Monday, August 24, 2009

ZenTiger The Anti-Smacking Law - Why Parents are Criminals

Sue agrees: While it is true that [the] use of force for correction will technically be an offence, this does not mean that our already very stretched police force will be taking this kind of action.

Any kind of force is illegal, but says Sue, the Police are overstretched and too busy to enforce it.

John Key doesn't seem to care that smacking IS ILLEGAL.

Furthermore, the referendum asked the question: SHOULD A SMACK BE A CRIMINAL OFFENCE? 87.6% of the million plus responses indicate most strongly that the only way of fixing the problem is to make this legal.

The public don't just want assurances the police will not prosecute, they want assurances they are not considered law breakers.

Why can other matters be enshrined in law, but this matter, in spite of a referendum not be?

So, again, to help all the people that voted NO and one or two that voted YES, let's look at the actual law as it is written, so we can continue to argue on point:
Section 59 - 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.
Some comments about this act:

The anti-smacking lobby maintained "reasonable force" was too hard to define, and was one of their justifications for banning it. Yet subsection 1 allows reasonable force in a variety of circumstances. Supposedly, you can use a horse whip on a child providing you are minimising harm to another child, or stopping them from being disruptive. Legally. Not a loophole they care about though, they only want to ban discipline.

Subsection 2 explicitly bans any sort of force for the purposes of correction, or discipline. This is distinct from using "reasonable force" for nearly any other conceivable reason, as per subsection 1. Note that force includes the threat of force (it comes under the assault laws) in the same way you cannot threaten an adult, so why should you be able to threaten your child? A threat might be "I'll smack you if you continue to pull your sister's hair". Force also includes placing a child in timeout against their will. You technically need to ask them if it's alright to put them in timeout, although they are not old enough to legally consent, so you are still guilty of breaking the law.

Subsection 3 Makes absolutely sure that we understand discipline (correction) is banned.

Subsection 4 assures us that even though you are breaking the law should you discipline your child, you probably will not be prosecuted.

It is my contention that making badly worded laws is the worst kind of law making. This law makes parents are technically guilty if they should even lightly smack their child in discipline or place the child in timeout.

Now, many people believe parents who smack are guilty of assault. Sue even said today [on radio, no link] "we promise the police will not prosecute parents for minor assaults" Note the use of the term "assault". They feel completely justified in equating a smack in discipline with assault, and making this action illegal. That's why we had a referendum.

That's why we had a referendum and the vote was a resounding "NO - Minor acts of physical discipline should not be illegal."

That's why John Key needs to change the law.

It doesn't matter what "compromise" he offers, the issue is that the law makes parents guilty of breaking the law for a smack. We cannot lose sight of the fact that the only difference between parents who smack and criminals who beat children, is the police are supposed to turn a "blind eye" to a smack. This year. Perhaps next year too.

Related Link: The Section 59 Act

Related Links: Use the tags on this post to review the many posts on the s59 bill and the subsequent smacking referendum when the polls and protests were ignored.

6 comment(s):

Gooner said...

There was nothing wrong with the old law. A few (read infintisemal (sp?)) number of parents acquitted when maybe they shouldn't have been. I still chuckle when I think of Key walking through Parliement with Helen Clark virtually holding hands with her sneering at his phyrric victory in this. He thought he could look Prime Ministerial by outsmarting her but he has just made a truism out of a politician doing what is political rather than doing what is right. I still shake my head at that moment.

ZenTiger said...

Aye. That was a moment of foreshadowing that I hoped would prove to be otherwise.

Angus said...

"I still chuckle when I think of Key walking through Parliement with Helen Clark virtually holding hands with her sneering at his phyrric victory in this. He thought he could look Prime Ministerial by outsmarting her but he has just made a truism out of a politician doing what is political rather than doing what is right. I still shake my head at that moment."

You indeed saw the prophecy. Shamefully, I didn't so I'll continue to vote ACT.

Angus said...

"but" i'll continue to vote ACT to atone for it.

squaredrive said...

Nice summary Zen! I agree with Gooner, I prefer the old S59.

The most important point is the vagaries of Sue's extra definitions. She was upset by one undefined phrase - "reasonable force" - in the old S59, so kept it, and added a whole bunch more undefined terms (like "normal daily tasks that are incidental to good care and parenting") to 'clarify'. Lovely.

Example - little Johnny is playing with blocks in lounge while Mum irons in kitchen; Johnny decides to start throwing blocks at walls; Mum ask him to stop, but Johnny carries on...

No child is at risk, no crime has been committed (yet, property damage will occur when the TV screen gets cracked, or vases or paintings shattered), Johnny's behaviour does not meet the legal definition of offensive or disruptive, and Johnny is not preventing Mum from doing the 'normal daily tasks'.

Only option - to correct Johnny (for the purpose of preventing the impending property damage). Smack, wah, Johnny uses blocks for building. Sorted. Quick, call the cops.

Correction is just prevention of future bad behaviour.

Time for some democracy from Key - if not, time to make some democracy!

MK said...

If they don't think that the police will enforce this, then take it off the books. But that's just bullsh!t thrown up to appear conciliatory.

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