That ‘no’ vote

smackMedia reporting around the “child discipline” referendum has been atrocious. However,  the NZ Herald yesterday did provide some interesting information.

They brought to our attention the fact that some of the groups campaigning for the referendum have been receiving funds from conservative US religious groups (see US funding for ‘no’ vote). the article gave information for Focus on the Family but I am sure that US fundamentalist largess extends to other NZ groups.

Take, for instance, the United church of God – New Zealand. In 2008 it received 40% of its revenue from its parent organisation based in the US. I suspect these sort of subsidies are widespread amongst religious groups.

This sort of behavior annoys me – on two grounds:

1: Most of these organisations are tax exempt – on religious grounds! In other words, you and I subsidise them (through our taxes) purely because they propagate a supernatural message. We susbsidise a message we find abhorrent.

2: This religious activity (for which we subsidise them) is interpreted very widely, by them. Political activity, such as this recent referendum is one example. Another which annoys me is active anti-science activity. The United Church of God -New Zealand, for example,  is currently distributing (free of charge) an anti-science booklet “Creation or Evolution“). Why should my taxes be used to subsidise such activity?

But, back to that referendum.

Despite the low turnout, the large “no” vote has certainly enthused some Christian blog sites. I say “some” because the different attitudes within Christianity really just underline the moral relativism of religion.  Top Anglican clergy have condemned the attitude of Christians claiming a “God-given right” to hit children. On the other hand US Focus on the Family claims “a little bit of pain goes a long way for a young child.”

Conservative Christian blogs are calling for a law change. But they can’t actually say what should be changed. This is because the referendum question actually bears no relation to the law.

Our current law does not make light smacking of children illegal (see “Smacking not an offence”). Consequently, the only literal interpretation of the referendum result must be support for the status quo. The referendum result indicates that New Zealanders do not want the law changed to criminalise parents who use light smacking. We want things to stay the way they are.

However, the Prime Minister has, I believe rightly,  recognised the result indicates there are still parents out there who are afraid that the current law could criminalise their parenting behavior. He has proposed measures, not including law changes, to address that concern.

Perhaps we need a government financed campaign to explain to New Zealand parents just what our current law says. Alongside that information of the actual operation of the law would also help.

The police reviews have been quite clear in showing that parents are not being criminalised. That information should be more widely available.

If the media won’t report this issue properly, perhaps the government needs to do the job for it.

Permalink

Similar articles
“Smacking not an offence”
That referendum
Don’t encourage them!
Facing up to child abuse
Destiny of Christian privilege?

Add to FacebookAdd to DiggAdd to Del.icio.usAdd to StumbleuponAdd to RedditAdd to BlinklistAdd to Ma.gnoliaAdd to TechnoratiAdd to FurlAdd to Newsvine

Reblog this post [with Zemanta]
About these ads

113 responses to “That ‘no’ vote

  1. Well–after taking a few hits for being out of my depth on science issues, I suppose I should wade into the fray on this issue. I am a practicing attorney who spent 14 years defending families in a non-profit conservative civil rights organization. I think I have provided legal advice to around 10,000 parents over the years, and one of the most important issues on anybody’s mind was the state of American law as it applied to what kiwis call a “smack.”

    What Americans call “spanking” is legal in all 50 states. I can show you the statutes that control the issue. Despite this, professional child protective services workers routinely tell American parents that they are not allowed to “spank” their child. Since most parents don’t have a conversation with a child protective services worker without a reason, this means that parents routinely find themselves in a position where a person with the power to take their child away is telling them that they cannot do what the law allows them to do.

    I certainly hope that New Zealand does NOT have what we have in the United States–juvenile courts that avoid any discussion of guilt or innocence, bypass most of the rules of evidence, and avoid the fine points of criminal procedures–yet decide the most important issue any parent could ever care about: “Do you get your child back or not?”

    New Zealand’s referendum puts every parent on notice that the law, as currently worded, is vague–and also informs that parent that a large majority of people who bother to vote in such referendums support what we Americans would call “reasonable corporal discipline.”

    Just for fun–here’s a case I litigated. A passing motorist called in an anonymous report that a naked child had been seen outside the home on a rural ten acre lot. Social workers arrived at the home and demanded entry. The parents relied upon the US Constitution, which prohibits “unreasonable searches.” The social workers threatened to seize all the children unless the parents cooperated. The trial court held that the United States Constitution did not apply to child abuse cases. I dared to object and it took four years to get the state Supreme Court to agree with me.

  2. Scott: “New Zealand’s referendum puts every parent on notice that the law, as currently worded, is vague”

    That’s not the problem, Scott. The government is quite clear about how the law should be applied. The police also are clear that the law does NOT ciminalise “smacking”. They have been reporting on the application of the law and this actually seems to be going well.

    However, many people have been fed the line that our law makes such “smacking” illegal – when it doesn’t. Understandably, many parents are concerned about that. But, also, man have also realised there is no need for concern – hence the low turn out for the referendum.

    Unfortunately, we have a few conservative Christian groups who are lying about the current situation. They claim parents have been criminalised – but can’t actually give any examples. (Although they come perilously close to supporting actual child abusers in the process).

    Those groups (some are getting financial support from conservative Christian groups in the USA) are working hard to keep the campaign alive. But the government isn’t stupid.

    In the end the trues situation about how the law is applied will get through to most parents and the (legal) issue will go away.

  3. Scott,

    It seems to have slipped your notice the reason behind this change in the law: it is to prevent those who abuse children from using “discipline” as an excuse to “get off the hook”. It is not intended to make normal parenting a crime. Ken pointed this out in his earlier post, linked in the one above (see: the link “That referendum”).

    PS: The case you cite isn’t really relevant to the issue, there doesn’t appear to have been any physical abuse involved. This law is aimed at those committing serious physical abuse trying to use “discipline” as an excuse, a very different thing.

  4. Heraclides, most of the cases I handled never got “reported,” so I can’t give you a hyperlink to any of my own cases that are more on point. Sorry about that, but it’s the nature of this body of law–the VAST majority of cases involving children never get a “final decision” that can be appealed, and only appealed cases get “reported,” and only “reported” cases are publicly available.

    I have NO information about how New Zealand handles cases involving allegations of child abuse or neglect. I can only hope that you have avoided what we have done in the US. In the 1970s our federal government started providing large sums to states that adopted an entirely new “therapeutic” approach to child abuse prevention and treatment. States could get federal money if they took child abuse cases out of the “old-fashioned” criminal context and started treating them more like a disease to be cured rather than a crime to be punished.

    The results, in my experience, could have come straight out of Clockwork Orange.

  5. No need to make excuses.

    You made a flat statement when it’s apparent that you didn’t try to understand what it’s about first.

    The thing that is worded vaguely is not the law, but the referendum question (and some would say the “arguments” put up by the groups that support this referendum).

  6. Heraclides, you might have missed this comment: “Just for fun–here’s a case I litigated. ”

    You say “the thing that is worded vaguely is not the law.” Speaking in my professional capacity as a lawyer, I must beg to disagree. I’m not a New Zealand lawyer, but in the US the law we’re discussing would be ripe for a challenge as being “unconstitutionally vague.” I’ve litigated such cases, and the US courts take them very seriously.

    That’s not saying that the referendum question isn’t “vague.” The referendum question was written by advocates for a particular cause, and they used words to accomplish their end.

    One may certainly question the wisdom of allowing citizens to initiate such referenda via petition. Some American states allow it and a others don’t, and it makes for fascinating politics over here. It helps explain why Plato despised democracy and longed for the rule of a philosopher king, but, as Karl Popper noted in “The Open Society and its Enemies” (which he wrote in New Zealand, as you probably know), that’s what you get with an open, liberal democracy that seeks truth and justice by incremental steps.

  7. Ken once again you conflating enforcement with interpretation. Just because the law is not being enforced does not mean that smacking is not illegal or that the law does not need amending.

    The referendum question spoke to the illegality of an action. It called for that action to not be illegal. It is quite simple to work out what those who voted for this result want, they want the action to not be illegal. Promises to not enforce the law don’t cut it.

  8. What’s the old line? Don’t hate the media, be the media. Or something like that.

    I dunno – I’m not sure if government-advertising will be a good idea with the anti-authoritarian streak that runs through this country.

    At the same time, the government can’t just sit there and do nothing… Tricky.

    I remember Cambell (of all people) going on about how the referendum was a total waste of time. Hmmm…

    Actually, I think I agree with you – I think that Key (or someone) should front up with a bit of marketing with the intention of stirring up media interest, and see if they can get someone personable with the facts ready to present in the media when they eventually decide to focus in.

    If they get their act together ahead of time, they might be able to use the media to their own ends. It’s worth a try, at least.

  9. Madeliene – I think Key and the police would say the law is being enforced – as it was meant to. Even if you want to see it differently for your own reasons.

    The referendum itself only asked a question of belief. One that parents have been debating for yonks. I certainly remember how hotly it was debated in my child-rearing years – it had nothing to do with any actual law then.

    I suspect that the higher turnout than expected from the polls (54% cf 18%) reflects that many people were choosing it as a chance to express their belief, rather than out of any real concern. I could have done the same – but didn’t because I was aware of how conservative and fundamentalist Christian groups are campaigning on this for their own ideological agenda.

    I would have voted no – but as I have pointed out I certainly don’t think there is need for a law change. As the government and the police point out “smacking” is not illegal under the present law. And the statistics surely show that – no convictions for “smacking” alone – only for assaults which may or may not “include smacking incidents.”

  10. There needs to be a ‘vote of no confidence’ option on these referendums. I didn’t vote as well, for much the same reasons. It would be nice if the poll could be statistically divided between ‘yes’, ‘no’, ‘no confidence’, and ‘no response’. ‘No confidence’ has more of an edge – ‘no response’ just gets viewed as Too Damn Lazy or No Opinion.

    It’s a problem.

  11. Heraclides: ” It is not intended to make normal parenting a crime.”

    If that was the intent, the wording of the law would have made that clear, as written the intent is clearly to make the use of force for the purposes of discipline an illegal assault.
    The fact that the police have discretion not to prosecute does not make such an “assault” legal.

  12. ““smacking” is not illegal under the present law.” You’re playing semantics again Ken. “Smacking” is a form of force , and if used for the purposes of correction is illegal.

  13. No Andrew – no semantics. I am quoting the NZ Police 4th review document which says: “smacking” in itself is not an offence.”

    We have already discussed this – and you read the report, didn’t you?

  14. Yes Ken, perhaps you don’t understand what’s meant by ” “smacking” in itself is not an offence.” It means the same as “stabbing someone is not “in itself” an offence” or, decapitating someone is not “in itself” an offence.”
    And technically they aren’t “in themselves” offences.

  15. Well Andrew – I would expect that if you stabbed someone, or decapitated someone, you would be prosecuted. I certainly hope so.

    However, according to current law if you assaulted a child, smashed them in the face, caused their hospitalisation, etc., and in the process also lightly smacked them – don’t claim to me that the prosecution would be for “smacking.”

  16. @ Ubiquitous Che,

    I agree. I actually think several things need to be changed:

    - the questions need better examination
    - those proposing the question need to release a statement giving their intentions for the questions. Not for the public at large, not what they are hyping it on, their intentions. The reasons for this is to hold anyone who subsequently proves to have intentions other that they proposed to their word and hence to help expose any one whose intentions and actions differ.
    - a formal means of voters voting “no confidence” or spoiling their vote.

    @ Scott, there is no need to make excuses. It’s clear to people here that you meant it as an example, but it isn’t. Either that, or you are trying to blow your own trumpet; if so, it’s off-key! :-)

    (What the USA law says is a bit irrelevant.)

    @Andrew W: This was made clear from the onset, before law was put in place.

  17. “Well Andrew – I would expect that if you stabbed someone, or decapitated someone, you would be prosecuted. I certainly hope so.”

    I expect so, however, I would not be charged with the crimes of “stabbing” or “decapitation”, rather the crimes would be “assault with a deadly weapon” (or similar) or “murder”.

    The fact remains that if I smacked one of my children for the purposes of correction, even lightly, under current law the police could charge me with assault, and under current law a court should find me guilty.

  18. Andrew – they could charge you with “assault”. They probably wouldn’t though because it wouldn’t stick and that’s not how they interpret assault.

    The amazing thing to me is that to date police have not done that – I would have thought that someone would have made a slip up – they have with other offences.

    I guess they are conscious of the close scrutiny by their bosses, the government and the public.

  19. Heraclides: “This was made clear from the onset, before law was put in place.”
    Sorry, what was made clear?

    http://www.familyfirst.org.nz/files/0618%20National%20Radio%20-%20Bradford%20attempts%20to%20explain%20the%20law.mp3

  20. @Andrew: You know very well. I don’t listen to MP3s.

  21. My interpretation is that while the police have discretion whether or not to prosecute, as there is now no “reasonable force” defence that can be used in court if physical force is used for the purposes of correction, once in court it should “stick” (I think Bradford makes at least this bit clear in my link above).

  22. Kids should not live in fear of the people who they love and trust most in the world. Smacking is a violation of that trust and can cause all sorts of insecurity and ego damage.

    I believe the NO vote (pro-smacking) is just a reaction to 9 years of Labour, Helen, and Sue Bradford. Kiwis are usually pretty reasonable. In a few years everyone will be sick of Bob McCroskrie and his fellow paleocons. (I know I am tired of his constant moaning — he used to be on Radio Rhema’s morning show, blathering on about how we’re all going to hell in a handbasket.. )

    FYI Here’s the actual legislation:

    Crimes (Substituted Section 59) Amendment Act 2007
    Section 59 is repealed and the following section substituted:

    “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.”

    The four circumstances described in (1) seem entirely reasonable. The big change is that as far as I can tell corporal punishment is now illegal. The term ‘correction’ is somewhat vague, which I think was a mistake, as it provides scope for misinterpretation (not to mention scaremongering about theoretical scenarios).

  23. Pingback: Kids should not live in fear. « earth is my favourite planet

  24. “Kids should not live in fear of the people who they love and trust most in the world. Smacking is a violation of that trust and can cause all sorts of insecurity and ego damage.”

    Do you seriously believe that the possibility of physical punishment for bad behaviour causes the children in the majority of households in NZ to “live in fear”?

    I think I’m pretty safe in saying that many parents can instill fear in their kids (if that’s their aim) without the threat of physical punishment, think of Muldoon, I doubt anyone ever expected him to hit them, but he could cause genuine terror in people who crossed him. Emotional bullying is a far bigger problem if you’re worried about kids (and others) living in fear, and I’d be worried that by suppressing one relatively easily seen form of disciplining, you’re encouraging other less overt methods that could actually be destructive to kids mental wellbeing.

  25. Excessive physical punishment is not just a possibility mate, it’s a reality for too many children. It’s not OK to hit kids — this law should make people think twice before lashing out.

    Reducing one hurtful form of discipline does not mean that the alternatives have to be destructive.

  26. “Excessive physical punishment is not just a possibility mate, it’s a reality for too many children.”

    So are you saying one light or moderate smack is excessive or are you saying that the change in the law will have some affect on people who use what most people would call “Excessive physical punishment”?

    “Reducing one hurtful form of discipline does not mean that the alternatives have to be destructive.”

    Doesn’t mean the alternatives won’t be destructive either.

    I also worry that parents who are not able to effectively use other forms of discipline to control their kids will end up snapping in built up anger weeks or months down the track and using way excessive force out of frustration.

  27. So are you saying one light or moderate smack is excessive
    I’m saying it’s not necessary. Most parents aren’t excessive but where do you draw the line? The new legislation attempts to do so much better than the previous S59.

    are you saying that the change in the law will have some affect on people who use what most people would call “Excessive physical punishment”?
    Yes it will, and it already has.

    I also worry about parents…
    The law change only targets at risk families.. you should have nothing to worry about

  28. Ropata says, “The big change is that as far as I can tell corporal punishment is now illegal.”

    In the US, that would be a big change.

    So–is corporal punishment LEGAL or ILLEGAL in New Zealand at this point?

  29. “So–is corporal punishment LEGAL or ILLEGAL in New Zealand at this point?”

    It’s illegal, no ifs, buts, or maybes.

  30. Did it use to be legal? If so, when did the law change?

  31. Andrew – you say “I think I’m pretty safe in saying that many parents can instill fear in their kids (if that’s their aim) without the threat of physical punishment.” So true.

    I think psychological abuse, and neglect, are far more widespread and more harmful than “smacking.” We should really get ourselves concerned about child abuse in general. Forget about mythically “criminalised parents.”

    I have recently become aware of how abusive religious treatment of children can be in the family. Not just physical. But the psychological terrorism of innocent children which can occur when they are continually accused of being sinners and forced to continually repent. Or prevented from developing their own innate sense of morality because church authorities impose their own questionable god-given “morality.”

    Really – this can be a far worse form of child abuse than any “smacking.” And yet, society seems powerless in face of it.

    What can we do to protect children from this abuse?

  32. So–having looked through the timeline, it sure seems reasonable to ME that parents who still believe in “smacking” would want to know whether they could be prosecuted as criminals or not.

    What exactly was the problem with holding a referendum on this issue?

  33. What exactly was the problem with holding a referendum on this issue?

    Ken explained this earlier, see the links.

  34. As someone who experienced some physical and emotional abuse growing up, here’s my two cents:

    I don’t want this to be a sob-story – many children are abused far worse than I ever was. On the scope of things, my experiences are on the mild end of the abuse spectrum – but even so, abuse is abuse.

    Its was my father. Without going into too much detail, he would vent on me. If I did something a little bit naughty, he’d completely overreact.

    As an example, when I was 8 a friend has come over. We’d raided the lego and toy box to each create an army, and we’d turned my entire bedroom into a giant battlefield. Eventually we got sick of it, and just sat in the corner chatting.

    My father walked down the hall past my room, and saw we weren’t playing. Gruffly, he told me to clean up now since I was done playing – perfectly good dad-behavour there.

    So my friend and I started casually tossing toys back into their boxes and dissasembling legos, as we were chatting.

    About ten minutes later my father came past the room again. We’d hardly cleaned anything. He strode forward – long legs – his face pinched. He backhanded me across the face. “I told you to clean your f**king room!” he hissed. “Do as your f**king told!”

    The thing is – the hand to the face didn’t actually hurt. Other times he did hurt me, but I can barely remember those. But this instance sticks out in the memory. It wasn’t the actual physical violence that was the heart of the abuse – as I kid, I hurt myself far worse and on a far more regular basis than my father ever did.

    No. It was the emotional aspect, the threat, the unpredictability, the slight hint of my father’s enjoyment, satisfaction, and self-righteousness as he struck me.

    At the same time, mum would occasionally lightly smack me on the bum or the wrist. It was fine – it didn’t really hurt. But even when my father would hit me just as lightly as mum did, there was a different overtone to it that made it abusive.

    So mum’s light smack and the same smack from my father fell into two different categories. The actual ‘force’ of the discipline wasn’t the defining character.

    There’s… more to it than the mere act of violence.

    Obviously, this kind of ambiguity is going to be difficult to account for in any legislation. I can’t remember who said it, but there’s a suggested principle that for any law we set to catch wrongdoers, we will inevitably catch some we didn’t mean to catch, and miss some we meant to.

    So I don’t have a solution on offer here. Just a story to add on the mention of the non-physical components abuse. The non-physical aspects are the important bit – they’re just harder to objectively measure and assess.

  35. Heraclides, I don’t want to be snarky here, but I just went back to reread Ken’s post on what was the problem with holding this referendum. All I saw was that “foreign” and “religious” groups had helped fund the initiative. I would note, however, that only New Zealanders got to vote, and I assume that all kiwis (religious or not) had an equal chance to let their voice be heard.

    It seems perfectly legitimate to ME that parents who believe in “smacking” would want to hold a public vote to find out whether their behavior constitutes a crime or not.

    The US is one of two countries that has yet to ratify the UN Convention on the Rights of the Child. The argument against it here in the states is that it would become “the supreme law of the land” (per the US Constitution) and would make corporal punishment illegal. All 50 states now permit corporal punishment.

    American parents have a GREAT interest in seeing how another advanced democracy with a common law system works through this issue. New Zealand’s experience is the best evidence we have on how the UN CRC affects common law countries. New Zealand’s referendum is the best evidence we have as to how English-speaking parents react to such changes.

  36. Scott,

    I guess you’re blind to the point. Perhaps I shouldn’t have expected you to “get” it? I can’t be bothered explaining it, it’s the “so obvious” kind where if people “don’t get it”, it’s usually because of a bias they hold so strongly they;re blind to it. More practically, I haven’t really got the time.

    (Tip: spot the disconnect between who the actions are inflicted on and the justification for the actions.)

    “English speaking”… this shouldn’t be relevant. I hope that’s not a bias hidden behind “English”, there…

  37. People who want to really understand “abuse” should probably look at it in terms of a product of evolution.

  38. Care to elaborate, Andrew? I have no doubt one can analyse the way individuals treat their children in terms of adaptions that have arisen during our evolution. But I would like to see the specific argument. Partly because of find that some of the more naive “explanations coming out of evolutionary psychology are really beside the point.

  39. Humans evolved in small social groups that lived tough often bloody lives with high child mortality rates.
    In such an environment, in terms of survival, it can be an advantage if you and your tribe are the meanest sob’s in the valley.
    So if parents know instinctively that life for their offspring is going to be tough they instinctively raise kids that are toughened for that environment.
    Of course relying on instincts can often be not be the best solution in this very different society, but it’s interesting that a disproportionate amount of the physical abuse seems to happens in sections of society that are poorer and more likely to feel that they and their kids are disadvantaged by the status quo, so perhaps there’s also an instinct to breed off spring who’re likely to challenge that status quo, in todays western society these kids end up as criminals rather than revolutionaries.

  40. Dangerously close to a deterministic socialogical approach there Andrew.

    I have not doubt that we are a violent species. We have also evolved to have a number of intuition like jealousy, judgmentalism, purity, fairness, etc. But we are also an intelligent (but not rational) species. And unfortunately our intuitions often get hijacked and justified by our “intelligent” ideas. The common use of judgmentalism by religious groups, and fundamentalist political groups is an example.

    In other words – its not evolution itself which makes us enforce religious discipline and morality on our children. But an evolved intuition which has been hijacked by the religion.

    To me, your “evolutionary” explanation of criminality is too glib and has no evidence. One has to consider that genetic and environmental factors work together. That any evidence of genetic difference (or personality, etc., which can have a genetic component) may be one of the underlying causes of poverty – rather than the result of poverty.

  41. Scott, the issue with the referendum was that the question was completely ambiguous & also ignored the fact that – as the law currently stands – parents can use force in a carefully defined set of circumstances – preventing self-harm or harm to others, for example.

  42. “Dangerously close to a deterministic socialogical approach there Andrew.”

    A very poor start to your comment Ken, whether the hypothesis has merit or not should be the issue, not whether or not the theory is socially “dangerous”, it makes you sound like a church man condemning some heretical scientific theory.

    I have not doubt that we are a violent species. “We have also evolved to have a number of intuition like jealousy, judgmentalism, purity, fairness, etc. But we are also an intelligent (but not rational) species. And unfortunately our intuitions often get hijacked and justified by our “intelligent” ideas. The common use of judgmentalism by religious groups, and fundamentalist political groups is an example.”

    Not much to argue about there.

    “In other words – its not evolution itself which makes us enforce religious discipline and morality on our children. But an evolved intuition which has been hijacked by the religion.”

    I don’t see the relevance, What I’m suggesting has nothing to do with religion, why is it that to you everything’s about religion?

    “To me, your “evolutionary” explanation of criminality is too glib and has no evidence. One has to consider that genetic and environmental factors work together. That any evidence of genetic difference (or personality, etc., which can have a genetic component) may be one of the underlying causes of poverty – rather than the result of poverty.”

    Again hardly relevant to my argument, a better approach would be to ask how, in a tough and primitive society, based around small tribes, should parents raise their offspring so that they might have the personalities to upset the established order. How can their offspring be raised to succeed, and succeed in attracting mates from those available.
    Answer, they’d need to be tough to deal with challenges not faced by the highborn and appeal to the women available, and we do see many women attracted to tougher roguish men.
    All selfish gene stuff.

    Obviously I’m talking about averages across a social section, and obviously other environmental considerations and genetics are also factors.

  43. You read me wrong, Andrew. I am not suggesting your ideas are “socially dangerous.” Just that they come close to a deterministic social approach. That’s common in evolutionary psychology.

    My reference to religion – I had raised the issue of religious/psychological abuse of children. I think it’s the elephant in the room – far more important than ‘smacking.”

    But my point about hijacking evolved intuitions – as an indirect influence of religion – is the point I was making. And religion, politics, etc., does this. Often very skillfully.

    I don’t see that current class structure can have had a very significant effect on our evolution (although I am aware of some work suggesting some small changes over several hundred years). I think it would be very difficult to pick up any influence amongst the noise of human diversity.

    One could also argue that the “upper classes” would have had their own interests, over the years, in encouraging a violent attitude. Just because the “working class” provides the cannon fodder doesn’t mean that the “upper class” officers are all pacifists – does it?

    So, I think we can “explain” the prevalence of violence, and some violent attitudes towards children, in terms of evolution – without dragging class into it.


  44. a better approach would be to ask how, in a tough and primitive society, based around small tribes, should parents raise their offspring so that they might have the personalities to upset the established order

    A better approach to what? Even if your hypothesis for the origin of abuse where true and we had some method to test it what would it tell us about how to stop child abuse, or what measures work to prevent it or make it worse? If all you have is that it seems to be a larger problem in lower socio-economic groups then you haven’t really told us anything new!

    I don’t think thinking about the evolutionary origins of abuse are going to provide much help in understanding what to do about it now

  45. When I refer to the “highborn” I was referring only to the primitive class structures that exist in small tribes.

    I’m not referring to religious morality that’s used to discipline people, (including children) within society, and acts to restrict diversity within societies – this does happen I have no doubt, it strengthens social cohesion, which is an asset to a society in which internal division would weaken it’s ability to cope with external threats.
    I’m talking about parents in individual families acting as individuals, who’re instinctively raising tough kids because their perception, from where they stand, is that kids that aren’t tough and able to cope with the abuse they’ll face when they leave home, aren’t going to be able to compete with their peers.

  46. david w. Of what use is a newborn baby?

  47. They’re delicious!

    ^_^

    Sorry, had to be said.

    In terms of genetic reproduction, they’re the reproductive engine for the genes of the parent.

    Where are you going with that one?

  48. It’s a something Ben Franklin said in reply to a sceptic who doubted the usefulness of the first hot air balloon, a better understanding human nature may not have any obvious use to David W, but I think its useful, especially given time.

    Thanks for your excellent comment at 10:13 Ubiquitous Che.

  49. a better understanding human nature may not have any obvious use to David W, but I think its useful, especially given time.

    Of course it would. It’s just that for most questions you will get further studying human nature but studying humans than you will by dreaming up bunch of evolutionary hypothesis that might explain this or that psychological construct.

  50. Pingback: John Key, the Anti-Smacking law, and the New Zealand Constitution | Say Hello to my Little Friend: The Beretta Blog and Podcast

  51. After wading through all the comments, I think it was a good idea to hold a referendum on this issue. It appears to me to be fully consistent with the principles of self-government and the rule of law. Those who argue against it don’t seem to appreciate the grave legal problems with a vague law that criminalized arguably “good” behavior.

    I noted that New Zealand is an “English-speaking country,” not because I’m biased in favor of the language, but because that means New Zealand has a “common law” legal system (like every other English-speaking jurisdiction that I know of except for Louisiana). The English-speaking peoples have a 1000 year legal history that has served the common-law countries quite well. It’s no accident that nations with this kind of legal foundation tend towards the rule of law, enforceable human rights, and a high degree of personal autonomy. By contrast, legal systems that are founded on the Roman civil code (all of Europe and its non-English colonies) tend to emphasize different aspects of the individual’s relationship to the State and others–and you could judge the results of those other systems for yourself. (I personally am a BIG fan of the English common law system.)

    I will charitably assume that people who defend a vague law that outlaws behavior but does not punish it haven’t thought through the implications of that position. American courts have dealt with this issue over and over, and always come to the same conclusion–if we are to be governed by laws, not men, then the laws must be clear.

    The US cases on this topic began with the vague crime of “vagrancy.” In our ugly past, it seemed like white people who hung out on street corners were merely passing the time, while black folk who did exactly the same thing were criminals. After a long period of unequal enforcement, the Supreme Court stepped in to rule the “vagrancy” laws unconstitutionally vague.

    Any law that can be selectively enforced is a threat to liberty. If you don’t happen to LIKE the “liberty to smack a child,” I can see why you would be in favor of “threatening” it–but why not outlaw all smacking outright, instead of undermining justice in order to achieve a particular result?

    If your reason for not outlawing all smacking outright is that you don’t think you have the votes for it, then it would be more candid to admit that you’re trying to do an end-run around participatory democracy, but you’re doing it “for the children.”

    I don’t ask anybody here to prize the rule of law, the legacy of the common law, the principles of participatory democracy, or any of the other things that happen to matter to me as a lawyer. You are perfectly free to despise them, for all I care. But I do think it would make for a more fruitful discussion to state that outright, rather than have us all assume you are committed to the same principles most “English-speaking peoples” take for granted.

  52. I’m with david w. The value in having the smacking debate is that people are thinking about their approach to discipline or “philosophy of parenting” if you will. Religious instruction in the home could have an effect on kids’ wellbeing, evolution probably not so much.

    It all depends on what the parent tells their kid: “You’re an unworthy worm & filthy sinner vs. You’re a random blob of monkey-shaped bio-goo”
    or “You’re a beloved child of God vs. You’re part of an amazing Universe”

  53. Pingback: Theology Geek NZ » Blog Archive » John Key, the Anti-Smacking law, and the New Zealand Constitution

  54. Is there a problem with unprosecuted crimes? I’m a conservative lawyer, but here’s a libertarian law professor on the same topic. Glenn Reynolds, the amazing Instapundit, writes:

    “Some years ago I started on a project entitled Due Process When Everything Is A Crime. The gist was that since criminal law has expanded to the point where everyone is some sort of a felon, the real action is in the area of prosecutorial discretion — in choosing whom to prosecute from among this population-wide mass of the guilty — where, in fact, due process basically doesn’t apply. That suggests that maybe there should be some due-process limits on decisions to prosecute. I never got to it (my scholarly rangetop has so many back burners it must be a half-mile deep) but the issue continues to deserve attention.”

    More here:

    http://pajamasmedia.com/instapundit/84328/

  55. Scott,

    Not relevant to why the law was revised: to prevent people who are very obviously guilty from playing “parential discipline” as a line to try get off. The “choosing” isn’t the problem, it’s a technicality that is interfering with it.

  56. The behaviour of our politicians in, encouraging the police and child protection authorities not to properly enforce this law, goes against some of the most basic principles of modern law.

    http://en.wikipedia.org/wiki/Rule_of_law

    The use of the “reasonable force” clause by the defence was rarely successful in cases in which most lay people would have considered the level of force excessive. By using that argument, that occasionally people got off when you think they should have been found guilty you’re also questioning another basic legal principle which is that if there is reasonable doubt about their guilt, people should be found not guilty.
    I think Heraclides thinks he has greater wisdom than the juries that handle these cases.

    The trouble with the world is that the stupid are cocksure and the intelligent are full of doubt.
    ~ Bertrand Russell

  57. Andrew – you completely misrepresent the situation. Politicians are encouraging police to enforce the law – as it is written.

    You may not like the way it is written – but the wording results from compromise and desire to clarify. Sub section 4 surely is there to ensure that police do not prosecute cases against the public interest. That is what the politicians tried to ensure by their wording of the law.

    If there is any evidence that prosecutions are occurring in conflict with sub section 4 our PM has said parliament will revisit the legislation.

    Until that evidence occurs (and lets face it the police reviews so far show it hasn’t) the law is working and there is no need to revisit it.

  58. Ken, I’m left wondering if you actually read my link:
    “… no one can grant exemption to the application of the law.”
    “… that nobody has the power to grant exceptions.”
    “the laws should be very transparent and clearly worded so that all mature citizens would clearly understand what are strictly prohibited and the penalties associated with violating the laws.”

    Clearly government is encouraging the police to make decisions as to how the law is to be applied, it says that in the law!
    And clearly citizens do not have a clear understanding on what the law is supposed to mean, this especially applies to many of those in the “yes” vote camp, as Bradford, and those in the “no” vote camp are in no doubt that the law makes smacking children for the purposes of correction illegal.

    “Until that evidence occurs (and lets face it the police reviews so far show it hasn’t) the law is working and there is no need to revisit it.”

    That’s like saying we can outlaw atheism , and as long as the police are given the power not to prosecute, and choose not to prosecute, the law is working.

  59. No Andrew – I read the law itself instead.

    You guys have fallen back to this position because there just isn’t any evidence of parents being criminalised by the law, or the police applicaiton of it.

    You just don’t have any cases and are in dire jeopardy of making heroes out of real child abusers just to get some “evidence.”

    In the meantime you invent the position of a PM urging police not to apply the law.

    Just not the case at all.

    There is no attempt to grant “exemptions” It’s not needed because the law itself makes clear that ordinary parenting is not to be prosecuted.

  60. “No Andrew – I read the law itself instead.’

    So you didn’t read my link?

    I don’t think you addressed my points at all, presumably you think it would be OK to outlaw atheism as long as such a law had similar provisions giving police discretion.

    “you invent the position of a PM urging police not to apply the law.”
    I haven’t mentioned the PM, the government has stated that they didn’t want minor incidents prosecuted, if you think that makes such minor acts of the use of physical punishment lawful, you don’t understand the law.

    “the law itself makes clear that ordinary parenting is not to be prosecuted.”

    So we’re back where we started, such acts of “ordinary parenting” are illegal, (Sue said so, and the “no” vote lobby agree) but the police have discretion not to prosecute, but they also have discretion TO prosecute, whatever suits the case in hand.

  61. Scott,
    I’m not sure if you realise that the referendum was non-binding and the government has chosen to ignore the 88% no vote.

  62. Andrew – you claim “the government has stated that they didn’t want minor incidents prosecuted”. But that’s actually written into the law (sub section 4)!

    You guys are twisting the meaning of the law to support an ideological position – and not a nice one at that. because it’s a position which wants to revert to allowing an argument of discipline to be used in Child abuse cases.

    Things seem to be working well at the moment as far as that law is concerned.

  63. Andrew W,

    I’ve seen it pointed out in several places, including in “Letters to the Editor” that the referendum question and “no” vote can be read a supporting the revised law, as it already covers for this, as was pointed out before the referendum; this is one of the reasons many people thought it was a waste of money and time.

  64. Ken, answer this simple question, (third time lucky!?)
    Do you think it would be OK to outlaw atheism as long as such a law had similar provisions giving police discretion.

    I’m being consistent Ken, any law that makes an ordinary and acceptable action or attitude illegal is not good law if the law then goes and hand discretion about enforcement to the police in this way because, oh wait, while illegal, the action shouldn’t be subject to enforcement.

    Heraclides, if you read the letters to the editor you will discover many things. (sigh)

  65. Andrew W,

    Please refer to the substance of what is written. Empty dismissals are just that: empty. (You’ve completed avoided the point made, as well as the that my reference to the Letters to the Editor is simply pointing out that this point is widely available to you as a reader.)

    BTW, the “discretion” you refer to is after the application of the stated exceptions. You seem to be placing it before the application of the clauses of the law, not after them, as it were.

  66. “You’ve completed avoided the point made”, your telling me? Would you like to have a crack at the question that Ken finds so hard to answer?

    The question in the referendum was perfectly clear and unambiguous, the only thing I’d disagree with about it is the inclusion of the word “good” which was a little bit leading but wouldn’t have made a significant difference to the outcome.
    Many people in the “yes” camp were keen to dismiss the process, because the result was a forgone conclusion that didn’t suit their politics.
    Others said it was a waste of time and money because the PM had already made it clear that the law would not be changed.
    I’m not sure what your point is about with: “the “discretion” you refer to is after the application of the stated exceptions”.
    Is this a reference to the clauses (exceptions) allowing force for protecting property, the child etc? The exceptions I refer to are those mentioned in the principles of the rule of law, ref wiki link.

  67. I’ve always thought that people who’re smart enough to look objectively at the world around them, weighing the evidence with the scientific process and come to reasoned conclusions about the unlikelihood of any particular God of Man being more than superstition, would be reasonable objective on other matters, clearly I was wrong, Ken is simply unable to answer a simple question that would force him to address this issue in a more objective fashion, and of course there’s a whole raft of questions in the same vein that he would also find hard to answer without also addressing the glaring flaws in his ideologically driven perspective.

  68. “You’ve completed avoided the point made”, your telling me?

    In your reply at September 1, 2009 at 7:33 pmto my post at September 1, 2009 at 5:25 pm, you didn’t address what I wrote. I think it’s quite clear from my reply that I was referring to your reply to my post, not to earlier material.

    Regards your remark I’m not sure what your point is about with: “the “discretion” you refer to is after the application of the stated exceptions”., it’s quite clear I was referring to the relevant law, after all I explicitly refer to it in the next sentence. Also, I referred to “the discretion you referred to”, not exceptions.

  69. This thread just goes and goes… Andrew W gets to the heart of my concerns about this law by replacing “smacking” with “atheism.” I had suggested a similar approach over at MandM, saying, “What if we were outlawing (but not prosecuting) sodomy?”

    The fact that the thread keeps going suggests to me that the people who question this law believe that “smacking” is defensible behavior, while the people who reject the referendum believe that “smacking” is indefensible.

    Does the 87% vote mean that a significant number of New Zealand voters believe that “smacking,” under some circumstances, may be defensible?

  70. You mean this bit: “the referendum question and “no” vote can be read a supporting the revised law, as it already covers for this”?

    “Should a smack, as part of good parental correction, be a criminal offense in New Zealand”

    I’ve already stated that in my opinion using the word “good” was a mistake. But with or without “good”, your statement makes no sense, people really have to work hard to draw ambiguous meanings from the phrase, whereas I’m still working on the intended meaning of much of your last comment.

  71. “Does the 87% vote mean that a significant number of New Zealand voters believe that “smacking,” under some circumstances, may be defensible?”

    Scott, like others you’ve miss read this incredibly fine piece of legislation. “smacking” is acceptable under this legislation if done for various reasons other than for the purposes of correction.
    Actually, what you probably meant to ask was: “Does the 87% vote mean that a significant number of New Zealand voters believe that “smacking,” under some circumstances for the purposes of correction, may be defensible?”

    And yes they do, multiple poles indicate over 80% believe it’s acceptable, this supports the legitimacy of the 87% of the 54% who voted result.

  72. Scott – your question: “Does the 87% vote mean that a significant number of New Zealand voters believe that “smacking,” under some circumstances, may be defensible?”

    That’s not what the referendum was about. It simply asked if use of a smack as part of good parenting should be legal. Most NZers say that it shouldn’t – even when they as a matter of principle don’t smack. the point is that the law should not interfere at that level.

    That’s the way I would have voted. But I didn’t because I realised that an ideologically motivated group dishonestly interprets my vote as opposition to the current law (which, by the way does not make such smocking illegal). I support the current law, don’t want to see it changed, don’t think at this stage we could improve on it.

    I think the dishonesty of the question is the reason many, like me, chose not to participate and hence the relatively low turnout.

    People like Andrew and Madeleine presumably have their own agenda – which I wish they would be honest about it.

    What do they actually want? Return to section 59 allowing the argument of child discipline to be used in abuse cases? Do they want to make smacking compulsory? Do they want return of corporal punishment, caning in schools? Or is it just a personal vendetta against those parents who believe that violence should not be used in child rearing?

    All I hear is a lot of wild assertions, and misrepresentations of the law, to support an argument. I hear nothing positive – about what sort of law they want. Given that the current law does not make smacking illegal – as has been repeated many times by the police and government. Together with the assertion that if the law is found to be applied wrongly it will be revisited. So far there is no evidence for that!

    Let’s face it – conservative Christians do not have a good track record when it comes to children. Physical, sexual and psychological abuse seems to be rampart with them. I believe they are cynically using the quite understandable concern that NZ parents have had about the possibility of the current law criminalising them. But as days go on more and more parents are realising that it doesn’t apply to them.

    Andrew – your comparison with laws against atheism are not relevant. They are just an attempt to divert discussion into a channel fitting your incorrect scenario. You would be better served by presenting evidence for your scenario. For example a quote from Key asking the police to disregard the law?

  73. Andrew, You didn’t even reply to my post at all, merely made an odd-hand remark about letters to the editor. Is that simpler for you?

    My point stands. The referendum, as Ken pointed out, can be viewed as saying that the law shouldn’t apply at the level, but the thing is, that’s what it already does, so in effect the vote can be viewed as supporting the current law. This simply goes to show what a waste of time and money the whole thing was. $9M could have funded a lot of good research, or victims support for that matter.

    The question would have better been asked in terms of if the law needed to be changed. Among other things, it’d make people actually read what the law says. The referendum needs a explicit means of spoiling a vote. It also needs a statement of intent from the originating party. Basically, there was a lot wrong with it.

    There are people with a purely religious agenda: I typed out on example from a letter to the editor column some time ago.

    Scott & Andrew, trying to point to “discretion” is misleading as I already pointed out. This type of discretion is used by all police forces all over the world for events at the borderline of “not so bright an idea” to “a minor crime” for very obvious practical reasons. There is no hard-and-fast definition of that line, as you surely must know. You’re basically very desperately trying to find something that you can object to.

  74. Most people opposing the law as it stands (including me) are in favour of the Boscawen amendment, Kiwiblog links to it from here:
    http://www.kiwiblog.co.nz/2009/08/boscawen_smacking_bill_drawn.html

    Do you see some fault in this proposed amendment Ken?

    The point I’m making about laws against atheism is that you’re not willing to apply the same measure to a law that could be used against you as you do to a law that can be used against others.

    I’m not a Christian, but I find the stereotyping you apply to conservative Christians offensive, as I would were you to use similar stereotyping against other groups, can we look forward to you making a comment like this in future:
    “Maori do not have a good track record when it comes to children. Physical, sexual and psychological abuse seems to be rampart with them.”?
    In my opinion another example of you rationalising to suit your own prejudices.

    Most of your other points have been covered in this thread already, and in my view thoroughly refuted.

  75. Andrew – I find the sexual, physical and psychological abuse of children offensive. And I think religious groups should face up to the fact of the relatively high incidence of such behavior withing some of their conservative groups. Especially if they want to talk at all credibly about morals.

    And I would be saying the same about non-religious groups with a similar incidence of behviour.

    I may comment on Boscawen’s bill later – although it is now very much irrelevant as it isn’t getting support.

  76. Andrew,

    To help you a little:

    What degree of atheism are you going to criminalise?

    The borderlines of many types of minor crime are a judgement call. Always have been. Always will.

    Most of your other points have been covered in this thread already, and in my view thoroughly refuted.

    Somebody (you) just wants to “have their way”, regardless of what has been said or pointed out…

  77. Heraclides, if you can pluck up your courage and listen to the Bradford link at my August 25, 2009 at 5:43 pm comment, you’ll discover that she states that under this legislation using force – even a light smack – for the purposes of correction is illegal.

  78. You still don’t get it, and you probably don’t get that you’ve illustrated that to me.

  79. I was writing about the referendum (which should be obvious), the referendum makes absolutely no reference to this other replacement, etc., etc.

    Most people who have voted will have no idea of this suggestion, so you claim that Most people opposing the law as it stands (including me) are in favour of the Boscawen amendment. If you want to claim that, go show a study that proves it. Or a referendum on it ;-)

    I’m out of this, as it’s clear you’re not really listening but just trying to push your interests.

  80. Actually – to make it more accessible to commenters here – perhaps you could say specifically what you want from Boscawen’s bill?

    At the moment we are just stuck with different interpretations. (I think we bolth agree that the law should not interfere with mild msacking during normal good parenting).

    You say current legislation makes smacking illegal. I say it doesn’t (So do Mr Key and the NZ Police).

    Rather than being stuck with problems of interpretations (seeing they are so emotionally loaded) why not describe specifically what you want changed in the law? The wording and clauses or subsections.

    Otherwise we are left with just interpreting Boscaren’s wording again.

  81. Crimes (Reasonable Parental Control and Correction) Amendment Bill
    Member’s Bill
    Explanatory note
    The purpose of this bill is to repeal and replace section 59 of the Crimes Act 1961 so that: parents, and those in the place of parents, are no longer committing a criminal offence if they use reasonable force to correct their children’s behaviour; there are clear statutory limits on what constitutes reasonable force for correction; parents, and those in the place of parents, have certainty about what the law does and does not permit when they are controlling or correcting their children; and an explicit reliance on Police discretion is no longer used in an attempt to protect parents from the consequences of prohibiting the use of reasonable force for correction.

    Parents have obligations to their children, including an obligation to teach them and provide guidance. Sometimes this requires parents to correct their children’s behaviour for the children’s own benefit, to help them grow into maturity. Article 5 of the United Nations Convention on the Rights of the Child, to which New Zealand is a signatory, states that “States Parties shall respect the responsibilities, rights, and duties of parents … to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.”

    In many cases, parental guidance and correction will be non-physical. However, in some cases a parent may reasonably decide that correcting their children’s behaviour requires some degree of physical action. In these cases, section 59 says that parents are committing the crime of assault. Section 59(2) says that “Nothing … justifies the use of force for the purpose of correction.”

    This ban applies to any physical contact by a parent where the intention is to correct their child’s behaviour. This includes, for example, lifting up an unwilling child to put them into their room for “time out” as well as giving a light “smack.”

    As a result, the law can prevent parents from parenting effectively. It is inconsistent with society’s standards for good parenting; opinion polls consistently reveal public agreement that parents should be able to use a mild degree of physical correction.

    This bill will allow parents, and those in the place of parents, to use reasonable force to correct their children’s behaviour, while providing clear limits on what is reasonable. Force will be unreasonable if it causes injury that is “more than transitory and trifling,” if it is “inflicted by any weapon, tool, or other implement,” or if it is inflicted by “cruel or degrading” means. Courts are not limited from finding that other types or instances of force are unreasonable. The limitations on what is reasonable apply to corrective and non-corrective force.

    However, there are circumstances where a parent may reasonably use force in a way that causes their child some harm to prevent a greater harm, for example by knocking them out of the path of an oncoming vehicle. So that the law does not rule this use of force unreasonable, this bill provides that the automatic prohibitions on force causing injury that is “more than transitory and trifling,” or force that involves the use of a “weapon, tool, or other implement,” will not apply where the person applying the force believes on reasonable grounds that it is necessary to prevent death or serious harm to the child or another person.

    Section 59 is intended to provide children with greater protection against violence and abuse. However, reasonable physical correction is not violent or abusive. Allowing parents to use reasonable physical correction, with clear limits on what is reasonable written into the law, will protect children from harm while offering parents appropriate legal protection.

    Although section 59 bans physical correction, it is often unclear to parents whether using reasonable force is permitted or whether it breaks the law. This is because section 59(1) allows parents to use reasonable force to prevent certain types of behaviour and to perform “the normal daily tasks that are incidental to good care and parenting.” However, the distinction between prevention and correction is unclear in many cases. Preventing particular actions will often amount to correcting them, especially when the action and the prevention are repeated. This bill will remove that confusion by adding correction to the list of permitted purposes.

    Section 59(4) also creates confusion with its reference to Police discretion. According to Members of Parliament, the intention of this subsection is to provide a safeguard against the consequences of banning reasonable physical correction, so that parents will not be “subject automatically to investigation and police prosecution” if they give their child a light “smack” to correct their behaviour. This leaves parents unsure about what is, in practice, permitted, and what standard they will be held to.

    Citizens have a right to know what the law requires and not to be subject to arbitrary enforcement. This is part of the principle of the rule of law. Section 59 is inconsistent with this principle. It represents a failure by Parliament to make clear law that gives its citizens certainty about how they may act.

    In addition, section 59(4) refers only to the Police. It does not apply to any other agency, such as Child, Youth and Family. These agencies may apply the letter of the law in their interactions with parents. It also does not apply to any private citizen who initiates a prosecution against a parent who has used reasonable force for correction.

    This bill will remove the reliance on Police discretion, which will not be necessary when reasonable correction is permitted.
    Clause by clause analysis
    Clause 1 is the title clause.
    Clause 2 provides that the Crimes Act 1961 is referred to as “the principal Act.”
    Clause 3 provides for the bill to come into force on the day after the date on which it receives the Royal assent.
    Clause 4 sets out the purpose of the bill.
    Clause 5 repeals section 59 of the Crimes Act 1961 and replaces it.
    Clause 6 provides for consequential amendments to the Education Act 1989.
    _____________________________________

    John Boscawen
    Crimes (Reasonable Parental Control and Correction) Amendment Bill
    Member’s Bill
    Contents
    1 Title
    2 Principal Act
    3 Commencement
    4 Purpose
    5 Reasonable parental control and correction
    6 Consequential amendments to Education Act 1989

    _______________________________________

    The Parliament of New Zealand enacts as follows:
    1 Title
    This Act is the Crimes (Reasonable Parental Control and Correction) Amendment Act 2009.

    2 Principal Act
    In this Act, the Crimes Act 1961 is called “the principal Act.”

    3 Commencement
    This Act comes into force on the day after the date on which it receives the Royal assent.

    4 Purpose
    The purpose of this Act is to amend the principal Act so that:
    (a) it is no longer a criminal offence for parents, and those in the place of parents, to use reasonable force for the purpose of correcting their children’s behaviour;
    (b) there are clear statutory limits on what constitutes reasonable force;
    (c) parents, and those in the place of parents, have certainty about what the law does and does not permit when they are controlling or correcting their children;
    (d) an explicit reliance on Police discretion is no longer used in an attempt to protect parents from the consequences of prohibiting the use of reasonable force for correction.

    5 Reasonable parental control and correction
    (1) Section 59 is repealed, and the following section substituted:

    “59 Reasonable parental control and correction
    “(1) Every parent of a child and, subject to subsection (4), every person acting in
    place of a parent of a 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 is prohibited by an enactment creating a criminal
    offence; or
    “(c) preventing the child from engaging or continuing to engage in
    offensive or disruptive behaviour; or
    “(d) performing tasks that are incidental to good care and parenting; or
    “(e) correcting the behaviour of the child.
    “(2) Without limiting the circumstances in which the use of force may be found to
    be unreasonable, subject to subsection (3) the use of force is unreasonable
    if—
    “(a) it causes the child to suffer injury that is more than transitory and trifling or materially contributes thereto; or
    “(b) it is inflicted by any weapon, tool, or other implement; or
    “(c) it is inflicted by any means that is cruel or degrading.
    “(3) Subsections (2)(a) and (2)(b) shall not apply in circumstances where the
    person applying the force believes on reasonable grounds that the use of force is necessary to prevent death or serious harm to the child or another person.
    “(4) Nothing in this section justifies the use of force towards a child in
    contravention of section 139A of the Education Act 1989.”

    6 Consequential amendments to Education Act 1989
    (1) Section 139A(1) of the Education Act 1989 is amended by inserting the words “, unless that person is a guardian of the student or child”.
    (2) Section 139A(2) of the Education Act 1989 is amended by inserting the words “, unless that person is a guardian of the student or child”.

  82. Seems pretty clear to me, anything there you don’t understand Ken?

  83. No need to clutter up the comments with a long document, Andrew. I had already downloaded the word document. And people disregard long comments anyway.

    But it’s still a matter of interpretation.

    I want to know specifically what you want. The specific clauses and subsections of the current law you want changed. And specifically how. Or do you want to do away with a child discipline law altogether?

    Come on – or haven’t you actually though it out?

    This is the important thing. Especially as that specific bill is now irrelevant.

  84. There’s no point in me typing out how I’d write the law when the boscawen amendment is exactly how I’d like the law to be, is it not how you’d have it written? If not, how would you do it differently?

  85. Come on Andrew – you did take the trouble to enter a 4 page document into the comments.

    Specifically which part, sentence, clause, subsection do you want included in the current law? Or do you want the current law repealed completely (not amended)?

  86. The purpose of Boscawen bill is to repeal and replace section 59 of the Crimes Act 1961, as things stand that would mean the repeal of the amendments made in the Bradford bill and replacing them with the Boscawen bill.

    Again Ken, what problems do you have with the wording and intent of the Boscawen bill?

  87. 1:Andrew – then you don’t want to go back to the old section 59? Why not? And why wasn’t something like this on the referendum question?

    2: My brief perusal of Boscowan’s bill indicate 3 issues – 2 of which should really be being discussed.

    a: The word “correction.” That seems to be an issue for opponents of the current legislation. Unfortunately it isn’t precisely defined in the Act. But clearly it has relevance to other Acts and sub section 2 was presumably included to ensure that sub section 1 did not conflict with the other acts.

    b: Boscowon clearly recognises this because his bill would specifically amend the Education Act 1989. That of course has to be discussed (otherwise he is slipping something under the radar). Unfortunately Boscowan’s reference (to the education Act) isn’t meaningful – I can’t get the actual wording he wants to change because there is not Section 139A. I would like to see that issue discussed. I think it refers to, or is relevant to, corporal punishment.

    I suspect opponents of the word “correction” in the current act are really proposing re-introduction of corporal punishment.

    c: As it stands Boscowan’s bill has the same problem as the current legislation without sub section 4. That is it would raise concern from parents who see it as making illegal normal parenting. In practice it would require something like sub section 4.

    As I point out, Boscowan’s bill is now irrelevant. However, I think the issues of corporal punishment (and the related definition of “correction”) together with allaying fears of normal parenting being criminalised are inherent in Boscowan’s formulation (despite his apparent intentions).

    Of course, in practice parliamentarians would change the wording during debate. They would presumably reintroduce sub section 4. They would probably also balk at making corporal punishment legal again – an old argument. Consequently they would not repeal the relevant sections of the Education Act. And in the interests of assuring parents who feared that the bill would criminalise them they would introduce something like sub section 4.

    So, in practice – what specifically would you like changed with the current act. I can’t see anything.

  88. Sorry – Section 139A is there – after a long list of 139s.

    Yes it does refer to corporal punishment – and uses the word “correction” in the section. So I think we have to assume that the word”correction” odes really mean corporal punishment. Something like caning or strapping.

    So we can see why the current law has a sub section 2 and Boscowan wants to amend the education act.

  89. As far as I can tell the “guardian” of a child in NZ law refers to parents or other legal guardians, the definition does no include school staff.

  90. So Andrew – after all your pleading for me to comment on Boscowan’s bill – this is all you have to respond to my detailed comments with?

  91. The reason my reply was so brief is that it adequately addressed the only meaningful point you made.
    I saw no point in defining the term “correction” as this term is easily understood by most people, off the top of my head it means “to correct”, “to correct a child” I guess would mean to interact with that child to alter that childs behaviour to a form that’s considered by the parent to be acceptable. Looking at a dictionary – wow, I’m right!

    “correction” does not define the methods used to perform the act of correcting.

  92. Actually – I think you are avoiding a key issue. Boscowan’s forward was full of the word “correction”. It is thee key complaint of the people opposing the current legislation. And it relates to corporal punishment (an issue which has been settled here for a while) as Boscowan’s need to amend that section of the education act shows.

    Interesting that you now avoid this issue after pleading for me to consider it.

    I think this analysis has revealed an issue which is being glossed over in the discussion on the current legislation – but hides a can of worms.

    Never mind. I guess the issue is now dead. Boscowan’s bill won’t go ahead and continued analysis of application of the current law will probably show there is no basis for parental concern (except for those who want to use a level of force equivalent to corporal punishment in their home

  93. “1:Andrew – then you don’t want to go back to the old section 59?

    Obviously you’re being rhetorical.

    “Why not?”

    Society has changed since the old section 59 was written, and I agree with those changed attitudes.

    ” And why wasn’t something like this on the referendum question?”

    I didn’t write the referendum question, I’d assume the authors didn’t use the question “should the law relating to child discipline remain as they are?” because that’s not what they were advocating (and the question would have been out of date by the time the referendum was actually held).

    I’ve asked you several times if you disagree with what’s in the Boscawen bill, a simple question that you’ve chosen to avoid answering by trying to cast doubt on the meaning and intent of the bill.

    AGW denialists use the same strategy when arguing against measures intended to reduce carbon emissions, cast doubt, create confusion, etc.

  94. Section 139A does not mention corporal punishment. So Boscawen’s bill would not be allowing it’s re-introduction.

  95. Education Act 1989:
    “39A No corporal punishment in early childhood services or registered schools”

    And it refers to (prevents) use of “force, by way of correction or punishment.”

    Seems clear to me that Boscowan used “correction” in the sense of corporal punishment as defined in the Education Act.

  96. My bad, I read the wording without looking at the heading.

    A couple of points though, what definition of “corporal punishment” are you using? In the act the term clearly applies to the use of any force for the purposes of correction.
    As I’ve said, the amendment to the education act in Boscawen’s bill refers to “guardian” of children, this does not include school staff.

  97. I think the education act implies that “correct5ion”, “punishment” and “corporal punishment” are much the same thing.

    The current section 59 surely indicates that “correction” is different to the use of force – ans exampled by subsection 1. Boscowan’s defunct bill also indicates the difference.

    But opponents of the legislation and busy trying to equate the two.

  98. “But opponents of the legislation and busy trying to equate the two.”

    No, everything I’ve read makes it clear that opponents recognise that non-physical forms of correction are usually preferable, and far more commonly used. In this household, for example, I might smack a child a dozen times in a year, I’m correcting them several times (telling them to stop doing this or that) most days, and sending one of them to the naughty chair about a couple of times a week. I think that’s probably pretty typical for households with several kids (I this house 5 children between 6 and 12 years).

  99. Specifically critics claim the law is contradictory by equating “correction” in subsection 2 with the permitted use of force in subsection 1. I think Boscowan’s reference to the education Act clarifies that Correction” has a specific meaning similar to (or equivalent to) corporal punishment.

    I think the critics are being disingenuous in their claims. But then again the really active ones have ideological barrows to push – and this encourages such lack of regard for facts.

    Seen in this way it is clear that the act does treat them as different things. (And similarly Boscowan admits this by having separate subsections and referring to the education act.

  100. Andrew – are you involved with any of the groups campaigning around this legislation? If so, which ones? Are you are mate of Boscowan (you seem to accept his draft bill in totality – which is unusual)? Maybe a member of Act?

    What is your interest? – because clearly you don’t think the current law is restricting you from smacking your own children.

  101. I have no involvement with any political party or any organisation involved in this issue.
    I am worried that this act could be used against me, and other parents down the track, again, if similar laws were passed against atheism (or a religion) or sodomy even if such laws weren’t enforced, the people practicing such beliefs or acts would find the existence of such laws threatening and intimidating.

  102. Andrew – I think I have made clear my view that this is not a law not being enforced. Far from it. That is the line the Christian fundamentalist groups are pushing. The police and government have made clear they don’t agree. But they don’t have the same ideological agenda – do they?

    As I pointed out in my discussion of Boscowan’s bill, proper parliamentary processing of that would produce an act with similar clauses to sub section 4. It would have to to prevent parental concern.

    And Boscowan’s door-opening for corporal punishment in the home would also probably be eliminated. Unless parliament was in a mind to change the education act – an old argument which we have surely got past now.

    I really see nothing for good parents to worry about.

  103. Quoting from MandM’s blog (not that you need my help here):

    “John Evans, Emeritus Professor of Law at the University of Auckland, confirmed that the dominant purpose of any act of force in the course of parenting cannot be correction. He spoke of his concern for the danger to the rule of law caused by reliance on police discretion for acts that are clearly criminal. He said it might be one thing for the police to exercise discretion over issuing a traffic fine but when it comes to criminal acts it is not an adequate solution. If you have a situation where conduct that should not be criminal in fact is then the solution is not to just not prosecute but to change the law.

    “Highlighting Fitzgerald v Muldoon [1976] 2 NZLR 615 (NZSC) he spoke of the legal principle that required this contained in the Bill of Rights Act 1689, Article 1, which provides:

    “That the pretended power of suspending of laws or the execution of laws by regal authority without consent of Parliament is illegal.”

  104. What’s your point Scott? You are just quoting from one of the conservative Christian blogs which are openly campaigning against our current law. In the process they presenting the issues dishonestly – for ideological reasons. it is not a good source of objective information.

    I have gone into the issue of “correction” and
    “corporal punishment” here. They are clearly not the same thing as smacking and that’s why they are referred to in different clauses in the Act and Boscowan’s defunct bill.

    I have also pointed out that sub section 4 was probably inevitable – because of parental concerns – and would have also been incorporated into Boscowan’s propose bill if it had gone ahead. It is a distortion to claim that the government is asking the act be suspended. A dishonest one at that.

    Scott – as a non NZer not familiar with the history of this legislation – what is your interest in this?

    Religious, by any chance?

  105. Ken, I’m a parent, a Christian, and a civil rights lawyer who spent 14 years defending homeschooling families. As a matter of legal theory and personal experience, I believe that an unenforced law that criminalizes arguably “good” conduct is a danger to a free society. Parents in the United States are watching New Zealand closely on this issue, because it makes a real difference to what we do next.

  106. But Scott – how is our law unenforced? Give me examples. It specifically doesn’t outlaw smacking – that’s been a distortion promoted by the likes of MandM. It doesn’t criminalise good behaviour.

    So Scott – specifically what is wrong? Give me chapter and verse. Give me examples to support your claim of unenforced law.

    What you have got to realise is that this law is closely monitored by government, state authorities and the police. If you can’t find the data – it probably means there isn’t any.

    You seem toi have accepted MandM’s version of things without checking.

    If you want to propose credibility through your professional status – then act professionally. Refer to the law. Refer to examples. Don’t just make wild claims purely because your ideological brethren do.

  107. John Evans …

    This quote is ambiguous to my reading. I can read it as either JE is objecting to the potential for police to not arrest/act on what he judges is a criminal act, or incriminating someone for something that he considers is not a criminal act! Of course, I suspect he means the latter, but his wording is so abstract you could actually read it the other way if you cared to.

    I don’t have the context this comes from (and, no, I’m not going to read M&M), so I’ll leave his intended meaning open. But leaving that aside, two problems regardless of what this quote is supposed to be saying:

    Firstly, both traffic fines and his unnamed “criminal acts” are criminal acts really: he’s asking for an artificial distinction between the two. This distinction shouldn’t be needed and making it only serves to weaken whatever his argument is.

    Secondly, in practice for minor crimes of all kinds, the police exercise discretion as a practical matter. It might not suit his tidy law books, but it’s the practical reality, and everyone knows it.

    Your other quote is irrelevant, surely: no-one is suspending a law without permission. It is high-handed and has shades of “smell a lawyer, anyone?” to me. It tries to elevate the point actually in dispute (smacking in parenting) to something close to, if not actually at, grand conspiracy. A plainer and far more straight-forward of approach is surely to just point out that the police can’t intentionally fail to carry out their duty, e.g. if they witness or understand a (serious) crime to have taken place, they can’t pretend otherwise, and vice versa.

    Sorry, but I smell an argument that is being over-played. Then again, just to be fair, maybe the context this came from would help.

    I believe that an unenforced law that criminalizes arguably “good” conduct

    It’s already been pointed out plenty of times, that the revised law doesn’t “criminalize arguably “good” conduct”. The ‘unenforced’ bit is a waste of time (it’s a red herring).

    Parents in the United States are watching New Zealand closely on this issue, because it makes a real difference to what we do next.

    My own impression is that you aren’t following this very closely at all. If you were, you’d know the background, but you clearly don’t. Furthermore you seem to want to presume a lot of things about it, which would be more consistent with someone with a pre-set agenda.

  108. I will admit that the US interest in this has a lot more to do with “corporal punishment” than the incidental case of smacking without any training component. “Smacking” a child who is about to jump out of a high chair isn’t quite the same thing as saying, “If you disobey me, I will spank you.” I’m clear that NZ has made that kind of parenting a crime.

    The US has NOT criminalized corporal punishment. That means American parents can choose between a “time-out,” deprivation of some goodies, or what you would call a “smack.” It’s clear that angry parents can and do abuse children by beating them, whereas relatively few parents abuse their children by starving them to death or locking them up interminably. In practice, many parents use shouting and shame as deterrents because time-outs and deprivations don’t have much effect on a strong-willed child.

    The UN Convention on the Rights of the Child has been interpreted by the committee that supervises to prohibit corporal punishment. I’m not sure whether a majority of NZ parents ever got to vote on that issue. I’d love to see any survey data of parents to see whether they believe that smacking AS A FORM OF CORPORAL PUNISHMENT should be a crime.

    What you have, instead, is a legal system driven (in part) by a UN committee, adminstered by the current government, and (arguably) out of step with a majority of voters in the referendum. From my perspective, it’s not a shining moment for participatory democracy. I’m watching your example in the hopes that we can keep from repeating it over here.

  109. Scott – why don’t you refer to the legislation? Why don’t you answer my questions?

    The facts are that most of those who voted in the referendum oppose making smacking as part of good parenting illegal. The current legislation does not make smacking illegal. So why say the law is out of step?

    Corporal punishment (at least in schools) was made illegal some time ago here. Quite independent of the Crimes act. This current issue arose because of concern that people who were prosecuted for assaulting their children were using Section 59 as a defence.

    I think you are letting your conservative Christian beliefs, and sympathy for similar NZ brethren like MandM, get in the way of a proper professional sessment

  110. You seem to be “conveniently” leaving out that the referendum question itself wasn’t “a shining moment for participatory democracy” and that a earlier problem that needs fixing is the referendum process, as I wrote quite some time ago. It isn’t so much that law that is broken as the referendum process.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s