Getting the law straight – what does it mean?

March 19, 2009

By Amy Williams, via Yahoo Xtra News

In August this year New Zealanders have the power to change the law, when a referendum will be held to decide whether the so-called “anti-smacking law” should be repealed. But how many of us know what the law actually stands for?

I know I didn’t – and yet two years ago when Sue Bradford’s bill was making its way through Parliament I voted against it in an informal poll, without even reading up on what it stood for. The term “anti-smacking law” was what made up my mind. I mean, I was smacked as a child and I’m okay. It probably saved my life at least once as I was prone to running off into traffic. So how could I be anti-smacking?

But then I did a little research into what the repeal of Section 59 was all about and realised I’d been misled by the whole “anti-smacking” angle.

Now, even with the referendum looming, ACT MP John Boscawen is drafting his own member’s bill to change the Act, claiming it’s stopping parents from disciplining their children in its current form.

And yesterday lobby group Family First revealed the results of a survey they commissioned, in which parents were asked if they thought the new law made it always illegal for parents to give their children a light smack.

Fifty-five percent thought it was illegal, 31 percent thought it wasn’t, and 14 percent didn’t know. (In case you were wondering, the 31 percent were right.)

I believe the reason so many people were (and are) against the repeal of Section 59 is that it has been misrepresented as the “anti-smacking law”. That’s not what it’s about at all.

This name was perpetuated by opposing politicians, by the media (mainly through laziness – it’s easier and ‘sexier’ to use in a headline than its proper name) and by lobby groups such as Family First and the Sensible Sentencing Trust. But it’s a misnomer.

So let’s take a look at what all the fuss is about.

Section 59 of the Crimes Act used to state that a parent or parent figure was justified in using force to discipline a child as long as it was “reasonable” force. Except there was no clue as to what constituted reasonable force – that was up to a jury to decide.

The law as it stood meant children did not have the same legal protection from assault as adults. Surely most of us would agree that children need more protection than adults, rather than less?

And this legal defence wasn’t just sitting around gathering dust – it was being used by abusive parents to justify beating their children. In the years before the section was repealed, the following two cases relied on it to result in not guilty verdicts:

Firstly, in Napier there was a case where a father hit his eight year old son eight times with a piece of wood, leaving bruising that was visible for days. The jury decided this was reasonable force.

In another case in Hamilton, a father hit his 12 year old daughter with a piece of hosepipe, leaving a raised 15cm-long lump with red edges on her back. Again, this was deemed okay because it was all in the name of parental discipline. Still think the repeal was pointless?

The bill was eventually passed into law in May 2007, with 113 out of 121 members of Parliament voting in its favour. You can have a read of the law as it stands here.

So why are people still whinging that the law is somehow restricting them? Unless you are an abusive parent, you should have nothing to worry about.

But for some reason, the general public perception is still that it’s all “PC nonsense” by “left-wing nutters”. If standing against child abuse makes me a nutter, I’m proud to wear that label.

The problem seems to be that everyone is worried that they’re going to be sent to jail for giving their toddler a light smack – but is that the case?

Part of the repeal included the addition of the following clause: “To avoid doubt, it is affirmed that the Police have the discretion not to prosecute complaints against 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.”

So are parents being victimised by the new law? In February last year John Key told National Radio “he had no evidence to support the notion that good parents were being criminalised for a trivial offence”.

After the law had been in operation for six months, police reported that out of 288 child assault events attended, “all of the 13 cases involving smacking and 65 of the 69 minor acts of physical discipline were determined to be inconsequential and therefore not in the public interest to prosecute.”

And if we look overseas, in Europe, “ten countries have changed laws so that no physical punishment of children is allowed. In these countries there is no evidence at all that police prosecute for this kind of minor assault”.

There have, of course, been some high profile cases which could be used as benchmarks for how it will be interpreted. A number of cases have gone before the courts without resulting in conviction, while others have yet to be heard.

Family First claims to exist to “defend the family” – yet it continues to fight against a law that protects children’s rights. The Sensible Sentencing Trust supposedly stands for “a safe, crime free New Zealand” – and yet it, too, believes this excuse to abuse should stay in place.

Please, can someone explain to me how that makes sense?

Family First’s Director Bob McCoskrie claims his survey shows how harmful the law repeal is – because it’s confusing parents. “It is this confusion that is causing huge harm,” he says.

I agree there is confusion about the law. But that’s not a good enough to reason to get rid of it. If confusion exists, how about a concerted effort by both government and lobby groups to educate all New Zealanders about what the law entails and where the boundaries lie?

It does seem like we should have had that from the start – it could have saved a lot of pointless, circular arguments on both sides. The Government should have put out pamphlets, taken out TV and newspaper ads, set out exactly what is and isn’t okay.

One of the arguments against Sue Bradford’s bill that I’ve heard several times is this: when we have cases of horrific child abuse happening in New Zealand (Nia Glassie, for example), why should the police spend time investigating complaints over parental discipline?

Quite simply, the bill was never intended to solve the giant, complicated problem of child abuse in New Zealand. It exists to close the loophole that gave adults a legal defence to beat their children – nothing more. And yet it’s provoked national outrage.

When referendum time rolls around, I hope people will be ticking boxes based on a sound knowledge of what the law actually says, instead of having a knee-jerk reaction to that emotive phrase, “anti-smacking”.

You can find out more about Section 59 and cases where parents have been prosecuted under the new law here.