Dave Crampton: Logic of smacking ban flawed

Green MP Sue Bradford's private member's bill aiming to repeal section 59 of the Crimes Act is being considered by a select committee after submissions closed in February.

Our laws allow parents to physically discipline their children with reasonable force for corrective purposes. In past years, parents have been acquitted for smacking with implements such as riding crops and pieces of wood because juries deemed the force was reasonable in the circumstances.

This disgusts child advocates who consider all smacking is child abuse, whatever the circumstances. However they never mention these circumstances. In one case, a boy swung a baseball bat at his stepfather's head, while verbally threatening him with a permanent head injury. Fortunately he was able to block the blow and disarm the boy.

The boy's mother disciplined him with a riding crop and was subsequently acquitted using section 59 as a defence.

Child advocates never inquire why the prosecution has not appealed any of the successful section 59 defences.

Neither do they reveal that most people who use the defence are subsequently convicted of assault, a good proportion appeal, and their convictions remain. The law is serving its purpose.

Bradford wants to stop child abuse under the pretence such abuse could result from smacking. However the bill states its purpose is "to stop force under the pretence of domestic discipline".

Let's stop the pretence. The bill promotes a legal ban on parental smacking, leading to the possibility of a criminal record for assault even for a light smack. Police have formally confirmed this.

But it is not Bradford's intention to ban smacking; furthermore she has said that police are unlikely to charge parents for light smacking.

That's not the point. She has been advocating a law she is happy for parents to break, provided they don't get convicted.

What Bradford intends is irrelevant. What is more important is what the law says. Since when has a law been made on the basis that it is not enforced?

Currently, the bill is unworkable which is why Bradford is talking up an amendment to clarify that it is not her intention to ban smacking. There are two options for amendments - in the bill itself or in the explanatory note or commentary, the latter being her preferred option.

Any amendment in the explanatory note is for explanation only. If section 59 were to be repealed, only the repeal of that section, not the explanatory note, would have legal effect. But it makes no sense to repeal section 59 to eradicate unlawful child abuse, as it does not even extend to child abuse.

The National Party wants to outlaw child abuse while allowing parents to have the option of physically disciplining their children. To do this it maintains, "reasonable force" has to be defined.

This may be difficult to draft, and would not give sufficient clarity to an already arbitrary law.

A more helpful option would be to amend the law to clearly define the threshold for criminal conviction while preventing the possibility of unnecessary intrusion of the state with regards to parental discipline.

Courts could convict if no reasonable, instructed jury could find that an accused was reasonably justified in using force.

Alternatively, an amendment could state that prosecutions in parental discipline cases must prove criminal intent to secure conviction. This would mean that parents would continue to have the option of lawfully disciplining their children, while abusers would be convicted.

Bradford wants to get rid of abuse, but maintains she does not intend to ban smacking. Therefore all smacking cannot be abuse.

To pass law which would remove this privilege from parents on the grounds that it is abuse is fallacious and illogical.

* Dave Crampton is a writer, researcher and part-time politics student from Wellington.