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Smacking Ban Arrogant and Clumsy
(By Dr Rex Ahdar, Associate Professor, Faculty of Law, at the University of Otago; Christchurch Press, 30 June 2005, http://www.stuff.co.nz/stuff/0,2106,3329523a6220,00.html.)
Why are so many bureaucrats, social scientists and self-styled children’s experts so insistent on abolishing the parental defence in section 59 of the Crimes Act permitting smacking of children? It beats me.
There are some cases where parents were acquitted by juries for conduct that abolitionists of smacking consider constituted child abuse. These cases supposedly show that the law is deficient.
The Prime Minister, Helen Clark, was one such critic: “Where the law lends itself to mounting a defence on the basis of reasonable force, and then we see people get off in court for what are clearly assaults against a child – I don’t think it's right.” (TV One, June 13, 2005).
Now, technically speaking, the Prime Minister is right since all intentional applications of physical force constitute “assault” under the wide definition contained in the Crimes Act. But that is not what she meant.
Rather, she was, as I read it, decrying the fact that people were getting off for conduct that was, in her opinion, nothing less than patent abuse. Yet the juries in the cases concerned heard hours of evidence and as 12 citizens possessed of common sense (and familiar with the hurly-burly of family life and the pressures of modern childrearing) they decided that in the particular circumstances the accused parent’s action was reasonable.
Interestingly, Otago University’s Children’s Issues Centre’s 2004 report came out against smacking, but also said that: “While it is clear from the research that severe and harsh punishment (both physical or other) is potentially very risky for children’s development, occasional physical punishment occurs in many families and may not have long-term negative effects as long as it is used in a climate of warmth and love, where the predominant mode of relating to children is positive.”
Precisely. Excessive, harsh, injurious punishment is obviously bad and the law prohibits it, whereas selective, mild punishment is not harmful and the law permits it. So where is the problem?
For many it seems that the line between the moderate smack and the abusive whack is simply too difficult and risky to draw. Because distinguishing them is too demanding we should institute an outright ban. This is an overly broad response.
It may be that a careful redrafting of the section is desirable to clarify what is unreasonable and illegitimate – for example, prohibition of smacks involving hazardous implements or to a child’s head – but this proposal is not the one Parliament has to consider. No, it is the outright ban on smacking. Complete abolition is clumsy and arrogant. Because some enlightened individuals believe the line has been drawn wrongly on some occasions by ordinary citizens (as represented by the jury) we will not leave them to perform that task. Instead, we will ban the practice and thus eliminate “mistaken” verdicts.
Importantly, and as some abolitionists now seem to grasp, repealing the section 59 defence would expose well-meaning parents to the full force of the criminal law.
It is no good saying that parents who administer a trivial smack would be immune from prosecution, for all intentional applications of force, however slight, technically constitute an assault. Sue Bradford seems to put her faith in the sensible exercise of police discretion. But reliance upon prosecutorial discretion was firmly rejected as a sufficient safeguard by the Supreme Court of Canada last year in a test case on the equivalent of section 59.
To fail to prosecute would open the police up to charges of unfair discrimination based on the denial to children of the benefit of the criminal law simply due to their age.
In reality, section 59 represents a careful attempt to accommodate a child’s need for both protection and guidance. The law decriminalises only minimal force with transient impact and not the spiteful violent outburst against children. Section 59 also ensures that the law will not be invoked where the force is a part of a genuine effort to educate the child. The decision not to criminalise smacking is not based on some supposed devaluation of children but because to do so would risk ruining lives and fragmenting families.
The age-old intuition that smacking, used sparingly and prudently, has its place is sound, and so is the law that recognises it.
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