25 May 2006

Society call to dump Bradford’s Bill

The Society is calling on the Justice & Electoral Committee considering Green Party MP Sue Bradford’s bill to dump it. The private member’s bill – dubbed by the media as the “anti-smacking bill” – “would create a legal nonsense if enacted into law,” says Society president Mike Petrus.

He says that the Society considers the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill to be “a direct attack on good parenting and the family, and should never have been voted to the select committee stage in its present form”.

The Dominion Post (25/05/06) reports that Ms Bradford said “she would not countenance any move to legally define permissible hitting”. Section 3 of her bill states: “The purpose of this Act is to amend [s. 59 of] the principal Act [Crimes Act 1961] to abolish the use of reasonable force by parents as a justification for disciplining children.”

She vehemently opposes any move to define in law what “acceptable”, “permissible”, or “reasonable” force is, in the context of the discipline of a child. Why? Because she believes that the law should not be seen to support any form of corporal punishment against a child, including “light smacking”. If the law provides no justification for adults smacking an adult, then it should not do so for adults smacking children, even for disciplinary purposes, argues Bradford. The bill’s purpose - total “abolition” of the use of ALL forms of “force” employed by parents for child discipline - is built into the very name of the flawed bill.

Bradford says: “As soon as you go into the defining of it [“permissible hitting”], it becomes very ugly, because what you’re saying is, for example, you should not hit a child with an implement but you can hit a child with your hand…. You think about that with an adult. Would you say that it was okay for a husband to hit the wife with a hand? It’s like the state is legitimising that violence.” (DP 23/05).

However, Ms Bradford and her anti-smacking lobbyists define ALL forms of smacking a child for disciplinary purposes as “hitting” the child, and therefore acts of “violence” constituting “child abuse”. But this does not follow – the ‘logical’ link is based on a non sequitur.

The word “hitting”, when used to describe a disciplinary smack administered to a child, carries all the connotations of unjustified “violence” and “abuse” when used by Bradford and her supporters. These lobbyists deliberately misuse words to advance their agenda and ignore the critical issues of “intention”, “context” and “circumstances” involved in good parental discipline. They exhibit an ignorance of the clear distinction between the parent-child relationship and that between two adults. When last did Bradford witness an adult putting a nappy on an adult or yanking off a soiled nappy from an adult? When last did Bradford witness an adult using deliberate ‘force’ to move another adult to a ‘time-out’ zone because of bad behaviour, leaving aside all situations involving law enforcement administered by the state?

Recently two foster care parents – Don and Anne Eathorne of Karamea - were convicted of assault under s. 95 of the Crimes Act 1961 for smacking their nine-year old foster boy for disciplinary purposes. He had committed $16,000 of wilful vandalism involving other people’s property. Ms Lorraine Williams, Operations Manager for CYFS, described the act of smacking as clear evidence of “child abuse” and told the nation on the TV One Sunday programme that CYFS considered the pair unfit to look after any other foster child available through CYFS. Sue Bradford shares the same mindset.

The explanatory note to Bradford’s flawed bill states:

“The purpose of this Bill is to stop force, and associated violence being inflicted on children in the context of correction or discipline. Presently, section 59 of the Crimes Act 1961 acts as a justification, excuse or defence for parents and guardians using force against their children where they are doing so for the purposes of correction and the force used is reasonable in the circumstances. The Bill will repeal that provision.

“The effect of this amendment is that the statutory protection for use of force by parents and guardians will be removed. Children will now be in the same position as everyone else so far as the use of force (assault) is concerned. The use of force on a child may constitute an assault under section 194(a) of the Crimes Act, a comparatively new provision in the criminal law, and the repeal of section 59 ought not revive any old common law justification, excuse or defence that the provision may have codified.”

But hang-on! How can you claim that the “purpose” or intention of the bill is to “stop force in the context of correction and discipline” and yet claim that actions involving “force” such as smacking will not, as a consequence, be treated as criminal actions? By removing any reference to “reasonable” force the bill has the effect of ‘criminalising’ all forms of force used. (“The purpose of this Bill is to stop force”). The police have admitted that they will be forced to prosecute such ‘assaults’ involving the smacking of children, should section 59 be repealed.

Bradford accuses critics of her bill of misrepresenting it as being designed to outlaw smacking. Who cares about what her intention is! Critics are concerned about the EFFECT of this flawed piece of legislation. Courts are not bound to comply with the window-dressing found in the “explanatory notes” to legislation.

Bradford has signalled that she intends to make changes to the explanatory note, to show that the bill is not intended to criminalise parents who give their children a “light smack”. She pours scorn on her critics who see this as some kind of concession or back down by her.

However, no amount of window-dressing her flawed bill will deal with the legal nonsense it creates.

Parents do have a right to use force to remove their kids from imminent danger or if they pose a threat to life and limb. Section 59 does not address this parental ‘right’. Critics of Bradford’s bill do not see this as the issue. The bill only addresses domestic situations involving the use of all forms of “force” in the discipline of children.

Over 80% of New Zealanders oppose the repeal of s. 59 – a critical provision in law that has the effect of providing a defence for parents who use “reasonable force” for the purposes of domestic discipline of their children; against spurious allegations that lead on to charges made against hem of “assault”.

The law should not send any message to parents that it is a criminal offence to apply corporal punishment. The law should inform real child abusers that once they transgress the line and apply unreasonable force, then will face severe penalties.

Those like Bradford who claim they have real concerns about the level of child abuse in New Zealand, and who are devoting huge amounts of time and tax-payers resources to try and repeal s. 59, should devote their energies to causes that will actually serve the interests of children subject to abuse.

ENDS

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