But there were evil people, and they were called innocent

A few months ago, an anti-smacker made some comments on this blog. Pondering his comments, something was bothering me about  his view of the Riding crop case.

The question that the anti-smackers have always asked is effectively “how do guilty people get called innocent” – that is, “how do child abusers get away with it”. The answer was “because the law is bad”.

But last one night I realised that the flip side is actually a much more serious question: why are people who were declared innocent get called guilty? What basis has the anti-smacking lobby used to question verdicts delivered after careful deliberation of all the evidence?

So I did some research. And I believe I’ve discovered something very interesting about the riding crop case.

There is no original source for the claim that the child was beaten.

In other words, the only anti-smacking references I have been able to find, when stripped of their highly emotive wording say:

  • the child was smacked with a riding crop

That’s all.

Don’t get me wrong here. I am not saying that being hit with a riding crop is ok. Not at all. But those who believe that smacking should be legal have provided considerable facts around this case including:

  • the child was smacked in response to a serious action – the mother did not lash, nor was her reaction a response to a trivial matter (which most certainly would have been abuse)
  • the child was smacked – he was taken across the knee and spanked across the bottom as has typified child discipline for generations (unlike abuse which can involve being hit in any area of the body in a very uncontrolled fashion)
  • a video showing the crop itself demonstrating that it’s effect  would be similar to other, less controversial smacking implements. There is no question of the crop causing physical damage.

Now this is important: These facts are not refuted by any anti-smacker that I have been able to find. No one claims that the mother struck the child around the head for example. No one (with any credibility) is claiming that the mother simply lashed out in a rage, whacked the kid because he got in the way of the TV or looked at the mother “funny”.

No. The indictment against this woman consists of:

  1. The fact shesmacked her child with a riding crop
  2. That fact, repeated in highly emotive and loaded terms – i.e. spin

(Before we go any further, there are other factors outside this incident. She by no means is someone who can be described as a lifetime good parent, and I am not suggesting for one moment that she is. One of the reasons this incident happened the way it did was because of her past. I am however doing what most people have – talking about the facts of this incident. )

I was smacked as a child with a riding crop. I have mentioned that before. Those things hurt like heck, but I have also been smacked by other implements that make much more boring headlines and they hurt worse. Being disciplined with a riding crop is not something that really, objectively, should make headlines any more than being disciplined by a cane.

But if you talk about the discipline in highly emotive terms, you start to get people talking. People don’t demand law changes if you say a naughty child was spanked with a cane and the parent was not arrested. No, the anti-smackers talk this way:

The real referendum question should have been, “Should we be able to beat our children with a horse whip or a piece of wood and get away with it in court”, as happened before this legislation was passed.

That quote is from the Yes Vote website. I know it’s misleading right away – because the same site also says elsewhere…

The Timaru lady didn’t use a horsewhip, it was a riding crop, which is an implement used for whipping horses.  Just to be clear – we wouldn’t want people to think that we were exaggerating the facts.

That’s supposed to be satire or something.

I’ve included the wider quote lest I be accused of selective editing, and because of that I have to make a slight tangent and point out that there is a big difference between a whip and a riding crop. Suffice to say that no one should ever use a horse whip on a child, for any reason.

(Oh, and while passing I’d also like to point out that the very fact that such things are perfectly legal to own also blows another big chunk in the anti-smacker’s case where they claim it’s not legal to hit an animal. Well, it is – and there are entire tv channels where you can watch horses being hit all day long.)

But back to the original statement I quoted above. Let’s take it one clause at a time.

Should we be able to beat our children

Technically this word is correct. Smacking a child is also technically beating them. But “beating” is a word that generally implies a high degree of violence and loss of control. However as I note above, there is no credible suggestion by the anti-smackers that such a loss of control actually happened. Hence this statement is designed to mislead because it is not the best word to describe the undisputed account of what happened.

with a horse whip

Again, we see a word used that is accurate if used broadly but implies something specific which is not the case and is hence emotive and misleading. A horse whip implies actual whipping, whereas people are less likely to react to the more prosaic term “riding crop”.

or a piece of wood

This is a reference to at least 2 other cases. In one of those cases, the “piece of wood” was about the size of a ruler or wooden spoon – both very common and not the least bit controversial. In the other, the wood was substantial and the parent was convicted. Given the facts of the cases presented to court, it could hardly be more obvious that this is intended to mislead.

and get away with it in court”

“got away with it” is emotive and loaded. The reality is that all evidence was presented by both sides, and the jury declared the circumstances to be a legitimate case of child discipline and hence not assault.

But there’s a second misleading statement here too – a subtle one. That is the statement in court. None of the parents in any known pre-amendment S59 case “got away with it” outside court by any definition of the term. In all cases, CYFS were heavily involved and in many cases (including the riding crop one) removed children. In the riding crop case, they are even accused of illegally drugging the child in order to force their will onto that child.

Yes, apparently legally giving a bad child the cane is worse than injecting a child with illegal drugs.

So what’s my point?

My point is that the case that the old Section 59 was bad law rests on this. It does not, and can not rest of the wording of the law. That wording sets the bar at “reasonable in the circumstances”. By definition, removing that removed a parental right that was reasonable. Hence, on the wording of the law, the law change itself was unreasonable.

No, the only way that the law change could be justified was by pointing to it’s alleged results. And this was only done by:

  1. taking a single fact outside it’s context and
  2. using emotive language to make this fact sound bad and
  3. pretending this is a massive problem. Did you know that there were only a handful of these borderline cases in existence? About 8 by most counts.

That, dear readers, is a very bad way to make law.

Before I close, I want to answer a question: why am I obsessed with this? The reason is simple. This is not only a bad way to make law, but it is a bad law, and bad by a country mile at that.

  1. It potentially affects huge numbers of people, exposing them to risk of prosecution or worse
  2. It means that something that was reasonable, can now result in a conviction
  3. It bans something that is as basic to a child’s life as eating – discipline. Raising children without discipline is not only impossible, it’s also morally wrong. It’s also as impossible to apply discipline without physical force as it is to run the courts without arresting anyone.
  4. The issues are very, very simple. Any honest person can see the problem with this law.
  5. No child has been saved by this law – that’s actually impossible by definition. But even at this early stage, there is case after case where people are being hurt if not by this law, by the attitude it encourages of prosecuting reasonable actions.
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