A lot of people don’t really understand the smacking debate, so I’ve come up with this neat little diagram to try and explain it.
As you can see, there are 5 sections. These represent different “force” applied to a child.
A) (Abuse) represents force outside the law – assault on a child. It is large, as there are plenty of ways to get into this category – it’s sadly too easy.
B) (Borderline) represents borderline cases – cases the police or CYFS thought were assault but were dismissed by the courts. The most famous of these is the “riding crop” case. Only 7 cases fall defended under Section 59 fall into this category over the last 10 years, but there are others dismissed by the courts for other reasons. Therefore, this category is very small.
C) (Correction) represents reasonable force for correction (smacking) legal under current law. It’s larger, as these events are quite common in normal parenting.
D) (Doing?) represents reasonable force for parenting – restraining a toddler from crossing a road, lifting a child into bed, putting a child down to change a nappy. These acts are all force, and all are reasonable. This space is average size, since it’s not in dispute here and I will mention it only briefly.
E) (Eugh – don’t kiss me grandma!) represents reasonable force used in everyday life – hugs, shaking hands, kisses etc.
Ok, now let’s start getting the debate straight.
Reasonable force is here show in the dark box. It includes boxes B through E. This is important – a lot of people seem to have gotten one of two ideas about “reasonable force” over the space of the debate.
- They think reasonable force is B & C – smacking.
- They think reasonable force is B – “borderline smacking” or as they like to call it “abuse where they got away with it”.
See, because so many people are talking about banning “reasonable force” many people have decided that what they don’t like is what is being banned. So people have taken up both 1 and 2 above in support of Sue Bradford’s bill, or like Bradford herself, both.
People taking these positions say things like the following:
Position 1: “We are just targeting those who are slipping through the courts”
Position 2: “Parents should not be allowed to beat their children.”
I will come back to these later.
What the Select Committee Did
The original bill proposed to abolish Section 59 completely. Because of this, many parents feared this is what would result:
Pretty much all force between parent and child is made illegal.
Now, this was never Sue’s intention, and there are good arguments to say that that would not have been the case. So to avoid this, (D) was specifically excluded from being illegal.
(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 minimizing 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.
This then attempts to make the law thus:
This was good in many ways, as it refined the debate onto what it was about: smacking.
On the other hand, it also confused it as some “reasonable force” was allowed, and many people confused that with some smacking being allowed.
This is what will actually result: there will still be a borderline area where parents will “get away with it”. Even more confusingly, Sue Bradford and other supporters trumpet this area, claiming that this will allow “light” smacking. I’m picking it’ll go back to being their chief football very quickly.
To Ban or not to Ban?
Now we can talk about the bill as reported back from Select Committee. Again, things are confusing, thanks to Sue Bradford’s rhetoric.
As we know, the proposed law was this:
However, Sue Bradford wanted us all to think it’s like this:
Sue says something like: “It’s not about banning smacking, it’s about stopping parents beating their children with hosepipe and horse whips.” That’s her way of talking about section B.
Here’s where Sue becomes a liar. The law clearly states: “Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.”
What that’s saying, clear as day, is “C is gone”. (B is moved to a space beside D for Sue to use in the meantime, and beat up on later.)
So enter Chester Borrows. Chester notices the big difference between the last two diagrams, and proposes his own amendment. (and diagram!)
Chester’s proposal boils down to this:
Chester proposes to tighten the law, making the “less acceptable” smacking practices illegal.
Now, Chester’s amendment clearly reduced the size of section C, eliminating the current section “B” – the “real problem”.
This sounds great, get rid of those nasty “B” cases, and tighten the whole thing up. And it would have been good, if “B” cases were a real problem. Thing is, they never were.
See, no matter where the law draws the line, you will always have section B. Cases that appear on the headlines to be outside the law, but on the detail actually are. What the anti-smackers got the public believing (well, they at least thought they had the public believing) was that these cases were abusers who got away with it.
That is wrong on two points.
1 – These people did not “get away with it”. CYFS removed children in many of these cases. They had to fight long court battles, costing thousands of dollars.
2 – They were not abusers. In most cases, they had simply used methods that didn’t sell well. Let’s fact it, your cleaner might remove all sorts of grime easily, but if it kills people in enclosed spaces it’s a goner. Doesn’t matter that it’s great for outside – the bad PR and risk will kill it off. Thing is, teenage boys can take a whack with a cane or riding crop. Using a ruler as a instrument of punishment is fine. But hitting children with a “horse whip” or “piece of wood” evoke images that are not easy to live down.
People forget that jurors are members of the general public, the same public that hates abuse. Ironic then, that the very fact that should have validated these cases condemned it, since the public were whipped up on assertions that these children were abused.
It was Chester’s amendment that the Greens really failed on. They tried to claim that “harm” was undefinable, that you could kill a child or put them in hospital without marking them. Of course, can happen at present, and falls under “A” as it always has done.
While the amendment still ignored the fact that there was no problem, it still left plenty of “C” space for parents to live in, and most could have. That is why it almost succeeded, it made a lot of sense.
What do we have Now?
What we have now has already been discussed, this: the bill as it was reported back from the select committee.
All the Key/Clark/Assorted amendment does is state “oh, just to be clear, there’s a section B, but it’s up to the police now, not the courts”.
So there you have it. I’ve tried to show most positions clearly, including all of Sue Bradford’s, Chester’s and Keys. I’ve argued my own point of view throughout, but mainly my goal was to sort out positions and identify them a bit more clearly.
Thoughts from all sides welcome.
Brilliant! You should have a job where they pay you to do that 🙂
Hey, good stuff!
Thanks – A. J., nothing would please me more than to be able to do this sort of thing all day!
Donations welcome 🙂
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