Punishment be Tested?” (1996) 98(4) Pediatrics 834, 834.
See, eg, Simons, Johnson and Conger, “Harsh Corporal Punishment Versus Quality of Parental Involvement as an Explanation of Adolescent Maladjustment” (1994) 56 Journal of Marriage and the Family 591, 602–603.
See Bauman, “Assessing the Causal Effect of Childhood Corporal Punishment on Adult Violent Behavior: Methodological Challenges” (1996) 98(4) Pediatrics 842, 843.
Ibid.
See, eg, Hyman, “Using Research to Change Public Policy: Reflections on 20 Years of Effort to Eliminate Corporal Punishment in Schools” (1996) 98(4) Pediatrics 818, 818–819 and Straus, Sugarman and Giles-Sims, “Spanking by Parents and Subsequent Antisocial Behavior of Children” (1997) 151 Arch Pediatr Adolesc Med 761, 763.
Larzelere, “A Review of the Outcomes of Parental Use of Nonabusive or Customary Physical Punishment” (1996) 98(4) Pediatrics 824, 824. Comprising the 35 qualifying studies were six clinical treatment studies (including four randomised field studies), two sequential analyses, ten prospective longitudinal studies and 17 retrospective studies.
Straus, “Spanking and the Making of a Violent Society” (1996) 98(4) Pediatrics 837, 841.
Straus, ibid at 841, and Straus, Sugarman and Giles-Sims, above note 60, at 766.
Baumrind, “A Blanket Injunction Against Disciplinary Use of Spanking is Not Warranted by the Data” (1996) 98(4) Pediatrics 828, 830 (emphasis added).
Eron, “Research and Public Policy” (1996) 98(4) Pediatrics 821, 823. See too Wissow and Roter, Letter to the editor, (1995) 96 Pediatrics 794; Straus, Sugarman and Giles-Sims, “Spanking by Parents and Subsequent Antisocial Behavior of Children” (1997) 151 Arch Pediatr Adolesc Med 761.
Larzelere, “A Review of the Outcomes of Parental Use of Nonabusive or Customary Physical Punishment” (1996) 98(4) Pediatrics 824, 827.
Graziano et al, “Subabusive Violence in Child Rearing in Middle-class American Families” (1996) 98(4) Pediatrics 845, 848.
Posner, “Past-Dependency, Pragmatism, and Critique of History in Adjudication and Legal Scholarship” (2000) 67 U Chicago L Rev 573, 583.
See Polite, “The Medium/The Message: Corporal Punishment, an Empirical Critique” (1996) 98(4) Pediatrics 849, 849: “All the reviews of the relevant literature on discipline and corporal punishment are shaped by the experiential and cultural baggage of the reviewers.” Two researchers admitted at the 1996 symposium that: “Although we attempted to achieve ‘neutrality,’ we must confess, that we had a preconceived notion that corporal punishment, including spanking, was innately and always ‘bad’.” Friedman and Schonberg (1996) 98(4) Pediatrics 857, 857.
Nelson, Letter to the editor, (1995) 96 Pediatrics 793 chides that “the language chosen in the supplement is the language of advocacy, not science”.
Polite, above note 69, at 850. Dr Polite, an African-American, apparently identifies with what he calls “the cultural other”.
CYPS Press Release, “Breaking the Cycle: Questions and Answers on Smacking”, September 1998, section 5; Thompson, “Smacking Children: Attitudes and Alternatives” Social Work Now, May 2000, p 41. See also Ritchie and Ritchie, Spare the Rod (1981) 59 and 82.
Benatar, “Corporal Punishment” (1998) 24 Social Theory and Practice 237, 245–246.
Ibid at 246 (original emphasis).
Trumbull & Ravenel, “Spare the Rod? New Research Challenges Spanking Critics”, available at:
http://www.frc.org/iss/par/content.cfm?get=visit.
Baumrind, “A Blanket Injunction Against Disciplinary Use of Spanking is Not Warranted by the Data” (1996) 98(4) Pediatrics 828, 828.
Gunnoe and Mariner, “Toward a Developmental-Contextual Model of the Effects of Parental Spanking on Children’s Aggression” (1997) 151 Arch Pediatr Adolesc Med 768.
Simons, Johnson and Conger, “Harsh Corporal Punishment Versus Quality of Parental Involvement as an Explanation of Adolescent Maladjustment” (1994) 56 Journal of Marriage and the Family 591, 603.
Newell, “Why we must stop hitting children” in Bainham and Pearl (eds), Frontiers of Family Law (2nd ed, 1995) 245. See also Freeman, quoted in Ludbrook, “Corporal Punishment: The Last Days of an Uncivilised Institution?” (1998) 40 Youth L Rev 6: “nothing is a clearer statement of the position that children occupy in society, a clearer badge of the status of childhood, than the fact that children alone of all people in society can be hit with impunity.”
Thompson, “Smacking Children: Attitudes and Alternatives” Social Work Now, May 2000, p 40. See also Ritchie and Ritchie, Spare the Rod (1981) at ix: “when speaking of children most New Zealanders use the word ‘discipline’ to mean ‘physical assault’ of a kind which, were it to occur between adults, would be criminal”.
Not that we would shy away from this if space permitted. See Allan, A Sceptical Theory of Morality and Law (1998) and Ahdar, Worlds Colliding: Conservative Christians and the Law (2001) (forthcoming).
Baumrind, “A Blanket Injunction Against Disciplinary Use of Spanking is Not Warranted by the Data” (1996) 98(4) Pediatrics 828, 829.
CYPS Press Release, “Breaking the Cycle: Questions and Answers on Smacking”, September 1998, section 6.
See, eg, Roberts and Powers, “Adjusting Chair Timeout Enforcement Procedures for Oppositional Children” (1990) 21 Behavior Therapy 257; Trumbull et al, Letter to the editor, (1995) 96 Pediatrics 792.
See above note 19.
Ibid.
See Benatar, “Corporal Punishment” (1998) 24 Social Theory and Practice 237, 250.
This is but a partial list of the recommended criteria for smacking designed to produce beneficial outcomes. For a fuller account, see Larzelere, “A Review of the Outcomes of Parental Use of Nonabusive or Customary Physical Punishment” (1996) 98(4) Pediatrics 824, 827; Baumrind, “A Blanket Injunction Against Disciplinary Use of Spanking is Not Warranted by the Data” (1996) 98(4) Pediatrics 828, 830–831; Trumbull & Ravenal, “Spare the Rod? New Research Challenges Spanking Critics”, available at:
http://www.frc.org/iss/par/content.cfm?get=visit.
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