Dialogue: No harm in loving smack for misbehaving children

The case for amending the Crimes Act to stop parents from smacking their children is surprisingly weak, says Jim Allan*.

So Laila Harre has announced that the Government is to review laws allowing parents to smack their children.

And New Zealand First MP Brian Donnelly has a private member's bill in the ballot which would repeal section 59 of the Crimes Act, which gives statutory recognition to the long-standing common law right of parental corporal punishment.

Surprised? You shouldn't be. There has been a push of late by a certain narrow but powerful group of the community that favours abolition and, indeed, if truth be told, the criminalisation of smacking.

This group includes academics, various child-oriented organisations (including child, youth and family agencies, the Ministry of Youth Affairs, the Youth Law Project and the office of the Commissioner for Children), some judges and some politicians.

We can call this narrow consensus the Wellington worldview. It is at odds with the views of a clear majority of New Zealanders, who want to retain the legality of smacking. (A 1993 survey put the total for retention at 87 per cent; a 1997 poll found that a majority of people even wanted corporal punishment reintroduced into schools for serious misbehaviour.)

The point is that this Wellington worldview in favour of abolition has no democratic legitimacy at all. But, of course, the morally self-righteous rarely worry too much about that.

Here, in brief, is what they say. Smacking is harmful to children. For that reason it should be stopped by changing the law so parents who do smack will, in effect, be assaulting their children. Many abolitionists go on to assure us, in an undertone, that no parents smacking their child on the bottom will be prosecuted. If you believe that, you probably also believe Bill Clinton doled out pardons for the best of motives.

In this way, wrapped up as the protectors of children, the abolitionists speak as though they sit alone on the high moral ground. Indeed, some of those in favour of smacking seem, by their silence, to agree. They should speak up, before it is too late. Why? The fact is that the abolitionists' case is surprisingly weak. Section 59 should be retained as is.

Start with harm. The fact is there are few studies measuring the consequences of smacking. One American review of the research literature on corporal punishment found that 83 per cent of the 132 identified articles in clinical and psycho-social journals were merely opinion-driven editorials, devoid of new empirical findings. A 1996 review of the research excluded all but 35 of 166 potentially relevant articles. Why? The bulk were culled because they defined corporal punishment as including outright abuse.

It's a neat trick. Define smacking so as to include bashing a child over the head with a vacuum cleaner, then ask, "is smacking harmful?" Of course it is. But this is outright cheating. Section 59 protects only parents who use reasonable force in the circumstances and that force is by way of correction. None of the outrageous examples of parents taking vacuum cleaners and pokers to children is protected by section 59. Such outrageous conduct is already illegal.

So let's be clear. The repeal of section 59 is about outlawing the smack on the bottom administered by loving parents who think this will be for the long-term benefit of their child. It has nothing to do with what is already illegal (and deserving of punishment).

Return then to the few valid studies of smacking and what do we find? We find there is no clear evidence of harm.

Obviously, that won't do for those sitting high atop their moral self-righteousness. So we hear also a bevy of equally fallacious claims and arguments. Here is a small sample.

* We have to ban smacking to live up to international treaty obligations.

False. The Convention on the Rights of the Child that New Zealand signed says absolutely nothing about ending smacking and does not even mention corporal punishment. (Indeed, no country signing up to it thought it did.) Of course, the United Nations committee established under the convention now interprets article 19(1) as forbidding corporal punishment.

But be clear about this. The UN committee is not an authoritative interpreter of the convention, although it would very much like to convey the impression that it is. The convention belongs to the member states concerned; for each one, its interpretation is the crucial one. The international obligation argument is bogus.

* Just announce that smacking is the same as abuse.

The trick here is to win the argument by definition. In fact, smacking refers to what is done to children by parents, and it presupposes the parent knows better and is acting in the child's interest. You can simply call that hitting or violence or abuse if you want, and, by doing so, try to win the argument by definition by simply defining out of existence the opposing point of view. But that's cheating.

* Say that smacking teaches children that violence solves problems.

Really? And does time out convey the message that restricting liberty and false imprisonment (the term we would use if we did it to adults) are the way to deal with those who displease us? Does restricting television watching and removing other privileges teach that withdrawal of civil liberties brings compliance? This argument is so crude that it's laughable.

Repealing section 59 of the Crimes Act (and removing common law defences) would have the effect of criminalising the actions of the majority - a dubious step even if there were solid evidence of the waywardness of the majority's conduct.

Worse, it would be grounded in the most paternalistic motives; namely, we know what is best for your child better than you do. (Remember, no one is telling them how to raise their children. They can forswear smacking if they want.)

Paternalistic claims aren't always false. But they usually are. And here we would need plenty of evidence indeed to accept that the people propping up the Wellington worldview know better than we do how to raise our children. Certainly their record in the past hasn't been stellar.

I am not defending child abuse. (Although I am sure that I will be accused of that.) I am defending smacking - the kind administered by loving parents who seek to rear their children so that they will respect their fellow citizens, will learn there are legitimate limits and rules in social life, and, indeed, will have happy lives because of it.

The research literature does not contradict the age-old child-rearing intuition that smacking is beneficial. Do you think Government bureaucrats, politicians, sociologists, self-styled children's experts, or even the eminent few who sit on the UN committee, know what is best for (and care more about) your child better than you do?

* Jim Allan is an associate professor of law at Otago University.